LSI PAPER C

55

A REAL EUROPEAN CITIZENSHIP: A NEW JURISDICTION TEST: A NOVEL CHAPTER IN THE DEVELOPMENT OF THE

UNION IN EUROPE

Dimitry Kochenov *

The reach of the law of the European Union is strictly limited. It only applies to those situations that fall within its scope. Until very recently, in the case of European Union citizens, in order to fall within this scope, a so-called “cross-border situation” was required—a demonstration that the parties’ situations had a Union dimension and was not confined to one of the Member States. In the wake of a series of seminal Court of Justice of the European Union cases, this strict cross-border situation test is no longer the only means by which the Court will decide whether EU law applies. Under the new approach, it is the intensity of the Member States’ interference with the rights of EU citizens, and not the borders, which triggers the application of EU law. The consequences of the recent case law of the EU, which brought about this change, including the Rottmann, Ruiz Zambrano, and McCarthy cases, 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.

I. INTRODUCTION ............................................................................................. 56 A. A New Era of European Federalism? ................................................. 58

* LL.M. (CEU Budapest), LL.D. (Groningen), Professor of EU Constitutional Law and Fellow of

the Graduate School of Law, University of Groningen, Oude Kijk in ‘t Jatstraat 26, 9712 EK, Groningen, The Netherlands.

The argument contained herein was first presented at a roundtable in London in June 2011, co-organized by the European Commission’s representation in the U.K. and University College London. I am grateful to Prof. Rainer Bauböck (EUI Florence), Dóra Guðmudsdóttir (University of Iceland), Prof. Dora Kostakopoulou (Southampton), Prof. Sir Richard Plender (High Court of Justice of England and Wales, and Groningen Law School), Dr. Alina Tryfonidou (Reading), Prof. Peter Van Elsuwege (Ghent), and Prof. Ferdinand Wollenschläger (Munich) for their most helpful comments and to Prof. Richard Bellamy for the kind invitation to speak at UCL. The assistance of Harry Panagopoulos is kindly acknowledged.

56 COLUMBIA JOURNAL OF EUROPEAN LAW [Vol. 18

B. Structure of the Argument .................................................................. 63 II. EU CITIZENSHIP AFFECTING THE SCOPE RATIONE PERSONAE OF EU LAW ... 64 III. EU CITIZENSHIP AFFECTING THE SCOPE RATIONE MATERIAE OF EU LAW .... 69 IV. CHANGING THE RULES: ROTTMANN, RUIZ ZAMBRANO AND MCCARTHY ......... 74

A. Step One: Rottmann .......................................................................... 75 B. Step Two: Ruiz Zambrano ................................................................ 80 C. Step Three: McCarthy ....................................................................... 86

V. MAIN IMPLICATIONS OF THE NEW APPROACH TAKEN BY THE COURT ......... 91 A. Coherence in the Division of Competences ....................................... 94 B. Protection of EU Citizens .................................................................. 95 C. Promotion of Equality ........................................................................ 98 D. New Vision of Territory ..................................................................... 99 E. Limiting unwarranted Member State action ..................................... 101 F. Reinforcing the Main Trends ........................................................... 104

VI. CONCLUSION .............................................................................................. 106

No, Sir, . . . common sense will triumph over mysticism.

An Anonymous Member of British Parliament, 17741

I. INTRODUCTION

This Article provides an analysis of the dawning of a new phase in the development of the European Union (“EU”). The EU is currently involved in a fundamental reinterpretation of the border between the scopes of the EU and Member State law. In a recent line of EU citizenship cases from the Court of Justice of the European Union (“ECJ” or “the Court”), culminating with Rottmann,2

1 17 WILLIAM COBBETT ET AL., THE PARLIAMENTARY HISTORY OF ENGLAND: FROM THE

NORMAN CONQUEST, IN 1066, TO THE YEAR 1803, at 751 (1813).

Ruiz

2 Case C-135/08, Janko Rottmann v. Freistaat Bayern, 2010 E.C.R. I-01449 [hereinafter Rottmann]. In Rottmann the ECJ ruled for the first time that although Member States remain sovereign as to the conferral and withdrawal of a citizen’s nationality, in cases where the supranational status of EU citizenship is also at stake, the national competences in the field of nationality law should be exercised in accordance with principles of EU law. The case concerned Dr. Janko Rottmann, who was naturalized in Germany while evading prosecution in his native Austria. The Court required Germany to take EU law into account before withdrawing naturalization, since Rottmann’s EU citizenship status depended on his German nationality. The Court made no appeal to the traditional cross-border situation doctrine. Among the numerous annotations of this case, see generally Dimitry Kochenov, Annotation, Case C-135/08, Janko Rottmann v. Freistaat Bayern, 47 COMMON MKT. L. REV. 1831 (2010); Gerard-René de Groot, Overwegingen over de Janko Rottmann-beslissing van het Europese Hof van Justitie, ASIEL & MIGRANTENRECHT 293 (2010); Hans Ulrich Jessurun d’Oliveira, Ontkoppeling van nationaliteit en Unieburgerschap?, 2010 NEDERLANDSCH JURISTENBLAD 785; Gabriel N. von Toggenburg, Zur Unionsbürgerschaft: Inwieweit entzieht sich ihr Entzug der Unionskontrolle?, 2010 EUR. L. REP. 165 (2010); Anja Seling, Annotation, Case C-135/08, Janko Rottman v. Freistaat Bayern: Towards a direct "droit de regard”?, 17 MAASTRICHT J. EUR. & COMP. L. 470 (2010); Sara Iglesias Sánchez, ¿Hacia una nueva relación entre la nacionalidad estatal y la cuidadanía europea?, 37 REVISTA DE DERECHO COMUNITARIO EUROPEO 933 (2010); Gerard René de Groot & Anja Seling, Annotation, Case C-135/08 Janko Rottman v. Freistaat Bayern Case Note 2: The Consequences of the Rottman Judgment on Member State Autonomy—The European Court of Justice's Avant-gardism in Nationality Matters, 7 EUR. CONST. L. REV. 150 (2011); Hans Ulrich Jessurun d'Oliveira, Annotation, Case C-135/08 Janko Rottman v.

2011] A REAL EUROPEAN CITIZENSHIP 57

Zambrano, 3 and McCarthy, 4 the Court indicated that, in cases involving EU citizenship,5

Freistaat Bayern Case Note 1: Decoupling Nationality and Union Citizenship?, 7 EUR. CONST. L. REV. 138 (2011); Dimitry Kochenov, Where is EU Citizenship Going?: Fraudulent Dr. Rottmann and the State of the Union in Europe, in GLOBALISATION, MIGRATION, AND THE FUTURE OF EUROPE: INSIDERS AND OUTSIDERS 240, 240 (Leila S. Talani ed., 2011); HAS THE EUROPEAN COURT OF JUSTICE CHALLENGED THE MEMBER STATE SOVEREIGNTY IN NATIONALITY LAW? (Jo Shaw ed., EUI RSCAS Working Paper, forthcoming Mar. 5, 2011), available at http://eudo-citizenship.eu/citizenship-forum/254–has-the-european-court-of-justice-challenged-member-state-sovereignty-in-nationality-law.

it is ready to depart from the traditional, strictly cross-border situation

3 Case C-34/09, Ruiz Zambrano v. Office national de l’emploi, 2 C.M.L.R. 46 (2011) [hereinafter Ruiz Zambrano]. In Ruiz Zambrano the ECJ for the first time applied EU law to a case involving EU citizens in the complete absence of a cross-border situation. The case revolved around Belgian nationals who were the minor children of a Colombian asylum seeker, the asylum claim of whom the Kingdom of Belgium had dismissed. Although EU-citizen children have never exercised free movement rights and the children in this case were obviously not economically active—thus failing to fall within the scope of a cross-border situation under the traditional approach—their EU citizenship status enabled their father, Mr. Gerardo Ruiz Zambrano, to acquire work and residence rights in Belgium, where his infant children had resided all their lives. The Court indicated that to rule otherwise would amount to depriving minor EU citizens of their fundamental EU citizenship right to remain in the territory of the Union. For annotations of this case, see generally Laurens Ankersmit & Wessel Geursen, Ruiz Zambrano: De interne situatie voorbij, 2011 ASIEL & MIGRANTENRECHT 156; Peter Van Elsuwege, Shifting Boundaries?: European Union Citizenship and the Scope of Application of EU Law, 38 LEGAL ISSUES OF ECON. INTEGRATION 263 (2011); Kay Hailbronner & Daniel Thym, Annotation, Case C-34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi, 48 COMMON MKT. L. REV. 1253 (2011); Niamh Nic Shuibhne, Seven Questions for Seven Paragraphs, 36 EUR. L. REV. 161 (2011); Anja Lansbergen & Nina Miller, Annotation, Case C-34/09 Gerardo Ruiz Zambrano v. Office national de l'emploi: Citizenship Rights in Internal Situations: An Ambiguous Revolution?, 7 EUR. CONST. L. REV. 287 (2011); Alina Tryfonidou, Redefining the Outer Boundaries of EU Law: The Zambrano and McCarthy Rulings, 18 EUR. PUB. L. (forthcoming, 2012).

4 Case C-434/09, Shirley McCarthy v. Sec’y of State for the Home Dep’t, 2011 E.C.R. I-0000 [hereinafter McCarthy]. In McCarthy, the Court confronted an attempt to construct a classical cross-border situation by a dual U.K.-Irish national who had resided in the U.K. all her life and was not economically active, but wished to benefit from the liberal nature of EU rules on family reunification in order to regularize the immigration status of her Jamaican husband, Mr. McCarthy, who did not meet the requirements to obtain a residence permit under U.K. law. Although the attempt was unsuccessful, the Court indicated that it was ready to utilize both the traditional approach to jurisdiction based on cross-border situation thinking and a new Rottmann / Ruiz Zambrano approach, under which the presence of a cross-border situation is not required for establishing jurisdiction. For an annotation, see Peter Van Elsuwege, Annotation, Case C-434/09, Shirley McCarthy v. Sec’y of State for the Home Dep’t: European Union Citizenship and the Purely Internal Rule Revisited, 7 EUR. CONST. L. REV. 308 (2011).

5 The status of EU citizenship is established in both the Treaty on the European Union and Part II of the Treaty on the Functioning of the European Union (TFEU). See, respectively, Consolidated Version of the Treaty on European Union art. 9, Mar. 30, 2010, 2010 O.J. (C 83) 15 [hereinafter TEU]; Consolidated Version of the Treaty on the Functioning of the European Union arts. 18–25, Mar. 30, 2010, 2010 O.J. (C 83) 47 [hereinafter TFEU]. Literature on the concept of EU citizenship is abundant. See Jo Shaw, Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism, in THE EVOLUTION OF EU LAW 575 (Gráinne de Búrca & Paul Craig eds., 2d ed. 2011); DIRITTI FONDAMENTALI E CITTADINANZA DELL’UNIONE EUROPEA (Luigi Moccia ed., 2010); Joseph H.H. Weiler, Europa: Nous coalisons des États nous n’unissons pas des hommes, in LA SOSTENIBILITÀ DELLA DEMOCRAZIA NEL XXI SECOLO 51 (Marta Cartabia & Andrea Simoncini eds., 2009); Dora Kostakopoulou, European Union Citizenship: The Journey Goes On, in FIFTY YEARS OF EUROPEAN INTEGRATION: FOUNDATIONS AND PERSPECTIVES 271 (Andrea Ott & Ellen Vos eds., 2009); Jo Shaw, The Constitutional Development of Citizenship in the EU Context: With or Without the Treaty of Lisbon, in CECI N’EST PAS UNE CONSTITUTION— CONSTITUTIONALISM WITHOUT A CONSTITUTION? 104 (Pernice, I. and Tanchev, E. eds., 2009); PATRICK DOLLAT, LA CITOYENNETÉ EUROPÉENNE: THÉORIE ET STATUS (2008); Xavier Groussot, ‘Principled Citizenship’ and the Process of European Constitutionalization—From a Pie in the Sky to a Sky with Diamonds, in GENERAL PRINCIPLES OF EC LAW IN A PROCESS OF DEVELOPMENT 315 (Ulf


approach to the scope of application of EU law. This traditional approach had mandated that EU law was inapplicable to legal questions that were factually confined to one Member State, i.e., wholly internal. 6

A. A New Era of European Federalism?

The ECJ’s most recent jurisprudence, which is considered in this Article, portends an important broadening in the scope of application of EU law.

In Rottmann and Ruiz Zambrano the ECJ applied EU law without any reference to the existence of a cross-border situation. Cross-border movement, even if only potential, was not invoked by the Court at all, representing a true departure from the Bernitz et al. eds., 2008); WILLEM MAAS, CREATING EUROPEAN CITIZENS (2007); JO SHAW, THE TRANSFORMATION OF CITIZENSHIP IN THE EUROPEAN UNION (2007); Stefan Kadelbach, Union Citizenship, in PRINCIPLES OF EUROPEAN CONSTITUTIONAL LAW 443 (Armin von Bogdandy & Jürgen Bast eds., 2006); Jo Shaw, The Interpretation of European Union Citizenship, 61 MOD. L. REV. 293 (1998); EUROPEAN CITIZENSHIP: AN INSTITUTIONAL CHALLENGE (Massimo La Torre ed., 1998); SÍOFRA O’LEARY, THE EVOLVING CONCEPT OF COMMUNITY CITIZENSHIP (1996); 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); Niamh Nic Shuibhne, The Resilience of EU Market Citizenship, 47 COMMON MKT. L. REV. 1597 (2010); Dimitry Kochenov, Ius Tractum of Many Faces: European Citizenship and the Difficult Relationship between Status and Rights, 15 COLUM. J. EUR. L. 169 (2009); Willem Maas, Unrespected, Unequal, Hollow?: Contingent Citizenship and Reversible Rights in the European Union, 15 COLUM. J. EUR. L. 265 (2009); Miriam Aziz, Implementation as the Test Case of European Union Citizenship, 15 COLUM. J. EUR. L. 281 (2009); 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); Dora Kostakopoulou, European Citizenship: Writing the Future, 13 EUR. L.J. 623 (2007); Francis G. Jacobs, Citizenship of the European Union—A Legal Analysis, 13 EUR. L.J. 591 (2007); Matthew J. Elsmore & Peter Starup, Union Citizenship—Background, Jurisprudence, and Perspective: The Past, Present, and Future of Law and Policy, 26 Y.B. EUR. L. 57 (2007); Michael Dougan, The Constitutional Dimension to the Case Law on Union Citizenship, 31 EUR. L. REV. 613 (2006); Dora Kostakopoulou, Ideas, Norms, and European Citizenship: Explaining Institutional Change, 68 MOD. L. REV. 233 (2005); Gareth Davies, “Any Place I Hang My Hat?” or: Residence is the New Nationality, 11 EUR. L.J. 43 (2005); Robin C.A. White, Free Movement, Equal Treatment and Citizenship of the Union, 54 INT’L & COMP. L.Q. 885 (2005); Gianluigi Palombella, Whose Europe? After the Constitution: A Goal-Based Citizenship, 3 INT’L J. CONST. L. 357 (2005); Cris Shore, Whither European Citizenship?: Eros and Civilization Revisited, 7 EUR. J. SOC. THEORY 27 (2004); Dora Kostakopoulou, Nested “Old” and “New” Citizenships in the European Union: Bringing Out the Complexity, 5 COLUM. J. EUR. L. 389 (1999); Joseph H.H. Weiler, To Be a European Citizen—Eros and Civilization, 4 J. EUR. PUB. POL’Y 495 (1997); Dora Kostakopoulou, Towards a Theory of Constructive Citizenship in Europe, 4 J. POL. PHIL. 337 (1996); Dimitry Kochenov, Citizenship Without Respect: The EU’s Troubled Equality Ideal, (Jean Monnet Working Paper No. 08/10, 2010), available at http://centers.law.nyu.edu/jeanmonnet/papers/10/100801.pdf; Patricia Mindus, Europeanisation of Citizenship within the EU: Perspectives and Ambiguities (Università degli Studi di Trento, Working Paper WP SS 2008 No. 2, 2008).

6 See infra notes 80–82 and accompanying text. Since different national law, as opposed to EU law, is applied in wholly internal situations, this often leads to discrimination between those who would and who would not fall within the scope of EU law, which is allowed in the EU. See, most importantly, Dominik Hanf, “Reverse Discrimination” in EU Law: Constitutional Aberration, Constitutional Necessity, or Judicial Choice?, 18 MAASTRICHT J. EUR. & COMP. L. 29 (2011); see also Peter Van Elsuwege & Stanislas Adam, Situations purement internes, discriminations à rebours et collectivités autonomes après l’arrêt sur l’Assurances soins flamande, 2008 CAHIERS DE DROIT EUROPEEN 655; Alina Tryfonidou, Reverse Discrimination in Purely Internal Situations: An Incongruity in a Citizens’ Europe, 35 LEGAL ISSUES OF ECON. INTEGRATION 43 (2008). See also generally ALINA TRYFONIDOU, REVERSE DISCRIMINATION IN EC LAW (2009); Dimitry Kochenov, Citizenship Without Respect: The EU’s Troubled Equality Ideal (Jean Monnet Working Paper No. 08/10, 2010), available at http://centers.law.nyu.edu/jeanmonnet/papers/10/100801.pdf;.


Court’s previous jurisprudence. In McCarthy the Court sketched the much needed limits to the new contours of the scope of EU law and demonstrated its willingness to apply the old and the new approaches side-by-side. Although definitely not eliminated,7

We now know that EU law, at least potentially, restrains the national law of the Member States in all situations that are “capable of causing [EU citizens] to lose the status conferred by Article 17 EC [now 9 TEU] and the rights attaching thereto,”

the cross-border situation test now has a sound alternative and is no longer the only method by which the Court may frame jurisdictional questions.

8 since any such situation would fall, “by reason of its nature and its consequences, within the ambit of European Union law.”9 We equally know that any 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,” are equally within the ambit of EU law.10

This is a dramatic departure from the traditional cross-border situation approach, which only tolerated applying EU law in cases where some sort of cross-border, and preferably economic, activity was implicated or, under the case law of the last decade, where the controversy involved a quasi-artificial connection with some other Member State.

11 Taken together, the recent cases, which would be deemed “purely internal” under the previous approach,12 mark a decisive move toward a significant extension of the scope of application of EU law, opening up a new vista for drawing the line dividing the two legal orders in the Union. The number of situations which can produce the “effect of depriving Union citizens of the genuine enjoyment of the substance of [their EU citizenship] rights” is truly considerable and undoubtedly covers countless situations that would previously be regarded as entirely confined to one Member State.13

7 See, in this context, Ankersmit & Geursen, supra note 3.

In other words, for the first time in its jurisprudence, the ECJ has established that EU citizenship alone can trigger the application of EU law in a number of situations. This substantially extends not only the scope ratione

8 Case C-135/08, Janko Rottmann v. Freistaat Bayern, 2010 E.C.R. I-01449, ¶ 42. 9 Id. (emphasis added). 10 Case C-34/09, Gerardo Ruiz Zambrano, v. Office national de l’emploi 2 C.M.L.R. 46 (2011), ¶

42 (emphasis added). 11 See infra notes 20–22 , and accompanying text. 12 Previously, the existence of such a “purely internal” situation would have made the application

of EU law impossible. The intervening governments in all three cases argued that a cross-border situation was missing. For analysis, see infra Part III.

13 See Case C-434/09, Shirley McCarthy v. Sec’y of State for the Home Dep’t, 2011 E.C.R. I-00000, ¶ 53; Case C-135/08, Janko Rottmann v. Freistaat Bayern, 2010 E.C.R. I-01449, ¶ 42; Case C-34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi, 2 C.M.L.R. 46, ¶ 42(2011)..


personae, 14 but also the scope ratione materiae of EU law, 15 with all its accompanying and inestimable consequences.16

Simply put, the Court finally conceded that its oft-quoted statement, “[EU] citizenship . . . [was] not intended to enlarge the scope ratione materiae [of EU law],”

17 fails to reflect the present state of development of EU law. Moreover, the Court “does not hide the change of paradigm.” 18 The new approach and the unavoidable avalanche of case law to come in the near future, which is bound to clarify precisely what amounts to “depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status,” greatly alters the essence of EU federalism.19 Although the Court is still nowhere near altogether abandoning the requirement of a cross-border situation,20

14 For an analysis, see infra Part III. See also Spaventa, supra note 5; Kochenov, Citizenship

Without Respect, supra note 5, at 36–41.

however subtly

15 For an analysis, see infra Part IV. This is entirely in line with Eleanor Spaventa’s predictions. See generally Spaventa, supra note 5. See also Kochenov, Citizenship Without Respect, supra note 5, at 41–54.

16 The enlargement of the scope ratione materiae of EU law as a direct logical consequence of the introduction of EU citizenship has long been expected in the literature and has been advocated by a number of scholars, starting with Síofra O’Leary, who published the first comprehensive monograph on EU citizenship. See O’LEARY, supra note 5, at 273–78. See also, inter alia, Niamh Nic Shuibhne, Free Movement of Persons and the Wholly Internal Rule: Time to Move On?, 39 COMMON MKT. L. REV. 731 (2002); White, Free Movement, supra note 5; Spaventa, supra note 5; Tryfonidou, Reverse Discrimination in Purely Internal Situations, supra note 6; ANASTASIA ILIOPOULOU, LIBRE CIRCULATION ET NON-DISCRIMINATION 267 (2008); Kochenov, Ius Tractum of Many Faces, supra note 5, at 234; TRYFONIDOU, REVERSE DISCRIMINATION IN EC LAW, supra note 6, at 129–66; Kochenov, Citizenship Without Respect, supra note 5, at 80; Van Elsuwege, supra note 3.

17 Joined Cases C-64/96 and C-65/96, Land Nordrhein-Westfalen v. Kari Uecker, 1997 E.C.R. I-03171, ¶ 23; Case C-148/02, Carlos Garcia Avello v. Belgian State, 2003 E.C.R. I-11613, ¶ 26. The proposition that EU citizenship was not intended to expand the scope of EU law is not grounded in the Treaties, as nothing in TFEU arts. 18–25 or elsewhere in EU Primary Law seems to contain indications to this effect, notwithstanding the qualification in TFEU art. 21(1) that free movement rights of EU citizens are “subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect”—a clause characterized by Davies as “half-hearted.” GARETH DAVIES, NATIONALITY DISCRIMINATION IN THE EUROPEAN INTERNAL MARKET 188 (2003). Opening up the possibility for limitations through TFEU art. 21(1) cannot possibly be interpreted as evidence of the drafters’ general intention to ensure that the introduction of EU citizenship remains inconsequential to the scope of EU law.

18 Hailbronner & Thym, supra note 3, at 1255. 19 It has been rightly argued that “the fixture of the ‘federal’ label to the European construct may

not be as disputed as it once was.” Koen Lenaerts & Kathleen Gutman, “Federal Common Law” in the European Union: A Comparative Perspective from the United States, 54 AM. J. COMP. L. 1, 4 (2006). See also generally ROBERT SCHÜTZE, FROM DUAL TO COOPERATIVE FEDERALISM (2009); Robert Schütze, On “Federal” Ground: The European Union as an (Inter)National Phenomenon, 46 COMMON MKT. L. REV. 1069 (2009); Jean-Claude Piris, L’Union européenne: vers une nouvelle forme de fédéralisme?, 41 REVUE TRIMESTRIELLE DE DROIT EUROPEEN 243 (2005); Dusan Sidjanski, Actualité et dynamique du fédéralisme européen, 341 REVUE DU MARCHE COMMUN 655 (1990). Judge Pierre Pescatore highlighted the “caractère fédérale de la constitution européenne” [“federal character of the European Constitution”], even before the formulation of the principle of supremacy by the ECJ. Pierre Pescatore, La Cour en tant que jurisdiction fédérale et constitutionnelle, in DIX ANS DE JURISPRUDENCE DE LA COUR DE JUSTICE DES COMMUNAUTES EUROPEENNES 520, 522 (1963).

20 See Van Elsuwege, supra note 3. The ECJ expressly reaffirmed this as well in McCarthy, 2011 E.C.R. I-00000. Paragraph 45 reads:


cross-border is construed,21 the ECJ nevertheless showed clear signs of giving in to decades of scholarly criticism. 22 This criticism has pointed to the logical unsustainability of adhering to the wholly internal situations approach following the completion of the Internal Market and the coming of age of EU citizenship, which is not economic in nature. 23

[I]t is settled case-law that the Treaty rules governing freedom of movement

for persons and the measures adopted to implement them cannot be applied to situations which have no factor linking them with any of the situations governed by European Union law and which are confined in all relevant respects within a single Member State (see, to that effect, Case C-212/06 Gov’t of the French Cmty. and Walloon Gov’t 2008 ECR I-1683, ¶ 33 and Case C-127/08, Metock and Others 2008 ECR I-6241, ¶ 77).

The cross-border situation approach to framing jurisdiction now has a viable alternative, which by far exceeds the traditional vision in terms of usability and logical coherence. Add to this the readiness of the Court to protect the EU citizenship status of individuals, even in situations where reverse

21 The ECJ does not require any physical movement to take place before finding a cross-border

situation, since “the situation of a national of a Member State who . . . has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation.” Case C-403/03, Egon Schempp v. Finanzamt München V, 2005 E.C.R. I-06421, ¶ 22. A large number of hypothetical cross-border situations have been constructed by the ECJ in its recent case law, as analyzed in Part III, infra. For further criticism see Kochenov, Citizenship Without Respect, supra note 5, at 43–51; Van Elsuwege & Adam, supra note 6, at 662–78.

22 For a notable early analysis, see David M.W. Pickup, Reverse Discrimination and Freedom of Movement of Workers, 23 COMMON MKT. L. REV. 135 (1986). He concludes that “[t]he just and common sense principle must be that the nationals of all Member States are entitled to the same treatment by any given Member State. To say otherwise is to promote discrimination which is, in effect, based upon the difference in nationality of the victim.” Id. at 156. This argument has been repeated a number of times with slight variations. See Tryfonidou, Reverse Discrimination in Purely Internal Situations, supra note 6; Peter Van Elsuwege & Stanislas Adam, Annotation, The Limits of Constitutional Dialogue for the Prevention of Reverse Discrimination, 5 EUR. CONST. L. REV. 327 (2009); Van Elsuwege & Adam, supra note 22, at 662–78; Spaventa, supra note 5, at 36–39; Nic Shuibhne, supra note 16; Rébecca-Emmanuèla Papadopoulou, Situations purement internes et droit communautaire: Un instrument jurisprudentiel à double function ou une arme à double tranchant?, 2002 CAHIERS DE DROIT EUROPÉEN 95; Niamh Nic Shuibhne, The EU and Fundamental Rights: Well in Spirit but Considerably Rumpled in Body?, in CONVERGENCE AND DIVERGENCE IN EUROPEAN PUBLIC LAW 177, 187 (Paul Beaumont et al. eds., 2002); Miguel Poiares Maduro, The Scope of European Remedies: The Case of Purely Internal Situations and Reverse Discrimination, in THE FUTURE OF REMEDIES IN EUROPE 117 (Claire Kilpatrick et al. eds., 2000); Haris Tagaras, Règles communautaires de libre circulation, discriminations à rebours et situations dites “purement internes,” in 2 MÉLANGES EN HOMMAGE DE MICHEL WAELBROECK 1499 (1999); Giorgio Gaja, Les discriminations à rebours: Un revirement souhaitable, in 2 MÉLANGES EN HOMMAGE DE MICHEL WAELBROECK 993, 997–98 (1999); Enzo Cannizzaro, Producing “Reverse Discrimination” Through the Exercise of EC Competences, 17 Y.B. EUR. L. 29 (1997); Robin C.A. White, A Fresh Look at Reverse Discrimination?, 18 EUR. L. REV. 527 (1993); Hans Ulrich Jessurun d’Oliveira, The Community Case: Is Reverse Discrimination Still Permissible Under the Single European Act?, in FORTY YEARS ON: THE EVOLUTION OF POSTWAR PRIVATE INTERNATIONAL LAW IN EUROPE 71 (1990); Stephen D. Kon, Aspects of Reverse Discrimination in Community Law, 6 EUR. L. REV. 75 (1981). For a magisterial analysis, see TRYFONIDOU, REVERSE DISCRIMINATION IN EC LAW, supra note 6.

23 The consequences of this are far-reaching indeed. According to Advocate General Jarabo Colomer, this “change of perspective is not insignificant, because, rather than falling on the concept of movement, the focus of attention has shifted to the individual.” Opinion of Advocate General Jarabo Colomer, Case C-228/07, Jörn Petersen v. Landesgeschäftsstelle des Arbeitsmarktservice Niederösterreich, 2008 E.C.R. I-06989, ¶ 28. See also, along the same lines, Wollenschläger, supra note 5, at 34; TRYFONIDOU, REVERSE DISCRIMINATION IN EC LAW supra note 6, at 129–66; Kochenov, Ius Tractum of Many Faces, supra note 5. But see Nic Shuibhne, supra note 5 (emphasizing that an economic rationale still plays an important role in framing the concept of EU citizenship).


discrimination does not occur, such as in the cases of conferral and deprivation of EU citizenship and Member State nationality,24 and the sketch of the new approach will be complete. All in all, the new turn in the ECJ’s vision of the scope of EU law discussed in this Article is not only innovative, but also perfectly predictable,25 as it has been long-awaited by numerous scholars and Advocates General alike.26

It is possible to outline six principal implications of the new approach. First, the new approach provides much needed clarity for determining the scope of the EU law’s reach and the interplay between national and EU legal orders. Second, the new approach provides EU citizens with certain protections, even from their Member States of nationality, in circumstances where they need such protection the most, i.e., where the “genuine enjoyment of the substance” of their EU citizenship rights is potentially undermined. Third, the new approach re-establishes the principle of equality as an important aspect of citizenship, thus reinforcing both EU citizenship and Member State nationalities. Fourth, the new approach establishes a new vision of the territory of the Union, where inter-State borders within the EU fade in importance. Fifth, the new approach places an additional burden on the Member States, since they are now required to justify any actions that potentially breach fundamental EU citizenship rights, irrespective of the existence of a cross-border situation. Requiring the Member States to justify any potential infringement upon a citizen’s fundamental EU rights limits the Member States’ discretion, while simultaneously protecting EU citizens’ rights in a much broader array of situations than ever before. Lastly, the new approach reinforces a general trend that has developed in the interaction between EU citizenship and the Member States’

24 See Case C-135/08, Janko Rottmann v. Freistaat Bayern, 2010 E.C.R. I-01449. For an analysis

of this statelessness aspect, see Kochenov, Where Is EU Citizenship Going?, supra note 2; Kochenov, Annotation, supra note 2.

25 See generally Gareth Davies, The Entirely Conventional Supremacy of Union Citizenship and Rights, in HAS THE EUROPEAN COURT OF JUSTICE CHALLENGED MEMBER STATE SOVEREIGNTY IN NATIONALITY LAW? (Jo Shaw ed. EUI RSCAS Working Paper, forthcoming (Apr. 15, 2010)); Kochenov, Annotation, supra note 2.

26 Concerning goods, see Opinion of Advocate General Mischo, Joined Cases 80/85 and 159/85, Nederlandse Bakkerij Stichting et al. v. EDAH BV, 1986 E.C.R. 3359 (“reverse discrimination is clearly impossible in the long run with a true common market”). Concerning the free movement of people, see Opinion of Advocate General Jacobs, Case C-168/91, Christos Konstantinidis v. Stadt Altensteig—Standesamt and Landratsamt Calw—Ordnungsat, 1993 E.C.R. I-01191, ¶ 46 (stating that an EU citizen is “entitled to assume that, wherever he goes to earn his living in the European Community, he will be treated in accordance with a common code of fundamental values, in particular those laid down in the European Convention on Human Rights. In other words, he is entitled to say ‘civis europeus sum’ and to invoke that status in order to oppose any violation of his fundamental rights”). See also Opinion of Advocate General Fennelly, Case C-281/98, Roman Angonese v. Cassa di Risparmio di Bolzano SpA, 2000 E.C.R. I-04139, ¶ 27 (stating that it is “increasingly difficult to see why Community law should accept any type of difference in treatment which is based purely on nationality, except insofar as the essential characteristics of nationality are at stake”). Opinion of Advocate General Léger, Case C-152/03, Hans-Jürgen Ritter-Coulais and Monique Ritter-Coulais v. Finanzamt Germersheim, 2006 E.C.R. I-01711, ¶ 57; Opinion of Advocate General Sharpston, Case C-212/96, Gov’t of the French Cmty. and Walloon Gov’t v. Flemish Gov’t, 2008 E.C.R. I-01683, ¶¶ 117–18; Opinion of Advocate General Sharpston, Case C-34/09, Gerardo Ruiz Zambrano, v. Office national de l’emploi, 2 C.M.L.R. 46 (2011), ¶ 139 (“[i]n my view, there are significant drawbacks to the Court’s current line of thought. I therefore believe that it is time to invite the Court to deal openly with the issue of reverse discrimination”) (emphasis added).


nationalities; namely, these formerly distinct legal statuses are becoming increasingly fused as a single set of rights. As a result, both legal statuses play important roles in the lives of citizens, making their practical separation as difficult as ever. All in all, EU citizens emerge as the main beneficiaries of the new vision espoused by the ECJ, as the layered legal system governing their lives comes to be endowed with more coherence and predictability. A road is now open to building a better Union where citizenship plays a key role, where concerns for the citizens are seriously addressed, and where substantive rights-based considerations informed by the new substance of the rights approach enjoy more importance than the purely procedural vision offered by the cross-border situation approach.

B. Structure of the Argument

The Article will proceed as follows: the analysis starts with a brief presentation of the recent evolution of EU citizenship law preceding the incumbent Rottmann / Ruiz Zambrano era. It focuses on the Court’s attempts to reconcile the promise of EU citizenship—a personal, legal status that is unrelated to the bearer’s economic activity—with the market-oriented essence of the Union. The Article emphasizes two lines of development of interrelated importance. First, it focuses on the evolution of the personal scope of EU law, which has been under pressure from EU citizenship. Here, the argument will draw on the groundbreaking work by Eleanor Spaventa.27 Second, the Article analyzes the evolution of the material scope of EU law, with a particular emphasis on analyzing the Court’s tendency, evident in EU citizenship cases, to stretch the circumstances that constitute a cross-border situation in order to apply EU law in reverse discrimination cases where the facts describe a situation that is, in fact, bordering on wholly internal. This tendency had the effect of blurring the categorical confines distinguishing a cross-border approach from a wholly internal situations approach. The Article demonstrates that in using a less categorical approach to distinguish cross-border situations from wholly internal situations, the Court failed to establish a clear and logical methodology delimiting the spheres of national and EU law in the cases where EU citizenship plays a role; therefore, until the ECJ’s recent shift, there was a pressing need to reform the Court’s conception and interpretation of EU citizenship within the “ever closer Union.”28

The Section that follows focuses on a brief presentation of the relevant facts and key arguments deployed by the Court and the Advocates General in the three cases that mark the considerable departure from the increasingly dead-end road taken by the Court before 2010. This Article focuses on the Rottmann, Ruiz Zambrano and McCarthy cases, where the ECJ did not deem a cross-border situation necessary to apply EU law and thus opened up important new avenues for the development and application of EU law outside of the confines of the cross-border situation logic. Having seen the profound novelty and impact of this recent case law, as well as the

Given this great need for clarity in determining the applicable scope of EU citizenship, the Court had no other option but to design an alternative to the archaic cross-border situation approach. This is exactly what the Court has done.

27 See Spaventa, supra note 5. 28 TEU pmbl. Importantly, the Preamble also mentions EU citizenship, stating that the High

Contracting Parties are “resolved to establish a citizenship common to nationals of their countries.”


limitations restraining the consequences of the Court’s innovation, the last Section focuses on the six key innovative features of the new approach and their main implications for the development of the EU in the years to come. The Article concludes by welcoming the latest developments and briefly outlining the steps the Court will need to take in the coming years in order to solidify the new division of powers between the Union and its Member States in the EU citizenship context.

II. EU CITIZENSHIP AFFECTING THE SCOPE RATIONE PERSONAE OF EU LAW

The introduction of EU citizenship by the Treaty of Maastricht had a profound influence on the division of competences between the EU and the Member States by affecting both the scope ratione personae of EU law—a line of developments that will be briefly analyzed in this Section—and the scope ratione materiae of EU law, which will be analyzed in the Section that follows. 29

Until the Treaty of Maastricht introduced the concept of EU citizenship into the treaty system,

This analysis will clarify why the different approach, embraced by the Court in its most recent case law pertaining to EU citizenship, is indispensable to the solidification of EU citizenship status and solves a number of crucial outstanding problems, which could not be tackled effectively with the techniques employed by the Court before the emergence of the Rottmann / Ruiz Zambrano line of cases.

30 the delimitation between the law of the then European Economic Community (“EEC”) and the law of the Member States was quite straightforward, marking the success of dual federalism.31 The law of the two distinct legal orders, albeit largely coexisting in the same territory, applied to different bodies of people.32 The EEC law of the time was reserved exclusively for those who somehow participated in the construction of the Internal Market.33 The supranational legal order itself determined the meanings of worker, service provider/recipient, and establishment, thus effectively outlining the groups of people—which were then very limited indeed—considered to be participants in constructing the Internal Market and thereby falling within the EEC’s scope.34

29 Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 191) 4.

With the exception of EU law rules of

30 The concept of EU citizenship is, however, older than the Treaty, since it first entered the informal resources of the acquis. See Antje Wiener, Assessing the Constructive Potential of Union Citizenship—A Socio-Historical Perspective, 1 EUR. INTEGRATION ONLINE PAPERS 1 (1997), available at http://eiop.or.at/eiop/texte/1997–017a.htm; See also A.C. Evans, European Citizenship: A Novel Concept in EEC Law, 32 AM. J. COMP. L. 679 (1984); A.C. Evans, European Citizenship, 45 MOD. L. REV. 497 (1982); Guido van den Berghe & Christian H. Huber, European Citizenship, in 2 DAS EUROPA DER ZWEITEN GENRATION 755 (Roland Bieber & Dietmar Nickel eds., 1981); Richard Plender, An Incipient Form of European Citizenship, in EUROPEAN LAW AND THE INDIVIDUAL 39 (Francis G. Jacobs ed., 1976).

31 See generally SCHÜTZE, DUAL TO COOPERATIVE FEDERALISM, supra note 19. 32 The overlap between the territories of the Member States and EU territory is not complete. For

analysis, see EU LAW OF THE OVERSEAS (Dimitry Kochenov ed., 2011). 33 See TEFU art. 26(2). For an up-to-date analysis of the theory and practical functioning of the

Internal Market from different perspectives, see, for example, FROM SINGLE MARKET TO ECONOMIC UNION (Laurence W. Gormley & Niamh Nic Shuibhne eds., forthcoming 2012).

34 This is a story that any classical EU law textbook could retell. The story is somewhat more complicated, however, since the Member States could always control access to the personal scope of


application erga omnes,35 EU law was not applicable to those falling outside of the categories of persons then outlined by EEC law.36 Therefore, before affecting the scope ratione materiae of EU law sensu stricto, which has traditionally been viewed by the Court as a taboo, the introduction of EU citizenship resulted in a dramatic expansion of the number of persons who could potentially benefit from EU law and thus commenced an inevitable de facto expansion of the material scope of EU law’s application.37

Nevertheless, jurisdictional problems abounded, since the Court would apply different degrees of scrutiny to determine whether certain persons were deemed as contributing to the Internal Market, which Cowan

38 and Werner, 39 among innumerable other cases, abundantly demonstrate. Therefore, while a Brit robbed in Paris could rely on EC law in Cowan because the ECJ characterized him as a “service recipient,” 40 Dr. Werner, a German dentist practicing in Aachen but residing in the Netherlands, could not rely on EC law because the Court deemed him not economic enough a migrant.41 The tendency of the Court to be as inclusive as possible in some fields and arguably as exclusive as possible in others created virtually inexplicable disparities, which undermined the persuasiveness and, correlatively, the legitimacy of EU law.42

The situation became somewhat simpler upon the introduction of EU citizenship, which marked the commencement of a new era in European integration because it eliminated the division of Member States’ nationals into two groups, i.e.

European law through their own nationality regulation. For initial criticism, see Plender, supra note 30, at 41–45 (claiming that the Member States’ freedom in limiting their nationals’ access to the status of a “Member State national” for the purposes of Community law, which used to be a prerequisite to falling within the personal scope of EEC law, contradicts the letter and the spirit of the founding Treaties). For contemporary analysis, see Kochenov, Ius Tractum of Many Faces, supra note 5, at 186–93.

35 Such rules include non-discrimination on the basis of sex in an employment context, for instance, or race discrimination. For analysis, see, for example, Bruno de Witte, The Crumbling Public / Private Divide: Horizontality in European Anti-Discrimination Law, 13 CITIZENSHIP STUD. 515 (2009); Gillian More, The Principle of Equal Treatment: From Market Unifier to Fundamental Right?, in THE EVOLUTION OF EU LAW 517 (Paul Craig & Gráinne de Búrca eds., 1999); Tamara Hervey & Jo Shaw, Women, Work, and Care: Women’s Dual Role and Double Burden in Sex Equality Law, 8 J. EUR. SOC. POL’Y 43 (1998).

36 Case 175/78, The Queen v. Vera Ann Saunders, 1979 E.C.R. 1129, ¶ 10; Joined Cases 35/82 & 36/82, Elestina Esselina Christina Morson v. State of the Netherlands, 1982 E.C.R. 3723, ¶ 16; Case C-180/83, Hans Moser v. Land Baden-Württemberg, 1984 E.C.R. 2539; Case C-322/90, Volker Steen v. Deutsche Bundespost, 1992 E.C.R. I-00341, ¶ 9; Case C-206/91, Ettien Koua Poirrez v. Caisse d’allocations familiales de la region parisienne, 1992 E.C.R. I-06685, ¶ 12–13; Case C-299/95, Friedrich Kremzow v. Republik Österreich, 1997 E.C.R. I-02629, ¶ 19; Joined cases C-64 & 65/96, Land Nordrhein-Westfalen v. Kari Uecker, 1997 E.C.R. I-03171, ¶¶ 16, 19; Case C-134/95, USSL v. INAIL, 1997 E.C.R. I-00195, ¶¶ 22–23.

37 See Case C-148/02, Carlos Garcia Avello v. Belgian State, 2003 E.C.R. I-11613, ¶ 26 (stating that EU citizenship “is not . . . intended to extend the scope ratione materiae of the Treaty”).

38 Case 186/87, Ian William Cowan v. Trésor public, 1989 E.C.R. 0195. 39 Case C-112/91, Hans Werner v. Finanzamt Aachen-Innenstadt, 1993 E.C.R. I-00429. 40 Case 186/87, Ian William Cowan v. Trésor public, 1989 E.C.R. 0195, ¶ 17. 41 Hans Werner, 1993 E.C.R. I-00429, ¶¶ 16–17. 42 Legitimacy is certainly undermined, if clear and convincing reasons are not provided. See

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. 141 (2010).


those who would fall within the personal scope of EC law and those who would not. Simply put, on October 31, 1993,43 the EU legal order was enlarged qua scope ratione personae from around 2.3% of Member State nationals to 100%.44 Eleanor Spaventa is unquestionably right to state that “any Union citizen now falls within the [personal] scope of the Treaty, without having to establish cross-border credentials.”45 The Court has embraced the renewed post-citizenship definition of the scope ratione personae in its case law, stating unequivocally that this scope includes “every person holding the nationality of a Member State.” 46 This expansion in EU citizenship profoundly alters the pre-citizenship “migrant paradigm.”47

The Maastricht amendment to the Treaties thus made the Court change its approach to outlining the personal scope of EU law. Before Maastricht, the Court applied a four-part test to determine whether a citizen fell within the personal scope of the Treaty:

48

(1) Possession of a Member State nationality for the purposes of Community law;

49

(2) Establishment of an economic link with the Internal Market;

(3) Establishment of a cross-border situation;50

(4) Establishment of a logical connection existing among the three also interpreted as an intention to contribute to the Internal Market.

51

43 This was the last day preceding the entry of the Treaty of Maastricht into force. See Treaty on

European Union, supra note 29.

44 This is the number of EU citizens currently residing in Member States other than their own Member States of nationality. This figure includes economic and non-economic migrants. In pre-citizenship times, all of these persons were not covered by EU law even if all of the service recipients able to claim a Cowan situation were included. Katya Vasileva, Population and Social Conditions, in 94/2009 EUROSTAT STATISTICS IN FOCUS 3, available at http://ec.europa.eu/eurostat.

45 Spaventa, supra note 5, at 13. 46 Case C-224/98, Marie-Nathalie D’Hoop v. Office national de l’emploi, 2002 E.C.R. I-06191, ¶

27. 47 Spaventa, supra note 5, at 13. 48 For an analysis, see Alina Tryfonidou, In Search of the Aim of the EC Free Movement of

Persons Provisions: Has the Court of Justice Missed the Point?, 46 COMMON MKT. L. REV. 1591, 1592–95 (2009).

49 For an analysis of the term, see Kochenov, Ius Tractum of Many Faces, supra note 5. 50 For a detailed analysis see Spaventa, supra note 5. See also Case C-419/92, Scholz v. Opera

Universitaria di Cagliari, 1994 E.C.R. I-505, ¶ 9. Although Spaventa does not mention Member State nationality in her description of the test applied by the ECJ to determine the scope of ratione personae before citizenship, presuming the presence of this element, it is necessary to mention it nevertheless. See Case C-147/91, Criminal Proceedings against Michelle Ferrer Laderer, 1992 E.C.R. I-4097, ¶ 7; Case C-230/97, Criminal Proceedings against Ibiyinka Awoyemi, 1998 E.C.R. I-6781, ¶ 29. For criticism of this element, see, for example, Kochenov, Ius Tractum of Many Faces, supra note 5, at 206–09; Pieter Boeles, Europese burgers en derdelanders: Wat betekent het verbod van discriminatie naar nationaliteit sinds Amsterdam?, 12 SOCIAAL-ECONOMISCHE WETGEVING 502 (2005); Richard Plender, Competence, European Community Law and Nationals of Non-member States, 39 INT’L & COMP. L. Q. 599, 605 (1990). See also Chloé Hublet, The Scope of Article 12 of the Treaty of the European Communities vis-à-vis Third-Country Nationals: Evolution at Last?, 15 EUR. L.J. 757 (2009); Astrid Epiney, The Scope of Article 12 EC: Some Remarks on the Influence of European Citizenship, 13 EUR. L.J. 611 (2007).


With EU citizenship on the horizon, this approach was scrapped altogether. After the Treaty of Maastricht entered into force, the Court ruled that EU citizenship placed all EU citizens within the scope ratione personae of the Treaties. This is in complete harmony with the language of Article 20 TFEU: “there is no mention in that Article of the need to satisfy any other requirement but that of nationality of a Member State before being able to claim citizenship rights under the Treaty or secondary legislation.”52 It is thus absolutely legitimate that once the EU citizenship of a person is established, the Court does not feel the need to check anything else in order to ensure that the person in question falls within the personal scope of application of EU law. The three additional steps required by the old ratione personae test consequently became redundant.53

This development had a critical impact on the scope of EU law as such and is not limited to any particular provisions of the Treaties. Consequently, EU citizenship affected the core of the lex specialis provisions dealing with the four freedoms.

A citizen’s personal situation or the intensity of her relationship with the Internal Market ceased to matter in determining whether he or she fell within the personal scope of EU law.

54

Consequently, those workers who moved residences, not jobs, quite logically ended up covered by the economic free movement provisions: Werner was overruled by Ritter-Coulais.

The four-part test of the personal scope of EU law has also been abandoned in the area of economic free movement, replaced by a test that considers a direct, logical connection between the personal scope of the lex generalis and the lex specialis provisions of EU law.

55

51 Case C-112/91, Hans Werner v. Finanzamt Aachen-Innenstadt, 1993 E.C.R. I-00429.

Indeed, upon the introduction of EU citizenship and the enlargement of the personal scope of supranational law covering every EU citizen, the intention-based examination used to determine the scope of the Internal

52 Spaventa, supra note 5, at 18. 53 See Case C-85/96, María Martínez Sala v. Freistaat Bayern, 1998 E.C.R. I-2691, ¶¶ 59–60;

Case C-184/99, Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve, 2001 E.C.R. I-6193; Case C-413/99, Baumbast and R. v. Sec’y of State for the Home Dep’t, 2002 E.C.R. I-7091; Case C-456/02, Michel Trojani v. Centre public d'aide sociale de Bruxelles (CPAS), 2004 E.C.R. I-7573; Joined cases C-502/01 & C-31/02, Silke Gaumain-Cerri v. Kaufmännische Krankenkasse—Pflegekasse and Maria Barth v. Landesversicherungsanstalt Rheinprovinz, 2004 E.C.R. I-6483, ¶ 34; Case C-138/02, Brian Francis Collins v. Sec’y of State for Work and Pensions, 2004 E.C.R. I-2703, ¶ 61; Case C-403/03, Egon Schempp v. Finanzamt München V., 2005 E.C.R. I-6421, ¶ 17; Case C-192/05, K. Tas-Hagen and R. A. Tas v. Raadskamer WUBO van de Pensioen- en Uitkeringsraad, 2006 E.C.R. I-10451, ¶¶ 18–19; Case C-152/03, Hans-Jürgen Ritter-Coulais and Monique Ritter-Coulais v. Finanzamt Germersheim, 2006 E.C.R. I-1711.

54 See Alina Tryfonifou, The Free Movement of Goods, the Overseas Countries and Territories, and the EU’s Outermost Regions: Some Problematic Aspects, 37 LEGAL ISSUES OF ECON. INTEGRATION 317 (2010); Dimitry Kochenov, The Impact of European Citizenship on the Association of the Overseas Countries and Territories with the European Community, 36 LEGAL ISSUES OF ECON. INTEGRATION 239 (2009); Síofra O’Leary, Developing an Ever Closer Union between the Peoples of Europe? 15–24 (Mitchell Working Paper 6/2008, 2008).

55 See Ritter-Coulais, 2006 E.C.R. I-1711. See also Case C-227/03, A. J. van Pommeren-Bourgondiën v. Raad van bestuur van de Sociale verzekeringsbank, 2005 E.C.R. I-6101; Case C-287/05, D. P. W. Hendrix v. Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen; 2007 E.C.R. I-6909; Case C-213/05, Wendy Geven v. Land Nordrhein-Westfalen 2007 E.C.R. I-6347; Case C-212/05, Gertraud Hartmann v. Freistaat Bayern, 2007 E.C.R. I-6303.


Market is no longer acceptable. After all, it is overwhelmingly clear that one’s actual contribution to the Internal Market, the area without frontiers that the Treaties have created, 56 cannot change, let alone evaporate altogether, depending on the direction of your movement, which used to be the case in pre-citizenship times.57 The Court moved away from the often murky ultra vires analysis of a citizen’s intentions to determine whether he or she fell within the Internal Market paradigm, toward a more fact-based assessment of the citizen’s actions and situation. This was a welcome development, which nevertheless disappointed some commentators.58 It seems incontestable, however, that it is de facto impossible to change the economic nature of someone’s activities by swapping the places of employment and residence, however “counterintuitive” this might seem to some.59 Consequently, the Court’s new approach treats all economic activities with a cross-border element differently than all non-economic activities within the scope ratione materiae of EU law. This is much simpler and far more logical than the sophistry that predated this vision.60

As a result of the introduction of EU citizenship, coupled with the reinterpretation of the substance of “economic activity” by the ECJ in the recent case law, so long as an individual is a national of one of the Member States, he or she falls within the personal scope of EU law: intentions to contribute to the Internal Market no longer matter since the theoretical underpinning of integration has moved beyond a purely economic rationale. The very enlargement of EU law’s personal scope, inter alia, following the creation of EU citizenship, illustrates the logic at the core of the Court’s shift away from the intentions-based Internal Market test. As a

56 TFEU art. 26(2). 57 But see Alina Tryfonidou, In Search of the Aim of the EC Free Movement of Persons

Provisions: Has the Court of Justice Missed the Point?, 46COMMON MKT. L. REV. 1591 (2009); Alina Tryfonidou, Family Reunification Rights of (Migrant) EU Citizens: Towards a More Liberal Approach, 15 EUR. L.J., 634, 637–38 (2009). Tryfonidou argues for the preservation of the old approach in order to limit the scope of EU law. Her vision, although out of line with the case law, summarizes the pre-citizenship situation well. For an even briefer summary, see Opinion of Advocate General Tesauro, Case C-370/90, R. v. Immigration Appeal Tribunal and Surinder Singh, ex parte Sec’y of State for the Home Dep’t, 1992 E.C.R. I-4265, ¶ 5 (stating that the simple exercise of the right of free movement within the Community is not in itself sufficient to bring a particular set of circumstances within the scope of Community law; there must be some connecting factor between the exercise of the right of free movement and the right relied on by the individual). This is now old law.

58 See Tryfonidou, In Search of the Aim, supra note 57; Charlotte O’Brien, Annotation of Case C-212/05 Hartmann, Case C-213/05 Geven, Case C-287/05 Hendrix, 45 COMMON MRKT. L. REV. 499 (2008); Miguel Poiares Maduro, The Scope of European Remedies: The Case of Purely Internal Situations and Reverse Discrimination, in THE FUTURE OF REMEDIES IN EUROPE 117, 123–27 (Claire Kilpatrick, Tonia Novitz & Paul Skidmore eds., 2000).

59 Charlotte O’Brien, Real Links, Abstract Rights and False Alarms: The Relationship Between the ECJ’s “Real Link” Case Law and National Solidarity, 33 EUR. L. REV. 643, 654 (2008).

60 For a detailed discussion of the effects that the introduction of EU citizenship had on the personal scope of the lex specialis provisions of the Treaties that deal with the legal position of the economically active EU citizenship, see Kochenov, Citizenship Without Respect, supra note 5 at 52–54. Kochenov criticizes the position embraced by Tryfonidou and O’Brien (O’Brien, supra note 58; Tryfonidou, In Search of the Aim, supra note 58), from which they criticize the Court’s position as unjustified; rather, Kochenov sides with Golynker, who argues that “it seems appropriate to classify Union citizens who exercised their right to free movement under Art. 18 EC but remained employed or took up employment elsewhere in the Community as Community workers.” See Oxana Golynker, European Union as a Single Working-Living Space: EU Law and New Forms of Intra-Community Migration, in THEORISING THE GLOBAL LEGAL ORDER, 145, 151 (A. Halpin & V. Roeben eds., 2009).


consequence of the fundamental shift in the understanding of the personal scope of EU law caused by the introduction of EU citizenship, both the legal order of EU law and the legal orders of the Member States came to make legitimate jurisdictional claims, not only “over the same circumstances,” but also over the same people. 61

III. EU CITIZENSHIP AFFECTING THE SCOPE RATIONE MATERIAE OF EU LAW

Enlarging the scope of EU law thus vastly expanded the situations in which EU law and the legal orders of the Member States overlapped. Predictably, the increased interaction between EU law and the legal orders of the Member States heightened the importance of the rules governing the exact reach of EU law’s scope ratione materiae, as the latter became the marker of the ultimate jurisdictional frontier dividing the competences between the Union and the Member States and thus shaping the core of European federalism.

The introduction of EU citizenship placed pressure on the ECJ, as the Court was now tasked with clearly delimiting the material scope of EU law from the law of the Member States, given the new situation in which all Member State nationals were automatically included in the personal scope of EU law. Notwithstanding a number of important attempts, the Court had failed to accomplish this task until recently. Still employing the cross-border situation test to a large extent, the Court’s decisions created situations in which delimitation was blurred, reverse discrimination was omnipresent, and the principle of equality, to agree with Niamh Nic Shuibhne, “under[went] something of an ideological battering.”62

The Court largely approached the issue of delimiting the scopes ratione materiae of the two legal orders with the cross-border situation logic in mind. Situations deemed to be confined to one Member State would not be covered. However, since this approach carried with it the risk of causing outcomes that would be too restrictive—that is, it could affect the exclusion of a large number of EU citizens whose legal situation unquestionably ought to come within the ambit of the EU legal order—the Court gradually expanded the notion of a cross-border situation in order to ensure that an increasing number of EU citizens, even those with only an indirect, if not hypothetical connection to the Union legal order, would fall within the scope of EU law.

63

61 Gareth Davies, Constitutional Disagreement in Europe and the Search for Pluralism 6 (Eric

Stein Working Paper No. 1/2010, 2010), available at http://www.ericsteinpapers.eu/papers/2010/1.html.

Consequently, although more EU citizens came to benefit from EU law than ever before, the Court’s approach resulted in a largely amorphous

62 Nic Shuibhne, The European Union and Fundamental Rights, supra note 22 at 188. 63 Direct parallels with the Cowan-type approach to the framing of the scope of free movement of

services can be drawn. The underlying motivation behind Cowan and the citizenship case law analyzed below seems to be identical. Moreover, the two ways of broadening the scope ratione materiae coexisted for a while, as the ECJ would occasionally use largely Cowan-inspired services-based reasoning also, well into its citizenship era. See Case C-60/00, Mary Carpenter v. Sec’y of State for the Home Dep’t, 2002 E.C.R. I-6279; Case C-378/97, Criminal Proceedings against Florius Ariel Wijsenbeek, 1999 E.C.R. I-6207; Case C-348/96, Criminal Proceedings against Donatella Calfa, 1999 E.C.R. I-11. See also Norbert Reich & Solvita Harbacevica, Citizenship and Family of Trial: A Fairly Optimistic Overview of Recent Court Practice with Regard to Free Movement of Persons, 40 COMMON MKT. L. REV. 615, 621 (2003); Dimitry Kochenov, The European Citizenship Concept and Enlargement of the Union, 3 ROMANIAN J. POL. SCI. 71, 82–83 (2003).


body of diverse case law with little coherence and gave rise to fundamental questions of legal certainty, fairness, and equality.64 Moreover, the ECJ seems to have failed to provide (or, in practice, to adhere to in any coherent manner) any clear test of cross-border situations,65 inspiring academic criticism.66 This situation persists into the present day, as McCarthy, Garcia Avello, and innumerable other cases clearly demonstrate.67

The key element of the ECJ’s favorite approach to delimiting the material scope of EU law emphasizes that “the situation of a national of a Member State who . . . has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation.”

68 This brought about a truly significant reshaping of the legal order of the Union. Such reshaping is due to two factors: first, as rightly underlined by Eleanor Spaventa, “no national rule falls a priori outside the scope of the Treaty, since movement is enough to bring the situation within its scope.”69 Second, and more importantly, such a movement need not be connected with any physical travel in space. Therefore, according to the ECJ case law, an act of birth,70 a potential provision of services somewhere outside of one’s Member State of nationality,71 or a mere possible future desire to use free movement rights72 can create a cross-border situation. EU law even applies to the tax status of former husbands, whose EU-citizen wives left them and moved to a different Member State.73 The latter situation changes, however, if the spouses are Argentinian or Swiss, 74 adding to the confusion as well as making equality impossible.75

The case law on cross-border situations makes two fundamental points. First, any economic engagement within the Internal Market does not necessarily play a role in shaping the material scope of EU law. Second, the precise legal meaning of a cross-border situation became so technical and vague that qualifying as a cross-border situation ceased to be related to State borders or the movement of the person

64 For an analysis, see Kochenov, Citizenship without Respect, supra note 5, at 41–58. 65 For a recent attempt to formulate such a test, see id., at 41–43. 66 See supra note 22. 67 Case C-434/09, Shirley McCarthy v. Sec’y of State for the Home Dep’t, 2011 E.C.R. I-0000;

Case C-148/02, Carlos Garcia Avello v. Belgian State, 2003 E.C.R. I-11613. 68 McCarthy, 2011 E.C.R. I-0000, ¶ 46; See also Case C-403/03, Egon Schempp v. Finanzamt

München V, 2005 E.C.R. I-6421, ¶ 22. 69 Spaventa, supra note 5, at 14. 70 See Case C-200/02, Kunqian Catherine Zhu and Man Lavette Chen v. Sec’y of State for the

Home Dep’t, 2004 E.C.R. I-9925. 71 See Case C-60/00, Mary Carpenter v. Sec’y of State for the Home Dep’t, 2002 E.C.R. I-6379.

See also Elspeth Guild, Developing European Citizenship or Discarding It? Multicultural Citizenship Theory in Light of the Carpenter Judgment of the European Court of Justice, 12 THE GOOD SOC’Y 22 (2003).

72 See Carlos Garcia Avello, 2003 E.C.R. I-11613. 73 See Case C-403/03, Egon Schempp v. Finanzamt München V, 2005 E.C.R. I-6421, ¶ 22. 74 On this point, see Spaventa, supra note 5, at 21. 75 Somewhat intriguingly, this does not prevent the ECJ from emphasizing that merely a

hypothetical connection with EU law cannot create a cross-border situation. See Case C-299/95, Friedrich Kremzow v. Republik Österreich, 1997 E.C.R. I-2629.


concerned between jurisdictions. Ultimately, to qualify as a cross-border situation and thus fall within the material scope of EU law, the party simply needed to have some history of moving around in the Union, or show a discrepancy between his or her EU passports76 and his or her Member State of residence.77 The ECJ’s reliance upon the cross-border paradigm thus created more questions than answers: how far could the notion of the cross-border element be stretched? How long ago should the events giving rise to the jurisdiction have taken place?78 How long should the cross-border element persist?79

All in all, according to the Court’s classical approach before it was challenged by Rottmann and Ruiz Zambrano, the delimitation of the scope ratione materiae paralleled developments in the Cowan-era case law regarding the free movement of services and gradually came to resemble a mere game of chance. For instance, under the previous test, the ECJ regarded seemingly arbitrary facts as fundamental to determining which law would apply to the party involved, including where a citizen’s parents elected to take him or her on vacation during childhood, like the visits to Parc Astérix in Advocate General (“AG”) Sharpston’s example,

Finally, and most importantly, what are the legitimate moral and legal grounds for excluding those who are outside the scope of the meaning of a cross-border situation in a Union where crossing borders, or engaging in economic activity, no longer plays any decisive role in rendering the law applicable? The crucial problem that thus emerged from the Court’s reliance upon the cross-border test was that borders actually ceased to play any logical role in framing what is to be regarded as cross-border.

80 or the current nationality of one’s former wife.81 Such a clearly insufficient approach to the justification of the fundamental choices in the application of the law severely undermines the legitimacy of the Court’s reasoning.82

76 See Carlos Garcia Avello, 2003 E.C.R. I-11613; Case C-200/02, Kunqian Catherine Zhu and

Man Lavette Chen v. Sec’y of State for the Home Dep’t, 2004 E.C.R. I-9925. For an analysis of this point, see Kochenov, Citizenship without Respect, supra note 5 at 45–47. Although the Court expressly denies this in McCarthy, the denial seems to be somewhat half-hearted, especially when viewed in the context of its earlier case law. McCarthy, 2011 E.C.R. I-0000, ¶ 41.

Scholars writing in the field were clearly not alone in feeling cheated when the Court failed to supply compelling reasons behind the judgments. The impact of such an ill-conceived approach to the essence of EU citizenship has been far reaching indeed.

77 Presumably, in such cases, there should be a certain degree of self-sufficiency. See Case C-434/09, Shirley McCarthy v. Sec’y of State for the Home Dep’t, 2011 E.C.R. I-0000, ¶ 25 (stating that “Mrs. McCarthy is applying for a right of residence under European Union law even though she does not argue that she is or has been a worker, self-employed person, or self-sufficient person,” assuming that this should not be allowed).

78 At present, it is only clear that a seventeen year break in employment in the EU disqualifies a jobseeker from the status of a “worker” in the sense of EU law. See Case C-138/02, Brian Francis Collins v. Sec’y of State for Work and Pensions, 2004 E.C.R. I-2703, ¶ 28.

79 Numerous scholars referred to these problems. See, e.g., Van Elsuwege & Adam, supra note 6 at 334; D. Martin, Comments on Gouvernement de la Communauté française and Gouvernement wallon (Case C-212/06 of 1 April 2008) and Eind (Case C-291/05 of 11 December 2007), 10 EUR. J. MIGRATION & L. 372 (2008).

80 Opinion of Advocate General Sharpston, Ruiz Zambrano, 2011 E.C.R. I-0000, ¶ 86. 81 Egon Schempp v. Finanzamt München V, 2005 E.C.R. I-6421. 82 Kumm, supra note 42.


The Court’s elastic approach to determining what constituted a cross-border situation, however well-intentioned, failed to position the border between the two legal orders in the EU with any sense of clarity and exacerbated the problem of reverse discrimination. 83 Not only were the instances of reverse discrimination multiplied as a consequence of the drastic expansion of the scope ratione personae of EU law, which unavoidably resulted in a growing number of situations being covered by EU law, but the expansion also paved the way for reverse discrimination to enter the domain of horizontal situations.84

The Court took several important, albeit insufficient, steps in an attempt to deal with reverse discrimination involving EU citizens. However, these efforts resulted in diluting clear standards in citizenship cases to a dangerous degree.

This, in turn, exponentially increased the number of occurrences of reverse discrimination even further. Consequently, reverse discrimination could no longer be categorized as an exceptional manifestation of the interplay between the legal orders; rather, it came to occupy an essential place among the key features of EU federalism.

85 Even at the beginning of its established approach, involving the flexible construction of the cross-border element, the Court shaped a reality where, to agree with Peter Van Elsuwege and Stanislas Adam, “European citizenship or the general principle of equal treatment is insufficient in the eyes of the Court of Justice to extend the benefits of freedom of movement to purely internal situations.”86 Having stepped into the citizenship world with the Treaty of Maastricht, the EU was still struggling to cope with what could be viewed as its birth defect: born from the ideal of the Common and later Internal Market, the EU demonstrated a strong bias toward market-based conceptual underpinnings, which became logically inconsistent with the post-Maastricht situation. This is the precise point at which the notion of citizenship conceptually parted ways with the notion of the Internal Market. The analysis of the ECJ’s recent citizenship case law entirely confirms the statement made by Joseph Weiler that “[t]he problematic aspect of this case law is precisely that it fails to make the conceptual transition from a market-based free movement to a freedom based on citizenship.” 87

83 For a critique of reverse discrimination in the context of the EU citizenship concept, see

Kochenov, Citizenship without Respect, supra note 5, at 47–52; Tryfonidou, Reverse Discrimination in EC Law, supra note 6, at 129–66; Kochenov, Ius Tractum of Many Faces, supra note 5, at 212–13; Tryfonidou, Reverse Discrimination in Purely Internal Situations, supra note 6; Van Elsuwege & Adam, supra note 6.

Although the Court helped a number of

84 Case C-281/98, Roman Angonese v. Cassa di Risparmio di Bolzano SpA, 2000 E.C.R. I-4139, Robert Lane & Niamh Nic Shuibhne, Annotation of Case C-281/98 Angonese, 37 COMMON MKT. L. REV. (2000), 1237. See also Nic Shuibhne, The European Union and Fundamental Rights, supra note 22, at 190–92.

85 For an impressive summary of this development, see Van Elsuwege & Adam, supra note 6, at 665–69; Tryfonidou, Reverse Discrimination in EC Law, supra note 6.

86 Van Elsuwege & Adam, supra note 6, at 658 (“la citoyenneté européenne ou le principe générale de l’égalité de traitement sont insuffisants, aux yeux de la Cour de justice pour étendre le bénéfice des libertés de circulation aux situations purement internes”) (transl. by eds.).

87 Weiler, Nous coalisons des Etats, supra note 5, at 82, (“[l]’aspetto problematico di questa giurisprudenza è che precisamente omette di compiere la transizione concettuale da una libera circolazione basata sul mercato ad una libertà basata sulla cittadinanza.”) (transl. by eds.). Joseph Weiler comes to this conclusion based on the analysis of the political side of the essence of citizenship, but the


individuals to ascertain their rights originating in the EU legal order, either through the nationality of their wives or some other purely hypothetical connection with the EU legal order, “this ‘half-measure’ irritate[d] as much as it soothe[d].”88

By embracing the elastic approach, the Court acted in the best traditions of the science of homeopathy and diluted the rules governing the application of EU law to particular situations. The ECJ was in a situation where virtually anyone in the Union could fall within the personal scope of EU law. However, the ability to fall within the personal scope of EU law was not, in fact, sufficient for the Court to apply EU law and equal treatment. As a result, the precise configuration of the material scope of EU law became a particularly sore issue, since it was impossible to explain coherently the reasons for which some EU citizens benefitted from EU law while others did not. The more people there were whose connection with EU law was tenuous in terms of logic and common sense (despite having been confirmed by the Court), such as that of Mr. Schempp and his former wife,

89 the more there were others, in similarly hypothetical situations, not recognized by the Court as falling within the scope of EU law. Both groups were composed of EU citizens in a Union where equality and non-discrimination on the basis of nationality are hailed as fundamental principles of greatest importance;90

This randomness explains why the approach to the delimitation of the material scope of EU law based upon an elastic interpretation of what constituted a cross-border situation could never provide a viable foundation for a solid doctrine acceptable in the long term. Up to this point, the Court’s reliance upon the cross-border doctrine was indispensable to the Court’s judgments. The key deficiency in this reasoning may be observed at a theoretical level: Maastricht’s creation of a non-economic personal legal status

however, the outcomes in each case varied. This type of random choice of law can only cause disappointment, as any such injustice would.

91 for the citizens of a Union without internal frontiers,92 which is based, in its application, exclusively on the hypothetical games involving those very abolished frontiers is a logical disaster and an intolerable assault on common sense. Consequently, notwithstanding all of the recent progress, EU citizenship case law has failed to introduce more coherence into the structure of European law, which is something that it clearly has the potential to do.93

same holds also true for the analysis involving the principle of equality. Kochenov, Citizenship without Respect, supra note 5. See also Miguel Poiares Maduro, Europe’s Social Self: “The Sickness unto Death,” in SOCIAL LAW AND POLICY IN AN EVOLVING EUROPEAN UNION 325, 340 (Jo Shaw ed., 2000).

In 2010, seeking to remedy the principal deficiencies of its established case law, the Court took a decisive turn in its EU citizenship jurisprudence: it ruled that a cross-border

88 David Pickup, Reverse Discrimination and Freedom of Movement for Workers, 23 COMMON MKT. L. REV. 135, 154 (1986).

89 Case C-403/03, Egon Schempp v. Finanzamt München V, 2005 E.C.R. I-6421. 90 For an overview, see Kochenov, Citizenship without Respect, supra note 5. See also Section V

infra. 91 Art. 9 TEU. 92 Art. 26(2) TFEU. 93 It was expected by scholars that “citizenship [can become] the leitmotiv or driving force of

coherence in EC law.” Joxerramon Bengoetxea, The Scope for Discretion, Coherence and Citizenship, in JUDICIAL DISCRETION IN EUROPEAN PERSPECTIVE 48, 72 (Ola Wiklund ed., 2003).


situation was not required to move a certain situation within the scope of EU law. Thus dawned a new chapter in the development of European federalism.

IV. CHANGING THE RULES: ROTTMANN, RUIZ ZAMBRANO AND MCCARTHY

A trio of cases have formed the new approach, which portends the theoretical possibility of a complete future departure from the deficient vision of EU law’s scope being determined by recourse to cross-border situation logic. Undoubtedly, many more clarifications from the ECJ are required before the new way of thinking acquires a central position in the Court’s approach to the delimitation of competences between the legal orders in the Union; nonetheless, three cases form a coherent line and are sufficiently innovative to herald the emergence of an approach that will shape EU law for years to come. We are witnessing a fundamental change in the logic used by the Court. Thus, the possibility that these new, revolutionary cases are simply outliers in the established ECJ jurisprudence should be dismissed from the outset.

This Section outlines the three main steps in the Court’s recent evolution by focusing on the three decisions that started this new, important trend in the ECJ’s jurisprudence. Two of them, Rottmann and Ruiz Zambrano, outlined the possibility of moving certain EU citizens’ situations within the scope of EU law with no recourse to cross-border logic. These cases covered the situations where, respectively, the very status of EU citizenship and, hence, the ability—even theoretically—of the parties to enjoy EU citizenship rights under the Treaty was at stake; and where, although the status of EU citizenship was not directly at issue, the policy of the Member State threatens to result in a situation in which the effective use of the rights of EU citizenship was likely to become impossible. The third case, McCarthy, builds on both aforementioned cases, clearly upholds the new line of reasoning, and contributes two important clarifications to Rotmann and Ruiz Zambrano. First, McCarthy provides a broad sketch of the limits of the new approach, thus playing a fundamental role in the trio since without limitations, Rottmann and Ruiz Zambrano could dangerously undermine the Member States’ ability to regulate virtually all issues that seemed, before the two pronouncements of the Court, to lie within the sphere of their exclusive competences. Without McCarthy’s clarification, this unlimited reading could have resulted in an ultra vires application of EU law, since Rotmann and Ruiz Zambrano threatened to establish jurisprudence that would not pay due homage to the foundational principle of the conferral of EU competences, articulated in Article 5(1) EU.94

94 Art. 5(2) EU establishes the principle of conferral: “Under the principle of conferral, the Union

shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.”.

Second, McCarthy makes it abundantly clear that the new approach does not automatically substitute the old one, indicating that, for the time being at least, the two will co-exist side-by-side. This is an equally important rule, since it introduces an element of gradualism into the implementation of the legal revolution that is underway.


A. Step One: Rottmann

Rottmann is the first case where the ECJ demonstrated its willingness to depart from the well-tested approach of drawing the line between the material scope of the legal orders of the Union and of the Member States by relying upon an elastic interpretation of the notion of cross-border situations. In a radical departure from its previous case law, contrary to the submissions of the Advocate General and in disagreement with the positions adopted by all eight intervening Member States,95 the ECJ ruled that the situation of Dr. Rottmann fell “by reason of its nature and its consequences, within the ambit of European Union law,” without mentioning any cross-border situations at all. 96

The case boasts truly unorthodox facts, which both facilitated the ECJ’s initiative and simultaneously made it more difficult to realize. Dr. Rottmann, an Austrian national, escaped prosecution in his native Member State by moving to Germany, relying on his EU citizenship rights.

97 Upon naturalizing in Germany, he lost his Austrian nationality ex lege. 98 The problem that the ECJ was asked to address arose following a decision by the German authorities to deprive Rottmann of his German nationality and, hence, of his EU citizenship, because he failed to disclose the fact that he was being prosecuted in Austria.99 Austrian nationality is not recoverable by individuals who cannot boast a clean criminal record. A curious situation arose, whereby an EU citizen, who had used EU citizenship rights—namely the right to the freedom of movement—to establish residence in a Member State other than his own, following his naturalization in that Member State, lost not only his original Austrian nationality, but also his newly acquired German one. Consequently, he also lost his EU citizenship, which had enabled his move from Austria to Germany in the first place.100

Failing to bring this case within the ambit of EU law would have amounted to the ECJ recognizing that Member States are absolutely free to interfere with the scope of EU citizenship by applying their nationality rules.

The ECJ was asked to rule on the legality of the loss of EU citizenship.

101

95 These States were Germany, Belgium, the Czech Republic, Estonia, Greece, Latvia, Austria,

and Poland.

Although some

96 Case C-135/08, Janko Rottmann v. Freistaat Bayern, 2010 E.C.R. I-01449, ¶ 42 (emphasis added).

97 See Opinion of Advocate General Poiares Maduro, Case C-135/08, Janko Rottmann v. Freistaat Bayern, 2010 E.C.R. I-01449, ¶ 11.

98 See STAATSBURGERSCHAFTSGESETZ 1985 [NATIONALITY ACT OF 1985] No. 311/1985, § 27(1), at Bundeskanzleramt Rechtsinformationssystem [BKA/RIS], http://www.ris.bka.gv.at. (Austria).

99 Art. 48(1) of the Code of Administrative Procedure of the Land of Bavaria (BAYERISCHES VERWALTUNGSVERFAHRENSGESETZ) was used as a legal ground for this decision by the Freistaat Bayern, since the German nationality law at the time did not contain such a ground for the withdrawal of nationality. See Rottmann, 2010 E.C.R. I-01449 at ¶ 8. The nationality law has since been updated. See Gerard-René de Groot, Overwegingen over de Janko Rottmann-beslissing van het Europese Hof van Justitie, 5–6 ASIEL & MIGRANTENRECHT 293 (2010).

100 See Kochenov, Where is EU Citizenship Going?, supra note 2. 101 The possibility left open for this to occur has been criticized by scholars for decades. See

Plender, supra note 30. For a broad overview of the issue, see Kochenov, Ius Tractum of Many Faces, supra note 5 at 181–86.


commentators seemed to suggest that this indeed was the case, 102 the Court disagreed, following, in part, the submissions of AG Poiares Maduro.103 AG Poiares Maduro emphasized in his Opinion that although the rules of acquiring EU citizenship are derivative in nature, the status of EU citizenship is a self-standing one. 104 This opinion follows a position long established in the academic literature on the subject.105 As Poiares Maduro explained, EU citizenship is thus “a legal and political concept independent of that of nationality.”106 Even before Rottmann was decided, scholars had already submitted that some decisions taken by the Member States in the area of conferral and withdrawal of nationality could be incompatible with EU law.107 For example, it is contrary to common sense,108 the very logic of the European integration project,109 and the nature of EU citizenship that nationality can be deprived as a consequence of prolonged stays abroad. Nonetheless, such nonsensical rules exist in the legal regime of several Member States.110

102 See Jessurun d’Oliveira, Decoupling Nationality and Union Citizenship, supra note 2. See also

d’Oliveira, Nationaliteit en de Europese Unie, supra note 2.

The Court partly mitigated this inconsistency twenty years ago in Micheletti, when it set aside

103 Rottmann, 2010 E.C.R. I-01449 ¶ 42. 104 See Opinion of Advocate General Poiares Maduro, Case C-135/08, Janko Rottmann v.

Freistaat Bayern, 2010 E.C.R. I-01449. This follows directly from the text of the Consolidated Version of the Treaty on European Union art. 9, Mar. 30, 2010, 2010 O.J. (C 83) 13, 20, and Consolidated Version of the Treaty on the Functioning of the European Union art. 20, Mar. 30, 2010, 2010 O.J. (C 83) 47, 56–57. See also Kochenov, Ius Tractum of Many Faces, supra note 5, at 181–93.

105 In Opinion of Advocate General Poiares Maduro, Rottmann, 2010 E.C.R. I-01449, the learned AG cited several works on this issue, including NIKOLAOS KOTALAKIDIS, VON DER NATIONALEN STAATSANGEHÖRIGKEIT ZUR UNIONBÜRGERSCHAFT (2000); Gerard-René de Groot, The Relationship between Nationality Legislation of the Member States of the European Union and European Citizenship, in EUROPEAN CITIZENSHIP: AN INSTITUTIONAL CHALLENGE 115 (Massimo La Torre ed., 1998); Stephen Hall, Loss of Union Citizenship in Breach of Fundamental Rights, 21 EUR. L. REV. 129 (1996). See Palombella, supra note 5, for a discussion of the broad implications of this reasoning on the legitimacy of the Union.

106 Opinion of Advocate General Poiares Maduro in Rottmann, 2010 E.C.R. I-01449, at ¶ 23 (emphasis added). For the legal analysis of the interaction between the two autonomous legal concepts—that of Member State nationality and that of EU citizenship, see Dimitry Kochenov, Rounding up the Circle: The Mutation of Member States’ Nationalities Under Pressure from EU Citizenship (EUI Working Paper RSCAS 2010/23, 2010), available at http://eudo-citizenship.eu/docs/RSCAS_2010_23.pdf; Karolina Rostek & Gareth Davies, The Impact of Union Citizenship on National Citizenship Policies, 22 TUL. EURO. CIV. L.F. 89 (2007); Gerard-René de Groot, Towards a European Nationality Law, ELECTRONIC J. COMP. L., Oct. 2004.

107See de Groot, Towards a European Nationality Law, supra note 106; Hall, supra note 105; Kochenov, Ius Tractum of Many Faces, supra note 5, at 190–93.

108 See Opinion of Advocate General Poiares Maduro, Rottmann, 2010 E.C.R. I-01449, ¶ 32. See also de Groot, Towards a European Nationality Law, supra note 106, 10–20 (providing examples of when Member State nationality law could conflict with EU law).

109 Curiously, in the field of political rights of Member State nationals, precisely such a situation persists: using EU citizenship rights to change the Member State of residence can result in total disenfranchisement at the most important, national level of political representation. Dimitry Kochenov, Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality: An Ignored Link?, 16 MAASTRICHT J. EUR. & COMP. L. 197 (2009). For the analysis of democratic representation in the Union in the larger context, see Federico Fabbrini, The Right to Vote for Non-citizens in the European Multilevel System of Fundamental Rights Protection, (Eric Stein Working Paper, No. 4/2010, 2010).

110 See EUDO CITIZENSHIP, http://www.eudo-citizenship.eu, database for an up-to-date overview. See also Gerard-René de Groot & Maarten Vink, Loss of Citizenship: Trends and Regulations in Europe, EUDO Citizenship Observatory (2010), available at http://eudo-citizenship.eu/docs/loss_paper_updated_14102010.pdf.


the rules of international law on the recognition of nationalities in the context of the Internal Market.111 That is, the Court held that Member States were not entitled to use the Nottebohm concept of “genuine connection”112 as a justification for non-recognition of each others’ nationalities.113 A range of cases, from Auer114 to Zhu and Chen, 115 reasserted that Member States may not withhold recognition of a nationality that is conferred by another Member State.116 Consequently, the Court predictably decided that although the Union respects the rules of International Law, which allocate to each State the freedom to determine who their nationals are,117 as with any other national competence, any such decision must take EU law fully into account. 118 In a way, Rottmann simply applied a long-established Micheletti approach that Member States’ decisions, concerning the conferral and withdrawal of nationalities, 119 are to be taken with “due regard to [European Union] law.”120

111 Case C-369/90, Mario Vicente Micheletti and Others v. Delegación del Gobierno en

Cantabria, 1992 ECR I-4239.

Thus, the ECJ established beyond any doubt that the Member States do not have unfettered freedom to regulate the conferral and withdrawal of their nationalities; rather, the

112 See Nottebohm Case (Liechtenstein v. Guatemala), 1955 I.C.J. 4, 23 (Apr. 6). According to the ICJ, nationality is a “legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.” Id. To see the incoherencies of the judgment, see the Dissenting Opinion of Judge Klaestad and the dissenting opinion of Judge Read. Id. at 28–49. For analysis, see the literature recommended in Albert Bleckmann, The Personal Jurisdiction of the European Community, 17 COMMON MKT. L. REV. 467, 477 n.16 (1980).

113 See Micheletti, 1992 ECR I-4239, ¶ 10. For the analysis of this case in the context of ICJ jurisprudence, see Kochenov, Ius Tractum of Many Faces, supra note 5, at 182; Kochenov, Annotation, supra note 2.

114 See Case 136/78, Ministère Public v. Vincent Auer, 1979 E.C.R. 437, 2 C.M.L.R. 373, ¶ 28 (1979).

115 See Case C-200/02, Chen, Zhu v. Sec’y of State for the Home Dep’t, 2004 E.C.R. I-9925, 3 C.M.L.R. 48 (2004); Case C-34/09, Ruiz Zambrano v. Office national de l’emploi, 2 C.M.L.R. 46 (2011). In both cases the nationality of the children was not at issue.

116 The consequences of this approach are far-reaching since Member States with relaxed nationality rules—such as Italy’s distribution of Italian passports to hundreds of thousands of Argentinians—de facto affect the immigration situation in other Member States. At times, this leads to tensions among the Member States. The Member States’ reactions to Spain’s decision to pardon “illegal” migrants are but one illustration of this. See Rostek & Davies, supra note 106, at 123–25. See also Kochenov, Rounding up the Circle, supra note 106, at 22.

117 See Convention Governing Certain Questions Relating to the Conflict of Nationalities art. 1, Apr. 12, 1930, 179 L.N.T.S. 89, 99. This position is also confirmed by the fact that the Court respects the Declarations made by the Member States in clarifying the meaning of their nationalities in the context of EU law. See Case C-192/99, R. v. Sec’y of State for the Home Dep’t, 2001 E.C.R. I-01237. See also Helen Toner, Annotation, Case C-192/99, R. v. Sec’y of State for the Home Dep’t, ex parte Kaur, Judgment of the Full Court of 20 February 2001, [2001] ECR I-1237, 39 COMMON MKT. L. REV. 881 (2001).

118 See Case C-135/08, Janko Rottmann v. Freistaat Bayern, 2010 E.C.R. I-01449 ¶56 (2010). 119 Limiting Rottmann exclusively to cases of lost nationality, as several scholars have suggested,

including Rainer Bauböck, would amount to a dangerously narrow construction of the Court’s reasoning. In other words, Rottmann should be read to imply that loss and acquisition of EU citizenship—two sides of the same coin—are both within the ambit of EU law in the sense that Member States’ competencies in these areas are to be exercised in full conformity with EU rules. Severe breaches of EU law when conferring EU citizenship (or in cases of failure to confer) are potentially as dangerous and are logically indistinguishable from those occurring when EU citizenship is withdrawn. F or examples of such cases see Gerard-René de Groot, Towards a European Nationality Law, supra note 106.

120 Case C-369/90, Mario Vicente Micheletti and Others v. Delegación del Gobierno en Cantabria, 1992 ECR I-4239, ¶ 10.


conferral and withdrawal of these legal statuses must be done with the comprehensive requirements of EU law in mind.121

In the end, the Court delegated the possibility of deciding on the application of EU law in Rottmann to its German counterpart but required that the German Court’s decision incorporate the EU principle of proportionality,

122 notwithstanding a hint at the applicability of the duty of loyalty, 123 mentioned—albeit en passant—by AG Poiares Maduro in his Opinion. 124 Ultimately, the German Bundesverwaltungsgericht found that the citizenship deprivation was proportional to the interests of the German state. 125

What is most intriguing about Rottmann, however, is not in the Court’s ultimate conclusion, but in the way in which the Court constructed its jurisdiction. To bring the case within the scope of EU law, the Court was clearly at liberty to use its well-tested cross-border situation approach. As has been demonstrated above, this approach can provide an easy means by which the Court can rhetorically construct a cross-border situation based on virtually any factual situations at hand. In other words, when interested parties intervening in the case submitted that the Court should not take up the case as it dealt with a wholly internal matter (Dr. Rottmann was “a German national, residing in Germany”),

This finding was not surprising, given the submissions of the German state and the criminal record of Dr. Rottmann. The position of the ECJ in the case was made more difficult as the Court would not wish to be seen as too kind to a (potential) criminal. It was equally simplified, however, since while Germany was supposedly pleased both with the role given to its courts and with the outcome of the case, the ECJ managed to use Rottmann to make an important innovation in EU law, thus killing several extremely sensitive birds with one stone.

126

121 See Rottmann, 2010 E.C.R. I-01449, ¶ 56. An interesting parallel with the principle of

procedural autonomy of the Member States has been drawn by Ankersmit & Geursen, supra note 3.

the Court could have readily

122 See Rottmann, 2010 E.C.R. I-01449, ¶ 59. It goes without saying that the application of the principle of proportionality in cases where the core legal status of nationality and EU citizenship can be taken away from a threatening person and result in the deprivation of their “right to have rights” is very problematic, as it potentially leads to the relativization of legal subjecthood. See Kochenov, Annotation, supra note 2. For an illuminating critique of proportionality, see Stavros Tsakyrakis, Proportionality: An Assault on Human Rights? (Jean Monnet Working Paper, No. 09/08, 2008), available at http://centers.law.nyu.edu/jeanmonnet/papers/08/080901.pdf; Vicki C. Jackson, Book Review, Being Proportional about Proportionality, 21 CONST. COMMENT. 803 (2004).

123 See Consolidated Version of the Treaty on European Union art. 4(3), Mar. 30, 2010, 2010 O.J. (C 83) 13, 18. On this principle, see Laurence W. Gormley, Some Further Reflections on the Development of General Principles of Law within Article 10 EC, in GENERAL PRINCIPLES OF EC LAW IN A PROCESS OF DEVELOPMENT 303 (Ulf Bernitz, Joakim Nergelius & Cecilia Cardner eds., 2008); John Temple Lang, Article 10 EC—The Most Important “General Principle” of Community Law, in GENERAL PRINCIPLES OF EC LAW IN A PROCESS OF DEVELOPMENT 75 (Ulf Bernitz, Joakim Nergelius & Cecilia Cardner eds., 2008); John Temple Lang, Developments, Issues, and New Remedies—The Duties of National Authorities and Courts under Article 10 of the EU Treaty, 27 FORDHAM INT’L L.J. 1904 (2004).

124 See Opinion of Advocate General Poiares Maduro, Case C-135/08, Janko Rottmann v. Freistaat Bayern, 2010 E.C.R. I-01449, ¶ 30 (2010).

125 See Bundesverwaltungsgericht [BVwerG][Federal Administrative Court] Nov. 11, 2010, BVerwG 5 C 12.10.

126 See Case C-135/08, Janko Rottmann v. Freistaat Bayern, 2010 E.C.R. I-01449, ¶ 38 (2010).


dismissed this argument by referring, following AG Poiares Maduro’s suggestion,127

It is clear that the situation of a citizen of the Union who . . . is faced with a decision withdrawing his naturalization . . . placing him . . . in a position capable of causing him to lose the status conferred by Article 17 EC [now 9 EU] and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of EU law.

to the history behind Dr. Rottmann’s German nationality: if no border had been crossed, Dr. Rottmann would not have become German. However, adopting such reasoning would mean continuing along the problematic line of reasoning at the core of the cross-border situation test, which had come to undermine clarity, rather than enhance it. What makes the case of Dr. Rottmann truly fascinating is the ECJ’s refusal to follow the predictable suggestion of its Advocate General. The facts of the case, where the very essence of an individual’s status in EU and national law was being undermined, provided an excellent opportunity for the Court to lay out a new, principally different way to approach the issues of jurisdiction in EU citizenship cases. The Court, sitting as a Grand Chamber of thirteen Judges, used seminal reasoning, which is as simple as it is convincing, to find the following:

128

Notably, the Court does not mention cross-border situations—actual, potential, future or hypothetical—and for good reason. To decide the case on the basis of cross-border logic would essentially have created two different statuses of EU citizenship. The first status would be confined to cross-border situations, and the Union would protect EU citizenship by requiring the Member States to take EU law into account when deciding on the nationality of such persons. The second status would be an EU citizenship that is confined to wholly internal situations. Although, just like in the first case, EU citizenship is granted by the Union through Articles 9 TEU and 20(1) TFEU, the second status’ confinement to wholly internal situations would render EU citizenship susceptible to dilution and amendment through the Member States’ nationality laws, making it impossible for EU law to intervene when the status of its citizens is undermined by the Member States. This latter situation would foster the same logic that pervades every case of reverse discrimination. Even for a Court whose self-restraint created reverse discrimination in the first place, such a result was untenable particularly because in Rottman, the very status of EU citizenship and thus all of its accompanying rights were at stake.

129

127 See Opinion of Advocate General Poiares Maduro, Rottmann, 2010 E.C.R. I-01449 ¶ 11

(2010).

Moreover, following the cross-border logic in Rottmann could have resulted in the de facto

128 Rottmann, 2010 E.C.R. I-01449, ¶ 42 (emphasis added). 129 There is consensus within relevant literature that the reverse discrimination problem originates

with the EU legal order. In agreement, Giorgio Gaja notes, “la discrimination trouve déjà sa source dans la règle communautaire telle qu’elle est interprétée par la Cour. D’après cette interprétation la règle communautaire confère des droits à certaines personnes et non pas à d’autres en raison de la nationalité de ces derniers” [“Discrimination already finds its source in the [provisions of] Community law as interpreted by the Court. According to this interpretation, Community law confers rights to certain persons and not to others because of the nationality of the latter”]. Les discriminations à rebours: Un revirement souhaitable, in MELANGES EN HOMMAGE DE MICHEL WAELBROECK 993 (1999), 997–98. See also Enzo Cannizzaro, Producing Reverse Discrimination through the Exercise of EC Competences, 17 YBK. EUR. L. 29 (1997); Miguel Poiares Maduro, The Scope of European Remedies: The Case of Purely Internal Situations and Reverse Discrimination, in THE FUTURE OF REMEDIES IN EUROPE 117 (Claire Kilpatrick, Tonia Novitz & Paul Skidmore eds., 2000), 128.


division of the nationality laws of the Member States by making different nationality rules applicable to Member State nationals depend on a vague definition of what is cross-border and what is not.

Rottmann is a revolution. Although the ruling itself is entirely predictable and falls squarely within the mainstream logic of EU legal thinking, in the vein of supremacy and effet utile, it is truly remarkable that the Court went right to the core of the issue by recognizing that sophistry is not always required to make a legitimate jurisdictional claim in a multi-layered legal system. The ECJ has found its way around the dead-end of cross-border logic.

B. Step Two: Ruiz Zambrano

Given the unique factual situation in Rottmann, the approach to the delimitation of the material scopes of EU and Member State law had to be reconfirmed to ensure that Rottmann was not confined to its facts and thus an anomalous solitary deviation from the elastic cross-border situation standard. The confirmation and further development of the Court’s new approach came in Ruiz Zambrano, decided on March 8, 2011.130 This case, although factually also quite peculiar, could have a more serious impact than Rottmann in terms of the consequences it implies for delineating the scopes of Union and Member State law. In Rottmann, both the status of EU citizenship and the rights attached to this status were at stake,131 which caused the facts of the case to fall “by reason of [their] nature and . . . consequences” within the scope of EU law. 132 However, in Ruiz Zambrano neither the status of EU citizenship nor Member State nationality were at issue.133 The case was decided solely on the illegality of depriving an EU citizen “of the genuine enjoyment of the substance of the rights conferred by [the citizenship] of the Union.”134

Ruiz Zambrano concerned the derivative rights of residence and work for a third-country national whose children are EU citizens. In brief, Mr. Ruiz Zambrano moved to Belgium from Colombia with his wife and a child, all of whom were Colombian nationals, seeking asylum, which was not granted.

This is an infinitely wider logical constellation than in Rottmann. In other words, while unreservedly reaffirming the approach taken in Rottmann, the ECJ also broadened it to a great degree.

135 However, the decision of the Belgian authorities refusing asylum contained a non-refoulement clause, so Mr. Ruiz Zambrano and his family remained in Belgium. The family fell into legal limbo: notwithstanding the non-refoulement decision, no work or residence permits were granted to them.136

130 Case C-34/09, Ruiz Zambrano v. Office national de l’emploi, 2 C.M.L.R. 46, ¶ 40 (2011).

While they were not required to leave the country, they were denied social security and were prohibited from taking up

131 It is difficult to imagine a situation in whicih depriving one of his or her citizenship status does not result in further changes to his or her legal situation and access to rights.

132 Rottmann, 2010 E.C.R. I-01449 ¶ 42. 133 See Zambrano, 2 C.M.L.R. 46, ¶ 40 (2011); See also Van Elsuwege, supra note 3. 134 Id. ¶ 42. 135 Id. ¶¶ 18–32. 136 Id. ¶ 15.


employment.137 This did not prevent Mr. Ruiz Zambrano from finding a job and having two more children. Since these children were never registered at the Colombian consulate in Brussels, they became Belgian nationals.138

Mr. Ruiz Zambrano’s numerous attempts to have his situation regularized in Belgium through the nationality of his children were unsuccessful. The Belgian authorities maintained that he could not benefit from the provisions of Belgian law that allow the ascendants of Belgian nationals to remain in the Kingdom, since the children only acquired Belgian nationality because they were not registered at the Consulate of Colombia.

139 The Tribunale du travail de Bruxelles sent a preliminary reference to the ECJ when confronted with the following situation: Although Mr. Ruiz Zambrano did not have a work permit, he worked full-time for five years and paid all the necessary taxes and social security charges to the Belgian exchequer;140 however, once he attempted to rely on social security assistance to support his family when his permanent work contract was temporarily suspended, he was fired at the demand of the competent Belgian authorities. Although Belgium had accepted his taxes and social security payments, the Belgian state declined to pay back a single cent. The Belgian authorities justified this refusal under the pretext that the applicant did not qualify for unemployment benefits because he failed to meet the minimal requirement for days in employment. According to Belgian law, the clock for days in employment only started once a third-country national was working under the authority of a valid work permit.141 Mr. Ruiz Zambrano’s argument was built around the EU citizenship status of two of his children: he claimed that he should be exempt from the requirement to hold a work permit as an ascendant relative of an EU citizen child.142 The Commission and eight intervening Member States143 disagreed, holding that the case was not in the material scope of EU law, since EU citizen “children reside in the Member State of which they are nationals.”144

The ECJ established precedent regarding the rights of an ascendant relative of an EU citizen child in Zhu and Chen.

145

137 The non-refoulement clause is crucial for the understanding of the Ruiz Zambrano case, since

the Colombian family could not be deported. Some scholars’ criticism of Belgian authorities for not removing Mr. Ruiz Zambrano and his family is thus misconceived. See Hailbronner & Thym, supra note 3. at 1254.

The case involved a baby girl born in

138 See Ruiz Zambrano, 2 C.M.L.R. 46, ¶ 19 (2011). See also A.P. van der Mei, S.C.G. van den Bogaert, & Gerard-René de Groot, De arresten Ruiz Zambrano en McCarthy, 6 NEDERLANDS TIJDSCHRIFT VOOR EUROPEES RECHT 187 (2011).

139 Ruiz Zambrano, 2 C.M.L.R. 46, ¶ 23 (2011). 140 See id. at ¶ 20. The facts of the case thus make it impossible to agree with some commentators

opposed to the ECJ decision who tend to demonize Ruiz Zambrano, claiming that the case involved “illegal employment in the shadow economy.” Hailbronner & Thym, supra note 3, at 1260. Such perversion of facts does not make their analysis of the case more convincing—the case concerned a foreigner who was officially registered with the municipality, Ruiz Zambrano, 2 C.M.L.R., ¶ 18, and worked for five years while making tax and social security contributions in full, id. ¶ 20, not a criminal.

141 See Ruiz Zambrano, 2 C.M.L.R. at ¶ 33. 142 Id. at ¶ 34. 143 These States included Belgium, Denmark, Germany, Ireland, Greece, the Netherlands, Austria,

and Poland. 144 See Ruiz Zambrano v. Office national de l’emploi, 2 C.M.L.R. 46, ¶ 37 (2011). 145 Case C-200/02, Chen, Zhu v. Sec’y of State for the Home Dep’t, 2004 E.C.R. I-9925, 3

C.M.L.R. 48, ¶¶ 45–47 (2004) [hereinafter “Zhu and Chen”].


Northern Ireland to Chinese parents, thereby satisfying the conditions of a cross-border situation approach: she had an Irish passport acquired via the ius soli rule in combination with residence in the U.K. There, the Court established the right of ascendant relatives of minor EU citizens to reside in the Union. Unlike the Ruiz Zambrano case, the Court in Zhu and Chen emphasized the fact that the ascendant relative in question was economically self-sufficient and would thus not burden the Member State’s public finances.146 Ruiz Zambrano ultimately came down to the clarification of the boundary between EU law and Belgian law. Reverse discrimination is strikingly apparent here: Mr. Ruiz Zambrano would have been granted all the necessary permissions if his children had held any EU passports other than Belgian ones or if they were returning to Belgium after a period of residence elsewhere in the Union. As often happens, EU rules on residence are somewhat more liberal than national ones. Thus while the Belgian authorities deciding whether to allow ascendant relatives of Belgians to stay and work in Belgium were preoccupied with exactly how the children acquired Belgian nationality—even though the lawfulness of this acquisition was not disputed—EU law does not consider the mechanism by which citizenship is acquired.147 Rather, according to EU law and only in the event that EU law applies, ascendant relatives simply have a right to stay with an EU citizen.148 Given that, under Micheletti, Member States may not question nationality granted by other Member States, if the ECJ had established that EU law applied, then the case would have been decided in Mr. Zambrano’s favor.149

AG Sharpston delivered an Opinion of remarkable clarity and sophistication,

150

building on her seminal Opinion in Government of the French Community and the Walloon Government.151

146 Id. ¶ 47 (stating that the application of this rule is limited to “a young minor who is a national

of a Member State, is covered by appropriate sickness insurance, and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host Member State” (emphasis added).

Over the objections of the intervening Member States and the Commission, it seems that the Court largely endorsed this Opinion. The Court ultimately adopted one of the conclusions suggested by the learned AG, but its ruling was so brief that it is difficult to ascertain whether it followed AG Sharpston’s opinion. The laconic decision comes nowhere near the intellectual depth and detail

147 Ruiz Zambrano, 2 C.M.L.R. 46, ¶ 23 (2011). 148 It is necessary to keep in mind that this rule, established in Zhu and Chen, was created on the

basis of a cross-border situation and represents one of the problematic extensions under the previous approach, since the Irish baby girl was born to Chinese parents in the U.K. and acquired Irish nationality and EU citizenship by virtue of being born in Northern Ireland, to which Northern Ireland’s ius soli rule applied.

149 Case C-369/90, Micheletti v. Delegación del Gobierno en Cantabria, 1992 E.C.R. I-4239, ¶ 10. 150 For analyses of the Opinion, see Van Elsuwege, supra note 3; Pieter Boeles, Spannende tijden,

8 ASIEL- EN MIGRANTENRECHT 429 (2010). 151 Opinion of Advocate General Sharpston, Case C-212/06, Gov’t of the French Cmty. and

Walloon Gov’t v. Flemish Gov’t, 2008 E.C.R. I-1683. For analysis see, inter alia, Peter Van Elsuwege & Stanislas Adam, Situtations Purement Internes, Discriminations à Rebours et Collectivités Autonomes après l’Arrêt sur l’Assurances Soins Flamande, CAHIERS DE DROIT EUROPEEN, 655, 662–78 (2008).


of the Opinion and the Court has been criticized for its brevity.152 Yet even the critics of the decision agree that “we could not expect the Advocate General’s passion to be reflected in the judgment of the Court.”153

Just as in Rottmann, the judgment was delivered by the Grand Chamber and there was a remarkably low number of intervening Member States (all of them unsuccessful): less than one third. The low rate of intervention is especially stunning, given that the fundamental issues at stake have immediate relevance for each and every Member State of the Union.

154

The Court found that Mr. Ruiz Zambrano’s situation was within the scope of EU law.

155 It applied a combination of its usual fundamental status mantra and the Rottmann logic. It concluded that in light of the central importance of EU citizenship, which is intended to be “the fundamental status of the nationals of the Member States:”156

Article 20 TFEU precludes 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.

157 [Moreover] [a] refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside . . . has such an effect.158

In other words, just as in Rottman, the situation fell within the scope of EU law “by reason of its nature and its consequences.”

159 Some scholars are unconvinced by the Court’s logic.160 Others mistakenly glean a cross-border approach by reading between the lines of this brief judgment. They presume that, irrespective of the judgment’s actual language, its reference to “the genuine enjoyment of the substance of the rights” 161

152 Nic Shuibhne, supra note 3; Hailbronner & Thym, supra note 3; Lansbergen & Miller, supra

note 3.

of EU citizenship necessarily alludes to the future use of free movement rights by Mr. Ruiz Zambrano’s Belgian children, and they thus fit this

153 Nic Shuibhne, supra note 3. 154 Probably the most urgent is the issue concerning mixed EU citizen and third-country national

couples (or former couples) with EU citizen children. An expansive reading of Ruiz Zambrano will help legalize a huge number of third-country nationals in this situation. Unfortunately, no common practice on this issue is emerging within the Member States. Two contrasting perspectives have already emerged in dealing with such situations at the national level post-Ruiz Zambrano: on the one hand, a Dutch court deported a Kosovar mother, while her Dutch child remained in the EU with his EU citizen father (Rechtbank 's-Gravenhage 28 mart 2011, JV 2011, 234 m.nt AWB 10/37591). On the other hand, Lady Hale, of the High Court of England and Wales decided a similar case differently (ZH (Tanzania) v. SSHD [2011] UKSC 4). It is notable that while the Dutch court was expressly waiting for the ECJ to rule in Ruiz Zambrano before taking a restrictive view, the English High Court decided ZH (Tanzania) case on February 1, 2011, before Ruiz Zambrano was decided in Luxembourg. More preliminary references are to be expected on the scope of this aspect of Ruiz Zambrano in the near future.

155 Case C-34/09, Ruiz Zambrano v. Office national de l’emploi, 2 C.M.L.R. 46, ¶ 42 (2011). 156 Id. ¶ 41. 157 Id. ¶ 42. 158 Id. ¶ 43. 159 Case C-135/08, Rottman v. Bayern, 2010 ECR I-01449, ¶ 42. 160 Nic Shuibhne, supra note 3. 161 Ruiz Zambrano, 2 C.M.L.R. 46, ¶ 42 (2011).


decision into a cross-border approach.162 However, a simple reading of the seven paragraph reasoning of the Court reveals nothing less than a full affirmation of the Rottmann approach. No cross-border situation logic applies, since it is deemed unnecessary. To try to find such logic is unreasonable, as it would equal regarding Ruiz Zambrano as further obscuring the clarity of the Court’s approach in distinguishing the scopes of application of the two legal orders.163 In addition, due to its brevity, the language of the Court is very categorical and clear, which marks a departure from the subtlety of Rottmann. Perhaps the Court’s firm categorical language reflects its desire to reaffirm and clarify the Rottmann approach.164

The new test of jurisdiction is thus established in Rottman and Ruiz Zambrano. Unlike the previous approach, which employed actual or hypothetical cross-border situations, the new approach eschews border-sensitive thinking and focuses on the intensity of the Member States’ interference with the rights of EU citizens in triggering the application of EU law in order to allocate the case at issue to one legal order or another. In contrast, McCarthy confirms the assumption that the old cross-border situation logic will continue to apply in a number of situations, particularly where the Member State’s encroachment of an EU citizen’s rights is deemed to be insignificant.

165 However, in all cases where either EU citizenship or the core rights associated with the citizenship are at stake, EU law can be expected to step in to protect EU citizens, regardless of whether a wholly internal situation exists.166

This reading of the recent case law finds support in the interpretation of territory espoused by the Court in Ruiz Zambrano. In the application of the old cross-border situation logic, the border between the Member States was the decisive factor in determining whether to apply EU law. This notion has entirely disappeared from the two recent judgments of the ECJ and is instead substituted by the concept of the “territory of the Union.”

167 This terminological shift sends the clear message that the Court has profoundly changed its view of EU citizenship. Following the analysis provided by several generations of scholars, the Court rightly regards national borders between the Member States as not necessarily relevant to the concept of citizenship,168

162 This was a general agreement among the majority of Professors and practitioners attending the

meeting dedicated to the discussion of the case at the Faculty of Law meeting at Leiden University in April 2011.

thus creating, in the words of Loïc Azoulai, “a new common space, a

163 But see Van Elsuwege, supra note 3. See Part V of this Article for a detailed discussion of the new case law’s contribution to making the delimitation of the material scopes of the two legal orders more coherent.

164 Peter Van Elsuwege offers one interpretation: “Arguably, the decision concerning the granting and withdrawal of nationality touches upon the core elements of a State’s sovereignty, whereas the decision to grant a residence right and a work permit to third-country family members of a national is a consequence of a previous, sovereign decision of a Member State to grant its nationality to children born on its territory.” Van Elsuwege, supra note 3, at 270.

165 Case C-434/09, McCarthy v. Sec’y of State for the Home Dep’t., 2011 ECJ EUR-Lex LEXIS 499, ¶ 45 (May 5, 2011).

166 For a critique of the notion of the “substance of the rights,” see Hailbronner & Thym, supra note 3; Ankersmit & Geursen, supra note 3.

167 Case C-34/09, Ruiz Zambrano v. Office national de l’emploi, 2 C.M.L.R. 46, ¶ 44 (2011). 168 AG Sharpston called for this development in the clearest way:


space of distribution of rights and common values.” 169 At the same time, the borders of the Union gain in prominence. Although it has been clear since Eman and Sevinger 170 that EU citizenship and the rights connected therewith are not extinguished upon exiting the Union,171 Ruiz Zambrano is the first case to regard the Union border as somehow fundamental for establishing the scope of application of EU law inside the Union—not outside its ratione loci as was the case with Aruba in Eman and Sevinger.172

This helps to answer the key question that arises from the ECJ’s new test: what does the “genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union”

173 mean and how far can it, or should it, be stretched? Both Rottmann and Ruiz Zambrano shed some light on this issue. From Rottmann, it is clear that losing all EU citizenship rights as a consequence of losing one’s status as a citizen of the Union is a serious enough Member State interference to trigger the application of EU law. From Ruiz Zambrano, it is clear that the Union as a whole, not individual Member States, is the main reference point for construing such rights. Consequently, because it is the territory of the Union—described by Article 52 TEU as a space where EU law is uniformly applied—that is relevant in the context of this new understanding, it is likely that an individual could lose his or her EU citizenship rights in his or her own Member State.174

[There is] something deeply paradoxical about the proposition that, although the last 50 years have been spent abolishing barriers to freedom of movement between Member States, decentralised authorities of Member States may nevertheless reintroduce barriers through the back door by establishing them within Member States.

This is exactly what transpired in Ruiz Zambrano. Any limitation on the possibility of recourse to EU citizenship rights based on territorial considerations of a lower, Member State order

Opinion of Advocate General Sharpston, Case C-212/06, Gov’t of the French Cmty; Walloon Gov’t v. Flemish Gov’t., 2008 ECR I-1683, ¶¶ 143–44. The Court’s reasoning in Ruiz Zambrano can be viewed as a reply to this plea, even though the case does not tackle reverse discrimination directly, for which AG Sharpston had advocated in her Opinion. See id. ¶ 139.

169 Loïc Azoulai, A Comment on the Ruiz Zambrano Judgment: A Genuine European Integration, EUDO CITIZENSHIP OBSERVATORY (Sept. 23, 2011, 6:00 PM), http://eudo-citizenship.eu/citizenship-news/457–a-comment-on-the-ruiz-zambrano-judgment-a-genuine-european-integration. See also Oxana Golynker, European Union as a Single Working-Living Space: EU Law and New Forms of Intra-Community Migration, in THEORISING THE GLOBAL LEGAL ORDER 145 (Andrew Halpin & Volker Roeben eds., 2009).

170 Case C-300/04, Eman and Sevinger v. College van burgemeester en wethouders van Den Haag, 2006 E.C.R. I-8055.

171 Id. ¶¶ 29, 72.1. For analysis, see Dimitry Kochenov, EU Citizenship in the Overseas, in EU LAW OF THE OVERSEAS 199 (Dimitry Kochenov, ed. 2011); Leonard F.M. Besselink, Annotation of Case C-145/04 Spain v. U.K., Case C-300/04 Eman en Sevinger, and ECt.HR Case Sevinger and Eman v. The Netherlands, 45 COMMON MKT. L REV. 787 (2008).

172 Eman and Sevinger, 2006 E.C.R. I-8055, ¶¶ 46–47. See also Dimitry Kochenov, The Impact of European Citizenship on the Association of the Overseas Countries and Territories with the European Community, 36 LEGAL ISSUES OF ECON. INTEGRATION, 239 (2009).

173 Case C-34/09, Ruiz Zambrano v. Office National de l’Emploi, 2 C.M.L.R. 46, ¶ 42 (2011). 174 Uniform application is one of the central principles of EU law, going back to Case 6/64, Costa

v. ENEL, 1964 E.C.R. 585, where it was employed to establish the principle of EU law’s supremacy. See also Bruno Witte, Direct Effect, Supremacy, and the Nature of the Legal Order, in THE EVOLUTION OF EU LAW 177 (Paul Craig & Gráinne de Búrca eds., 1st ed. 1999).


seems to be impermissible.175 The fact that EU citizen children “would have to leave the territory of the Union”176 clearly indicated to the Court that they would be deprived of the possibility of “the genuine enjoyment of the substance of [EU citizenship] rights.”177

The Rottmann and Ruiz Zambrano decisions established the new approach, which focuses upon the intensity of Member State interference with the rights of EU citizens. Little clarity has been provided, however, with regard to the possible reach of this vision, as well as the rules concerning its co-existence with the old cross-border approach. How soon—if ever—will the traditional cross-border situation approach be phased out? How much autonomy will Member States retain in interfering with EU citizens’ lives by denying them access to EU law, using strictly procedural considerations as a justification? Interpreted broadly, the new vision of the scope of EU law has the potential to constrain the Member States’ ability to regulate virtually any issue independently, similarly to what the wording of Dassonville promised in the area of free movement of goods.

178

C. Step Three: McCarthy

In this context, it is necessary to outline the limits of the new reading of the border between the EU and Member State legal orders. In its McCarthy decision, the Court provided the first vague sketch of these limits.

In McCarthy, the Court of Justice sitting as a chamber of five judges, fully endorsed the innovations introduced by the Grand Chamber in Rottmann and Ruiz Zambrano and treated the new approach, not requiring a cross-border situation, as established case law.179 Moreover, the Court reaffirmed the new approach to the territory of the Union espoused in Ruiz Zambrano by underlining the importance of the Union’s external border. 180 The Court’s most important contributions to articulating in McCarthy the new distinction between the legal orders in the EU are two-fold. First, McCarthy supplied a situation that did not amount to “depriving [an EU citizen] of the genuine enjoyment of the substance of the rights associated with [EU citizenship status].” 181

175 The same is valid to a large extent in the context of the regional borders of the Member States:

their ability to construct far-reaching, local citizenships is seriously diminished by EU law. See Dimitry Kochenov, Regional Citizenships in the EU, 35 EUR. L. REV. 307 (2010).

This factually distinguishes McCarthy from both Rottmann and Ruiz Zambrano. Second, McCarthy hinted at the Court’s readiness simultaneously to employ both the old, i.e. cross-border situation, and the new, i.e. Rottmann / Ruiz Zambrano approaches, to outlining its jurisdiction. This

176 Ruiz Zambrano, 2 C.M.L.R. 46, ¶ 44. 177 Id. ¶ 42. 178 Case 8/74, Procureur du Roi v. Benoît and Gustave Dassonville 1974 E.C.R. 837. For an up-

to-date overview of the field, see LAURENCE W. GORMLEY, EU LAW OF FREE MOVEMENT OF GOODS AND CUSTOMS UNION (2010).

179 Case C-434/09, McCarthy v. Sec’y of State for the Home Dep’t., 2011 ECJ EUR-Lex LEXIS 499, ¶ 53 (May 5, 2011).

180 Id. ¶ 50. 181 Id. ¶ 49.


demonstrated that, at least for the time being, the new approach can coexist with the old approach.

The case concerned an attempt by a British citizen, Shirley McCarthy, to create a cross-border situation in order to procure a residence permit under EU law for her husband, a Jamaican national who did not meet the family reunification criteria under U.K. law.182 Mrs. McCarthy correctly assumed that the U.K. government would be obligated to issue her husband a residence permit should Directive 2004/38 183 apply to her situation. 184 Mrs. McCarthy, who had never worked anywhere in the Union and had spent all of her life in the U.K.,185 applied for recognition of her dormant Irish nationality.186 Having secured Irish citizenship, she attempted to use her newly-acquired Irish passport to secure a residence permit for her husband, claiming that he was a family member of a migrant EU citizen in the U.K.187 British authorities denied the application because Mrs. McCarthy did not meet the minimal requirements of residence established by the Directive: she was neither a worker, nor a self-employed person, nor a self-sufficient person.188 The Supreme Court of the U.K. submitted a preliminary question, asking the ECJ to clarify whether and how Directive 2004/38 applied to the situation of dual Member State nationals who were not economically self-sufficient and who had resided in one Member State for their entire lives. AG Kokott delivered a brief Opinion arguing that the situation was outside the scope of EU law.189

The questions from the U.K. Supreme Court were absolutely clear and dealt only with the applicability of the Directive’s relevant provisions to the facts of the case.

The ECJ agreed.

190 Given the factual situation, the doors were open for the Court to find a cross-border situation under its elastic interpretation of the concept. 191

182 Id. ¶ 23.

In this context, it is remarkable that the Court not only considered whether a cross-border situation was present in the case, but also whether the case could be brought within

183 Parliament and Council Directive 2004/38, On the Right of Citizens of the Union and Their Family Members to Move and Reside Freely Within the Territory of the Member States, 2004 O.J. (L 158) 77 (EC).

184 Id. art. 3(1). 185 McCarthy, 2011 ECJ EUR-Lex LEXIS 499, ¶¶ 14, 25. 186 Id. ¶ 16. 187 Id. ¶ 23. 188 Id. ¶ 17. 189 Opinion of Advocate General Kokott, Case C-434/09, McCarthy v. Sec’y of State for the

Home Dep’t., 2010 ECJ EUR-Lex LEXIS 1341, ¶ 61 (Nov. 25, 2010). 190 McCarthy, 2011 ECJ EUR-Lex LEXIS 499, ¶ 21:

1. Is a person of dual Irish and United Kingdom nationality who has resided in the United Kingdom for her entire life a “beneficiary” within the meaning of Article 3 of Directive 2004/38?

2. Has such a person “resided legally” within the host Member State for the purpose of Article 16 of [that] directive in circumstances where she was unable to satisfy the requirements of Article 7 of [that directive]?

191 See Part III, supra.


the scope of EU law under the new Rottmann / Ruiz Zambrano approach, 192 invoking both the new and the old tests for establishing jurisdiction in the same paragraph.193 To employ both methods, the Court had to broaden the scope of the questions referred to it by its U.K. counterpart,194

However, the substantive conclusion reached by the Court merits criticism. While Article 3(1) of Directive 2004/38

a clear sign that the ECJ considers its new approach to determining the scope of EU law as a task of paramount importance. The ECJ found that neither of the two approaches allowed it to interpret the relevant provisions of EU law, including Directive 2004/38 and Article 21 TFEU, broadly enough to cover the factual situation at issue in McCarthy. The outcome of the case is much less important than the reasoning applied by the Court. As demonstrated, the latter entirely upholds the Rottmann / Ruiz Zambrano approach to framing the ECJ’s jurisdiction.

195 clearly applies only to EU citizens who have used their free movement rights, 196 which was also established in Ruiz Zambrano,197

First, the Court failed to distinguish Ruiz Zambrano in a convincing manner. Second, the Court claimed that the situation at issue in the earlier Garcia Avello case was also brought within the scope of EU law, following reasoning essentially similar to the Rottmann / Ruiz Zambrano approach.

the fact that the Court ruled that the Primary law on EU citizenship does not apply to the situation at issue in McCarthy is quite intriguing. The Court made two problematic observations in light of its assessment of the potential application of the new approach.

198

192 McCarthy, 2011 ECJ EUR-Lex LEXIS 499, ¶ 47.

In Garcia Avello, a Belgian-Spanish couple residing in Belgium used EU law to force the Belgian state to allow their dual-national children to be named on their Belgian passports according to Spanish naming conventions According to the Court in McCarthy, having different names on passports issued by Spain and Belgium could have the effect “of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue

193 Id. ¶ 56. 194 Id. ¶ 24. The ECJ can do this according to established case law, such as Case C-251/06, ING.

AUER v. Finanzamt Freistadt Rohrbach Urfahr, 2007 E.C.R. I-9689, ¶ 38. For analysis see MORTEN BROBERG & NEILS FENGER, PRELIMINARY REFERENCES TO THE EUROPEAN COURT OF JUSTICE 408–11 (2010).

195 Parliament and Council Directive 2004/38, On the Right of Citizens and Their Family Members to Move Freely within the Territory of the Member States, art. 3, 2004 O.J. (L158) 89 (EC), reads as follows:

1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

196 In McCarthy, 2011 E.C.R. I-0000, ¶ 31, the Court argues that this result follows from “a

literal, teleological and contextual interpretation of th[e] provision.” For the Court’s reasoning on this point, which is entirely in line with established case law, see ¶¶ 32–35 of the judgment.

197 Case C-34/09, Ruiz Zambrano v. office national de l’emploi, 2 C.M.L.R. 46, ¶ 39 (2011). 198 Case C-148/02, Garcia Avello v. Belgian State, 2003 E.C.R. I-11613.


of that status, or of impeding the exercise of their right of free movement and residence within the territory of the Member States.”199

The Court’s Garcia Avello type of fantasies, coupled with the Court’s willingness to expand the scope of its review in McCarthy to address a question that was not asked by the U.K. court, constitute a second clear sign that the Rottmann and Ruiz Zambrano approach is here to stay. By making a reference to Garcia Avello in its McCarthy decision, the Court even seems to be applying the Rottman / Zambrano approach in a retrospective manner by overlaying it upon the cross-border reasoning it had used in past cases and, consequentially, providing better explanations ex post facto for its earlier cases.

200

It does not come as a surprise that earlier cases where potential future movement was sufficient to trigger a cross-border situation and could thereby bring the facts of the case within the material scope of EU law,

In a way, this can be viewed as nothing but the Court’s affirmation that its interpretation of a cross-border situation was simply too broad in the past and failed to perform the tasks for which it was initially designed—particularly the task of providing a clear, predictable, and logically convincing border between the material scopes of EU law and the law of Member States.

201

Returning to the first criticism of the McCarthy decision, the Court failed to convincingly distinguish Ruiz Zambrano in finding that the Primary Law on EU citizenship was not applicable in McCarthy. In justifying its refusal to apply EU law, the Court stated, “by contrast with the case of Ruiz Zambrano, the national measure at issue in the main proceedings in [McCarthy] does not have the effect of obliging Mrs. McCarthy to leave the territory of the European Union.”

can potentially become much more convincing in the context of Rottmann and Ruiz Zambrano and thus tempt the Court. However, the Court is unable to deceive its followers, and Garcia Avello cannot be decided twice. Despite the Court’s claims in McCarthy concerning the similarity between Garcia Avello and Ruiz Zambrano, one must view such ex post analyses with skepticism, since one case clearly required an artificial cross-border situation to be constructed by the Court, while the other did not. However, incredulousness does not detract from the impact of the Court’s invocation of Garcia Avello. Specifically, this invocation indicates that the Court is willing to present its new approach, which is a clear departure from the cross-border situation logic, to delimitating the material scope of EU law as a mainstream approach seemingly known and almost applied in the past.

202

[A] principle of international law, reaffirmed in Article 3 of Protocol No 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms . . . that precludes a Member State from refusing its own nationals the right to enter its territory and remain there for any

This is a very curious observation which raises important questions regarding the Court’s reasoning. In paragraph 29 of the judgment, the Court referred to:

199 McCarthy, 2011 E.C.R.I-0000, ¶ 53 (emphasis added). 200 Garcia Avello, 2003 E.C.R.I-11613. 201 Id. ¶ 25. 202 McCarthy, 2011 E.C.R.I-0000, ¶ 50 (emphasis added).


reason . . . the principle also precludes that Member State from expelling its own citizen.”203

In other words, the Court claims that under international law, Member States cannot expel a national or refuse her residence. Why then, was EU citizenship needed in Ruiz Zambrano to guarantee that the Belgian children of Mr. Ruiz Zambrano did not end up de facto expelled from Belgium and the Union?

204

Somewhat disappointingly, the Court in McCarthy fails to refer to any situations, other than expulsion from the territory, that can result in depriving EU citizens of the substance of their rights. This silence amounts to substituting the main rule of Ruiz Zambrano, which allows the Court to exercise jurisdiction in cases involving the deprivation of EU citizens of the substance of their rights stemming from this status. The factual finding in the case, that requiring EU citizens to leave the territory of the Union precisely amounts to the deprivation of the genuine enjoyment of EU citizenship rights. This indicates that the Chamber’s reading of Ruiz Zambrano is not logically coherent.

Coherence aside, McCarthy reaffirmed the importance of the notion of the “territory of the European Union,” 205 clarifying that any measure passed by a Member State requiring an EU citizen to leave the Union will, no matter what, fall within the scope of EU law.206 In other words, this unequivocally confirms an EU citizen’s right to residence in the territory of the Union, including in the citizen’s Member State. However, the Chamber’s reading of Ruiz Zambrano in McCarthy is so narrow that it does not treat a citizen’s right to be accompanied by her loved ones as a fundamental right of EU citizenship. Notably, the failure to cover the citizen’s family in its ruling disregards the established case law on the importance of this issue, which even predates the creation of the concept of Union citizenship.207 The right of EU citizens to family life appears to be dismissed by the Court at the outset, which is truly alarming. 208

It is possible to speculate that the Court intentionally turned a blind eye to the full potential of the Rottmann / Ruiz Zambrano approach, first reaffirming it, and then exploring its implications for finding jurisdiction in cases involving other rights

The implication the Court seems to be making in McCarthy—that the only fundamental right of EU citizenship is not being obliged to leave the Union—is impermissibly narrow. Such an approach absolutely ignores the social context in which citizenship is practiced—and that is to say nothing of the EU Charter of Fundamental Rights or other texts at the core of the Union’s primary law.

203 Id. ¶ 29. 204 This question becomes particularly relevant when considered in light of the fact that the

principle of international law at issue is also fully recognized in the context of EU law. Citing established case law, the Court stated in McCarthy, “European Union law cannot be assumed to disregard [this principle] in the context of relations between Member States.” Id. ¶ 29.

205 See McCarthy, 2011 E.C.R.I-0000, ¶ 50. 206However, should such a situation arise in the EU citizen’s Member State of nationality, it will

come under the purview of international law. Id. ¶ 29. 207 See Peter Van Elsuwege & Dimitry Kochenov, European Union Citizenship and Family

Reunification: Comments on Ruiz Zambrano and Shirley McCarthy, 2011 EUR. J. MIGRATION & L. (forthcoming 2011).

208 Id.


of EU citizenship that shape individual lives in the Union. As a result, the Court did not consider myriad rights conferred on EU citizens, including the right to equality and various European Convention on Human Rights (“ECHR”) rights, such as the right to family life.209

One should derive three important conclusions from the Court’s ruling in McCarthy. First, the Rottmann / Ruiz Zambrano approach to the scope of EU law has become an established part of the Union’s law, which the Court is ready to apply sua sponte, even if that entails answering questions that were not asked by the petitioning national courts. Second, as far as the limits of the new approach are concerned, the Court seems to shy away from deploying the approach in all of its power. In McCarthy, while the Court clarified this new vision of jurisdiction, it failed to explain the rationale behind its decision. The Court instead chose to focus on the issue of “leaving the territory of the Union,” rather than addressing the implications for the enjoyment of EU citizenship rights. Third, the Court was ready to apply both the old and the new approaches to the establishment of the material scope of EU law simultaneously. This essentially means that the intensity of interference logic will not necessarily and immediately replace the cross-border logic. Future ECJ case law will be necessary to make any clear predictions of how long this situation is likely to persist. However, at this stage, it seems fairly obvious that the Rottmann / Ruiz Zambrano test is more likely to provide a long-term approach to the jurisdictional dilemmas facing the EU. This is due to six factors of key importance mentioned in the Introduction, which the following Section analyzes in light of the history of the evolution of the ECJ’s treatment of jurisdictional conflicts presented in Parts II and III, as well as the facts and implications of the most recent case law presented above.

Nonetheless, in light of the new approach to jurisdiction, the Court is bound to address these rights in its upcoming decisions. Moreover, it is of key importance that the Court sent a clear signal of self-restraint and established—while reaffirming the significance of the new approach to jurisdiction—that this innovation will not result in an immediate and complete reshuffling of the European Union.

V. MAIN IMPLICATIONS OF THE NEW APPROACH TAKEN BY THE COURT

The new approach articulated by the Court requires EU law to shape the rights of EU citizens in situations where their Member States, even if acting within their own non-disputed field of competences, make it difficult, if not impossible, for EU citizens to assert their citizenship rights.210

209 See Daniel Thym, Respect for Private and Family Life under Article 8 ECHR in Immigration

Cases, 57 INT’L & COMP. L. Q. 87, 95 (2008).

Under this approach, the distinction between wholly internal situations and cross-border situations simply disappears as inter-State borders in the Union cease to be a defining factor in framing jurisdiction. According to the new approach, what triggers the application of EU law is not the connection between the Internal Market and the factual situation at issue, but rather the potential severity of the Member States’ impact on the legal situation of EU citizens. Sir Francis Jacobs predicted this eventual evolution of ECJ jurisprudence

210 Case C-34/09, Ruiz Zambrano v. office national de l’emploi, 2 C.M.L.R. 46, ¶ 42 (2011).


in his oft-quoted, majestic phrase, “civis europæus sum,”211 which is much loved by academic commentators and hangs over the Court as a self-fulfilling prophecy.212 As was demonstrated above, the cross-border logic was conceptually discordant with the Union’s essence once the Union’s purpose shifted from completion of the Internal Market to the introduction of EU citizenship. This logical incongruity was bound to be remedied sooner or later. In the words of Joseph Weiler, “the treatment of European Citizenship, both in the TEU itself and, subsequently, by the institutions and the Member States of the Union, [had become] an embarrassment.”213 This could not be sustained any longer. However, it took the Court almost twenty years to overcome the initial market-oriented inertia by starting to turn away from the much criticized orthodoxy. 214 Rottmann and Ruiz Zambrano were the first telling signs of the shift.215

However, the new approach is not welcome in all circles. The latest case law is treated with suspicion by some academics, who seem to regard the new vision espoused by the Court as an unjustifiable extension of the EU’s powers.

216

211 Opinion of Advocate General Jacobs, Case C-168/91, Christos Konstantinidis v. Stadt

Altensteig, 1993 E.C.R.I-1191, ¶ 46.

Regrettably, they fail to propose any better solution. Their arguments seem to be rooted more in a passionate adherence to a familiar tradition rather than in reasoned analysis. Indeed, from a rational standpoint, it is impossible to deny at this point that employing internal EU borders as a focal point in drawing the border line between the law of the EU and the law of the Member States in cases involving EU citizens is

212 Sir Francis’ words were taken seriously by a number of other Advocates General, especially Eleanor Sharpston. See her opinions in Case C-34/09, Ruiz Zambrano v. office national de l’emploi, 2 C.M.L.R. 46 (2011); Case C-212/06, Gov’t of the French Comty. v. Flemish Gov’t, 2008 E.C.R.I-1683 (providing a magnificent outline of key points relating to the reverse discrimination problem as well as some viable ways for the Court to deal with it). See also Opinion of Advocate General Léger, Case C-152/03, Ritter-Coulais v. Germersheim, 2006 E.C.R.I-1711, ¶ 57; Opinion of Advocate General Fennely, Case C-281/98, Angonese v. Cassa di Risparmio di Bolzano, 2000 E.C.R.I-4139, ¶ 9.

213 Weiler, To Be a European Citizen, supra note 5, at 499. 214 This is not to say, however, that market-oriented logic no longer has a role to play in the Union

of citizens. See Nic Shuibhne, supra note 5. 215 Earlier examples can also be provided, but they failed to establish an alternative test with

sufficient clarity. Eman is an interesting case in this respect. Case C-300/04, Eman v. College van burgemeester en wethouders van Den Haag, 2006 E.C.R.I-8055. The case concerned participation in the European Parliament (EP) elections of EU citizens residing in Aruba, which is one of the Overseas Countries and Territories Associated with the Union, in the sense of Article 355(2) TFEU, and is thus basically excluded from the territorial scope of application of EU law. Although the case concerned Dutch nationals deprived of voting rights in Aruba, which belongs to the Kingdom of the Netherlands, and although organizing EP elections outside of the EU territory is not required by EU law, the Court found a violation of an unwritten principle of equality comparing Dutch citizens in Aruba with Dutch citizens in the third countries (who can vote at the embassies). The case thus departed from the internal situation approach but provided no clear test besides the important clarification that EU citizenship can also be meaningful outside of EU territory and that the EU’s unwritten principle of equality binds Member States in governing situations not covered by EU law sensu stricto. For further analysis, see Dimitry Kochenov, EU Citizenship in the Overseas: Outermost Regions, Associated Overseas Countries and Territories, Territories Sui Generis, in EU CITIZENSHIP IN THE OVERSEAS: OUTERMOST REGIONS, ASSOCIATED OVERSEAS COUNTRIES AND TERRITORIES, TERRITORIES SUI GENERIS 3 (Dimitry Kochenov ed., 2011); Besselink, supra note 171.

216 See, e.g., Nic Shuibhne, supra note 3; Hailbronner & Thym, supra note 3; Jessurun d’Oliveira, Decoupling Nationality and Union Citizenship, supra note 2.


harmful to the Union and its citizens alike, or that reverse discrimination is a serious problem undermining both EU citizenship and the nationalities of the Member States.217 The blurring of the lines of cross-border situations is, however, hardly a suitable way of addressing this deficiency in the Union’s architecture.218 It seems always easier to uphold the status quo, as illustrated by the recent Opinions by Miguel Poiares Maduro 219 and Julianne Kokott, 220 who embrace a purely conventional approach. While there is nothing wrong with being faithful to well-tested ways, the comfort of such an approach can bring about truly negative developments, especially in the current context in which the need for reform is crystal-clear. Instead of adhering strictly to traditionalist thinking and criticising innovations in the vein of Kay Hailbronner and Daniel Thym, who claimed that “it is difficult to conceive of more drastic disrespect for written legal rules,” it seems much more productive to carefully study their potential.221 One may be led finally to admit, following AG Sharpston, that “there are significant drawbacks to the Court’s current line of thought.”222

The new reading of the law is perfectly in line with the logic of the principle of loyal cooperation between the EU and its Member States,

The Court has extremely important problems to deal with—and a sympathetic attitude to the Court’s attempts to engage the problems in a constructive manner is essential, especially in the absence of any clear alternatives. The Rottmann / Ruiz Zambrano case law should thus be applauded for the admirable courage demonstrated by the Court, rather than cautioned against in full knowledge of the fact that the established cross-border situation approach is not sustainable in the long run.

223 as well as with the re-orientation of the market-based EU integration project vis-à-vis citizens,224 and with a goal-oriented reading of EU competences.225 It thus provides an example of an “entirely conventional application of EU law” 226

217 See Kochenov, Citizenship Without Respect, supra note 5.

and disproves traditionalist predictions in the vein of L.A. Geelhoed’s “no, it does not appear that the 'purely

218 See id. 27–34. 219 See Opinion of Advocate General Poiares Maduro, Case C-135/08, Rottmann v. Fraistaat

Bayern, 2010 E.C.R. I-0144, ¶¶ 13, 33. On the contradiction between these two paragraphs, see Kochenov, Annotation supra note 2.

220 See Opinion of Advocate General Kokott, Case C-434/09, McCarthy v. Sec’y of State for Home Dep’t., 2011 E.C.R. I-0000, ¶ 24.

221 Hailbronner & Thym, supra note 3. 222 Opinion of Advocate General Sharpston, Case C-34/09, Ruiz Zambrano v. office national de

l’emploi, 2 C.M.L.R. 46, ¶ 139 (2011). 223 AG Poiares Maduro expressly pointed to this principle as being relevant in his Opinion in Case

C-135/08, Rottmann v. Freistaat Bayern, 2010 E.C.R.I-0144, ¶ 33. 224 Kostakopoulou, Ideas, Norms and European Citizenship, supra note 5. For a discussion of the

central role of the individual in the understanding of the legal concept of citizenship, see JOSEPH H. CARENS, CULTURE, CITIZENSHIP AND COMMUNITY: A CONTEXTUAL EXPLORATION OF JUSTICE AS EVENHANDEDNESS (2000); DORA KOSTAKOPOULOU, THE FUTURE GOVERNANCE OF CITIZENSHIP (2008).

225 Armin von Bogdandy & Jürgen Bast, The European Union’s Vertical Order of Competences: The Current Law and Proposals for Reform, 39 COMMON MKT. L. REV. 227 (2002).

226 Davies, supra note 25.


internal situation' in the free movement of people will lose its relevance.”227

A. Coherence in the Division of Competences

As the Court has demonstrated in the clearest possible way, contrary to the viewpoint of many scholars and practitioners, the cross-border logic is not the only possible underlying factor informing the borders between the legal orders. This seems to be a natural and fitting conclusion given the maturation of the European integration project, which has now largely outgrown its economic rationale. The total predictability of the new ECJ’s approach notwithstanding, the new vision espoused by the Court is remarkable in many respects—which are profoundly interrelated—and can be roughly split into six mutually overlapping groups.

First, the new approach introduces at least some coherence into the previously vague outline of EU law by marking yet another attempt of the Court to provide a clear and predictable explanation of the situations in which EU law applies and the grounds for its application. This, of course, is a departure from the purely rhetorical constructs of the past. Indeed, a number of questions under the new reading will arise regarding the limits of the reach of the material scope of EU law, especially including the question of what exactly constitutes “the effect of depriving [an EU citizen] of the genuine enjoyment of the substance of the rights conferred by virtue of this status.” 228

In order to be appreciated in full, however, a clear line must be drawn between the two approaches now at the disposal of the Court. Scholars who fail to draw such a line seem to be viewing the new case law as a mere continuation of the story of flexible reinterpretation of the notion of cross-border situations and thus see the new approach as a further blurring of an already vague idea of jurisdiction.

However, the new approach covers a vast number of more straightforward situations, such as the ones at issue in Rottmann and Ruiz Zambrano, which are now unquestionably covered by the law of the Union. It is thus absolutely clear that once one’s EU citizenship status is under threat, EU law can intervene. The same applies to the situation of EU citizens pushed by national law to leave the Union: EU law will be applicable with no regard to cross-border situations or actual and potential movements across the internal borders within the Union. By ensuring a complete departure from the cross-border thinking in the situations where it is applied, the new approach coherently delimits the scopes of Member State and Union law, since it is no longer based on factors which are per se irrelevant in the EU citizenship context, such as crossing the internal borders within the Union.

229

227 L.A. Geelhoed, De vrijheid van personenverkeer en de interne situatie: maatschappelijke

dynamiek en juridische rafels, in DE EU: DE INTERSTATELIJKHEID VOORBIJ? 31, 49 (Elisabetta Manunza & Linda Senden eds., 2006) (author’s translation) (“nee, het ziet er niet naar uit dat de ‘zuiver interne situatie’ in het vrije verkeer van personen haar relevantie zal verliesen.”). See also LORD SLYNN, INTRODUCING A EUROPEAN LEGAL ORDER, 99 (1992).

However, nothing could be further from the truth. The careful reading of the latest case law demonstrates beyond any possible doubt that the Court does not utilize the new approach as a mere extension of the cross-border thinking. Although the Court is willing to employ the two approaches side-by-side, as it did in McCarthy, the

228 Case C-434/09, McCarthy v. Sec’y of State for Home Dept., 2011 E.C.R. I-0000, ¶ 56. 229 See Van Elsuwege, supra note 3; Hailbronner & Thym, supra note 3.


underlying rationale of the new test is principally different from hypothesizing about future movement as is required under the old approach. This is precisely why the Court made an attempt in McCarthy to reinterpret Garcia Avello in light of Rottmann and Ruiz Zambrano. The new approach is much more convincing and coherent than the traditional one. This is not surprising, as protecting the vital core of EU citizenship from unjust interference is a fairly straightforward way of justifying the applicability of EU law.

In practice, this means that in any situation where either the status of EU citizenship is in question (like in Rottmann), or the key rights associated with it are undermined by a Member State (like in Ruiz Zambrano), looking for a cross-border situation is not necessary in order for the Court to intervene. Of course, the Court can still employ cross-border situation logic as an alternative means of establishing the applicable law, and there is certainly no problem with this. It is foreseeable, however, that in the long run, cross-border situation constructs will be used less and less in cases involving EU citizens because of imperfections inherent in the old test, which was better suited to the pre-citizenship stages of EU integration and is increasingly incongruous with the present-day reality. 230 The intensity of the interference approach formulated in Rottmann and Ruiz Zambrano solves virtually all of the main flaws from which the cross-border situation rationale suffered. The new approach does not presume that EU citizenship has to be “activated” in some way before a citizen may legitimately rely upon it; 231

B. Protection of EU Citizens

rather, it makes the construction of purely hypothetical cross-border situations, which are rarely truly convincing, unnecessary. Furthermore, the transition to the Rottman / Ruiz Zambrano test liberates EU citizenship from its main birth-defect, which is related to assumptions connected to the market, and which disregards the wording of the Treaties where such a connection is not articulated as necessary. In other words, the new approach is rooted in the facts, in the meaningful nature of the status of EU citizenship, and in the necessity to protect the rights associated with it. In contrast, the old approach was rooted in the willingness of the Court to bring as many situations as possible within the scope of EU law by claiming potential cross-border effects. Both the Member States and the Union are mature enough at this stage, as the latest case law demonstrates, to face the facts. Rottmann and its progeny thus come as a long-awaited adieu to Cowan and its offspring.

The second important aspect of the new approach directly follows from the first and reinforces the protection of the rights of EU citizens and their relatives in situations where the very essence of their Member State nationalities and EU citizenship statuses, as well as the rights associated therewith, are profoundly undermined. It also provides protection where the Member States are unwilling to

230 But see Hanf, supra note 6, at 58. 231 For an analysis, see Kochenov, Ius Tractum of Many Faces, supra note 5, at 235 (making a

distinction between EU citizens whose situations would most likely fall within the scope of EU law as a consequence of the fact that a cross-border situation is present (activated EU citizenship), and those EU citizens whose personal and employment histories do not allow them to claim rights under EU law (non-activated EU-citizenship)).


step in to correct the deficiencies. Two different kinds of situations should be mentioned here, both of which are now under ECJ scrutiny. Under its current jurisprudence, the ECJ is empowered to check the legality of the Member States’ actions against the letter and the spirit of EU law, becoming “the final arbiter in disputes” on citizenship questions.232

Two important issues arise in the context of the ECJ’s newly acquired ability to take the side of the citizens against their Member States of nationality even in situations that could be classed as wholly internal under the previous approach. The first concerns the minimal thresholds of the protection of rights and deals with the question of how much protection the Court should provide for the substance of EU citizenship rights. The second issue deals with the emerging parallelism of rights—a clear overlap existing between the rights granted to EU citizens in their EU citizenship capacity and those granted in their capacity as nationals of Member States.

The first situation concerns the provision of additional protections for individuals against actions taken by a Member State that might result in the undermining of the enjoyment of the individual’s legal status of EU citizenship. An example of this type of judicial check was at issue in Rottmann. The second situation, which has consequences similar to the first, does not involve undermining a citizen’s legal status, but makes the practical enjoyment of the rights associated with it impossible. This development is similar to the situation that arose in Ruiz Zambrano. The combination of these two allows the Court to defend EU citizens and ensure that their rights in this capacity are respected by all of the Member States, including their own Member States of nationality.

As demonstrated elsewhere in greater detail, classical citizenship rights, like Janus, currently exist in Europe in a dual form.233 The majority of such rights are guaranteed by both the Member States and the Union in situations where the bodies of their citizenry necessarily overlap almost entirely.234 In other words, EU-level rights can be essentially identical to Member State-level rights, with the only difference being the scope of the two groups of rights; that is, EU-level rights cover the whole territory of the Union, including all of the Member States, while national rights are confined to particular Member States. While there are several notable exceptions to the overlap rule, such as political participation at the national level,235 and the right to occupy sufficiently important positions in the civil service,236 the overlap is otherwise almost complete.237

232 See Davies, supra note 25; Kochenov, Annotation, supra note 2.

For instance, the rights, inter alia, to enter

233 Kochenov, supra note 106. 234 For a discussion of the rare cases in which such overlap is not absolute, see Kochenov, Ius

Tractum of Many Faces, supra note 5, at 186–90. 235 For a critical assessment, see id. at 198–200. 236 TFEU art. 45(4). This provision is subject to very strict limitations. See Case 149/79,

Comm’n v. Belgium, 1980 E.C.R. 3881; Case C-473/93, Comm’n v. Luxembourg, 1996 E.C.R. I-3207; Case C-173/94, Comm’n v. Belgium, 1996 E.C.R. I-3265; Case C-290/94, Comm’n v. Greece, 1996 E.C.R I-3285; Case 307/84, Comm’n v. France, 1986 E.C.R. 1725; Case 225/85, Comm’n v. Italy, 1987 E.C.R. 2625. For analysis, see NANDA BEENEN, CITIZENSHIP, NATIONALITY AND ACCESS TO PUBLIC SERVICE EMPLOYMENT: THE IMPACT OF EUROPEAN COMMUNITY LAW 200 (2001).

237 Strictly speaking, social security and medical care rights are not citizenship rights as they are primarily connected to residence. The discussion of these rights is thus purposely excluded. See Davis,


and to leave, to work, and to be protected from discrimination, are all provided by both legal orders. This parallelism of rights shapes a reality where virtually any national citizenship right can be regarded as an EU citizenship right. The ECJ’s movement away from a cross-border approach to jurisdiction and the concurrent movement away from wholly internal situations as the meaningful factor in delimiting the scopes of the two legal orders practically amounts to granting the Union a right to intervene in almost all cases where the Member States disregard, using whatever pretext, the rights of their own nationals guaranteed in the national legal system. So in Ruiz Zambrano, the Court had to protect the children’s EU citizenship right to reside in the Union when Belgium failed to protect their rights to stay in Belgium—rights that stemmed directly from their Belgian nationality.

Establishing the thresholds of ECJ intervention is vital in this respect: the Court must formulate a clear test to determine what actions taken by Member States would amount to rendering the exercise of the essence of EU citizenship rights impossible and thus warrant the EU’s intervention. The ECJ will need a large number of cases in order to establish a coherent way of distinguishing between those cases that are worthy of intervention and those that should be left to the Member States and the ECHR legal systems. It is already clear, however, that the ECJ is unlikely to benefit from showing too much self-restraint. All of EU citizenship’s key rights should receive sufficient protection. Consequently, McCarthy clearly stands to be overruled in the future.

In a situation where virtually all national citizenship rights are paralleled at the supranational level and where the ECJ is entitled to ensure that EU citizenship rights are respected by the Member States’ authorities in all circumstances, the Member States will most likely lose the freedom—at least not without sufficient justification—to substantially deviate from the standards initially established for EU citizens in cross-border situations. Moreover, those national laws that provide less stringent protections for their citizens, when compared to the protections afforded by EU law, will now be under constant pressure from the operation of EU law in addition to the longstanding pressure arising from the dictates of common sense and equality among EU citizens, to which such national regimes have already been susceptible. 238 Pushed to its logical extreme, this would mean that reverse discrimination could be eliminated in Member States like Germany, Belgium and the Netherlands, where national law does not view it as a problem.239

Any Place I Hang My Hat?, supra note 5; SANDRINE MAILLARD, L’ÉMERGENCE DE LA CITOYENNETÉ SOCIALE EUROPÉENNE (2008) (arguing that EU social citizenship is not confined in all cases to Member State nationals).

The EU will thus provide the minimal standards of citizenship protection in a number of areas. While disabling Member State action that would fall short of respecting such standards, the doors will be open for the Member States to establish more permissive rules. Needless to say, these developments greatly benefit EU citizens.

238 See Kochenov, Citizenship Without Respect, supra note 5. 239 Italy is a positive counter-example of this tendency. See Corte Cost., 16 dicembre 1997, n.

443, ¶ 6, available at http://www.giurcost.org/decisioni/1997/0443s-97.htm (“nel giudizio di eguaglianza affidato a questa Corte non possono essere ignorati gli effetti discriminatori che l'applicazione del diritto comunitario è suscettibile di provocare”). For a more general discussion, see Kochenov, Citizenship without Respect, supra note 5.


C. Promotion of Equality

Third, the new approach reinforces EU citizenship, not only in terms of enlarging the number of situations in which EU citizens can rely on EU law, but also by imbuing the notion of EU citizenship with increased fairness and thereby moving it closer to the ideal meaning of citizenship espoused by legal philosophers. 240 Citizenship is, per se “a status of equal membership within a bounded polity.”241 The ECJ’s new approach reinforces equality and helps to better legitimize the EU.242

The missing connection between the legal status of EU citizenship and the principle of equality in EU law greatly undermined the essence of EU citizenship, resulting in a “citizenship without respect.”

Previously, applying EU law to EU citizens, including the application of the principles of equality and non-discrimination, depended largely on the historical use of the fundamental freedoms provided by the EU. This invited distinctions to be made between activated and non-activated EU citizenship and thus profoundly undermined the very essence of the legal status of an EU citizen. The recent case law opens up the possibility of changing this situation completely.

243

240 See Kenneth L. Karst, Equal Protection of the Laws, 1986 SOC’Y 24 (1986); Kenneth L. Karst,

Why Equality Matters, 17 GA. L. REV. 245 (1983); Kenneth L. Karst, The Supreme Court 1976 Term Foreword: Equal Citizenship under the Fourteenth Amendment, 91 HARV. L. REV. 1 (1977). For an analysis of the fundamental link existing between citizenship and equality, see Kochenov, Citizenship without Respect, supra note 5. For a number of different approaches to the understanding of citizenship, all of them referring to a certain form of equality between citizens, see Linda Bosniak, Citizenship Denationalised, 7 IND. J. GLOBAL LEGAL STUD. 447 (2000); Kim Rubinstein & Daniel Adler, International Citizenship: The Future of Nationality in a Globalised World, 7 IND. J. GLOBAL LEGAL STUD. 519, 522 (2000). See also Mindus, supra note 5.

This situation has been critiqued by numerous commentators, including the present author in the pages of this

241 Rainer Bauböck & Virginie Guiraudon, Introduction: Realignments of Citizenship: Reassessing Rights in the Age of Plural Memberships and Multi-Level Governance, 13 CITIZENSHIP STUD. 439 (2009); See also Gareth Davies, Services, Citizenship, and the Country of Origin Principle 2, 3 (Europa Institute Mitchell Working Paper No. 2, 2007):

The sense of this right to equality gives status to individuals[:] one of the

major effects of citizenship is to provide a sense of place. Formal equality provides a high level of transparency and certainty, and rights to protection and services give a sense of security and obligation, which the state can leverage to further collective ends – taxation or military service, for example. To possess citizenship is to have a form of socio-political fixed abode, convenient for both the denizen and the authority who may wish to address them.

242 See Wojciech Sadurski, Majority Rule, Legitimacy and Political Equality 2 (EUI Law,

Working Paper No. 21, 2005) (arguing that it is not the idea of majority rule per se, but the postulate of equality that serves as the main legitimizing factor in a democracy). For the analytical connection between democracy, nominal political equality, and the concept of citizenship, see John Mueller, Democracy and Ralph’s Pretty Good Grocery: Elections, Equality, and the Minimal Human Being, 36 AM. J. POL. SCI. 983 (1992). Assessing the EU from the point of view of the general depoliticization of citizen-authority relations, Joseph Weiler went as far as to outline the corruptive nature of the Union in Europe, when regarded from the point of view of homo politicus. Weiler, Nous coalison des États, supra note 5, at 51. Indeed, the first message carried by “civis erupæus sum” is hardly political.

243 Kochenov, Citizenship without Respect, supra note 5.


Journal. 244 The narrow-mindedness of the EU’s approach to equality is best expressed by Gráinne de Búrca, who demonstrated that the EU principle of equality “is only selectively relevant in certain specific areas of [EU] law . . . [and] does not have a single, coherent role in [Union] law.”245 Clearly, in a citizens’ Union, such a situation is untenable. The latest developments in the ECJ’s case law can remedy the EU’s deficient approach to the principle of equality. In the vein of Sir Francis’ thinking, real EU citizenship is only possible when an appeal to the legal status alone creates rights for the citizen and obligations for the public authority vis-à-vis the citizen.246

D. New Vision of Territory

Rottmann and Ruiz Zambrano both ensure the possibility of such a real citizenship status emerging. It is difficult to overstate the impact that this development will have upon the evolution of the principle of equality. The magnitude of this impact even withstands the judgment in McCarthy, which could be regarded as problematic when viewed through the lens of equality. The new approach helps legitimize the Union by reconnecting citizenship and equality at the EU level.

Fourth, and organically flowing from all that is outlined in this Section, the new approach to EU citizenship has resulted in the emergence of a novel, functional notion of EU territory, 247 based upon which the ECJ no longer distinguishes between the territories of the particular Member States.248 Thus EU citizenship rights no longer stop at the doorstep of those who never “moved” from one Member State to another.249 For the first time, EU citizens seem to be granted the plenitude of the rights associated with the “fundamental status of nationals of the Member States” at home,250 as well as abroad,251 and upon returning from abroad.252 The new approach thus covers the right to reside in the “territory of the Union,”253

244 Kochenov, Ius Tractum of Many Faces, supra note 5, at 234–37. For a more detailed account

of the understanding of the principle of equality in the EU, see Kochenov, Citizenship without Respect, supra note 5. See also Davies, Services, Citizenship, supra note 241; White, Free Movement, Equal Treatment and Citizenship, supra note 5; ILIOPOULOU, LIBRE CIRCULATION ET NON-DISCRIMINATION, supra note 16, at 267.

245Gráinne de Búrca, The Role of Equality in European Community Law, in THE PRINCIPLE OF EQUAL TREATMENT IN EC LAW 13, 14 (Alan Dashwood & Síofra O’Leary eds., 1997).

246 Only such an approach can result in a “true [European] citizenship.” Opinion of Advocate General Sharpston, Ruiz Zambrano, 2 C.M.L.R. 46 (2011), ¶ 3.

247 For the notion of EU territory in EU law, see Dimitry Kochenov, The EU and the Overseas, in EU LAW OF THE OVERSEAS 3 (Dimitry Kochenov ed., 2011).

248 See also Azoulai, A Comment, supra note 168; Golynker, European Union, supra note 60. 249 This includes, of course, also hypothetical movement. See supra Part III. 250 Grzelczyk, 2001 E.C.R. I-6193, ¶ 31; Baumbast and R., 2002 E.C.R. I-7091, ¶ 82; Garcia

Avello, 2003 E.C.R. I-11613, ¶ 22; Zhu and Chen, 2004 E.C.R. I-9925, ¶ 25; Rottmann, 2010 E.C.R. I-0144, ¶ 43; Ruiz Zambrano, 2 C.M.L.R. 46, ¶ 41 (2011).

251 “Abroad” can refer to the incongruity between one’s Member State nationality and the Member State of residence and does not necessarily involve movement across internal EU borders. See Garcia Avello, 2003 E.C.R. I-11613; Zhu and Chen, 2004 E.C.R. I-9925. This does not mean, however, that the mere possession of more than one Member State nationality will necessarily result in the application of EU law. See McCarthy, 2011 E.C.R. I-0000, ¶ 41.

252 See D’Hoop, 2002 E.C.R. I-6191. 253 Ruiz Zambrano, 2 C.M.L.R. 46, ¶ 44 (2011).


including one’s Member State of nationality.254 This potentially brings any EU citizen anywhere in the Union within the scope of Article 18 TFEU and within the scope of the EU’s general non-discrimination principle. 255

Third-country nationals, who are long-term residents in the Union, are the main losers in the new approach. Although they live in the Union and thus can theoretically enjoy its lack of internal borders, they are not granted access to the opportunities offered by the Internal Market. This situation is entirely illogical, and the status of the third-country nationals and their rights in the EU seems to be totally out-of-date. The profound change in the Union’s economic and legal reality over the last decades has not been reflected in third-country nationals’ legal situations. In a way, the Member States pretend as if their Union does not exist when it comes to third-country nationals. There is no rational explanation for this situation. Even speaking in purely economic terms, the benefits of free movement are quite obvious: if a Ukrainian or a Moroccan cannot find a job in Slovenia, but jobs are readily available in Poland, common sense dictates that both Member States and third-country nationals suffer from the failure to ensure that the same freedoms apply to EU citizens and to third-country nationals, alike. The current rise in nationalism around the EU has resulted in a situation in which naturalization regulations have become more and more restrictive. As a result, third-country nationals are currently experiencing more acute difficulties, as their opportunities to become EU citizens are increasingly restrained.

One should not overestimate the importance of McCarthy’s refusal to acknowledge the practical effects of the case law that articulated the new approach. In fact, McCarthy clearly presents a reaffirmation of the move toward the new approach, and this reaffirmation alone is important. At this point, as the ECJ’s future case law takes shape, it is bound to produce clarity by articulating the contours of when Member States’ interferences with EU citizenship rights are permissible and when such interferences will trigger the application of EU law and invocation of EU citizenship. All in all, the change in the construction of the notion of territory is a very positive one, since a unitary notion of EU territory clearly puts the importance of internal EU borders, glorified under the previous approach, into its proper perspective.

256

254 Connecting EU citizenship and the right of residence in the Union does not seem to exclude,

however, expulsions of EU citizens from one Member State to another, which still remain a legal possibility in a limited array of cases. See Parliament and Council Directive 2004/38, supra note 183, art. 28.

255 See Case 117/76, Ruckdeschel et. al. v. Hauptzollamt Hamburg-St Annen 1977 E.C.R. 1753, ¶ 7. For a more recent example, see Eman and Sevinger, 2006 E.C.R. I-8055, ¶ 61. For analysis, see Arjen W.H. Meij, Circles of Coherence: On Unity of Case Law in the Context of Globalisation, 6 EUR. CONST. L. REV. 84 (2010); Sotirios Manolkidis, The Principle of Equality from a Comparative Constitutional Perspective: Lessons for the EU, in THE PRINCIPLE OF EQUAL TREATMENT IN EC LAW 80 (Alan Dashwood & Síofra O’Leary eds., 1997); Kochenov, Citizenship without Respect, supra note 5, at 27–34.

256 While all EU Member States allow for a possibility to naturalize, the recent wave of legislative amendments made the relevant rules less liberal than before. For instance, culture and civic integration tests became popular. For an overview and criticism, see Ricky van Oers, Eva Ersbøll & Dora Kostakopoulou, Mapping the Redefinition of Belonging in Europe, in A RE-DEFINITION OF BELONGING? 307 (Ricky van Oers, Eva Ersbøll & Dora Kostakopoulou eds., 2010); Christain Joppke, Beyond National Models: Civic Integration Policies for Immigrants in Western Europe. 30 WEST-EUROPEAN POL. 1


The new vision of territory in the context of EU citizenship law is similar to the notion of territory as it relates to the law of free movement of goods.257 This traces a general line of convergence between the EU citizenship law and fundamental freedoms law. The new approach reinvents the Union, turning it into a single living and working space, to borrow from Golynker.258 In sum, for the first time in the history of European integration, the Union, which has among its goals to “offer its citizens an area of freedom, security and justice without internal frontiers,” is starting to deliver on its promise.259

E. Limiting unwarranted Member State action

Fifth, the new approach implicates Member States’ discretion to regulate certain fields, without sufficient justification, when such regulations would impinge upon EU citizens’ rights and entitlements. This is not a minor matter. Before 2011, the Member States exercised absolute discretion with regard to those EU citizens who were not in a cross-border situation and were able to levy innumerable regulations upon them without having to justify their actions. This policy is at the heart of sovereignist thinking. The idealistic presumption that the Member States are, like the Union as a whole, “founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights”260 and would therefore not want to mistreat their own nationals is not supported by the reality on the ground. This is vividly illustrated by the large number of cases of reverse discrimination. It is thus great news that the Member States will now need to justify their potentially dubious actions vis-à-vis EU citizens, not only in front of the ECtHR, where the margin of appreciation given to States is at times very broad indeed,261

Moreover, it is simply inaccurate to argue that this new standard diametrically opposes Member States’ sovereignty and the idea of democracy. First, it is obvious

but also in front of the ECJ.

(2007). For the analysis of the recent developments in the context of EU citizenship, see Dimitry Kochenov & Mevrouw de Jong Gaat Eten, EU Citizenship and the Culture of Prejudice (EUI RSCAS Working Paper, 2011/06, 2011).

257 Reverse discrimination is virtually eliminated in the area of free movement of goods. For analysis, see, for example, Van Elsuwege & Adam, Situations purement internes, supra note 6, at 661. See also Joined Cases C-321–324/94 Crim. proceedings against Jacques Pistre et. al., 1997 E.C.R. I-2343, ¶ 44 (in which the Court famously ruled that “[EU law] cannot be considered inapplicable simply because all the facts of the specific case before the national court are confined to a single Member State”). See also Case C-448/98 Crim. proceedings against Jean-Pierre Guimont, 2000 E.C.R. I-10663, ¶¶ 21–24; Case C-293/02 Jersey Produce Marketing Org. Ltd. v. States of Jersey and Jersey Potato Export Marketing Bd., 2005 E.C.R. I-9543, ¶ 79; Case C-72/03 Carbonati Apuani Srl v. Commune di Carrara, 2004 E.C.R. I-8027, ¶ 22. In contrast to the current state of the law in EU citizenship law after Gov’t of the French Cmty. and Walloon Gov’t v. Flemish Gov’t, 2008 E.C.R. I-1683, the Court does not tolerate internal borders within the Member States in the area of free movement of goods. See Joined Cases C-485 & 486/93 Maria Simitzi v. Dimos Kos, 1995 E.C.R. I-2655; Case C-163/90 Legros et al., 1994 E.C.R. I-4625, ¶¶ 16–17. For a detailed analysis, see Alina Tryfonidou, The Overseas Application of Customs Duties Provisions of the TFEU, in EU LAW OF THE OVERSEAS 221 (Dimitry Kochenov ed., 2011).

258 Golynker, European Union, supra note 60. 259 EU Treaty art. 3(2). 260 EU Treaty art. 2. 261 See, on this concept, James A. Sweeney, A “Margin of Appreciation” in the Internal Market:

Lessons from the European Court of Human Rights, 34 LEGAL ISSUES OF ECON. INTEGRATION 27 (2007).


that the new jurisdiction test employed by the ECJ does not enable the EU to legislate in the fields of Member State competences. This preserves the Member States’ freedom to regulate these areas as long as the general lines of EU law are respected. Second, democracy is not only about the reflection of the will of the governed, as Mattias Kumm has demonstrated, but also about creating regulation that is neither senseless nor harmful and is justifiable by solid reasons.262 In this sense, subjecting Member States to increased Socratic contestation, which will most likely be the outcome of the new ECJ’s jurisdiction test, only enhances the Member States’ legitimacy and quality of government. Sovereignty is not an end in itself, and appeals to it are deficient when they are used to justify bad regulation.263

The current developments are thus in line with a global move, described by Moshe Cohen-Eliya and Iddo Porat, toward the “culture of justification,” which is supplanting the “culture of authority” in mature constitutional systems.

The invocation of sovereignty should not be given weight when such an invocation is used to justify a Member State’s deliberate enactment of laws that undermine the treatment of nationals who do not satisfy the cross-border situation test.

264 In reply to the question “why am I treated like this,” the sovereignist answer “because I so decided” is no longer sufficient; rather, states must give substantive reasons for the ways in which their citizenries are treated. In reverse discrimination cases, such substantive reasons have never existed.265 This situation cannot persist in a Union of citizens. The Court’s new approach to jurisdiction could potentially change this situation by requiring the Member States to move beyond purely procedural considerations in explaining why EU citizens are deprived of the possibility of the “genuine enjoyment of the substance of [their] rights.”266 While the exact scope of such rights remains to be seen, the ECJ should not shy away from realizing the full potential of EU citizenship by asking the Member States simple questions about their reasons for abridging these rights. The fields affected will definitely range from immigration and family reunification to a wide number of other areas of law, potentially resulting in consequences that are fundamental to the exercise of the Member States’ essential competences: “The Court endows itself with a novel instrument, which may potentially be directed against a variety of national measures.”267

The new approach will thus go precisely to the heart of what the Bundesverfassungsgericht warned against when it announced the idea of

262 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., Art. 1 (2010). 263 Joseph H. Carens, Citizenship and Civil Society: What Rights for Residents?, in DUAL

NATIONALITY, SOCIAL RIGHTS AND FEDERAL CITIZENSHIP IN THE U.S. AND EUROPE 100, 115 (Randall Hansen & Patrick Weil eds., 2002).

264Moshe Cohen-Eliya & Iddo Porat, Proportionality and the Culture of Justification, 59 AM. J. COMP. L. 463 (2011). On the general spread of the principle of proportionality as well as the reasons behind its attractiveness for judges, see Alex Stone Sweet & Jud Mathews, Proportionality, Balancing, and Global Constitutionalism, 47 COLUM. J. TRANSNAT’L L. 72 (2008).

265 Kochenov, Citizenship without Respect, supra note 5. 266 Ruiz Zambrano, 2 C.M.L.R. 46, ¶ 42 (2011). 267 Hailbronner & Thym, supra note 3, at 1257.


“Identitätskontrolle,” 268 potentially interpreting the Basic Law ultra vires and sparking scholarly criticism;269 the “malaise allemande” seems to be back,270 albeit in a deeply mutated form.271 The German Lisbon decision—besides ensuring that BVerfG’s credibility on Europe is, in Joseph Weiler’s words, “in the dog-house”272—provides a telling illustration of how the Member States’ authorities fail their nationals by adopting a strictly national approach to rights and freedoms that ignores their citizens’ status as EU citizens. As a consequence, by trying to develop rhetorical devices to limit the reach of EU law, national courts are often deaf to the fact that these limitations can actually diminish the amount and quality of the rights and protections which Europeans—i.e., their own nationals—enjoy. 273 Jack Balkin’s idea of the Constitutional evil naturally comes to mind in this context: 274 that is, protecting the Constitution, which is naturally one of the key tasks of a Member State’s judiciary, can also harm individual citizens who derive rights precisely from the limitations that the EU legal order places on the national norms.275 This particularly concerns the prohibitions against discrimination on the basis of nationality,276 obstacles to free-movement,277 and disproportionate Member State action.278

268 “Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Jun. 30, 2009 2 BvR

2/08, ¶ 240 (Ger.). For analysis, see Gareth Davies, Constitutional Disagreement in Europe and the Search for Legal Pluralism (Eric Stein Working Papers, No. 1/2010, 2010); Daniel Thym, In the Name of Sovereign Statehood: A Critical Introduction to the Lisbon Judgment of the German Constitutional Court, 46 COMMON MKT. L. REV. 1795 (2009); Christian Wohlfahrt, The Lisbon Case: A Critical Summary, 10 GERMAN L.J. 1277 (2009); Armin Steinbach, The Lisbon Judgment of the German Federal Constitutional Court—New Guidance on the Limits of European Integration?, 11 GERMAN L.J. 367 (2010).

269 Paul Craig, The ECJ and Ultra Vires Action: A Conceptual Analysis, 48 COMMON MKT. L. REV. 395 (2011).

270 The term stands for the BverfG’s love of one-sided readings of political notions, such as that of dēmos. See Anne Peters, European Democracy after the 2003 Convention, 41 COMMON MKT. L. REV. 70 (2004).

271 In the Lisbon judgment, the BVerfG changed its approach to dēmos, probably under pressure from the literature criticizing its previous approach. Daniel Thym, In the Name of Sovereign Statehood, supra note 268, at 1818.

272 Joseph H.H. Weiler, Editorial: Judicial Ego, 9 INT’L J. CONST. L. 1, 2 (2011). 273 For an analysis, see Kochenov, Citizenship without Respect, supra note 5, at 65–67. 274 Jack M. Balkin, Agreements with Hell and Other Objects of our Faith, 65 FORDHAM L. REV.

1703, 1704 (1997). 275 Gareth Davies, The Humiliation of the State as a Constitutional Tactic, in THE

CONSTITUTIONAL INTEGRITY OF THE EUROPEAN UNION (Fabian Amtenbrink & Peter van den Berg eds., 2010).

276 Martínez Sala, 1998 E.C.R. I-2691; Grzelczyk, 2001 E.C.R. I-6193; Baumbast and R., 2002 E.C.R. I-7091; Trojani, 2004 E.C.R. I-7573. See generally GARETH DAVIES, NATIONALITY DISCRIMINATION IN THE EUROPEAN INTERNAL MARKET (2003).

277 See Tas-Hagen and Tas, 2006 E.C.R. I-10451. 278 See Baumbast and R., 2002 E.C.R. I-7091, ¶¶ 90–91; Garcia Avello, 2003 E.C.R. I-11613, ¶¶

39–44. Proportionality is helpful even though, in general, the EU can hardly boast a developed standard of practical application of the principle of proportionality that would be consistently applied along the same lines. For general overviews, see Francis G. Jacobs, Recent Developments in the Principle of Proportionality in European Community Law, in THE PRINCIPLE OF PROPORTIONALITY IN THE LAWS OF EUROPE 1 (Evelyn Ellis ed., 1999); Walter Baron Van Gerven, The Effect of Proportionality on the Actions of Member States of the European Community: National Viewpoints from Continental Europe, in


Under the new approach, the ECJ acquires many more opportunities to intervene upon the Member States’ exercise of powers. As a result, the Member States will need to be very careful when framing their nationality legislations and any rules that could potentially interfere with EU nationals’ ability to exercise EU citizenship, including the ability of Member States’ own nationals to exercise their EU citizenship. This is likely to deepen the rationalizations grounding the Member States’ rulemaking in this field such that the Member States’ legitimacy will increase and the arbitrariness of their nationality rules will decrease. Thus, Socratic contestation associated with the possible challenge coming from the ECJ will increase the legitimacy of national decision-making.

F. Reinforcing the Main Trends

Lastly, the new phase of integration continues several trends in the relationship between the Member States and the Union. First, the new approach to citizenship delimitations further erodes the legal importance of Member States’ nationalities.279 Second, the new approach heightens tensions between the Member States and the Union in the fight for citizens and extends the EU’s constitutional tactic of humiliating the Member States, as articulated by Gareth Davies.280 Once the right to reside in his or her Member State is added to the list of rights that are already granted to nationals via their EU citizenship status, 281 the import of national citizenship is further decreased.282 Most importantly, once the material scope of EU law further expands as a consequence of the Court’s recent moves, the import of national citizenship, which, according to Davies’ verbiage, was already abolished by the material scope of EU law as articulated in Article 18 TFEU, will continue to fade.283

However, somewhat problematically, limits to the new approach will affect all of the developments described above and thus necessarily qualify the positive consequences of the Court’s innovative direction. The primary limitation stems from the way in which the Court articulated the new approach in McCarthy by relying on the test of Ruiz Zambrano without engaging its logic. Nonetheless, there is a compelling explanation that supports the Court’s gradualism in shifting its course: the change initiated with Rottmann and Ruiz Zambrano could lead to a

THE PRINCIPLE OF PROPORTIONALITY IN THE LAWS OF EUROPE 37 (Evelyn Ellis ed., 1999); Takis Tridimas, Proportionality in Community Law: Searching for the Appropriate Standard of Scrutiny, in THE PRINCIPLE OF PROPORTIONALITY IN THE LAWS OF EUROPE 65 (Evelyn Ellis ed., 1999). See also Roderic O’Gorman, The Proportionality Principle and Union Citizenship, (Mitchell Working Paper, No. 1/2009, 2009).

279 Kochenov, Rounding up the Circle, supra note 106. 280 Davies, Humiliation of the State, supra note 275. 281 See Ruiz Zambrano, 2 C.M.L.R. 46, ¶ 40 (2011) (which seems, implicitly, to recognize this by

including the territory of all of the Member States within the territory of the Union). AG Sharpston suggested in her Opinion that the Court go further. She stated: “I recommend that the Court now recognize the existence of [the] free-standing right of residence.” Opinion of Advocate General Sharpston, Case C-34/09, Ruiz Zambrano v. office national de l’emploi, 2 C.M.L.R. 46, ¶ 101.

282 Kochenov, Rounding up the Circle, supra note 106, at 12–23. 283 Gareth Davies, “Any Place I Hang My Hat?” or: Residence is the New Nationality, 11 EUR.

L.J. 43, 55 (2005).


reinterpretation of sovereign statehood in Europe. Such a drastic change could, in turn, alter the Heren der Verträge in a number of important, albeit predictable, respects. Such a change will not occur instantaneously,284 which is why there is little room for pessimism at this point. In addition, the principles of law applied by the Court in the recent case law are suggestive of this type of gradualism and demonstrate the ECJ’s sensitivity to the Member States’ sovereign concerns; the Court “feels their pain.” 285 While Rottmann required proportionality, 286 Ruiz Zambrano is written in categorical language.287

Notwithstanding how fast the transformation will actually occur, the recent case law definitely enables a fairly accurate prediction of where the development of EU citizenship will be going in the near future. However, it is clear that regardless of the success of the new approach, the core problems will remain. As Andrew Williams demonstrated, the problems plaguing the key principles of law in the Union, including equality and non-discrimination connected with EU citizenship, could have much deeper roots than one would expect.

288 These problems reach as far as the flaws—or, rather, gaps—in the very philosophy of the European integration exercise, 289 leading to an impoverished idea of justice and a highly proceduralized vision of the principles of law,290 which threatens to strip justice of even its most essential substance.291

284 See also Opinion of Advocate General Sharpston, Ruiz Zambrano, 2 C.M.L.R. 46, ¶ 140.

It is difficult to disagree with Joseph Weiler’s

285 GARETH DAVIES, A TIME TO MOURN: HOW I LEARNED TO STOP WORRYING AND QUITE LIKE THE EUROPEAN UNION 15 (De Vrije Universiteit 2008). Agreement in the literature has emerged that the ECJ is purposefully vague and gradual. According to Hailbronner and Thym, the Court’s formulations “deliberately leave room for later refinement.” Hailbronner & Thym, supra note 3, at 1257.

286 Rottmann, 2010 E.C.R. I-1449, ¶ 55. 287 Ruiz Zambrano, 2 C.M.L.R. 46, ¶ 42 (2011). 288 Andrew Williams, Taking Values Seriously: Towards a Philosophy of EU Law, 20 OXFORD J.

LEGAL. STUD. 549 (2009). See also his monograph on this issue, ANDREW WILLIAMS, THE ETHOS OF EUROPE (2010).

289 Williams claims that the EU is based more on the founders’ intent than an idea of justice. Williams, Taking Values Seriously, supra note 288. To concede that the market-oriented logic aimed at prosperity and economic growth is sufficient to provide a true foundation for European integration seems insufficient. For a somewhat more down-to-earth perspective on the interaction between EU citizenship and the market, see Nic Shuibhne, The Resilience, supra note 5, at 1605, 1608 (stating “[n]o polity, constitutional or otherwise, exists just for the sake of existence. ‘What’ is grounded in constitutionalism is the substantive point. And what the EU constitutionalizes is a framework within which functions, primarily, a market”). The market alone, however, even if it is a “constitutional market [which] does not presume crude victory for the economic values or vices of the market-place,” seems to be insufficient to speak of constitutionalism. Justice and other substantive principles are required. See Kochenov, Citizenship without Respect, supra note 5, at 74–84.

290 WILLIAMS, THE ETHOS OF EUROPE, supra note 288. 291 Examples of the rule of law, justice, and equality can be provided. On the rule of law, see

Williams, Taking Values Seriously, supra note 288, at 568–69; Dimitry Kochenov, The EU Rule of Law: Cutting Paths through Confusion, 2 ERASMUS L. REV. 5 (2009); Anthony Arnull, The Rule of Law in the European Union, in ACCOUNTABILITY AND LEGITIMACY IN THE EUROPEAN UNION 240, 241(Anthony Arnull & Daniel Wincott eds., 2002). But see Laurent Pech, The Rule of Law as a Constitutional Principle of the European Union (Jean Monnet Working Paper, No. 4/2009, 2009). On justice, see Wojciech Sadurski, The Concept of Legal Equality and an Underlying Theory of Discrimination, 4 ST. LOUIS – WARSAW TRANSATLANTIC L.J. 63, 68, n. 17 (1998). On equality, see de Búrca, The Role of Equality, supra note 245; Kochenov, Citizenship without Respect, supra note 5. For a majestic work


view in this context. Indeed, “today, we accumulate the rhetoric of values even if, in the operation of the treaties, we give little importance or we allow ambiuity to prevail.”292

VI. CONCLUSION

The new phase of EU law development haled in this Article is thus just a step towards a more coherent and citizen-friendly Union. At the same time, this Union is still far removed from the much-needed solutions to the more profound problems laying outside the scope of this paper, such as the absence of a substantive idea of justice—an absence that has severely undermined EU integration. Nevertheless, even if it is unable to solve all of the Union’s underlying problems, many of which are woven into the fabric of the European integration project and have been from the very beginning, the new approach marks a definitive step toward the commencement of a substantively new phase of integration. This new phase is bound to affect the Union and its Member States alike, as well as the common citizenry, the interests of whom any law, be it the law of the Union or the law of the Member States, is supposed to protect.

The development of EU law is now entering a new phase. As this Article has demonstrated, the recent case law of the ECJ opened up a possibility for a radically new approach to the rationale behind the Union in Europe. The onus of the integration project is decisively moving away from the market-oriented considerations of economic integration toward a citizens’ Union. Crucially, this innovation does not merely affect the notion of EU citizenship as such, but is likely to affect the essential components of the whole federal structure informing the foundations of the EU. It provides for a novel mode of approaching the jurisdiction of the Court and offers a new point of view for assessing the boundaries between EU law and the national law of the Member States.293

Although this move, which reaffirms the central role that an individual is bound to play in the context of EU integration, is unsurprising, the recent decisions in Rottmann, Ruiz Zambrano, and McCarthy are clearly revolutionary in nature.

294 The “civis europæus sum” prophesy coined by Sir Francis Jacobs twenty years ago is gradually being fulfilled.295

questioning the just substance of the whole European integration project, see WILLIAMS, THE ETHOS OF EUROPE, supra note 288.

In a coherent line of cases, the Court came to construct its own jurisdiction with no recourse to cross-border considerations, which has been essential to determining the material scope of supranational law since the creation of the Communities many years ago. The new approach is focused solely on the intensity of the Member States’ interference with the rights enjoyed by Europeans in their capacities as EU citizens and is blind to the pseudo-economic thinking of the traditional vision. The Internal Market project initially set the EU on the course of

292 Weiler, Nous coalisons des Etats, supra note 5, at 54 (author’s translation) (“oggi, noi accumuliamo la retorica dei valori anche se, nelle parte operative dei trattati, vi diamo poca importanza o lasciamo prevalere ambiguità”).

293 See supra Part I(1). 294 See supra Part IV. 295 Opinion of Advocate General Jacobs, Case C-168/91, Christos Konstantinidis v. Stadt

Altensteig—Standesamt and Landratsamt Calw—Ordnungsat, 1993 E.C.R. I-01191, ¶ 46.


eroding the boundaries separating the Member States. The new approach announced by the ECJ in this recent line of citizenship cases has further eroded these boundaries in such a way that is consistent with the destiny of a Union where the Internal Market is a reality: they are an irrelevant consideration for logically drawing jurisdictional borders.

The new approach’s essence, as it is outlined in this Article, considers the intensity of interference with EU citizenship rights and thus irrevocably changes the nature of EU law. As has been demonstrated, EU law is now marked by six interrelated features:296

(1) More coherence: This comes as a necessary consequence to this innovation, since the Union is no longer obliged to use the internal borders between the Member States, which the Internal Market set out to eliminate, as a fundamental consideration in delimiting EU law’s scope ratione materiae.

297

(2) A real European citizenship: This concept is at last legally relevant not only across some hypothetical border, but also within a citizen’s home country. By shaping a strong and legally consequential personal legal status, the EU is turning into a mature legal system. It does not only grant citizenship, but it has now demonstrated its readiness to protect individuals in their capacities as EU citizens from the unjust claims of competing authorities. Purely procedural considerations of border crossing are no longer fetishized, as they were in the past.

298

(3) Substantive approach to equality: This became possible with the retreat from the economic approach as the constitutive factor in establishing EU jurisdiction. Reverse discrimination in wholly internal situations, which is an unfortunate progeny of the ECJ’s self-restraint, can now be gradually overthrown with the use of rational and principled substantive legal analysis. The quality of this legal analysis is bound to go beyond the purely proceduralized vision of the borders between the legal orders and fully takes into account the wording of Part II of the TFEU.

299

(4) The unity of territory: With the completion of the Internal Market, grounding the application of EU law in an emphasis upon the divisions between the Member States as territorial entities is logically unsound, since the EU functions precisely to diminish the relevance of such divisions. At last, the Court has come to admit that EU citizenship is a status relevant even in one’s Member State of nationality. This recognition, synthesized with the cross-border approach, provides a general legal construct that can be applied equally, just like EU law itself, in the whole territory of the Union. People and place usually come together in legal matters. Once it acquired its own citizens, it

296 See supra Part V. 297 See supra Part V(1). 298 See supra Part V(2). 299 See supra Part V(3).


was no longer logically sound for the Union to protect EU citizens’ status exclusively in the context of other Member States’ territories. An EU territory was bound to emerge as a sound legal category. Although roughly retracing the contours of the Customs Union and the Internal Market, the existence of this territory has important implications for EU citizens and is as natural a development as it is a necessary one.300

(5) EU law becoming more intrusive vis-à-vis the Member States: Increasing the EU’s scrutiny of the Member States’ laws and policies is a necessary consequence of rethinking the foundations of the Union and moving away from the market-inspired thinking. Any decision of any Member State that could undermine one’s status as an EU citizen, or the enjoyment of the rights associated therewith, can only be made with sound justifications in mind. The EU does not foreclose a Member State’s ability to regulate. It simply requires that the Member States provide clear and sound reasons for such regulation, which the ECJ can now scrutinize. The positive consequences of such an approach are self-evident. To provide one example; a Member State will not be able to provide any defendable justification in the majority of cases where it attempts to treat its own nationals worse than other nationals.

301

(6) More uncertainty concerning the future: To pretend that EU citizenship is a “real” citizenship at the moment would perhaps be too optimistic. Now that EU law is moving in the direction of reinforcing this status, of which the latest case law is a vivid reminder, the inherent limitations of EU citizenship become more acute than ever. These limitations are connected to the most basic deficiencies that undermine the EU legal. These deficiencies are related to the lack of a substantive understanding of crucial legal principles and gaps in the political underpinnings of the European Union. Clearly, no one other than the Member States is responsible for the current problems. Should the Union continue on its chosen path, such problems will need to be dealt with, better sooner rather than later.

302

At this point, it is clear that there is no alternative to the Court’s new approach to reshaping the Union. A return to strict cross-border thinking would be impossible to justify coherently. Once the Treaty of Maastricht entered into force and formally established EU citizenship, the Union has desperately wanted for a sound alternative to the market-oriented approach to delimiting the boundaries between the two legal orders.

303

The main claim of this Article is that the introduction of a new jurisdiction test that ceases to rely on the irrelevant internal borders within the territory of the Union

Twenty years is a long wait for common sense to triumph.

300 See supra Part V(4). 301 See supra Part V(5). 302 See supra Part V(6). 303 See supra Parts II and III.


was unavoidable. The Court’s innovation in the Rottmann, Ruiz Zambrano, McCarthy line of cases is therefore nothing else but a way out of the impasse at which the Union found itself: hanging EU citizenship upon market-oriented criteria defied the essence of EU citizenship, since such citizenship is not economic in nature. In the face of the dawning liberation from unjustifiable orthodoxy, those who criticize the Court’s new move fail to convince. Although a lot of case law will be needed for the new approach to triumph definitely, 304 the fact that some situations fall within the scope of EU law “by reason of [their] nature and [their] consequences”305

And yet, Cioran might be right to state that “[c]hercher un sens à quoi que ce soit est moins le fait d’un naïf que d’un masochiste.”

seems logically indisputable.

306

304 A number of currently pending cases will develop the current approach further. See Case C-

256/11, Murat Dereçi, Vishaka Heiml, Alban Kokollari, Izunna Emmanuel Maduike & Dragica Stević v. Bundesminister für Inneres, O.J. C 219/15 (2011); Case C-356/11, O., S., O.J. C 269/74 (2011); Case C-357/11, L., O.J. C 269/75 (2011).

305 Case C-135/08, Janko Rottmann, 2010 E.C.R. I-01449, ¶42. 306 E.M. Cioran, Le mauvais démiurge, in ŒUVRES 1169, 1258 (1995) (“searching for meaning is

less the act of a naive and more that of a masochist”).

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