The Right to Have What Rights? EU Citizenship in Need of Clarification Dimitry Kochenov* ‘Lament, then, leads the theologian into that most difficult of intellectual tasks, the thinking of the point of contact between our theories about faith and its practice.’1 Forthcoming in 19 ELJ 2013, please consult the Journal issue for the final version Abstract. 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. 1. Introduction The Court of Justice of the European Union (ECJ) stands to be criticised for the lack of clarity which its recent EU citizenship case-law abundantly demonstrates. The recent cases, including Rottmann,2 Ruiz Zambrano,3 McCarthy,4 and Dereci5 * University of Groningen. Many thanks to Rainer Bauböck and Jo Shaw out of whose profound skepticism this lament arose. 1 Eva Farasta and Brian Brock, Evoking Lament: A Theological Discussion (Continuum, 2009) 3. 2 Case C-135/08 Rottmann [2010] ECR I-1449. Analyzed in Jo Shaw (ed.), ‘Has the European Court of Justice Challenged the Member State Sovereignty in Nationality Law?’, EUI RSCAS Paper No. 62 (2011); Gerard-René de Groot, ‘Overwegingen over de Janko Rottmann-beslissing van het Europese Hof van Justitie’, 1 Asiel- en migrantenrecht (2010) 293; Dimitry Kochenov, ‘Annotation, Case C-135/08 Rottmann’, 47 CMLRev. (2010) 1831; Sara Iglesias Sánchez, ‘¿Hacia una nueva relación entre la nationalidad estatal y la ciudadanía europea?’, 37 Revista de Derecho Comunitario Europeo (2010) 933. 3 Case C-34/09 Ruiz Zambrano [2011] nyr. Annotated by Peter Van Elsuwege, ‘Shifting Boundaries?: European Union Citizenship and the Scope of Application of EU Law’, 38 LIEI (2011) 263; Kay Hailbronner and Daniel Thym, ‘Annotation, Case C-34/09 Gerardo Ruiz Zambrano’, 48 1 Electronic copy available at: http://ssrn.com/abstract=2171454 are overwhelmingly innovative and promising, yet they stop short of being truly convincing because of what the Court seems to be hinting at but does not say. EU citizenship acquires powerful potential to shape the material scope of EU law and protect the rights of those in possession of this status in the situations unrelated to any additional considerations besides being an EU citizen, such as the existence, actual or potential, of a cross border situation.6 In a way, the Court seems to be hinting at the beginning of a new era of EU law where the text of Part II TFEU is finally taken seriously: it is a fundamental systemic Part of the Treaties, informing the architecture of the European integration project.7 This seriousness, however, rather than being accompanied by crisp analysis, is largely a befogged and openended construction, posing more questions than it solves. Given the contradictory vectors of EU citizenship development decipherable in the recent case-law, it is suggested that the ECJ is now at the cross-roads where legal certainty and constructive potential of EU citizenship are threatened to be lost in the mist of conflicting signals and logical incongruencies, which go far beyond the field of EU citizenship law per se. The mounting contradictions are able to affect the division of competences between the EU and the Member States, as well as the place of fundamental rights in the EU legal framework and the approaches to framing the jurisdiction of the Court of Justice, i.e. the instances when the recourse to EU citizenship logic alone allows the Court to intervene. These problems are bound to be dealt with by the ECJ in the most constructive manner. EU citizenship is in need of an urgent clarification. CMLRev. (2011) 1253; Anja Lansbergen and Nina Miller, ‘Citizenship Rights in Internal Situations: An Ambiguous Revolution?’, 7 Eur. Const. L. Rev. (2011) 287. 4 Case C-434/09 McCarthy [2011] nyr. Analyzed by Peter Van Elsuwege, ‘European Union Citizenship and the Purely Internal Rule Revisited’, 7 Eur. Const. L. Rev. (2011) 208; Anja Wiesbrock, ‘Disentangling the “Union Citizenship Puzzle?”’, 36 ELRev. (2011) 861. 5 Case C-256/11 Dereci [2011] nyr. Analyzed by Niamh Nic Shuibhne, ‘Annotation of Case C434/09 McCarthy and Case C-256/11 Dereci’, 49 CMLRev. (2012) 349; Stanislas Adam and Peter Van Elsuwege, ‘Citizenship Rights and the Federal Balance between the European Union and Its Member States: Comment on Dereci’, 37 ELRev. (2012) 349. 6 Koen Lenaerts, ‘“Civis europaeus sum”: From the Cross-Border Link to the Status of Citizen of the Union’, 3 Electronic Journal of the Free Movement of Workers in the European Community (2011), 6; Dimitry Kochenov, ‘A Real European Citizenship: A New Jurisdiction Test: A Novel Chapter in the Development of the Union in Europe’, 18 CJEL (2011), 55; Sara Iglesias Sánchez, ‘El assunto Ruiz Zambrano: Una nueva aproximación del Tribunal de Justicia de la Unión europea a la ciudadanía de la Unión’, 24 Revista General de Derecho Europeo (2011), 382; Laurens Ankersmit and Wessel Geursen, ‘Ruiz Zambrano: De interne situatie voorbij’, 2 Asiel- en migrantenrecht (2011) 156. 7 Dimitry Kochenov and Richard Plender, ‘EU Citizenship: From an Incipient Form to an Incipient Substance? The Discovery of the Treaty Text’, 37 ELRev. (2012) 369. 2 Electronic copy available at: http://ssrn.com/abstract=2171454 The argument proceeds as follows. Having outlined the key trend in the development of EU citizenship law which consists in the rise in the importance of EU citizenship within the context of EU law (2.), the analysis proceeds towards outlining the key innovation brought about by the recent case-law. EU citizenship, through the proxy of fundamental rights, is given a key role to play in outlining the material scope of EU law, which is the essence of the Court’s new approach (3.). This innovation is not without drawbacks, however. The section that follows focuses on the vague construction of the limitations of this approach which befog the clarity if not the logical coherence of EU citizenship law. The essence of EU citizenship and the material scope of EU law come to be fully dependent on answering a question about rights, introducing uncertainty. While the infringement of some EU citizenship rights triggers automatic application of EU law no matter what and allows drawing concrete benefits from the possession of the status of EU citizenship – like the work and residence rights for a third-country national parent of static EU citizen children in Ruiz Zambrano8 – other, alarmingly similar factual situations produce a contrarian result – like the lacking EU residence right of a third-country national spouse of a mother of static EU citizen children in a family touched by child disability in McCarthy9 (4.). The Court is thus unclear about the meaning of the evasive concept of the ‘essence of the rights’10 associated with the status of EU citizenship, which occupies the central place in the construction of the new vision of EU citizenship. It even seems to go as far as to entrust the national courts of the Member States with determining whether a particular factual situation amounts to the deprivation of EU citizens of the essence of their rights associated with this status, as it has done in Dereci. This – given the new approach introducing a direct connection between EU citizenship rights on the one hand, and the duo of the material scope of EU law and the jurisdiction of the Court on the other – amounts to ECJ’s giving up the ability to decide on its own jurisdiction in EU citizenship cases. Given that the scope of application of EU law now depends on the precision of the legal construction of the essence of EU citizenship rights, delegation of the framing of the essence of such 8 Case C-34/09 Ruiz Zambrano [2011] nyr. Case C-434/09 McCarthy [2011] nyr; Case C-256/11 Dereci [2011] nyr. 10 For the analysis of the term see Adam and Van Elsuwege (2012); Kochenov and Plender (2012); Hailbronner and Thym (2011); Ankersmit and Geursen (2011). 9 3 rights to the national courts is an extremely risky affair, logically incomparable to mere application of the law to the facts of the case, unless the principle question of EU law’s theoretical applicability is answered first at the supranational level. Should the ECJ follow its Dereci approach, Estonian courts will have an EU citizenship different from that construed by their British counterparts and the Portuguese EU citizenship rights will not correlate with the Slovenian ones. In a situation where even the theoretical invocability of EU law depends on the notion of the essence of rights of EU citizenship, decentralised determination of such rights is fundamentally different from granting national courts discretion in applying EU law, as has been done, for instance, in Rottmann.11 The consequences of such a light-hearted approach to EU citizenship are truly problematic and affect the very essence of the division of powers between the two legal orders in the Union, virtually giving up EU citizenship to the national level, to which no authorisation or pretext is to be found in the Treaties. The potential influence of this approach on legal certainty and uniform application of EU law is truly unsettling (5.). The paper concludes by suggesting that at this stage of EU citizenship development shaping clarity is essential. It is of urgent importance to undo the worrisome implications of the McCarthy /Dereci case-law for the determination of the Court’s jurisdiction, coherence and uniformity of EU law, as well as the essence of EU citizenship. Given the worrisome vagueness of the latest pronouncements of the Court threatening to undo the important evolution in the essential features of EU law, moving it closer to the citizen and giving it a human face, scholars can do little at this point: it will be up to the ECJ itself, however divided, to clean up the mess. Consequently, this essay is largely a lament aiming at the restatement of the virtues of clarity and consistency: a plea to discover the law responsibly. It is thus not a prescription, but an attempted diagnosis. Nevertheless, the conclusion contains a list of fundamental issues which will have to be taken into account in infusing EU citizenship law with much needed clarity and coherence. 11 For a criticism see, e.g. Kochenov (2010) ‘Annotation of Rottmann’. 4 2. Key trend: The rising importance of EU citizenship in the context of EU law Now at almost twenty EU citizenship is at the cross-roads. A complex and multifaceted body of case-law has emerged, from Martínez-Sala12 and Grzelczyk,13 to Baumbast,14 Chen,15 Rottmann, Ruiz Zambrano and Dereci, pointing in all kinds of different directions, stirring up academic debate16 and dividing the members of the Court.17 Commentators approach this concept from countless different angles, from Kostakopoulou’s perspective of putting the individual at the centre stage,18 Davies’ ‘humiliating the State’19 and Bellamy’s criticism of the weak socio-political substance of the concept,20 to Weiler’s reminder that the grapes are probably sour: EU citizenship empowers individuals, just as much as it potentially undermines their integrity, in turning them into mere consumers of ready-made political results instead of meaningful subjects of the law.21 This essay does not take sides. What is important for us here is that all the adherents of these extremely diverse views on EU citizenship would concur with regard to one important conclusion to be drawn from the recent developments: the importance of EU citizenship in the legalpolitical fabric of the EU has grown enormously. Either a market freedom,22 or a 12 Case C-85/96 Martínez Sala [1998] ECR I-2691. Case C-184/99 Grzelczyk [2001] ECR I-6193. 14 Case C-413/99 Baumbast and R. [2002] ECR I-7091. 15 Case C-200/02 Zhu and Chen [2004] ECR I-9925. 16 For an overview, see, Dimitry Kochenov, ‘The Cherry Blossoms and the Moon of European Citizenship’, 62 ICLQ (2013); Jo Shaw, ‘Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism’, in Paul Craig and Gráinne de Búrca (eds.), Evolution of EU Law (OUP 2011) 575. 17 E.g. Opinion of AG Sharpston, Case C-34/09 Ruiz Zambrano [2011] nyr; Opinion of AG Kokott, Case C-434/09 McCarthy [2011] nyr; Opinion of AG Trstenjak, Case C-40/11 Yoshikazu Iida [pending]. The wording of all the recent cases unmistakably points in the direction of deep divisions among the members of the Court. No matter how much the Judges try to shape clarity and coherence writing extra-judicially, the case-law is still very confusing and vague to which all the commentators agree. 18 Dora Kostakopoulou, ‘Ideas, Norms and European Citizenship: Explaining Institutional Change’, 68 MLR (2005) 233. 19 Gareth Davies, ‘Humiliation of the State as a Constitutional Tactic’, in Fabian Amtenbrink and Peter van den Bergh (eds.), The Constitutional Integrity of the European Union (T.M.C. Asser Press, 2010). 20 Richard Bellamy, ‘Evaluating Union Citizenship: Belonging, Rights and Participation within the EU’, 12 Citizenship Stud. (2008) 597. 21 Joseph H.H. Weiler, ‘Individual and Rights: The Sour Grapes (editoral)’, 21 EJIL (2010); Joseph H.H. Weiler, ‘Europa: “Nous coalisons des États nous n’unissons pas des hommes”’, in Marta Cartabia and Andrea Simoncini (eds.), La Sostenibilità della democrazia nel XXI secolo (Il Mulino, 2009) 51 22 Niamh Nic Shuibhne, ‘The Resilience of EU Market Citizenship’, 47 CMLRev. (2010) 1597. 13 5 freedom beyond the market,23 EU citizenship clearly came to play an essential role, occupying the central place in the body of EU law. It has definitely moved far away from Plender’s ‘incipient form’,24 having acquired ‘incipient substance’:25 besides bringing the bearers of this status important rights able to affect even the essence of the Member State nationalities26 ‘abolished’ in the words of Davies within the scope of EU law by Article 18 TFEU,27 EU citizenship has a decisive impact on the personal and now also material scope of EU law, as well as the jurisdiction of the Court. The Court has shaped this reality proceeding in countless tiny steps, focusing on the concrete rights, freedoms and entitlements that EU citizenship brings when the situation is within the scope ratione materiae of EU law, from certain naming conventions in your passport28 and minimex allowances29 to tax deductable alimonies paid to an escaping citizen-wife.30 These cases, however useful in improving the concrete legal position of individuals in a number of particular cases have been severely criticised for a somewhat frivolous approach to the scope of EU law which the ECJ demonstrated by playing with the material borders of the law and constantly being more and more subtle in determining where its borderline would lie.31 This culminated in a situation where the citizenship logic of equality, in the words of Nic Shuibhne, ‘undergoes something of an ideological battering’,32 making jurisdictional borders barely coherent and largely unjustifiable, Ferdinand Wollenschläger, ‘A New Fundamental Freedom beyond Market Integration’, 17 ELJ (2011) 1. 24 Richard Plender, ‘An Incipient Form of European Citizenship’, in Francis Jacobs (ed.), EU Law and the Individual (Amsterdam: North Holland, 1976). 25 Kochenov and Plender (2012). 26 Dimitry Kochenov, ‘Member State Nationalities and the Internal Market: Illusions and Reality’, in Niamh Nic Shuibhne and Laurence W. Gormley (ed.), From Single Market to Economic Union (Oxford: OUP, 2012). 27 Gareth Davies, ‘“Any Place I Hang My Hat?” or: Residence Is the New Nationality’, 11 ELJ (2005) 43, 55. 28 Case C-148/02 Garcia Avello [2003] ECR I-11613. 29 Case C-184/99 Grzelczyk [2001] ECR I-6193. 30 Case C-403/03 Schempp [2005] ECR I-6421. 31 Niamh Nic Shuibhne, ‘Free Movement of Persons and the Wholly Internal Rule: Time to Move on?’, 39 CMLRev. (2002) 731; Alina Tryfonidou, ‘Reverse Discrimination in Purely Internal Situations: An Incongruity in a Citizens’ Europe’, 35 LIEI (2008) 43, 44; Dimitry Kochenov, ‘Citizenship without Respect: The EU’s Troubled Equality Ideal’, Jean Monnet Working Paper (NYU Law School) No. 8/10 (2010) 41–54. 32 Niamh Nic Shuibhne, ‘The European Union and Fundamental Rights: Well in Spirit but Considerably Rumpled in Body?’, in Paul Beaumont et al. (eds.), Convergence and Divergence in European Public Law (Oxford: Hart, 2002) 177, 188. 23 6 hinting at the deployment of the reasoning based on the consequences, rather than faithfulness to key legal principles.33 In the last two years, however, the case-law has steadily moved towards easing such tensions through addressing arguably the most fundamental questions. These relate to the Union’s active engagement in deciding who its citizens are and to deploying EU citizenship as a key legal tool in the determination of the jurisdiction of the Court, thus moving on to using EU citizenship as a tool in shaping ratione materiae,34 following the ratione personae transformation which occurred earlier, as brilliantly documented by Spaventa.35 The possession of EU citizenship as such – not a flexible interpretation of whether the concrete situation at issue is within the material scope of EU law – came to play the fundamental role in the latest cases from Rottmann onwards, marking a radical departure from previous practice. No matter which ideal scenario of citizenship one adheres to, we are speaking about a great transformation of EU citizenship, boosting the importance of this status within the context of EU law. 3. Key innovation: EU citizenship shaping the material scope of EU law The ability to guarantee the rights of EU citizens in this supranational capacity by automatically acquiring jurisdiction where such rights are infringed – an innovation introduced in Ruiz Zambrano – as well as the necessity for EU law to be taken into account in the determination of the possession of the legal status itself and jurisdiction to have a final say on this matter – acquired in Rottmann – moved EU citizenship closer to a citizenship in the Arendtian sense: as a ‘right to have rights’. Ruiz Zambrano concerned the residence and work rights in Belgium of a Colombian couple with two EU citizen (Belgian) children. Although the children never used their free movement rights, the Court found that not issuing work and residence permits to the parents would amount to the deprivation of the children of Joxerramon Bengoetxea, ‘Reasoning from Consequences from Luxembourg’, in Ulrich Haltern and Joseph H.H. Weiler (eds.), Europe: The New Legal Realism. Essays in Honour of Hjalte Rasmussen (Djøf, 2010), 39. 34 Kochenov (2011) ‘A Real European Citizenship’. 35 Eleanor Spaventa, ‘Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and Its Constitutional Effects’, 45 CMLRev. (2008) 13. 33 7 the ‘genuine enjoyment of the substance of [EU citizenship] rights’.36 Rottmann concerned the legality of the deprivation of the German and, consequently, EU citizenship of a man of Austrian origin who fraudulently naturalised in Germany by failing to provide crucial information about being prosecuted in Austria and lost Austrian nationality ex lege upon such naturalisation. The Court found that the principles of EU law (in casu proportionality) were applicable to the case arguing, for the first time in its history, that the factual constellation at issue was such that it fell ‘by reason of its nature and its consequences’37 within the scope of EU law. The Court thus built on its earlier hints, such as Eman and Sevinger,38 and made clear that a number of rights stemming from EU citizenship can be solely dependent on the possession of the legal status of EU citizenship, as opposed to the factors unrelated to the possession of such status – such as what is known as the existence of a ‘cross-border situation’, as opposed to a ‘wholly internal situation’.39 Instead of being essentially conditional on the ‘activation’ of EU citizenship40 before relying on it, EU citizenship emerged as a legal status on which rights are directly and unconditionally dependent. The Ruiz Zambrano Court is clear on this: once ‘the substance of rights’ of EU citizenship is infringed by a Member State, EU law is bound to intervene: such situation automatically ends up within the material scope of EU law. This is difficult to view as anything else but the commencement of a new era of EU law, anticipated since this visionary direction had been sketched by Sir Francis Jacobs in Konstantinidis,41 inaugurating a possibility for a future legal status of EU citizenship which would be entirely independent of the cross-border thinking. Indeed, since, as established in Rottmann and Ruiz Zambrano, falling within the scope ratione materiae through establishing a cross-border situation is 36 Case C-34/09, Ruiz Zambrano [2011] ECR I-0000, para. 42. Case C-135/08, Rottmann [2010] ECR I-1449, para. 42 38 Case C-300/04 Eman and Sevinger v. College van burgemeester en wethouders van Den Haag [2006] ECR I-8055. See F.M. Besselink, ‘Annotation of Case C-154/04 Spain v. UK, Case C-300/04 Eman and Sevinger, and Sevinger v. Eman Apps. Nos. 17173/07 and 17180/07, 45 CMLRev. (2008) 787; Dimitry Kochenov, ‘EU Citizenship in the Overseas’, in Dimitry Kochenov (ed.), EU Law of the Overseas (Kluwer, 2011) 199. 39 For analysis see note 31; Peter Van Elsuwege and Stanislas Adam, ‘Situtations purement internes, discriminations à rebours et collectivités autonomes après l’arrêt sur l’Assurances soins flamande’, CDE (2008), 655; Dominik Hanf, ‘“Reverse Discrimination” in EU Law: Constitutional Aberation, Constitutional Necessity, or Judicial Choice’, 18 MJ (2011) 26. 40 I.e. a demonstration that the particular situation at issue falls within the material scope of EU law. 41 Opinion of AG Jacobs, Case C-168/91 Konstantinidis [1993] ECR I-1191, para. 46. 37 8 not always necessary any more for EU citizenship to protect the rights of the Member States’ nationals in this supranational capacity, the Union has essentially moved beyond the antiquarian limitations informing the division of competences between its legal orders, which used to be based uniquely on economic reasoning and/or cross-border thinking. EU citizenship has thus acquired a life of its own. Most innovatively, EU citizenship and rights associated therewith came to be bridged by a direct connection unrelated to citizens’ travelling history, service provision in other Member States, or the thickness of her wallet.42 From the ether of desiderata, Sir Francis’ civis europaeus sum logic is entering the real world.43 The latest case-law thus effectively disposes of the old mantra which accompanied the first steps made by the Court in the EU citizenship field, that ‘[EU] citizenship [was] not intended to enlarge the scope ratione materiae [of EU law]’.44 This pronouncement seemed to point at the core of the Court’s uncertainty about what this citizenship was supposed to bring and is certainly unheard of in other areas. To say, for instance that free movement of goods, or the creation of the CAP, was not supposed to affect the scope of EU law would be an expression of legal nihilism – just as a submission that Part II TFEU is somehow different in essence from any other area of substantive EU law. Until the latest Rottmann /Ruiz Zambrano case law the Court was unwilling to move beyond the restatement of the mantras which are not grounded in the Treaties.45 Only two decades after Maastricht did the Court come to acknowledge that Part II TFEU is endowed with the effet utile going beyond judge-imposed ultra vires unwritten limitations, fully recognising EU citizenship’s ability to shape the scope of EU law and have direct effect on the vertical division of competences between the Union and the Member States, as the principle of conferral actually requires. 42 For a longer list of additional considerations undermining the status when a traditional crossborder situation approach is used, see, e.g. Dimitry Kochenov, ‘Ius Tractum of Many Faces: European Citizenship and a Difficult Relationship between Status and Rights’, 15 CJEL (2009) 169, 234. 43 Case C-135/08 Rottmann [2010] ECR I-1449, para. 42; Case C-34/09 Ruiz Zambrano [2011] nyr, para. 42; Case C-434/09 McCarthy [2011] nyr, para. 53. For an analysis see e.g. Judge Lenaerts writing extrajudicially: Lenaerts (2011); see also Kochenov (2011) ‘A New European Citizenship’. 44 Joined cases C-64/96 and C-65/96 Uecker and Jaquet [1997] ECR I-3171, para. 23; Case C148/02 Garcia Avello [2003] ECR I-11613, para. 26. 45 This point is analysed in detail in Kochenov and Plender (2012). 9 4. Key uncertainty: EU citizenship’s dependence on the question about rights The final acceptance of EU citizenship as a meaningful and necessary element of the Union legal architecture in the recent case-law created a strong emphasis on rights. The trend established by Rottmann and Ruiz Zambrano was reconfirmed by McCarthy and Dereci. In McCarthy the Court, acting on its own motion, investigated the potential application of EU law based on the Rottmann /Ruiz Zambrano ‘enjoyment of the essence of rights’ doctrine46 in response to a failure by a dual UK-Irish national to doctor a cross-border situation in order to legalise the presence in the UK of her Jamaican husband. The Court did not even mention that there were three children in the family, one of them handicapped and focused on the employment and travel history of Mrs. McCarthy, distinguishing her situation from the Ruiz Zambrano family. No connection was made between the fact that she drew benefits and the disability of her child in need of constant care. Although the attempt to create a cross-border situation has been unsuccessful, the Court also considered the application of the Rottmann /Ruiz Zambrano test, failing to find, however, that the likely expulsion of her husband will amount to the breach of the essence of Mrs. McCarthy’s rights as a citizen of the Union, as she is not thereby pushed to leave its territory. There are limits to the ‘essence of rights’ approach, the Chamber tells us. Importantly, such limits are not related to the new approach to constructing ECJ jurisdiction as such, which does not imply finding cross border situations. They solely relate to the determination of the exact meaning of the ‘substance of rights’ of EU citizenship. The limitations are a direct consequence of refusing to extend the scope of the substance of rights by not finding, in subsequent cases, the infringement of the specific right employed for constructing ECJ’s jurisdiction in Ruiz Zambrano. Since failing to extend the palette of rights is not the same, one would like to presume, as backing down on the principled theoretical point of employing EU law to ensure high level of EU citizens’ rights protection, it is clear that McCarthy and Dereci do not actually limit the essence of Ruiz Zambrano, what scholars wrote about47 and AG Mengozzi also made clear in his View in Dereci. The learned AG found that 46 47 Case C-434/09 McCarthy [2011] nyr, para 56. Wiesbrock (2011); Kochenov (2011) ‘A Real European Citizenship’, 89. 10 the restrictive application of the right not to be forced to leave the Union in Dereci (which the Court applied following AG’s suggestion) ‘does not mean ... that the scope of Ruiz Zambrano is limited to the case of minor Union citizens who are dependent on one of their parents, who are both nationals of non-member countries’.48 Dereci concerned a number of mixed static EU citizen/ third-country national families resident in Austria who had difficulty to rely on EU law in order to regularise the immigration status of their third-country national members and made an unsuccessful attempt to invoke supranational law via Ruiz Zambrano logic. Cross-border situation logic would clearly not apply. Refusing to be constructive in determining which EU citizenship rights belong to the substance of rights on which so much depends at the moment is profoundly problematic. In McCarthy the Court did not find that being able to stay with her husband in the UK was Mrs McCarthy’s EU citizenship right, thus failing the jurisdiction test and washing its hands off the matter. Similarly, in Dereci caselaw it failed to find jurisdiction based on Rottmann /Ruiz Zambrano approach in a series of cases deemed outwith the material scope of EU law as not involving the infringement of the substance of rights of EU citizenship notwithstanding the fact that all of them involved EU citizen family members being separated from their third-country national children and spouses.49 What is fundamental about both McCarthy and Dereci, however, is that the Court did not depart from the Rottmann /Ruiz Zambrano approach to jurisdiction, investigating whether the essence of rights of EU citizens at issue has been infringed and acknowledging that should this be the case, the construction of a cross-border situation would not be required for moving the factual situation at issue within the material scope of EU law. These cases make clear that once the enjoyment of the essence of EU citizenship rights is at issue, EU law kicks in no matter what. Taking Dereci and McCarthy into account it is thus incontestable that even though the Court is not ready to find the instances of the deprivation of the ‘substance of rights’ even when the very existence of the family is at issue,50 the new approach to jurisdiction in EU citizenship cases outlined in Rottmann and Ruiz 48 View of AG Mengozzi in Case C-256/11 Dereci [2011] nyr, para. 46. Van Elsuwege and Adam (2012); Van Elsuwege and Kochenov (2011). 50 For criticism see Wiesbrock (2011); Peter Van Elsuwege and Dimitry Kochenov, ‘On the Limits of Judicial Intervention: EU Citizenship and Family Reunification Rights’, 13 EJML (2011) 443. 49 11 Zambrano stands strong.51 ‘The right to have what rights?’ is thus the crucial question at the moment, on which the essence of the ‘true [European] citizenship’52 depends. This question is fundamental no matter whether we are in a ‘sour grapes’53 or in the ‘humiliation of the state’54 camp, i.e. no matter what the normative ‘true citizenship’ ideal is taken to signify. Only the knowledge of precisely which rights the Court has in mind when giving a broad reference to the ‘substance of rights’ of EU citizenship, provides the key to the limitations of the Rottmann /Ruiz Zambrano approach of the Court. A coherent picture of the Union’s future entirely depends on the answer given to this question, since without a clear delimitation of competences between the EU and the Member States, which is now entirely rights-dependent, the legal essence of the Union and its future is profoundly undermined As of now, sadly, coherence is in short supply: McCarthy and Dereci de facto leave the question posed above unanswered. Moreover, given that the Court comes to contradictory conclusions when working with virtually identical facts – like in McCarthy and Ruiz Zambrano – its approach suffers from particular randomness. Where the ‘substance of rights’ approach as outlined in Rottmann and Ruiz Zambrano fails to apply, a cross border element for finding jurisdiction is still necessary: both jurisdiction tests now apply side-by-side.55 Given the blurred essence of the substance of rights of EU citizenship, the classical cross-border approach stands strong: the Court seems to be hinting at the necessity to move around the Union. To realise EU citizenship’s potential we are pushed to drive, or even to take a bus. In the context of the most unfortunate McCarthy decision – which will take place next to Akrich in the textbooks – this is particularly striking. To save her family from being destroyed by the UK authorities, the ECJ indirectly tells us, Mrs. McCarthy had to move. Even beyond pointing to the obvious difficulties of moving around with a handicapped child besides two healthy ones, as well as, on the other side of the same coin, the ethically dubious stand-point taken by the Court refusing to protect a mother who is de facto punished for childdisability with the destruction of her family and the expulsion of the loved one, one fundamental fact cannot be ignored. It consists in the non-sensical nature of the Kochenov (2011) ‘A Real European Citizenship’. Opinion of AG Sharpston, Case C-34/09 Ruiz Zambrano [2011] nyr, para. 3. 53 Weiler (2009); Weiler (2010). 54 Davies (2010). 55 Case C-434/09 McCarthy [2011] nyr, para. 56. 51 52 12 movement requirement in the first place. Indeed, it is impossible to claim that anyone at all would be better off, should the McCarthys actually pack their things and sail to Ireland for a short while. Make no mistake: the required sacrifice able to shield the family from punishment makes no sense whatsoever on the face of it. The lack of moral leadership demonstrated by the Court – not to excuse the UK authorities – is astounding. The stance that the exact delimitation of issues to be regulated by national and by EU law should depend on a requirement that is entirely irrelevant from the point of view of common sense and helps noone to live a more rewarding life is too esoteric to be defensible, however well-known its origins. In fact, this situation is exactly why Rottmann and Ruiz Zambrano are of fundamental importance: protecting the essence of rights of EU citizenship is infinitely easier to make ethically acceptable and ground in common sense, than moving across the non-existing borders. The claim that taking a bus is somehow superior to staying at home and only those who take the bus should be awarded a right to love56 cannot possibly be valid in a citizenship context. Having promised in Rottmann and Ruiz Zambrano to turn EU citizenship rights into the fundamental lens through which to regard fundamental rights and the essence of EU federalism57 (moving from purely market-oriented cross-border logic to a citizenship and rights-based constitution of the vertical delimitation of the national and EU-level competences58), the Court seems to be taking back its own word in McCarthy and Dereci, triggering vagueness and doctrinal inconsistency, which is only likely to grow, given the potentially expansive effects of the Ruiz Zambrano case-law on the scope of human rights protection in the EU. Ironically, this is what the drafters of the Charter of Fundamental Rights seemingly tried to limit,59 criticised by scholars predicting that such expansion was most likely to happen anyway due to the systemic tensions within the multi-layered legal system of the Union, where all the levels converge in the citizens they share.60 Interpretation of Article 51 of the Charter being quite restrictive at the moment (if the Charter is not ignored completely, like what happened in all the EU citizenship For a multi-faceted analysis of such a right see Kenneth L. Karst, ‘The Freedom of Intimate Association’, 89 Yale LJ (1980), 624. 57 Robert Schütze, From Dual to Cooperative Federalism (OUP, 2009). 58 For an analysis see Kochenov and Plender (2012). 59 Art. 51 of the Charter. 60 See, inter alia, Allard Knook, ‘The Court, the Charter, and the Vertical Division of Powers in the European Union’, 42 CMLRev. (2005) 367. 56 13 case-law under consideration in this essay),61 it seems that EU citizenship, not the Charter, is likely to be the main trigger of protection of fundamental rights in the Union – a noble function to which the clauses of the Charter limiting the scope of fundamental rights protection simply do not apply. 62 Providing an additional vista for EU citizens to get their rights protected can only be applauded and should be duly explored by the Court, while also taking into account that ‘the desire to promote appropriate protection of fundamental rights must not lead to the usurpation of competence’, as AG Sharpston warned.63 It is abundantly clear upon rereading all the recent EU citizenship case-law that the main shift in the approach to constructing jurisdiction in such cases is there to stay: EU citizenship will go on triggering the application of EU law. However, this can only happen when the substance of rights of EU citizenship is infringed. This makes the legal construction of the essence of EU federalism, including the scope of the operation of EU fundamental rights protection, directly and solely dependent on answering the question about rights. Only a well-argued and sufficiently broad answer to the question ‘the right to have what rights?’ holds the key to exploring the constructive potential of EU citizenship to the full. 5. Key problem: The Court’s failure to shape clarity in answering the fundamental question The unpredictable outcomes of the recent cases, caused by the Court’s failure to clarify what this ‘substance of rights’ actually means, multiplies contradictions, resulting in a massive assault on clarity and legal certainty. The vision of the Court seems to be always blurred, what even its own AGs acknowledge. Besides AG Sharpston who called on the Court to change direction on numerous occasions, AG Mengozzi confessed in his View in Dereci that the current situation ‘is ... not very satisfactory from the point of view of legal certainty’.64 What kind of rights the 61 For criticism see, e.g., Opinion of AG Bot in Case C-108/10 Ivana Scattolon [2011] nyr, para. 120. 62 Martijn van den Brink, ‘EU Citizenship and EU Fundamental Rights’, 39 LIEI (2012) 273. 63 Opinion of AG Sharpston in Case C-34/09 Ruiz Zambrano [2011] nyr, para. 168. 64 View of AG Mengozzi in Case C-256/11 Dereci [2011] nyr, para. 49. 14 much alluded to ‘substance of rights’ includes, is as unclear as ever, potentially promoting ‘citizenship without respect’.65 Instead of coming up with a clear test, which would be instrumental in analyzing whether a particular right in the palette of the rights associated with EU citizenship can be included among the substance of rights which would enable the move of a particular factual constellation within the scope ratione materiae of EU law, the Court picks such rights seemingly at random without providing any rationale for choosing the particular rights it favours and, crucially, without supplying any references to the legal foundation of such rights. The latter is especially problematic, since such rights can be derived from a virtually unlimited pool of sources, be that Part II TFEU, unwritten principles of law, substance of the notion of citizenship as such, can be inspired by the ECHR, or the Charter of Fundamental Rights, as well as, probably, by international law and the national constitutional traditions – all of these being in line with the understanding of the sources of rights in EU Human Rights law. In the absence of any decipherable test, the only source of substance of rights of EU citizenship is thus the case-law of the ECJ itself, where such rights are presumably named. Right away, it is clear that being entirely silent about the origins of rights on which the whole division of competences in the EU federal context lies results in an anti-systematic approach to answering the question which is central in the context of development of EU citizenship law, undermining its persuasiveness. Given the global trend of moving away from the culture of authority towards the culture of justification,66 supplying clear reasons is of essential importance for the ECJ, just as it is for any other influential court.67 Not giving any reasons and not supplying any sources of the rights in question profoundly undermines the coherence of the recent jurisprudence. This equally concerns the exclusion of rights which are readily available from a large pool of binding sources, such as the right to family life for instance, dismissed by the Court in both McCarthy and Dereci with no further ado. This approach of the Court is nothing but profoundly puzzling. Kochenov (2010) ‘Citizenship without Respect’. Moshe Cohen-Eliya and Iddo Porat, ‘Proportionality and the Culture of Justification’, 59 AJCL (2011) 463. 67 Mattias Kumm, ‘The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review’, 4 L. & Ethics of Hum. Rts. (2010), Art. 1. 65 66 15 Recurrent in all the recent case-law, the main emerging element belonging to the ‘substance of rights’ of EU citizenship appears to be surprisingly confined to not being forced to leave the territory of the Union and ‘not only the territory of the Member State of which [EU citizen] is a national’.68 One can speculate that its source would be in the Court’s philosophical reading of the substance of features of the concept of citizenship as such. The right features in all the recent cases, which is profoundly worrisome as of itself. Not only does this unwritten right suddenly pop up from nowhere with no clear justification. The Court also seems to be using it, as it did in both McCarthy and Dereci, as coextensive with the scope of the notion of the ‘substance of rights associated with the status of EU citizenship’, thereby de facto seriously undermining EU citizenship potential The Court’s vision possibly be logically coherent, since one specific right is by definition narrower in scope than ‘the substance of rights’. In such a logically shaky context, where one particular right is for unknown reasons presented as all the rights, the Court never justifies its approach simply stating that, using McCarthy as an example, No element of the situation of Mrs McCarthy, as described by the national court, indicated that the national measure at issue in the main proceedings has the effect of depriving her of the genuine enjoyment of the substance 69 of the rights associated with her status as a Union citizen. By contrast with the case of Ruiz Zambrano, the national measure at issue in the main proceedings in the present case does not have the effect of 70 obliging Mrs McCarthy to leave the territory of the European Union’ In other words, instead of gradually identifying and protecting the whole spectrum of the substance of the rights of EU citizenship, the Court came to use its own first example of what falls within the scope of the ‘substance of rights’ (i.e. not being forced to leave EU territory, as in Ruiz Zambrano) as co-extensive to the very notion of the ‘substance of rights’ itself. The analysis starts and stops at the right not to be pushed to leave the territory of the Union and no explanation why is given. Instead of convincingly elaborating why this or that right is not included, the Court simply dismisses all the potential candidates, stating that they are not the particular 68 Case C-256/11 Dereci [2011] nyr, para. 66. Case C-434/09 McCarthy [2011] nyr, para. 49. 70 Id., para. 50. 69 16 right it used in Ruiz Zambrano.71 Tautologies are rarely convincing. This approach borders on the irresponsible, playing against the persuasiveness of what the Court is preaching also simultaneously degrading the essence of EU citizenship and of the fundamental rights as such. The Court stops short, in our respectful opinion, of shaping clarity on the issue. Moreover, fundamental notions dismissed too lightly threaten to lose also their symbolic legal value, which is essential in the long run. Such a drastic narrowing down of the substance of the rights of EU citizenship is extremely cynical and cannot survive for long. It seems clear that those commentators who anticipated zero tolerance towards any national measures ‘which have the effect of depriving 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’,72 expected too much. It turned out that there was, indeed, a desire of the Court to intervene, as is witnessed in Rottmann and Ruiz Zambrano; however, it can be argued that it came at the expense of the crucial rights themselves, de facto turning into something akin to an attack on the substantive rights of EU citizenship, since only one of those is now unquestionably recognised in the case-law (at least as a trigger of ECJ jurisdiction with no cross border situations required), i.e. the right not to be forced to leave the territory of the Union. Dereci moves the problematic nature of the recent case-law one step further, however. The Court ruled that ‘the denial of the genuine enjoyment of the substance of the rights conferred by virtue of [one’s] status as a citizen of the Union ... is a matter for the referring court to verify’.73 But is it not true that leaving such issues to the national courts to decide amounts to delegating to them not merely the question of the exact amount of rights associated with EU citizenship, but, fundamentally, the question whether the ECJ is competent? As has been demonstrated, the outline of the scope of EU law as such is now dependent on the answer to be given to the question about rights. In this context it is not clear whether the exaggerated legal pluralism demonstrated by the Court is the sustainable use of the national courts in the current system. It clearly can be 71 See, equally, View of AG Mengozzi, Case C-256/11 Dereci [2011] nyr, para. 27 (with no explanation why). 72 Case C-34/09 Ruiz Zambrano [2011] nyr, para. 42. 73 Case C-256/11 Dereci [2011] nyr, para. 74 (emphasis added). 17 interpreted as amounting to giving up EU citizenship as a supranational legal status in contradiction to the letter and the spirit of the Treaties, undermining the very essence of the ‘fundamental status of the nationals of the Member States’.74 The latest case-law thus potentially represents an attack on the legal ability of the ECJ to determine its own jurisdiction in citizenship cases, which is a most surprising move, especially given that EU citizenship, alongside with a handful of other fundamental concepts unquestionably belongs to the realm of EU law, as opposed to the national law of the Member States. Without a prior answer to the question of which rights are able to trigger the application of EU law which is now activated also via the EU citizenship concept, the question of jurisdiction, which is central to the essence of EU federalism and the coherence and uniformity of application of EU law throughout all the territory of the Union end up handed over to the judiciaries of the Member States. If the Austrian court rules that the a right to reside in the EU with one’s family is a Union citizenship right able to activate the protections of EU law, neither the ECJ, nor any other national courts are not bound by such an observation and can come to a contrary decision. This potentially leads to a destruction of uniformity and full-fledged marginalisation of the EU citizenship status. Moreover, when the Court rules that some issue is for the national courts to decide, it would be difficult to argue that by doing it the ECJ actually invites the national courts to send another preliminary reference instead of the one which it presently de facto fails to answer. The Austrian court in Dereci did not sent preliminary questions to the ECJ to hear that it can ask again if it has difficulties. Consequently, the ‘delegation’ statement in Dereci is no doubt a mistake and should be treated accordingly. Based on the analysis above, it is clear that essential problems of at least two orders arise in the context of the latest EU citizenship case-law, both of which are in need of meticulous scholarly assessment. The first concerns the question regarding the scope of the rights of citizenship. If left undefined, it threatens to seriously undermine this status. The second concerns the role played by the Member States’ courts in this process. If overemphasised, threatens to undermine the uniformity of application of EU law and disconnect from EU law the essence of the ‘fundamental 74 E.g. Case C-34/09 Ruiz Zambrano [2011] nyr, para. 41. 18 status’ of EU citizenship, which is ‘independent’75 of the Member States’ nationalities and granted by the Union in the first place. The ECJ’s record stands to be criticised in both of the contexts outlined. 6. More questions to answer The Court’s unsystematic treatment of the notion of the ‘substance of rights’ has fundamental implications for the essence of the notion of EU citizenship, as well as for the determination of the Court’s own jurisdiction and, ultimately, the confines of authority in the edifice of EU federalism. Moreover, it shakes the moral ground on which EU law stands, by failing to protect the rights – what has traditionally been the rightly praised strength of the EU. In all these instances being vague is hardly helpful and has negative consequences, resulting in the neglect of legal certainty at a number of fundamental levels. Crucially, the notion of the ‘substance of rights’ came to play the key role in the framing of jurisdiction of the ECJ in citizenship cases. The Court seems to leave no doubt about the fact that should the ‘substance of rights’ of EU citizenship be undermined, no cross-border situation is required to bring the factual situation within the ambit of EU law, as was demonstrated in Rottmann and Ruiz Zambrano and confirmed later on. Regarded as a whole, the body of the recent case-law on EU citizenship can be viewed as profoundly occluding clarity. Five profoundly interconnected points can be made based on the preceding overview of issues awaiting resolution. 1. EU citizenship law has moved beyond the market-driven rationale of the past when the Court started claiming jurisdiction in citizenship cases based on the concept of the ‘substance of rights’ of citizenship. 2. The concept of the ‘substance of rights’ of citizenship is thus fundamentally important in the context of EU citizenship’s development and also as a procedural tool in solving jurisdictional disputes. 3. The Court has not done enough to specify what the concept of ‘substance of rights’ of EU citizenship actually includes. Its recent caselaw points in several directions and is generally vague and inconclusive. 75 Opinion of AG Poiares Maduro, Case C-135/09 Rottmann [2010] ECR I-1449, para. 23 19 4. The nods towards national courts in expecting them to establish whether the ‘substance of rights’ of EU citizenship has been undermined, as has been done in Dereci are profoundly dangerous, as they derail the caselaw even further and potentially lead to the undermining of EU citizenship as a meaningful legal status established by EU law. 5. Answering the question ‘the right to have what rights?’ is crucial in assessing EU citizenship’s future, as well as the interrelation between EU citizenship and the Charter of Fundamental Rights as potentially competing vehicles of EU human rights protection. As of now, we do not know what these rights able to trigger EU law are, what their sources are, how far they need to be breached for EU law to intervene and who will be deciding on all these issues. Could it be that the tool acquired by the Court to protect the ‘substance of rights’ is disproportionately powerful? Finding that some right touches upon the ‘substance of rights’ automatically moves any situation involving the infringement of such right within the scope of the Court’s jurisdiction. This could be the reason behind the Court’s unwillingness to be clear about the meaning of the crucial concepts which it introduced in Ruiz Zambrano. Instead of gradually making it clearer what the reference to the ‘substance of the rights’ of EU citizenship means, the Court merely treats us, the citizens, to the ‘leaving the Union’ cliché – a process started in McCarthy and continued in Dereci. Is the Court really of the opinion that there are no other fundamentally important rights, which would enable it to demonstrate sorely needed moral leadership instead of haphazard timidity not only failing to shape clarity and coherence within the context of EU federalism, but also destroying families for no reason while connecting the protection offered EU law with an action deprived of any sense i.e. taking a bus? Whatever is the case, it is up to the Court to convince us, EU citizens, that what is being done makes legal and moral sense. Should we be witnessing the birth of a long-term strategy – as would be great to believe – the question remains how many families should be destroyed before it finally starts bringing fruit. 20