Hostname: page-component-77c89778f8-gq7q9 Total loading time: 0 Render date: 2024-07-16T22:17:11.047Z Has data issue: false hasContentIssue false
  • English
  • Français

Fundamental Rights: The Missing Pieces of European Citizenship?

Published online by Cambridge University Press:  06 March 2019

Chiara Raucea

Extract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

All nationals of a Member State are Union citizens, and so, in principle, these citizens fall within the scope of European Union (EU) law ratione personae. However, the protection of European citizenship status (ECS) is a necessary but not a sufficient condition for enjoying European citizenship rights (ECRs). In order to bring a case within its jurisdiction, the Court of Justice of the European Union (CJEU) should also ascertain what the link is between ECRs and the scope of EU law (ratione materiae). Recently, the CJEU ruled that securing the “genuine enjoyment of the substance of the rights attaching to the status of European Union citizenship” is a sufficient condition to bring a case within the scope of EU law. This new formula challenges the traditional cross-border test: by referring to “genuine enjoyment,” it entails rethinking the CJEU's current practice of depicting the conditions under which a citizenship case should be considered ratione personae and ratione materiae within the scope of EU law. Importantly, the interpretative crux of this new formula concerns whether the Court has really opted for an innovative test of its jurisdiction, which may detach the protection of ECRs from the current exercise of fundamental freedoms. This paper critically maps out how the CJEU has gradually strengthened both the protection of the ECS and the protection of rights attaching to such status. It argues that the Court has recognized that the de facto exercise of fundamental freedoms is not the only way to establish a link between a EU citizenship case and the scope of EU law. On the contrary, the Court ruled that Art. 20 TFEU (on Union citizenship and European citizenship rights) can be invoked by Union citizens, even if they have never exercised their free movement rights, in order to challenge national measures, which “deprive citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.” This interpretative move raises the question whether the new test concerning the substance of the rights attaching to the status of European citizens enhances the protection of fundamental freedoms, by also safeguarding the potential exercising of these freedoms in the future, or whether it calls for including the actual protection of fundamental rights (such as the right to respect family life) in the so-called “substance” of European citizenship rights. This paper argues that the Court's present approach indicates that the former is the case, casting doubts on the central position of fundamental rights with regards to European citizenship.

Type
Lisbon vs. Lisbon Part III: Citizens
Information
German Law Journal , Volume 14 , Issue 10: Special Issue—Lisbon vs. Lisbon , 01 October 2013 , pp. 2021 - 2039
Copyright
Copyright © 2013 by German Law Journal GbR 

References

1 Case C-34/09, Zambrano v. Office Nat'l de l'Emploi, 2011 E.C.R. I-01177, para. 42 [hereinafter Zambrano].Google Scholar

2 With regard to the traditional cross-border test, see id. para. 69.Google Scholar

It is trite law that, in order to be able to claim classic economic rights associated with the four freedoms, some kind of movement between Member States is normally required. Even in that context, however, it is noteworthy that the Court has accepted the importance of not hindering or impeding the exercise of such rights and has looked askance at national measures that might have a dissuasive effect on the potential exercise of the right to freedom of movement.

For many citizenship cases, there is a clearly identifiable cross-border element that parallels the exercise of classic economic free movement rights. Moreover, when nationals of a Member State are invoking rights arising from citizenship of the Union against their own Member State, there has usually been some previous movement away from that Member State followed by a return. See id. paras. 75–80.

3 Case C-434/09, McCarthy v. Sec'y of State for the Home Dep't, 2011 E.C.R. I-03375, para. 46 [hereinafter McCarthy]. Case C-256/11, Dereci v. Bundesministerium für Inneres, para. 61 (CJEU, 2013) [hereinafter Dereci].Google Scholar

4 Fundamental Rights and Fundamental Freedoms are two distinct legal categories with two different objectives in the European integration process. Fundamental rights are subjective rights whose intention is to protect individual freedom vis-à-vis the emerging supranational Union powers. Fundamental freedoms, instead, have performed the specific function to remove national obstacles to intra-Union mobility with the primary goal of pursuing market integration. For a systematic and critic analysis on the distinction between Fundamental rights and Fundamental Freedoms, see generally Ferdinand Wollenschläger, A New Fundamental Freedom Beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration, 17 EUR. L. J. 1 (2011).Google Scholar

5 The criteria of being “economically active” or “self-sufficient” and, so, the condition of being able to support themselves (sufficient means of existence; comprehensive health insurance) without recourse to public funds define the categories of persons eligible for claiming the ECRs to move and reside. The legal position of economically inactive persons is regulated by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, [2004] OJ L229/35).Google Scholar

6 Allan Rosas & Lorna Armati, EU Constitutional Law: An Introduction 148 (2012).Google Scholar

7 See generally Case C-135/08, Rottmann v Freistaat Bayern, 2010 E.C.R. I-1449.Google Scholar

8 See generally Zambrano, supra note 1.Google Scholar

9 See generally McCarthy, supra note 3.Google Scholar

10 See generally Dereci, supra note 3.Google Scholar

11 See generally Case C-26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963 E.C.R. 1.Google Scholar

12 See generally Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 191) 1.Google Scholar

13 EU Citizenship was greeted by scholars as a “pie in the sky” and “a symbolic plaything without substantive content” or as a “cynical exercise in public relations on the part of the High Contracting Parties.” See Hans Ulrich Jessurun d'Oliveira, Union Citizenship: Pie in the Sky?, in A Citizens’ Europe: In Search of a New Order (A. Rosas & E. Antola eds., 1995); Joseph H. H. Weiler, Citizenship and Human Rights, in Reforming the Treaty on European Union – The Legal Debate (J. A. Winter et al. eds., 1996).Google Scholar

14 Case C-184/99, Grzelczyk v. Centre Pub. d'Aide Sociale d'Ottignies-Louvain-la-Neuve, 2001 E.C.R. I-6193, para. 31 [hereinafter Grzelczyk].Google Scholar

15 See generally Wollenschläger, supra note 4.Google Scholar

16 See generally Eleanor Spaventa, Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and its Constitutional Effects, 45 Common Mkt. L. Rev. 13 (2008).Google Scholar

17 Case C-224/98, D'Hoop v Office Nat'l de l'Emploi, 2002 E.C.R. I-6191, para. 29 [hereinafter D'Hoop]; Grzelczyk, supra note 14, para. 33.Google Scholar

18 See Consolidated Version of the Treaty on the Functioning of the European Union art. 18, 2008 O.J. C 115/47. See generally D'Hoop, supra note 17 (stating that a Member State cannot impose rules which have the effect of placing at a disadvantage their own citizens who have exercised the right to move).Google Scholar

19 See Opinion of Advocate General Ruiz-Jarabo Colomer, Case C-228/07, Petersen v. Arbeitsmarktservice Niederösterreich, 2008 E.C.R. I-6989, para. 34 [hereinafter Opinion of Advocate General Colomer].Google Scholar

20 With regard to the legislative evolution conferring rights of residence to nationals of Member States who are not employees or self-employees, see generally Council Directive 90/364, 1990 O.J. (L 180) 1; Council Directive 90/365, 1990 O.J. (L 180) 1, Council Directive 93/96, 1993 O.J. (L 317) 1.Google Scholar

21 Opinion of Advocate General Colomer, supra note 19, para. 28.Google Scholar

22 See Case C-413/99, Baumbast v. Sec'y of State for the Home Dep't, 2002 E.C.R. I-7091, para. 83 [hereinafter Baumbast].Google Scholar

23 See generally Case C-403/03, Schempp v. Finanzamt M nchen, 200 ECR I-6421 [hereinafter Schempp].Google Scholar

24 See Maas, Willem, Unrespected, Unequal, Hollow? Contingent Citizenship and Reversible Rights in the European Union, 15 Colum. J. Eur. L. 265 (2009).Google Scholar

25 See Kochenov, D., Ius Tractum of Many faces: European Citizenship and the Difficult Relationship Between Status and Rights, 15 Colum. J. Eur. L. 169 (2009).Google Scholar

26 See generally Case C-135/08, Rottmann v. Freistaat Bayern, 2010 E.C.R. I-1449.Google Scholar

27 See generally Case C-369/90, Micheletti v. Delegación del Gobierno en Cantabria, 1992 E.C.R. I-4239. See also Case C-179/98, Belgium v. Mesbah, 1999 E.C.R. I-7955, para. 29; Case C-192/99, The Queen v. Sec'y of State for the Home Dep't, 2001 E.C.R. I-1237, para. 19; Case C-200/02, Zhu v. Sec'y of state for the Home Dep't, 2004 E.C.R. I-09925, para. 37.Google Scholar

28 Grzelczyk, , supra note 14, paras. 31, 43. But see also, inter alia, D'Hoop, supra note 17, para. 28; Baumbast, supra note 22, para. 82; Case C-148/02, Avello v. État Belge, 2003 E.C.R. I-11613, para. 22; Joined Cases C-482/01 and C-493/01, Orfanopoulos and Oliveri v. Land Baden-Württemberg, 2004 E.C.R. I-5257, para. 65; Schempp, supra note 23, para. 15.Google Scholar

29 See generally Dimitry Kochenov, A Real European Citizenship: A New Jurisdiction Test: A Novel Chapter in the Development of the Union in Europe? 18 Colum. J. Eur. L. 55 (2011).Google Scholar

30 See generally Rainer Bauböck, Why European Citizenship? Normative Approaches to Supranational Union, 8 Theoretical Inquiries in L. 453 (2007).Google Scholar

31 Opinion of Advocate General Poiares Maduro, Case C-135/08, Rottmann v. Freistaat Bayern, 2010 E.C.R. I-01449, paras. 16–20, 23.Google Scholar

32 Azoulai, Loic, A Comment on the Ruiz Zambrano Judgement: A Genuine European Integration, EUDO Citizenship Consortium, http://eudo-citizenship.eu/search-results/457-a-comment-on-the-ruiz-zambrano-judgment-a-genuine-european-integration (last visited Aug. 28, 2013).Google Scholar

33 See Zambrano, supra note 1, para. 42.Google Scholar

34 See generally Opinion of Advocate General Sharpston, Case C-34/09, Zambrano v. Office Nat'l de l'Emploi, 2011 E.C.R. I-01177, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009C0034:EN:HTML (last visited Aug. 29, 2013).Google Scholar

35 See generally Helen Oosterom-Staples, To What Extent Has Reverse Discrimination Been Reversed?, 14 Eur. J. Immigr. L. 171 (2012).Google Scholar

36 See Opinion of Advocate General Sharpston, Case C-212/06, Gov't of the French Cmty. and the Walloon Gov't v. the Flemish Gov't, 2008 E.C.R. I-1683, paras. 142–44.Google Scholar

37 See McCarthy, supra note 3, para. 46.Google Scholar

38 Id. para. 56.Google Scholar

39 See Opinion of Advocate General Kokott, Case C-434/09, Shirley McCarthy v. Sec'y of State for the Home Dep't, 2011 E.C.R. I-03375, para. 59 [hereinafter Opinion of Advocate General Kokott]. With regard the criteria elaborated by the European Court of Human Rights concerning national measures that are unjustified interferences of public authority with family life, see Beldjoudi v. France, 12083 Eur. Ct. H.R. 86 (1992). See generally Boultif v. Switzerland, 2001-IX Eur. Ct. H.R. 1179; Sen. v. Neth., App. No. 31465/96, Eur. Ct. H.R. 888 (2001). Da Silva and Hoogkamer v. Neth., App No. 50435/99, Eur. Ct. H.R. (2006); G.R. v. Neth., Eur. CT. H.R. (2012).Google Scholar

40 See Opinion of Advocate General Kokott, supra note 39, paras. 59–60.Google Scholar

41 Dereci, supra note 3, paras. 70–72.Google Scholar

42 See Opinion of Advocate General Mengozzi, Case C-256/11, Dereci v. Bundesministerium für Inneres, 2013 E.C.R. I-nyr, paras. 37–38 [hereinafter Opinion of Advocate General Mengozzi].Google Scholar

43 Dereci, supra note 3, para. 66.Google Scholar

44 Opinion of Advocate General Mengozzi, supra note 42, para. 47.Google Scholar

45 Dereci, supra note 3, para. 1.Google Scholar