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Fundamental Rights: The Missing Pieces of European Citizenship?

Published online by Cambridge University Press:  06 March 2019

Chiara Raucea

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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

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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

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