HAS EU CITIZENSHIP REACHED BULGARIA? A CRITICAL OVERVIEW OF NATIONAL LEGISLATION AND CASE LAW

Author

PART I

Dr. Alexander Kornezov[1]

 

 

Introduction

Union citizenship has been described as destined to become the “fundamental status of nationals of the Member States”.[2] It stands at the crossroads between integration and constitutionalism. As such, it has for a long time been the focus of heated academic debate. It has been argued that Union citizenship marks a process of emancipation of EU rights from their economic paradigm, whereby the latter are no longer bestowed upon citizens solely when they make use of the economic freedoms but directly by virtue of their status as citizens of the Union.[3] It is also contended that Union citizenship has evolved (or at least was meant to evolve) from its economic roots into a more State (or federation)-like bond.[4] Others argue that Union citizenship has not yet evolved beyond a market citizenship construction, although the latter is said to be capable of offering a more ambitious profile that we tend to presume.[5] All in all, while the scholarship on EU citizenship has flourished, the concept remains deeply contested.

The purpose of the present article is not to take sides in this ongoing debate. In fact, it intentionally steers away from the heated academic discussions. Even without the much contested theoretical foundations of Union citizenship – and regardless of what notional construction is used – the latter remains a particularly convoluted and complex area of EU law which has proved difficult to apply in practice. National authorities, both administrative and judicial, have been struggling to come to terms with EU citizenship law. Bulgarian judges, in particular, have had a number of difficulties with coping with this area of EU law. These difficulties have been compounded by the inconsistencies in the national legal framework that implements Union citizenship law. The Bulgarian legislator has at the same time been confronted with atypical legal terminology and the ever-evolving case-law of the Court of the Justice of the EU. The present article has thus chosen a much less ambitious objective, which is resolutely practical rather than strictly academic. It offers some practical guidance for Bulgarian judges and, more generally, law practitioners, as to how EU citizenship law should be applied at the national level. It puts forward a critical overview of the legal framework within which Union citizenship law has been applied in Bulgaria so far.

Part I of this article examines, first, the Bulgarian legislation which has transposed Directive 2004/38/EC into national law.[6] Although the analysis focuses on the state of the art in Bulgaria, the question has recently surfaced again in some Member States, in particular the United Kingdom, in a rather populist context in the light of the end of the transitional period applicable for Romanian and Bulgarian citizens moving across the EU. The debate has thus shifted again from a pragmatic law-abiding basis to pure political rhetoric. That debate has been marked, critically, by a misrepresentation of the applicable EU law. It must thus be pointed out that while the Treaties and the aforementioned directive do guarantee the right to free movement and the right to reside in all the Member States of all Union citizens, including Bulgarian and Romanian nationals, these rights are not absolute but are subject to certain conditions. Therefore, EU law does provide a sufficient basis to curb, within the limits of the law, the exercise of this right. It is therefore useful to read the following analysis with these considerations in mind.

EU citizenship is not all about free movement rights. It also implies a number of political rights, expressly conferred upon Union citizens by EU primary and secondary law. This part of the article will also examine the transposition into national law of Directives 93/109/EC on European Parliament elections[7] and Directive 94/80/EC on local elections[8]. This analysis is both timely and necessary in the light of the forthcoming election to the European Parliament in May 2014.

The main purpose of the analysis that follows is to identify the possible inconsistencies in the implementation process in order to assist Bulgarian legal practitioners in their daily work. The article will thus focus on singling out those provisions of national law which have failed to correctly transpose the aforementioned Directives.

Part II of the article, which will appear in volume IX of this journal, will examine the case-law of Bulgarian courts on Union citizenship matters. A specific emphasis will be placed on the rights that static EU citizens have, or should have, as opposed to the rights of mobile EU citizens.

Part I

A Critical Overview of National Legislation

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States.[9] This right is nonetheless subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.[10] To this end, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, adopted Directive 2004/38/EC. The latter emerged as an important breakthrough in the regulation of Union citizenship. It was indeed hoped that the Directive will significantly improve the application of EU citizenship rights by national legislatures, judiciaries and administrative authorities. The first section of Part I of this article will examine the citizenship-specific elements of the Directive and how precisely they have been transposed in Bulgarian law. It looks in some detail subsequently into: (1) the scope of application of the Directive and the way it was understood by the national legislator; (2) the definition of family members and relationships of dependency; (3) the right to non-permanent residence and the possible challenges to residence stability on the basis of the Directive’s economic self-sufficiency conditions; (4) the conditions for retaining the right of residence; (5) the ground-breaking concept and status of ‘permanent residence’; (6) the principle of equal treatment within the context of the Directive and, in particular, the temporal limitations placed on access to certain social security benefits; and (7) the possible restrictions on the rights of Union citizens on grounds of public policy, public security and public health.

But Union citizenship does not only imply the right to move freely and reside in the territory of the Member States. It also confers political rights on Union citizens and in particular the right to vote and stand as candidates in municipal elections and in elections to the European Parliament in their Member State of residence under the same conditions as nationals of that Member State.[11] Article 22 TFEU provides that this right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State. This provision allowed the adoption of Directive 93/109/EC on European Parliament elections[12] and Directive 94/80/EC on local elections[13]. The second section of Part I of this article will examine the implementation of these two Directive in Bulgarian law and, in particular, the extent to which EU citizens residing in the country are granted electoral rights for regional and other elections under national law, as well as the restrictions imposed on access to the electoral rights applied to Union citizens.

1.      Has Directive 2004/38/EC Been Transposed Correctly into Bulgarian Law?

Scope of application

The question of how and to what extent Directive 2004/38/EC has been transposed into Bulgarian law has caused a great deal of confusion in national administrative and judicial authorities. Generally speaking, the Directive was transposed with the adoption of the Entry, Residence and Exit of EU Citizens and Members of Their Families Act (hereafter the “EU Citizens Act”).[14]However, the scope of application of this Act is restricted only to Union citizens and their family members, who are not Bulgarian citizens.[15] Apparently, the national legislator’s understanding of the Directive was that the latter did not apply to nationals with regard to their own Member State. This understanding might have been based on Article 3(1) of the Directive, according to which the latter applies to “all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members”. Nonetheless, the Court of Justice has held, in particular in its judgments in Jipa,[16] Gaydarov[17] and Aladzhov,[18] that the Directive is also applicable to Union citizens with respect to their own Member State when they wish to leave the territory of the latter. In the light of this case-law, the decision of the Bulgarian legislator to exclude Bulgarian citizens and the members of their family from the scope of application of the national law which implements Directive 2004/38/EC is clearly wrong.

The legal framework governing the right of free movement of Bulgarian citizens is laid down in the Constitution[19] and a number of legislative acts, in particular the Bulgarian Identity Documents Act (hereafter “ZBLD”).[20] With regard to the right of free movement of a Bulgarian citizen’s family members who are third country nationals, it is governed by the Foreigners Act.[21] Neither the Constitution, nor these acts have however been drafted with the Directive in mind. It therefore appears that the Directive, in so far as it is applicable to nationals and members of their family wishing to exercise their right to free movement, has not been transposed into national law. This matter in particular has generated a substantial body of case-law (see, in particular, Part II of this article).

Despite this legislative loophole, there have been so far no planned or ongoing national legislative initiative to amend the relevant legislation according to the subsequent case-law of the Court in order to ensure the full implementation of the Directive with regard to Bulgarian citizens. Indeed, the only relevant legislative amendment took place back in 2009 when Art 76(5) of the Bulgarian Identity Documents Act (ZBLD), which banned those who had committed an offence, while residing in another State from leaving the country, was repealed.

Conclusion: The scope of application of Directive 2004/38/EC is broader than that of the Union Citizens Act which implements it. In particular, the Directive applies to Bulgarian citizens and members of their family who wish to leave the territory of the State in order to exercise their right to move and reside freely in the other Member States. In such instances, they can rely directly on the Directive in administrative and judicial proceedings against the State authorities.

Family members of a Union citizen

The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. It is therefore of utmost importance to define clearly the concept of “family member” of a Union citizen. In that regard, the Directive draws a distinction between family members who enjoy the same rights as those of the Union citizen and family members whose free movement and residence should only be “facilitated”. The first category of family members, as defined in Article 2(2) of the Directive, includes:

(a)       the spouse;

(b)        the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

(c)        the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d)       the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

The second category of family members, i.e. those free movement and residence should only be “facilitated”, is defined in Article 3(3) of the Directive, as follows:

(a)        any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b)        the partner with whom the Union citizen has a durable relationship, duly attested.

Paragraph 1 of the additional provisions of the Union Citizens Act provides the definition of a « member of the family of a EU citizen ». This definition is broader than the one provided for under Article 2(2) of the Directive in so far as:

–          it covers generally the dependant “descendants”, as well as “relatives in the ascending order”[22] and not only, as required under Art 2(2)(c) and d), the direct descendants and relatives in the ascending line;

–          it covers persons in “factual cohabitation” with a Union citizen.[23] According to Article 2(2)(b) of the Directive, quoted above, partners in “registered partnerships” are to be considered as members of the family of a Union citizen, “if the legislation of the host Member State treats registered partnerships as equivalent to marriage”. In Bulgaria registered partnerships, other than marriage, are not formally recognised[24] and are certainly not considered as “equivalent” to marriage. Moreover, the term “factual cohabitation” appears broader than a “registered partnership”.

Article 3 of the Directive has also been transposed in broader terms. Whereas Article 3(2) of the Directive requires Member States only to “facilitate” entry and residence for the persons defined therein, Article 5 of the Union Citizens Act provides that these persons “have the right” to enter and reside in Bulgaria. Read together with the broad definition of a Union citizen’s family member, mentioned above, Article 5 of the Union Citizens Act practically eliminates the different status of the two categories of family members defined, respectively, in Articles 2 and 3 of the Directive.

Conclusion: Bulgarian law lays down a more advantageous legal framework for family members of Union citizens than the one required under the Directive. In essence, it confers in identical terms the right to move freely and reside in Bulgaria to both categories of family members defined, respectively, in Articles 2 and 3 of the Directive. By virtue of Article 37 of the Directive, the latter does not affect more favourable national provisions.

Right of (non-permanent) residence

Union citizens and members of their family who are not nationals of a Member State have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport (Article 6 of the Directive).

In addition, according to Article 7(1) and (2) of the Directive, all Union citizens and their family members, irrespective of their nationality, have the right of residence on the territory of another Member State for a period of longer than three months if they (a) are workers or self-employed persons in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State and have comprehensive sickness insurance cover in the host Member State; or (c) are enrolled at a private or public educational establishment in the host Member State and have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State; or (d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c). Articles 8 – 11 of the Directive lay down the administrative formalities for Union citizens and their family members who are not nationals of a Member State, as well as the issuing of residence cards and their validity.

There are no apparent inconsistencies between the aforementioned provisions of the Directive and Articles 6 – 12 of the Union Citizens Act, which transpose them, in most cases verbatim.

Conclusion: Articles 6 – 11 of the Directive have been correctly transposed into Bulgarian law.

Retention of the right of residence

Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, the Directive provides for measures ensuring that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis. In this regard, Article 12(1) states that the Union citizen’s death or departure from the host Member State shall not affect the right of residence of his/her family members who are nationals of a Member State, provided that they satisfy the conditions laid down in Article 7(1) of the Directive or have acquired the right of permanent residence. As far as family members who are not nationals of a Member State are concerned, the Union citizen’s death (but not departure) shall not entail loss of their right of residence, if they have been residing in the host Member State as family members for at least one year before the Union citizen’s death and if they satisfy a number of the conditions analogous to those laid down in Article 7(1) of the Directive (Article 12(2) of the Directive). In addition, according to Article 12(3) of the Directive, the Union citizen’s departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.

Article 13 of the Directive allows, in similar terms, the retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership. Family members, who are not nationals of a Member State, retain their right of residence, if, on the one hand, the conditions pertaining to their economic self-sufficiency are satisfied, and, on the other hand, if their marriage or registered partnership with the Union citizen has lasted at least 3 years, or if they have custody of the Union citizen’s children or the right of access to a minor child, or, alternatively, if this is warranted by particularly difficult circumstances, such as being the victim of domestic violence.

In addition, as long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member State they should not be expelled. Therefore, an expulsion measure should not be the automatic consequence of recourse to the social assistance system. The host Member State should examine whether it is a case of temporary difficulties and take into account the duration of residence, the personal circumstances and the amount of aid granted in order to consider whether the beneficiary has become an unreasonable burden on its social assistance system and to proceed to his expulsion.[25]

Thus, according to Article 14(2) of the Directive, in specific cases where there is a “reasonable doubt” as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are fulfilled. However, such verifications shall not be carried out systematically. In addition, a Union citizen or his or her family member cannot be automatically expulsed simply beacuse they have had recourse to the social assistance system of the host Member State (Article 14(3) of the Directive). An expulsion measure may in no case be adopted against Union citizens or their family members (unless on grounds of public policy, public health and public security), if the Union citizens are workers or self-employed persons, or if the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled for as long as they can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged (Article 14(4) of the Directive).

Finally, Article 15 of the Directive provides certain procedural safeguards, such as, most notably, a prohibition for expulsion on the ground thatthe identity card or passport on the basis of which the person concerned entered the host Member State has expired (paragraph 2), as well as a prohibition for imposing a ban on entry in the context of an expulsion decision on grounds other than public policy, public health and public security (paragraph 3).

The national provisions that are meant to transpose Articles 12 – 15 of the Directive have been placed in different parts of the Union Citizens Act. This technique makes it difficult to evaluate to what extent these provisions have been correctly transposed into national law. Even if it seems that, overall, most of the rules laid down in Articles 12 – 15 have been properly reflected into national law, there are a number of inconsistencies, namely:

–          Article 12(3) of the Directive has been transposed incorrectly. Article 15(2) of the Union Citizens Act, read in conjunction with paragraph 4 of the same article, suggests that the Union citizen’s children or the parent who has actual custody of the children retain the right of residence in Bulgaria after the Union citizen’s departure or death, if they are enrolled in an education establishment and if “they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements”. The reason for this is an ill-placed renvoi which seems to suggest that the above-mentioned requirement is applicable to all family members finding themselves in one of the situations described in Articles 12(2) and (3) and 13(2) of the Directive. This is a legislative error. Indeed, first, Article 12(3) of the Directive imposes no such requirement and, second, the rationale behind the right of residence of the Union citizen’s children or of the parent having actual custody rights lies in the necessity for the children to finish their studies in the host Member State, irrespective of whether they satisfy the conditions for self-sufficiency.

–          The requirement, under Article 14(2) of the Directive, that the verifications, by national authorities, of whether the conditions set out in Articles 7, 12 and 13 of the Directive are satisfied, shall not be carried systematically, does not appear as such in the Union Citizens Act. Nevertheless, the general scheme of the Act suggests that such systematic verifications should not occur in practice. Indeed, pursuant to Article 9(8) of the Act, national authorities may verify whether the said conditions are satisfied when “there is information on the basis of which a reasoned conclusion may be made that the rules on the right of residence have been breached”. This seems to rule out systemic verifications, since the latter are allowed only if a certain threshold of doubt is met. Still, a clearer prohibition of systematic verifications might nonetheless have been preferable.

–          The Bulgarian legislator has merged the requirements of Articles 14(3) and (4)(b), 15(2) and the last sentence of Article 27(1) of the Directive into one single provision of the Union Citizens Act.[26] Such an approach, while justifiable for reasons of legislative economy, is questionable since it blurs the differences between the abovementioned articles of the Directive and their respective scope.

–          In addition, there has been no explicit transposition of Articles 14(4)(a) and 15(3) of the Directive.

Conclusion: Article 12(3) of the Directive has been transposed incorrectly into Bulgarian law. In addition, there has been no explicit transposition Articles 14(2), 14(4)(a) and 15(3) of the Directive.

The right of permanent residence

The right of permanent residence in the host Member State is a true milestone in European integration. Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State is expected to strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence has thus been laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.[27]Critically, this right is not subject to the conditions provided for in Articles 7 – 15 of the Directive.[28]Indeed, in order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions.[29] Thus, once acquired, the right of permanent residence can be lost only through absence from the host Member State for a period exceeding two consecutive years.[30]

By way of derogation from Article 16, certain categories of Union citizens or members of their family can enjoy the right of permanent residence in the host Member State before completion of a continuous period of five years (e.g. workers or self-employed persons who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension; workers or self-employed persons who have stopped working as a result of permanent incapacity to work, etc.).[31]

The relevant administrative formalities are laid down in Articles 19 – 21 of the Directive. In particular, after having verified duration of residence, the host Member State must issue the Union citizen with a document certifying permanent residence “as soon as possible”[32], as well as his family members who are not Union citizens, within 6 months.[33] In the latter case, the application for a permanent residence card shall be submitted before the residence card expires. Failure to comply with the requirement to apply for a permanent residence card may render the person concerned liable to proportionate and non-discriminatory sanctions. Such sanctions can however be imposed only on family members who are third country nationals.[34] Finally, continuity of residence may be attested by any means of proof in use in the host Member State.[35]

Articles 16 – 18 of the Directive have been almost literally transposed into the Union Citizens Act.[36] With respect to the administrative formalities laid down in Articles 19 and 20 of the Directive, the Union Citizens Act has put into place a more expedient procedure than the one required under the Directive. Indeed, a permanent residence card is issued the same day for Union citizens and within one month for family members who are not Union citizens.[37]

The Union Citizens Act also obliges Union citizens to apply for a permanent residence card 3 days before the residence card expires, whereas members of their family must do so 2 months before the expiry.[38] No such obligation however stems from the Directive as far as Union citizens are concerned – indeed a permanent residence card must be issued “upon application”.[39] Moreover, under the Union citizens Act, failure to apply for a permanent residence card might attract a fine.[40] Whereas such sanctions, provided that they are proportionate and non-discriminatory, may indeed be imposed on third country nationals, the Directive does not seem to allow the imposition of a fine on a Union citizen for failing to apply for a permanent residence card before the expiry of his/her (non-permanent) residence card.[41] Indeed, according to recital 13 of the Directive, the residence card requirement should be restricted to family members of Union citizens who are not nationals of a Member State for periods of residence of longer than three months. Such fines should therefore not be imposed or, if imposed, should be annulled by national courts by virtue of the primacy of EU law.

Finally, Article 21 of the Directive has not been explicitly transposed into national law. This probably suggests that the general rules on evidence will apply.These rules are laid down in the Administrative procedure code (APC), as far as the administrative procedure is concerned, in particular Arts 37 – 45. According to Art 37, “any data, which are related to any facts and circumstances relevant to the rights and obligations or the legitimate interests of the individuals or organizations concerned and which are ascertained according to the procedure provided for in this Code, may serve as evidence in the proceeding for the issuance of an individual administrative act”. Further, according to Art 39, the «facts and circumstances shall be ascertained by means of explanations, statements by the parties or by representatives thereof, information, instruments of written and physical evidence, conclusions by experts and other instruments which are not prohibited by a law, unless a special law prescribes the use of other instruments as well for the demonstration of certain facts and circumstances”. Since the special law – i.e. the Union Citizens Act – does not prescribe a particular form of evidence, all of the abovementioned means of proof should be admissible. Given the very large scope of the means of proof, laid down in Arts 37 and 39 APC, it might be argued that the pre-existing legislative framework was already compatible with Art 21 of the Directive.

Conclusion: The Union Citizens Act has put into place a more expedient procedure for issuing permanent residence cards to Union citizens and members of their family than the one required under the Directive. Nevertheless, the obligation for Union citizens to apply for a permanent residence card 3 days before the residence card expires, failing which might attract a fine, is incompatible with Article 19 of the Directive. In addition, Article 21 of the Directive has not been explicitly transposed into national law.

Equal treatment

The right to move freely across the EU and to reside in any one of its Member States will be stripped of much of its sense, if Union citizens could be treated less favourably than national citizens. The principle of equal treatment and the prohibition of discrimination on the basis of nationality constitute the very foundations of the Union citizens’ freedom of movement. This principle underlies both EU primary law and Directive 2004/38. It suffices to recall that Article 18 TFEU prohibits any discrimination on grounds of nationality. In addition, pursuant to Article 45(2) TFEU the freedom of movement for workers entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. This freedom entails, in particular, the right to accept offers of employment actually made, to move freely within the territory of Member States for this purpose, to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action and to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.[42]

Nevertheless, the right to equal treatment is not absolute. The different levels of economic development and the different span of the national welfare systems might lead to certain migratory flows between the Member States. An influx of migrant Union citizens might thus strain the available ressources of the host Member State. EU primary law thus allows certain exceptions to the principle of equal treatment of workers, if justified on grounds of public policy, public security or public health.[43] Exceptions on the same grounds are allowed with respect to self-employed EU citizens, too.[44] The concern is actually not so much with regard to the economically active Union citizens who will in any event contribute to the social security system applicable in the host Member State and will thus not be a burden for the their social assistance systems, but rather with regard to migrant Union citizens who are not economically active. With respect to the latter, Article 21(1) TFEU provides that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, “subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect”. One of those limitations is the requirement for the economically inactive to be self-sufficient in order to enjoy the right of residence for more than 3 months in the host Member State, pursuant to under Article 7(1) of Directive 2003/48, discussed above. This requirement aims at avoiding a situation where the migrant Union citizen will become a burden for the social assistance system of the host Member State. However, this requirement does not apply for a period of residence of less than 3 months, for which no formalities or conditions can be set.[45] In addition, it does not apply to workers or self-employed persons. The latter might also however, after a brief period of economic activity, become a burden for the social assistance system of the host Member State. The safeguards laid down in Article 7(1) of the Directive might therefore prove insufficient for preserving the feasibility of the national social assistance system of the host Member State.

While emphasizing that all Union citizens and the members of their family who are not Union citizens (and who have the right of residence or permanent residence), residing on the basis of the Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty, Article 24(1) of the Directive expressly provides that the right to equal treatment is “subject to such specific provisions as are expressly provided for in the Treaty and secondary law”. According to the second paragraph of Article 24, the host Member State shall not be obliged to confer entitlement to social assistance during the first 3 months of residence or, where appropriate, a longer period with regard to Union citizens who had entered the territory of the host Member State in order to seek employment (Article 14(4)(b)), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families. In essence, Article 24(2) of the Directive thus allows Member States to limit the right of the economically inactive to claim social assistance benefits. Crucially, this derogation is not obligatory – Member States may or may not wish to take advantage of it, or only partially, as long as the limits set out in Article 24(2) of the Directive are respected.

Has the Bulgarian legislator taken advantage of this derogation? There is no straightforward answer to this query because the Union Citizens Act, which generally transposed the Directive, contains no provision transposing Art 24(2) of the Directive. This might create the impression that Bulgaria has decided not to take advantage of the aforementioned derogation. However, in order to ascertain whether and to what extent Bulgaria has made use of that derogation, one has to examine the national legislation governing social assistance and aid for studies, which is scattered between various laws and regulations. The national legislator, as will be demonstrated below, has not followed a common approach to the matter but has rather dealt with it in a fragmentary fashion. The following overview is not exhaustive, but rather illustrative.

First, as far as entitlement to social assistance is concerned, the Social Assistance Act provides that foreigners are entitled to social assistance, if, in particular, they have acquired the right of “durable or permanent residence”.[46] That same provision also stipulates that are entitled to social assistance “the individuals who are so entitled under an international treaty, to which Bulgaria is a party”. This latter category of beneficiaries is not clearly defined; in particular, it is uncertain whether Union citizens come within this category or not, especially in the light of Art 24(2) of the Directive. Alternatively, if the condition of “durable or permanent residence” is to be considered applicable to Union citizens, and given that the right of “durable” residence for Union citizens is acquired after a period of 3 months, it can be deduced that they cannot obtain social assistance during their first 3 months of residence in Bulgaria.In this respect, it may be argued that Bulgaria has implicitly made use of Art 24(2) of the Directive, as far as entitlement to social assistance during the first 3 months of residence is concerned.[47] After this period, Union citizens and members of their families are entitled to receive social assistance in Bulgaria. Bulgaria has thus not taken advantage of the possibility to deny such benefits beyond the first 3 months of residence for persons who had entered its territory in order to seek employment.

Second, there are a number of other more specific national laws governing various particular social benefits, such as, for example, the Family Assistance for Children Act, which lays down the rules on social (non-contributive) benefits during pregnancy, birth and for raising children. This Act provides that foreigners may claim such benefits, if they have acquired the right of permanent residence and “if the right to such a benefit results from an international treaty to which Bulgaria is a party”.[48] The requirement for permanent residence for claiming social assistance for pregnancy, birth and children seems incompatible with Article 24(2) of the Directive. This requirement should therefore remain inapplicable with regard to Union citizens and members of their family, unless it could be justified on one of the grounds permitted by EU primary law, is necessary and proportionate to the objective pursued.

Third, with regard to entitlements to student scholarships[49] and loans[50], Bulgarian and Union citizens are treated equally. In particular, there is no requirement for Union citizens to have acquired the right of permanent residence or, for that matter, of any residence whatsoever. The Bulgarian legislator has thus conferred upon Union citizens the right to receive student scholarships and loans, irrespective of the length of their residence in the country. In this respect, Bulgaria has not made use of the derogation provided in Article 24(2) of the Directive.

Conclusion: The approach of the Bulgarian legislator as to whether and to what extent to make use of the derogation provided under Article 24(2) of the Directive has been rather piecemeal. It nonetheless appears that Bulgaria has restricted the possibility for Union citizens and their family members to claim social assistance during the first 3 months of their residence in Bulgaria, which is permissible under Article 24(2) of the Directive. However, there are also a number of specific national laws governing various particular social benefits, which might collide with the Directive. For instance, the requirement for permanent residence for claiming social assistance for pregnancy, birth and children seems incompatible with Article 24(2) of the Directive. By contrast, with respect to student scholarships, grants and loans, the Bulgarian legislator has conferred upon Union citizens the right to claim such benefits, irrespective of the length of their residence in the country, thus waiving its prerogative to take advantage of Article 24(2) of the Directive.

Restrictions on grounds of public policy, public security or public health

The Treaty allows restrictions to be placed on the right of free movement and residence on grounds of public policy, public security or public health. In order to ensure a tighter definition of the circumstances which can thus justify such restrictions, the Directive has set out to harmonise them partially. Pursuant to Article 27 of the Directive, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds cannot however be invoked to serve economic ends. Moreover, measures taken on grounds of public policy or public security must comply with the principle of proportionality and must be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions cannot in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” in order to justify a restriction. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention are not permitted.[51]

While these provisions of the Directive have been, as a whole, correctly transposed in the Union citizens Act,[52] the scope of application of the latter, as mentioned above, is limited to Union citizens and members of their family other than Bulgarian citizens. This has generated a substantial body of case-law concerning, in particular, the concept of “public policy” and the application of the principle of proportionality within the context of Article 27 of the Directive with regard to Bulgarian citizens who were banned from leaving the country. This case-law will be commented in Part II of this article.

Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin. Thus, the principle is that the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be.[53] Thus, according to Article 28 of the Directive, the host Member State may not take an expulsion decision against Union citizens or their family members who have acquired the right of permanent residence, except on “serious grounds of public policy or public security”. Such a decision may be taken against Union citizens who have resided in the host Member State for the previous ten years only on “imperative grounds of public security, as defined by Member States”.

The Bulgarian legislator has not transposed Article 28 of the Directive verbatim. Article 25 of the Union Citizens Act distinguishes only between two categories of Union citizens – those who have resided in Bulgaria for 10 or more years and all other Union citizens, irrespective of whether they have acquired the right of permanent residence or not. With regard to the first category, expulsion may be ordered “only in exceptional circumstances on grounds of national security”.[54] This seems to reflect, albeit in different terms, the “imperative grounds of public security” of Article 28(3) of the Directive. With regard to the second category, expulsion is allowed where the Union citizen “represents a genuine, present and serious threat to national security or public order”.[55] Thus, the same – higher – threshold pertaining to the serious character of the threat to public order or national security is applicable to all Union citizens having resided in the country for less than 10 years, irrespective of whether they have acquired the right of permanent residence or not. It therefore appears that the Union Citizens Acts lays down a more favourable régime, at least with regard to Union citizens who have not yet acquired the right of permanent residence. By virtue of Article 37 of the Directive, the latter does not affect more favourable national provisions.

Conclusion: Article 27 of the Directive has been correctly transposed with regard to Union citizens and members of their family, other than Bulgarian citizens. In addition, Bulgarian law extends the protection against expulsion to all Union citizens, including those who have not yet acquired the right of permanent residence. By contrast, with regard to the right of Bulgarian citizens and members of their family to move freely, including the right of exit, the Directive has not been transposed.

  1. Have Directive 93/109/EC on European Parliament Elections and Directive 94/80/EC on Local Elections Been Correctly Transposed into National Law?

Union citizenship confers also a number of political rights, in particular the right to vote and stand as candidates in municipal elections and in elections to the European Parliament in their Member State of residence under the same conditions as nationals of that Member State (Article 20(2)(b) TFEU). Article 22 TFEU provides that this right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.

The emphasis thus placed by the Lisbon Treaty on the participatory and representative nature of democracy in the Union legal order, has been further developed into secondary EU legislation, namely in Directive 93/109/EC on European Parliament elections[56] and Directive 94/80/EC on local elections[57]. This section of the article examines the implementation of these two Directive in Bulgarian law and, in particular, the extent to which EU citizens residing in the country are granted electoral rights for regional and other elections under national law, as well as the restrictions imposed on access to the electoral rights applied to Union citizens.

The implementation of Directive 93/109/EC on European Parliament elections

Directive 93/109/EC was first transposed in national law in March 2007 (3 months after accession) through the adoption of the Election of Members of the European Parliament from the Republic of Bulgaria Act.[58] In 2011, the relevant provisions were merged into the Electoral Code[59] which governs all matters related to the organisation of elections in Bulgaria.

With regard to the conditions imposed on EU citizens’ electoral franchise, most of them seem to be in compliance with the principle of equal treatment and the specific provisions of the Directive. Indeed, most conditions are identical with those imposed on national citizens: age requirements (18 years by polling day for the right to vote and 21 years for the right to be elected); absence of indictment and ongoing custodial sentence; residence in Bulgaria or in another EU Member State at least during the last 3 months (for the right to vote) or 6 months (for the right to be elected); lack of citizenship of any State which is not a EU Member State (for the right to be elected). EU citizens’ electoral franchise has also been subjected to three additional conditions, two of which result from the Directive (i.e. that he or she is not deprived of his or her electoral franchise in the home Member State and that he or she has stated in advance, in a written declaration, his or her desire to exercise his or her voting rights or to run as candidate in Bulgaria).[60]

The third condition, applicable only to EU citizens, is the requirement that they enjoy a “durable or permanent residence status” in Bulgaria.[61] With regard to this requirement, the European Commission noted in its 2010 report on the election of MEPs that the “requirement [for EU citizens] to provide a registration document for proving residence” is contrary to the Directive.[62] In the meantime, the Commission initiated infringement proceedings against Bulgaria concerning the implementation of the Directive.[63] It is interesting to note that the “durable or permanent residence” requirement applicable to Union citizens only, seems to complement the condition – also applicable to Bulgarian citizens – that, in order to vote, they must have resided in “Bulgaria or another EU Member State” at least during the last three months prior to polling day. These two conditions, read together, recall the legal framework laid down by Directive 2004/38, whereby Member States may require Union citizens to register with the local authorities for periods of residence longer than three months.[64] Yet, the “durable or permanent residence” requirement applicable only to Union citizens seems problematic at least from two angles. First, whereas Union citizens residing in Bulgaria for periods longer than three months may indeed be expected to have registered with the local authorities, failure to do so may, according to Directive 2004/38, give rise to “proportionate and non-discriminatory sanctions”.[65] The query here would be whether depriving the Union citizen of his electoral franchise is a proportionate and non-discriminatory sanction for failing to produce a residence card.[66]Second, a Union citizen who has only recently settled in Bulgaria – for example one month before polling day – and who has therefore had no obligation to apply as yet for a residence card, will be unable to vote, even though he had resided for the last three and more months in another EU Member State, thus fulfilling the requirement of Article 5 of Directive 93/109. By contrast, a Bulgarian citizen in a similar situation would be eligible to vote.

In its 2010 report, the European Commission also noted that Bulgaria had failed to correctly transpose the obligation to provide information to Union citizens on the detailed arrangements for exercising their right to vote and stand in elections.[67]

In addition, while Directive 93/109/EC allows the Member States to make use of certain derogations (Articles 14 and 15), Bulgaria has abstained to take advantage thereof.

The December 2012 amendments[68] to Directive 93/109/EC may require certain amendments to the Electoral Code. Article 118, para. 2, point 7, of the latter provides that an EU citizen who is not a Bulgarian citizen and who wishes to run for MEP, shall produce an attestation from the competent authorities in the home Member State certifying that that person has not been deprived of the right to stand as a candidate in the home Member State or that no such disqualification is known to them; however, if he or she is unable to produce such an attestation, it suffices that he or she declares that he or she has not been deprived of the right to be elected in his or her home Member State.[69] While this second option seems to be already in compliance with the latest amendments of Directive 93/109/EC, the first proviso (the attestation requirement) should eventually be deleted in order to remove potential administrative hurdles.

Finally, as mentioned above, persons serving a custodial sentence or interdicted are deprived of electoral franchise in general and regardless of the nature of the offence they were convicted for. To our knowledge, the question of whether such limitations are compatible with EU law, and in particular with the Charter, has not so far been raised in Bulgarian courts. By contrast, in other Member States, the question has been subject to debate. For instance, in the United Kingdom, the applicants in McGeoch v Lord President of the Council[70] and the English case of Chester v Secretary of State for Justice[71] argued that, inrelation to the prospective European Parliament elections in June 2014,the total ban on prisoners’ voting rights in the UK – similar to the one in force in Bulgaria – was disproportionate and, hence, contrary to Article 39 of the EU Charter of Fundamental Rights. In a series of cases (Hirst (No 2) v UK, Greens v UK and Scoppola v Italy) the European Court of Human Rights (“ECtHR”) has held that a blanket prohibition of this nature is an indiscriminate restriction on a vitally important right and, as such, incompatible with Article 3 of Protocol No 1 of the European Convention on Human Rights. Although the appeals were finally dismissed the UK Supreme Court,[72] not least because in both cases the applicants were prisoners serving sentences of life imprisonment imposed for murder and because Parliament was currently considering the implementation of the aforementioned judgments of the ECtHR, the matter seems to remain open and further developments are to be expected.

The implementation of Directive 94/80/EC on local elections

Directive 94/80/EC was first transposed in national law in October 2007 (10 months after accession) through the adoption of the Municipal Elections Act.[73] In 2011, the relevant provisions were merged into the Electoral Code.

According to Article 5(3) of the Directive, Member States may choose to allow only their own nationals to hold the office of elected head, deputy or member of the governing college of the executive of a basic local government unit. Bulgaria has made use of this derogation by allowing Union citizens to stand only for municipal councilors but not for mayors.

The Electoral Code imposes some additional conditions on EU citizens in order to vote or be elected in municipal elections, which are analogous to those mentioned in the comment on the implementation of Directive 93/109/EC above.[74]The concerns expressed above apply mutatis mutandis to the national legal framework governing local election. It should also be noted that the European Commission has initiated infringement proceedings against Bulgaria concerning the implementation of Directive 94/80, too.[75]

 

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Линк към резюмето на български език: ДОСТИГНА ЛИ ЕВРОПЕЙСКОТО ГРАЖДАНСТВО БЪЛГАРИЯ?  КРИТИЧЕН ПРЕГЛЕД НА НАЦИОНАЛНОТО ЗАКОНОДАТЕЛСТВО И СЪДЕБНА ПРАКТИКА

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[1] Référendaire at the Court of Justice of the EU. The views expressed are personal. This paper is partly based on the national report submitted in the context of the XIV Congress of FIDE.

[2] See, inter alia, Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 31; Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 82; Case C‑148/02 Garcia Avello [2003] ECR I‑11613, paragraph 22; Case C‑200/02 Zhu and Chen [2004] ECR I‑9925, paragraph 25; Case C‑135/08 Rottmann [2010] ECR I-1449, paragraph 43; Case C-34/09 Ruiz Zambrano [2011] ECR I-1177, paragraph 41.

[3]Opinion of A.G. Mazák in Case C-158/07 Förster [2008] ECR I-8507, paragraph 54.

[4]E.g. Kostakopoulou, « Ideas, nomrs and Euroipean citizenship : Explaining institutional change », 68 MLR (2005), 233; Faist, “Social Citizenship in the European Union: Nested membership” (2001) 39 JCMS 37.

[5]N. Nic Shuibhne, “The Resilience of EU Market Citizenship” (2010) 47 CMLR 1597-1628.

[6] Directive 2004/38/EC, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, [2004] OJ L 158/77.

[7] Directive 93/109/EC, laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals, [1993] OJ L 329/34.

[8] Directive 94/80/EC, laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals, [1994] OJ L 368/38.

[9] Art 20(2)(a) TFEU.

[10] Art 21(1) TFEU.

[11]Article 20(2)(b) TFEU.

[12] Directive 93/109/EC, laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals, [1993] OJ L 329/34.

[13] Directive 94/80/EC, laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals, [1994] OJ L 368/38.

[14]Закон за влизането, пребиваването и напускането на Република България на гражданите на Европейския съюз и членовете на техните семейства (ДВ, бр. 80, 30.10.2006, последно изм. и доп. бр. 21, 13.03.2012).

[15] See e.g. order n° 2414 from 11 November 2010 of the Sofia City Administrative Court in case n° 6758/2009.

[16] E.g. case C-33/07 Jipa [2008] ECR I-5157.

[17] Case C-430/10 [2011] ECR I-11637.

[18] Case C-434/10 [2011] ECR I-11659.

[19] See, in particular, Art 35.

[20]Закон за българските лични документи (ДВ, бр. 93, 11.08.1998, последно изм. и доп. бр. 70 от 9.08.2013).

[21]Закон за чужденците в Република България (ДВ, бр. 153 от 23.12.1998, последно изм. и доп.бр. 70 от 9.08.2013).

[22] §1(1)(b) and (c) of the Union Citizens Act.

[23]§1(1)(a) of the Union Citizens Act.

[24] Even though national law sporadically attaches certain legal consequences to the so-called ”factual cohabitation”, there is no formal definition thereof, nor a possibility to formally register it.

[25]Recital 16 of the Directive.

[26] Art 23(4).

[27] Recital 17 of the Directive and Art 16(1).

[28] Art 16(2) of the Directive.

[29] Recital 18 of the Directive.

[30] Art 16(4) of the Directive.

[31] Art 17 of the Directive.

[32] Art 19 of the Directive.

[33] Art 20(1) of the Directive.

[34] Art 20(2) of the Directive.

[35] Art 21 of the Directive.

[36] Arts 16 – 19 of the Union Citizens Act.

[37] Arts 16(5) and 19(3) of the Union Citizens Act. Compare with Arts 19(2) and 20(1) of the Directive, which require that the document be issued “as soon as possible” for Union citizens and “within six months of the submission of the application” for family members who are not Union citizens.

[38]See, respectively, Arts 16(5) and 19(2) of the Union Citizens Act.

[39]Art 19(1) of the Directive.

[40] Art 33 of the Union Citizens Act.

[41] Compare the wording of Arts 19 with 20(2) of the Directive.

[42] See Art 45(3) TFEU.

[43] Art 45(3) TFEU.

[44] Art 52(1) TFEU.

[45] Art 6(1) TFEU.

[46] Art 2(6) (Закон за социално подпомагане, обн., ДВ, бр. 56 от 19.05.1998 г.).

[47] It is a different matter that, as a rule, if Member States wish to make use of a derogation, they should do so explicitly.

[48] Art 3(5) (Закон за семейни помощи за деца, обн., ДВ, бр. 32 от 29.03.2002 г.).

[49] §6b of Regulation n° 90 of the Council of Ministers (Наредба №90 на МС) of 26th May 2000, as modified ДВ, бр. 70 от 2006.

[50] Art 3 of the Student and Doctoral Loans Act (Законзакредитираненастудентиидокторанти, обн., ДВ, бр. 69 от 5.08.2008 г.).

[51]Art 27(2) of the Directive.

[52] Arts 22 and 23 of the Directive.

[53] Recitals 23 and 24 of the Directive.

[54] Art 25(2) of the Union Citizens Act.

[55] Art 25(1) of the Union Citizens Act.

[56] Directive 93/109/EC, laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals, [1993] OJ L 329/34.

[57] Directive 94/80/EC, laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals, [1994] OJ L 368/38.

[58]ДВ, бр. 20,06.03.2007.

[59]ДВ, бр. 9,28.01.2011.

[60]Arts 8, 9 and 10 of the Directive.

[61] Art 3(3) of the Electoral Code.

[62] Report on the election of Members of the European Parliament (1976 Act as amended by Decision 2002/772/EC, Euratom) and on the participation of European Union citizens in elections for the European Parliament in the Member State of residence (Directive 93/109/EC), 27.10.2010, COM(2010) 605 final.

[63] http://ec.europa.eu/eu_law/eulaw/decisions/dec_20121024.htm. The complaints put forward by the Commission in this letter have however not been publicly disclosed.

[64]Art 8(1) of the Citizen Directive.

[65]Art 8(2) of the Citizen Directive.

[66]According to the instructions of the Central electoral committee, EU citizens must produce a residence card in order to be able to exercise their electoral franchise: www.europe.bg/htmls/page.php?id=21089&category=354.

[67] See note 47 supra.

[68] Council Directive 2013/1/EU of 20 December 2012 amending Directive 93/109/EC, laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals, [2013] OJ L 26/27.

[69] For the 2009 EP elections that second option was inexistent : see Decision No 11 of 7 April 2009 of the Central Electoral Commission which expressly requires that EU citizens produce such an attestation (Part II, point 1 (d)): http://izboriep.bta.bg/.

[70][2011] CSIH 67.

[71][2010] EWCA Civ 1439.

[72] [2013] UKSC 63.

[73]ДВ, бр. 78, 28.09.2007.

[74] Arts 3(4)(5) and 4(5)(6) of the Electoral Code. In addition to the conditions mentioned in the reply to Question 9, Bulgarian and Union citizens are also required, in the context of municipal elections, to have resided in the respective municipal electoral territory at least during the last 6 months.

[75] http://ec.europa.eu/eu_law/eulaw/decisions/dec_20121024.htm. The complaints put forward by the Commission in this letter have however not been publicly disclosed.