Fundamental Rights and Citizenship of the Union at a Crossroads: A Promising Alliance or a Dangerous Liaison?

Abstract

The reinforcement of the protection of fundamental rights at the European level and the emergence of the status of Union citizenship are two closely connected phenomena. European citizenship has been and continues to be one of the central arguments in favour of the extension of the scope of EU fundamental rights. This argument arises out of a sentiment that vindicates equality at the core of the citizenship of the Union as a fundamental status. Against this background, this paper examines the different possibilities of interconnection between the traditional doctrine of EU fundamental rights and the jurisprudential construction of the citizenship of the Union. Particularly, it will be discussed whether fundamental rights should be placed at the core of the formula that protects the ‘genuine enjoyment of the substance’ of the rights conferred by EU citizenship, inaugurated by Ruiz Zambrano, already latent in Rottmann and substantially refined in an ever‐growing case‐law (McCarthy, Dereci, O. and S., Ymaraga and Alokpa). It will be argued that this formula carries the very valuable potential to reinforce citizenship of the Union as an independent source of rights able to overcome problems such as reverse discrimination. For these purposes, this formula could be considered to encompass not only the absolute deprivation of the ‘genuine enjoyment of the substance of citizenship rights’, but also the existence of serious obstacles thereto.

Two Ways of Completing the European Fundamental Rights Union: Amendment to vs. Reinterpretation of Article 51 of the EU Charter of Fundamental Rights

“…65 A further step in the same direction would be to state that Union citizenship triggers the application of the Charter. 66 This approach, however, differs greatly from the traditional approach, which considers the scope of the Charter as a delimited ratione materiae. 67 The right to an effective remedy enshrined in Article 47 CFR has a long tradition in EU law and is accepted as general principle of EU law 'which underlies the constitutional traditions common to the Member States'.…”

Revisiting the Ruiz Zambrano Doctrine and Exploring the Potential for its Extensive Application

“…65 Chavez-Vilchez seems to shed new light on a formula that was already defined as 'both uncertain and promising, for it provides for a new dimension in the legal design of the citizenship of the Union without specifying its core implications and material content'. 66 While the Court treads very carefully, it seems to suggest that in purely internal situations, the genuine enjoyment of the substance of citizenship rights could be impaired by an interference with family life in the Member State of nationality. This, in fact, comes close to the scenario that was alluded to as unlikely and tricky by Iglesias Sanchez in 2014, that is, 'admitting that any violation of fundamental rights would trigger the protection of the new formula, paving the way for a complete incorporation of EU fundamental rights against Member States'.…”

“…the intersection between European citizenship and fundamental rights is extremely complex to articulate without pushing the contours of one of them beyond the carefully builtup constitutional balances, since their underlying rationales give rise to significant tensions and difficulties when assessing the possible ways forward. 106 Most recently, Snell has suggested that extending the application of the Ruiz Zambrano doctrine presents constitutional challenges, and the Court seems to be 'relying on a circular argument where rights applying within the scope of the Treaty serve to determine that scope'. 107 We also recognize that 'undermining these limits is risky, even when it is done in the name of fundamental rights'.…”