1. Interpreting economic freedoms as citizens’ rights
The fundamental freedoms of the Treaty on the Functioning of the European Union (TFEU), in particular those with a personal content, have been broadly interpreted in the early case law of the ECJ as also applying to economically non-active citizens. This has happened via a broad understanding of the prohibition on discrimination based on nationality according to Art 18 TFEU/12 EC. A similar tendency can be seen in extending economic freedoms to include recipient rights (so-called ‘passive freedoms’) which can also be invoked by private persons. Thus the scope of application of EU law has been greatly widened and transformed into ‘citizens’ rights beyond the market’. Some examples from the ECJ case law demonstrate this tendency:
EU tourists’ right to non-discriminatory access of museums (Case C-45/93 – Commission v Spain  ECR I-911); the prohibition of restrictive entry conditions or additional enrolment fees for EU students in institutions of higher education and professional training (Case 293/83 – Gravier  ECR 593; Case 24/86 – Blaizot  ECR 379), excluding, however, a right to equal treatment with regard to stipends and other support payments (Case 197/86 – Brown v Secretary of State for Scotland  ECR 3205; Case 39/86 Lair v University of Hannover  ECR3161); the prohibition of discrimination in victim compensation (Case 186/87 – Cowan  ECR 195); the freedom to go to another Member State to obtain services (including health care) without restrictions in relation to payment (joined Cases 286/82 and 26/83 – Louisi & Carbone  ECR 377).
Directives 90/365, 90/364 and 93/96 codified these rights to some extent for retired persons, all other citizens and students, but they are primarily directed against the state or state institutions such as universities, social security bodies and municipalities. The directives do not have specific private law content.
A certain exception with regard to the state-directed content of non-discrimination rules can be seen in the provisions on names, which usually belong to private law and are coordinated between different jurisdictions by rules on private international law (PIL). The case of Konstandinis (ECJ Case C-168/91  ECR I-1191) concerned the spelling of the name of a Greek citizen who was doing business in Germany. The competent German authority required a Latin transcription which would have distorted the name as used in public. Whereas AG Francis Jacobs, in his opinion of 9 December 1992 (para 40), argued in favour of an EU citizen’s broad fundamental right to one’s own name (law of names), the Court somewhat fictitiously referred to the freedom of establishment and a self-employed person’s right to be free from rules on transcription which could result in a distortion of his name and confusion in contacts with potential clients.
2. ‘Union citizenship’ as a fundamental right of economically inactive EU citizens
A certain generalization and extension followed the Community acquis with regard to the establishment of a Union citizenship in Art 8 EC (1992) in its Maastricht version. In its original version it read: ‘Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship’. Article 20 TFEU/17 EC in the Amsterdam version added para 2 which reads: ‘Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby’. Article 20 TFEU/17 EC as revised (OJ C 290 of 30 November 2009) provides: ‘Citizenship of the Union shall be additional to and not replace national citizenship’.
Art 21 TFEU/18 EC guarantees a right to free movement ‘subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect’. Article 22 TFEU/19 EC concerns the right to vote and stand as a candidate in municipal and EU elections, Art 23 TFEU/20 EC the right to diplomatic protection, Art 24 TFEU/21 EC the right to petition the European Parliament which is extended to all residents in Art 227 TFEU/194 EC.
As the citizen concept did not limit the Member State competence to determine nationality, the ‘fathers’ of the Maastricht Treaty and most legal authors did not realize its importance in implying a mutual recognition of multiple citizenship by all Member States (ECJ Case C-369/90 – Micheletti  ECR I-4239; see however ECJ Case C-135/08 Rottmann (not yet reported) concerning limitations on a Member State’s right to withdraw citizenship in light of the principle of proportionality). It seemed obvious at this time that the citizenship concept only expressed a very obvious idea without imposing additional rights or duties. There was agreement that citizenship did not have any relevance in the sector of private law.
3. Union law guarantees of Union citizenship
Only the ECJ case law after ‘Maastricht’ conferred the status of a fundamental right on Union citizenship. The Grzelczyk judgment of 20 September 2001 (ECJ Case C-184/99  ECR I-6193) stated that: ‘Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for’ (para 31). This general prohibition of discrimination could be invoked by a French student who had received certain social benefits in Belgium (minimex) to finish his studies there, the benefits originally being limited to Belgian citizens. The Belgian state could therefore not require repayment as ‘unjustified enrichment’. The Court did not say anything regarding the effects of its judgment on private law relations, similar to later judgments which usually were concerned with litigation about residence rights, tax and social benefits. Its later Baumbast judgment (ECJ Case C-413/99  ECR I-7091, para 84) held that the rules on citizenship enjoy direct effect, which shows their importance in the rhetoric of EU law as Union citizenship consequently enjoys the same status as the other free movement rights.
An indirect importance for private law can be shown in the area of name rights, similar to the situation before the introduction of the citizenship concept itself. The case García Avello (ECJ Case C-148/02  ECR I-11613) concerned a name change for a child with dual Belgian and Spanish citizenship. Belgian law required either the name of the father or the mother; unlike Spanish law it did not allow for using both names. The Court found a non-justified discrimination because children with dual nationality suffered a disadvantage which could not objectively be justified. As a result, persons with dual nationality have a right to choose between two jurisdictions concerning their name; thereby the respective aims of the otherwise non-harmonized national PIL rules on names are rendered obsolete.
A more recent case, Grunkin and Paul (ECJ Case C-353/06  ECR I-7639), concerns the conflict between the Danish PIL rules on names based on ius soli and the German ones based on ius sanguinis. The child of German parents was born in Denmark where he could use the names of both parents. This was rejected when he returned to live in Germany because German PIL requires German citizens to take either the name of the father or of the mother; double names for children should be avoided because of the resulting confusion of the public. Although both AG F Jacobs in the first reference proceeding (ECJ Case C-94/04 – Standesamt Niebüll  ECR I-3561) and AG Sharpston in the final case, with reference to Konstantinidis and García Avello, wanted to avoid a general conflict with German PIL rules, they argued for an opening of the strict German rules prohibiting double names of children. It is, in their opinion, not so much a problem of non-discrimination according to Art 18 TFEU/12 EC, but relates more to a ‘general principle of equal treatment’ and to free movement under Art 21 TFEU/18 EC (general principles of law). The ECJ followed this argument by saying: ‘None of the grounds put forward in support of the connecting factor of nationality for determination of a person’s surname, however legitimate those grounds may be in themselves, warrants having such importance attached to it as to justify, in circumstances such as those of the case in the main proceedings, a refusal by the competent authorities of a Member State to recognise the surname of a child as already determined and registered in another Member State in which that child was born and has been resident since birth’ (para 31).
It remains to be seen whether this broad definition of the free movement principle has importance beyond the specific cases on the PIL of Member States in general. The tendency of the ECJ seems to be to avoid strict rules on mandatory connecting factors in cross-border situations and to substitute them with a more flexible rule allowing a broader choice of the persons protected by EU law (for a more narrow reading see however case C-391/09 Malgozatza Runevic-Vardyn and others v Vilniaus miesto savivaldybes administracia (not yet reported) concerning the transcription of foreign names).
4. ‘Horizontal direct effect’ of Union citizenship?
It is a debated question whether Union citizenship takes ‘horizontal direct effect’ in private law relations, but this has not yet been expressly decided by the ECJ. The above-mentioned cases (which have not been analysed in their totality) only apply to the relations between the citizen and a Member State, either concerning restrictions on free movement, access to benefits, or restrictive public law rules on names as determined by PIL. As fundamental rights, they are applicable not only in favour of ‘foreign’ but also of ‘home’ EU nationals if they are in a situation covered by EU law like in the case Grunkin and Paul.
A horizontal direct effect in a situation similar to Union citizenship has been accepted by the ECJ in the case Phil Collins (ECJ Joined Cases C-92 and 326/92  ECR I-5145). It concerned a discrimination against art performers with regard to their protection in the marketing of copyrighted music. The ECJ directly applied the prohibition against discrimination of then Art 7 EEC, which is now Art 18 TFEU/12 EC. It wrote: ‘The Court has consistently held that the right to equal treatment ... is conferred directly by Community law ... That right may, therefore, be relied upon before a national court as the basis for a request that it disapply the discriminatory provisions of a national law which denies to nationals of other member States the protection which they accord to nationals of the State concerned’ (para 34).
It is a disputed question in legal writing whether this ruling can be generalized or is only applicable for the exercise of intellectual property rights. This author proposes a ‘compromise’ solution. A horizontal direct effect can be seen as existing in similar situations as has already been recognized for the fundamental freedoms. This concept corresponds to the equal status of economic freedoms and citizens’ rights (European internal market). The recent case law of the ECJ recognizes horizontal direct effect of the fundamental freedoms when they originate from a ‘collective regulation’ where freedom of contact does not exist (ECJ Case C-438/05 – ITWF and others v Viking Line  ECR I-10779, paras 56–66) or from employment relations (ECJ Case C-94/07 – Raccanelli v Max Planck-Gesellschaft  ECR I-5939, para 43). It is not yet clear whether this case law also applies to areas beyond an economic objective, for instance to by-laws of amateur sport organizations limiting access of EU-citizens in a discriminatory manner, provisions restricting the freedom of members of non-professional associations and unjustified social action with harmful consequences for third parties. Details of such a broad concept and its justifications under EU law still have to be determined. The main idea behind this extension of the effects of the citizenship concept to relations governed by private law is a functional one: restrictions on free movement rights can originate not only from the state, but also from private associations if they act in a collective manner. This is also justified by the different rules of Member States in distinguishing between public and private law, a function which cannot be simply taken over by EU law; an autonomous link has to be found which relates to power structures imposed on EU citizens.
With regard to Union citizenship, this implies that collective restrictions or discrimination against Union citizens fall under the scope of application of the TFEU and have to be evaluated under Arts 18, 20, 21 TFEU/12, 17, 18 EC; they must be justified in order to be compatible with EU law. The following are examples of non-justified discrimination: (i) as in professional sports, unreasonable selection rules of associations concerning participation in sport matches by ‘semi professionals’ or amateurs (ECJ Joined Cases C-51/96 and 191/97 – Deliège and others v ASBL  ECR I-2549); (ii) discriminatory entrance rules for private higher education institutions which have been accredited by public bodies; and (iii) clauses in standard contract terms putting EU nationals at a disadvantageous position, like higher tariffs for foreigners in insurance cover or higher costs for cross-border banking services as opposed to national transactions).
5. No direct horizontal effect of Directive 2004/38
Directive 2004/38 of 20 April 2004 on the free movement and residence of EU citizens consolidates and codifies the free movement rights of EU citizens and their family members, but from its wording it has only a ‘vertical direct effect’ against the state, not a horizontal direct effect against restrictions instituted by private law relations. The general prohibition on discrimination in Art 24 of Dir 2004/38 has been shaped similarly to primary law and has a similar effect. There are however four possible cases for a horizontal direct effect:
(i) The concept of ‘family member’ is defined in Art 2(2) and includes the marriage of a Union citizen with a third country national seeking asylum in a Member State, even if the latter did not have a residence right (ECJ Case C-127/08 – Blaise Baheteb Metock  ECR I-6241).
(ii) The notion of ‘family member’ includes partnership relations under the dual condition that they are registered in the state of origin and put on an equal standing with a marriage in the state of residence. This is important with regard to the prohibition of discrimination with regard to sexual orientation, encompassed by Dir 2000/78 (see ECJ Case C-267/06 – Tadao Maruko  ECR I-1757). Recital 31 refers to Art 21 of the Charter on Fundamental Rights which does not require dual recognition of same sex partnerships.
(iii) Directive 2004/38 does not recognize a right of access to or a supply of goods and services available to the public by Union citizens who reside legally in another Member State. This is quite different from Art 11(1)(f) of the Third Country National Residence Directive 2003/109. Since it cannot be imputed that the EU legislature wanted to put Union citizens in a less favourable position than third country nationals, Art 11 can be applied by analogy in favour of Union citizens as well.
(iv) Art 35 transforms the prohibition of the abuse of rights, as known to private law, also into the sphere of residence rights, particularly in cases of marriages of convenience, thus following the case law of the ECJ (Case C-109/01 – Akrich ECR  I-9607, para 57). Recital 28 defines ‘marriage of convenience’ as ‘relationships contracted for the sole purpose of enjoying the right of free movement and residence’. It is an open question whether this broad power of Member States corresponds to the guarantee of marriage and family as fundamental rights under Arts 7/9 of the Charter (human rights and fundamental rights (ChFR and ECHR).
Torsten Körber, Grundfreiheiten und Privatrecht (2004); Grainne de Búrca (ed), The EU and the Welfare State—In Search of Solidarity (2005); Nicola Rogers and Rick Scannell, Free Movement of Persons in an Enlarged Union (2005); Ferdinand Wollenschläger, Grundfreiheit ohne Markt (2006); Matthew J Elsmore and Peter Starup, ‘Union Citizenship’ (2007) 26 Yearbook of European Law 57; Francis Jacobs, ‘Citizenship of the EU—A Legal Analysis’ (2007) 13 ELJ 591; Dagmar Schiek, Lisa Waddington and Mark Bell, Non-Discrimination Law (2007); Norbert Reich, ‘Free Movement v Social Rights in an Enlarged Union—the Laval and Viking Cases before the ECJ’ (2008) 9 German Law Journal 125; Jürgen Basedow, ‘Der Grundsatz der Nichtdiskriminierung im europäischen Privatrecht’ (2008) 16 ZEuP 230; Eleanor Spaventa, ‘Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and its Constitutional Effects (2008) 45 CMLR 13; Juri Borgmann-Prebil, ‘The Rule of Reason in European Citizenship’ (2008) 14 ELJ 328; Norbert Reich, ‘The Interrelation between Rights and Duties? Reflections on the state of liability law in the multilevel governance system of the Union: Is there a need for a more coherent approach?’ (2010) 29 Yearbook of European Law 112; Norbert Reich, ‘The Public/Private Divide in EC Law’ in Hans-W Micklitz and Fabrizio Cafaggi (eds), European Private Law After the Common Frame of Reference (2010).