Ruiz Zambrano

This article scrutinizes the last ten years of the academic debate on EU citizenship law taking nine fundamental disagreements among scholars as staring points. It explores EU citizenship’s relationship with three groups of issues of fundamental importance, including the place of this concept within the fabric of EU law, the influence of this concept on the essence of the Union as a system of multilevel governance, and its impact on the lives of ordinary Europeans. A number of key works which influenced the Court and the legislator in the recent years is assessed to outline the likely direction of future research, as well as future EU citizenship’s development. Although the literature on the subject is overwhelmingly rich and diverse, this article aspires to provide a representative sample of issues of interest for the framing of the concept at issue from a supranational perspective, necessarily leaving national (or nationalistic) literatures aside.

This brief contribution appeared in the Verfassungsblog in February 2012 in reaction to an important article published by Armin von Bogdandy et al. in 49 CMLRev., 2012, 489. While the approach taken by von Bogdandy is very fascinating and innovative, it can also be criticized on a number of grounds, including, inter alia, the presumption that Solange was good enough to be worth copying, that an approach designed for giving up power is likely to be effective in the context of acquiring new jurisdiction, and that abstract human rights protection at the most general level will actually change the situation where concrete rights are violated on the ground. The rich article by von Bogdandy et al. is an important starting point for a fundamental debate on the scope of the EU’s human rights jurisdiction which is long overdue and is becoming particularly acute in the light of the recent case-law of the CJEU, where the Court is using EU citizenship rights to claim jurisdiction and activate EU law in the fields previously deemed to be outwith EU’s reach.

The EU citizenship is unique animal parasitizing on the national citizenship. Yet it has nearly gained self-standing status through the jurisprudence of the CJEU. However, the fact that the EU citizenship has been incrementally carved out on the case-by-case basis is responsible for its patchwork character which causes serious problems. Firstly, Member States have little understanding for the concept of the EU citizenship extended by the judge-made law since it has compromised their sovereignty in such areas as social and immigration policy. Secondly, reverse discrimination, pervading malaise of the EU citizenship, presents a situation where the static EU citizens are discriminated against dynamic one´s and even against Third Country Nationals. Hence the EU citizenship is perceived as a concept benefitting only small minority to the detriment of majority which is the reason why the EU citizenship failed to attain broad allegiance. Unpopular among Member States, lacking the support of ordinary citizens, the EU citizenship needs impetus in order to imbue the EU integration with legitimacy, instead of becoming reason of its erosion.

The reach of the law of the European Union (EU) is strictly limited. It only applies to the situations falling within its scope. Until very recently, in the case of EU citizens, in order to fall within this scope, a so-called “cross-border situation” was required – a demonstration that their situation had a Union dimension and was not confined to one of the Member States. This is no longer always the case. Under the new approach, it is the intensity of the Member States’ interference with the rights of EU citizens, and not the borders, which trigger the application of EU law. The consequences of the recent case law of the Court of Justice of the EU, including the Rottmann, Ruiz Zambrano, and McCarthy cases, which brought about this change, are truly groundbreaking. The new legal paradigm amounts to a tectonic shift in the border dividing the material scopes of the EU and the Member States’ legal orders, with clear implications for the status of EU citizenship and the sovereignty of the Member States. This article provides a first analysis of this fundamental development, discussing the reasons for, and the limits of the new approach as well as anticipating its consequences for a number of key elements of EU law, including citizenship, territory and the principle of equality. We are witnessing the creation of a real European citizenship by the Court.

This paper provides a brief critical overview of the recent EU citizenship case-law of the Court of Justice including Rottmann, Ruiz Zambrano, McCarthy and Dereci. While these cases open a number of new avenues of fundamental importance for the development of EU law, they also undermine legal certainty and send contradictory signals as to the essence of the EU citizenship status and the role it ought to play in the system of EU law. Most importantly, the Court’s reluctance to specify what is meant by the ‘essence of rights’ of EU citizenship potentially has disastrous consequences following its own determination that such rights play a crucial role in moving particular factual constellations within the material scope of EU law. EU citizenship and the rights associated therewith is now entrusted a fundamental role in establishing the confines of the scope ratione materiae of EU law. The substance and meaning of such rights is however left in suspense to harmful effects. An urgent clarification is needed.

This contribution scrutinises the main implications of
the introduction by the Court of Justice of an alternative
jurisdiction test in EU citizenship cases. The test is based on
the concept of the intensity of Member State interference with
EU citizenship rights of individuals and does not take the
existence (or not) of any cross-border situation into account.
This signifies a definitive move away from the Internal Market
thinking, establishing EU citizenship as such as an activator
of EU law. It also has significant implications for the division
of powers between the Union and the Member States. It
remains to be seen how frequently the new test will be used
next to the established cross-border situation test. A departure
from the market rationale, although potentially radical, is
to be welcomed, since it reflects the essence of the concept
of citizenship better and offers important opportunities to
improve the legal position of the individual in the context of
the European integration project.

The financial crisis has revealed gaps in the protection of EU citizens against unjust deprivations of their rights, including the right to effective judicial protection, due to the difficulty in challenging the consequences of the conditionality imposed. This Article suggests that the deficient protection derives from the limited scope of application of fundamental rights under the Charter of Fundamental Rights of the European Union (Charter) and its unstable judicial interpretation, along with the fact that EU citizenship rights have not developed sufficiently. I will, however, argue that there is a duty to protect citizens within a constitutionalised Union, against any deprivations of their rights contrary to the values of the Union itself. This Article aims to fill these gaps, by developing the connection between EU fundamental and EU citizenship rights, using the judicially developed “substance of the rights” doctrine. Various attempts have been made to achieve this end, yet so...

The financial crisis has revealed gaps in the protection of EU citizens against unjust deprivations of their rights, including the right to effective judicial protection, due to the difficulty in challenging the consequences of the conditionality imposed. This Article suggests that the deficient protection derives from the limited scope of application of fundamental rights under the Charter of Fundamental Rights of the European Union (Charter) and its unstable judicial interpretation, along with the fact that EU citizenship rights have not developed sufficiently. I will, however, argue that there is a duty to protect citizens within a constitutionalised Union, against any deprivations of their rights contrary to the values of the Union itself. This Article aims to fill these gaps, by developing the connection between EU fundamental and EU citizenship rights, using the judicially developed “substance of the rights” doctrine. Various attempts have been made to achieve this end, yet some loose ends remain which are largely addressed in this Article through the establishment of a new jurisdictional test, which combines a dynamic reading of Art. 20 TFEU and the “substance of the rights” doctrine, and Art. 2 TEU and fundamental rights as general principles of EU law.

This paper provides a brief critical overview of the recent EU citizenship case-law of the Court of Justice including Rottmann, Ruiz Zambrano, McCarthy and Dereci. While these cases open a number of new avenues of fundamental importance for the development of EU law, they also undermine legal certainty and send contradictory signals as to the essence of the EU citizenship status and the role it ought to play in the system of EU law. Most importantly, the Court’s reluctance to specify what is meant by the ‘essence of rights’ of EU citizenship potentially has disastrous consequences following its own determination that such rights play a crucial role in moving particular factual constellations within the material scope of EU law. EU citizenship and the rights associated therewith is now entrusted a fundamental role in establishing the confines of the scope ratione materiae of EU law. The substance and meaning of such rights is however left in suspense to harmful effects. An urgent cla...

This article scrutinizes the last ten years of the academic debate on EU citizenship law taking nine fundamental disagreements among scholars as staring points. It explores EU citizenship’s relationship with three groups of issues of fundamental importance, including the place of this concept within the fabric of EU law, the influence of this concept on the essence of the Union as a system of multilevel governance, and its impact on the lives of ordinary Europeans. A number of key works which influenced the Court and the legislator in the recent years is assessed to outline the likely direction of future research, as well as future EU citizenship’s development. Although the literature on the subject is overwhelmingly rich and diverse, this article aspires to provide a representative sample of issues of interest for the framing of the concept at issue from a supranational perspective, necessarily leaving national (or nationalistic) literatures aside.