The concept of EU citizenship in the case law of the European Court of Justice
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The concept of EU citizenship in the case law of the European Court of Justice Koen Lenaerts
Published online: 5 February 2013 © ERA 2013
Abstract This article examines the concept of EU citizenship and its scope of application, which does not require a cross-border link. In Zambrano, the ECJ held that 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 attaching to the status of citizen of the Union. Such a ‘deprivation effect’ may take place where a national measure would force a Union citizen to leave the territory of the European Union as a whole. A refusal to grant a right of residence and a work permit to a third country national with dependent minor children in the Member State of which those children are nationals and where they reside has such an effect. The national measures at issue in McCarthy and Dereci however did not bring about a deprivation effect and, therefore, fell outside the scope of EU law. Consequently, a possible violation of the Charter of Fundamental Rights could not be examined by the ECJ and it was for the national courts and the ECtHR to examine the compatibility of those measures with fundamental rights as protected by national constitutions and the ECHR. Keywords EU citizenship · ECHR · Deprivation effect
The article is based on the speech delivered by the author at the congress The citizen at the heart of EU law, organised by ERA to commemorate the 20th anniversary of its foundation on 18–20 October 2012 in Trier. All opinions expressed herein are personal to the author. K. Lenaerts is Professor of European Union Law, Leuven University and Vice-President of the European Court of Justice. K. Lenaerts () Court of Justice of the European Union, Palais de la Cour de Justice, Boulevard Konrad Adenauer, 2925 Luxembourg, Luxembourg e-mail: [email protected]
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K. Lenaerts
Recent developments in the case law of the European Court of Justice (‘ECJ’) show that the concept of EU citizenship is something more than a ‘fifth freedom’ which guarantees the right to move of economically inactive EU citizens. In Ruiz Zambrano,1 and subsequently in McCarthy and Dereci,2 the ECJ held that the absence of a cross-border link does not rule out the application of the Treaty provisions on EU citizenship. Regardless of whether an EU citizen moves or stands still, no national measure may ‘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’.3 Ruiz Zambrano and its progeny are thus of paramount constitutional importance as they have emancipated EU citizenship from the constraints inherent in its free movement origins.4 Given that EU citizenship is not exclusively governed by the rationale underpinning free movement law, the question is then how one must define that concept, notably its scope of application. The purpose of the present contribution is thus to shed some light on this diff
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