Dual citizens and EU citizenship: clarification from the ECJ
by Steve Peers
One of the basic rules of EU free movement law is that in principle it can only be invoked by EU citizens who are in a Member State other than their Member State of nationality. As a corollary, those EU citizens who are in the Member State of which they are a national cannot invoke free movement law – although ECJ case law in some cases allows them to claim rights on the basis of their EU citizenship instead.
So what happens if someone is a citizen of two Member States? If they are living in one of those two States, at first sight they are Schrodinger’s EU citizen: simultaneously entitled to free movement rights (as they are in a Member State other than their Member State of nationality) and not entitled to those rights (as they are in the Member State of which they are a national). In its 2011 judgment in McCarthy, the ECJ ruled that a dual citizen of two Member States (the UK and Ireland) who had not moved from the UK could not claim rights based on free movement law or EU citizenship. But did that finding rest on the mere fact that Ms McCarthy was a dual citizen of two Member States – or rather upon the fact that she was a dual citizen who had not moved between Member States?