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

Date01 July 2014
AuthorSara Iglesias Sánchez
Published date01 July 2014
Fundamental Rights and Citizenship of the
Union at a Crossroads: A Promising
Alliance or a Dangerous Liaison?
Sara Iglesias Sánchez*
Abstract: The reinforcement of the protection of fundamental rights at the European
level and the emergence of the status of Union citizenship are two closely connected
phenomena. European citizenship has been and continues to be one of the central
arguments in favour of the extension of the scope of EU fundamental rights. This
argument arises out of a sentiment that vindicates equality at the core of the citizenship
of the Union as a fundamental status. Against this background, this paper examines the
different possibilities of interconnection between the traditional doctrine of EU funda-
mental rights and the jurisprudential construction of the citizenship of the Union. Par-
ticularly, it will be discussed whether fundamental rights should be placed at the core of
the formula that protects the ‘genuine enjoyment of the substance’ of the rights conferred
by EU citizenship, inaugurated by Ruiz Zambrano, already latent in Rottmann
and substantially ref‌ined in an ever-growing case-law (McCarthy,Dereci, O. and
S., Ymaraga and Alokpa). It will be argued that this formula carries the very valuable
potential to reinforce citizenship of the Union as an independent source of rights able to
overcome problems such as reverse discrimination. For these purposes, this formula could
be considered to encompass not only the absolute deprivation of the ‘genuine enjoyment
of the substance of citizenship rights’, but also the existence of serious obstacles thereto.
I Linking Union Citizenship and Fundamental Rights
At the time of the introduction of European citizenship, Member States declined to
endow the new status with a fundamental rights content and to articulate any legal
connection between these two key concepts.1The issue was of course not overlooked
during the negotiation of the Treaty of Maastricht. The Spanish proposal for an
articulate text on European citizenship2contained a provision that would have
* Jurist, European Court of Justice, Research and Documentation Direction. PhD, Universidad
Complutense of Madrid. LLM, Yale Law School. The views expressed are solely those of the author.
1See eg S. O’Leary, European Union Citizenship: The Options for Reform (Institute for Public Policy
Research, 1996) at 96. Considering the list of rights included under the status of European citizenship too
narrow also P. Alston and J.H.H. Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy:
The European Union and Human Rights’, in P. Alston (ed), The EU and Human Rights (Oxford Univ.
Press, 1999), at 3, 59.
2This document can be consulted in ‘Propuesta de texto articulado sobre ciudadanía europea presentado
por la Delegación Española a la Conferencia Intergubernamental sobre Unión Política (20 febrero
1991)’, (1991) 18 Revista de Instituciones Europeas 405. For a thorough analysis of the history of the
European Law Journal, Vol. 20, No. 4, July 2014, pp. 464–481.
© 2014 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
included an obligation to respect fundamental rights, addressed to the Union and to
the Member States.3Nonetheless, even though the Parliament and the Commission
also advocated a broader conception of citizenship of the Union,4this approach was
ultimately not embraced by the text of the Treaties.
Throughout the integration process, the reinforcement of the protection of funda-
mental rights at the European level and the empowerment of the citizenship of the
Union as a fundamental status have been two closely connected phenomena. It could
not have been otherwise, since both share the ultimate objective of situating the
individual at the centre of the constitutional construction of an integrated Europe.5
This community of objectives has further been fostered by the political need to
overcome the disaffection of citizens towards the European project,6and has naturally
been placed at the centre stage of the process that has led to the elaboration and
proclamation of a Charter of Fundamental Rights. This link was clearly visible in the
Constitutional Treaty that brought together under the rubric of Title II of Part I the
basic provisions on ‘Fundamental Rights and Citizenship of the Union’.7Even if this
connection disappeared in the Treaty of Lisbon, the Preamble of the Charter of
Fundamental Rights makes it explicit again, stating that the Union ‘places the indi-
vidual at the heart of its activities, by establishing the citizenship of the Union and by
creating an area of freedom, security and justice’.8Indeed, and as it is widely acknowl-
edged, the Charter of Fundamental Rights is having an enormous impact on the
citizenship-building project, amounting to a true ‘Bill of Rights’ for European
Despite this convergence, the Treaties have maintained two formally and
systematically differentiated legal regimes that have been built upon divergent
rationales.10 The structural disconnection between European citizenship and EU
fundamental rights in primary law has strong legal arguments in its favour. In the
f‌irst place, the universality of fundamental rights advocates for a disconnection of
Article 6 TEU from the provisions regarding citizenship: following the constitutional
tradition, once a catalogue of universal fundamental rights has been enacted,
citizenship rights appear only as a specif‌ic category, which explicitly deepens the
citizenship of the Union, A. Wiener, ‘European’ Citizenship Practice: Building Institutions of a Non-State
(Westview Press, 1998).
3On the fate of this proposal and the early debates: D.J. Liñan Nogueras, ‘La ciudadanía de la Unión
Europea’, in G.C. Rodríguez Iglesias and D.J. Liñán Nogueras (coords.), El derecho comunitario europeo
y su aplicación judicial (Civitas, 1993), at 271, 280.
4S. O’Leary, ‘The Relationship between Community Citizenship and the Protection of Fundamental
Rights in Community Law’, (1995) 32 Common Market Law Review 519.
6eg P. Adonnino, ‘A People’s Europe. Reports from the ad hoc Committee’, (1985) 7 Bulletin of the
European Communities (Supplement).
7OJ C 310, 16.12.2004, p. 13. See, C. Blumann, ‘Citoyenneté européenne et droits fondamentaux en droit
de l’Union européenne: entre concurrence et complémentarité’, in P. Amselek et al. (eds), Libertés,
justice, tolérance. Mélanges en hommage au Doyen Gérard Cohen-Jonathan (Bruylant, 2004), at 265.
8In this sense, this mention ‘. . . rapproche l’Union européenne de la mission traditionnelle de l’Etat
moderne telle qu’héritée de la théorie du Contrat social’. See A. Levade, ‘Préambule’, in
L. Burgorgue-Larsen, A. Levade and F. Picod (eds), Traité établissant une Constitution pour l’Europe.
Partie II. La Charte des Droits fondamentaux de l’Union (Bruylant, 2002), at 1, 11.
9E. Guild, ‘The European Union after the Treaty of Lisbon Fundamental Rights and EU Citizenship’
Global Jean Monnet/European Community Studies Association World Conference, 25–26 May 2010,
CEPS. Available at
10 Extensively, Blumann, op cit n7supra.
July 2014 Union Rights and Citizenship at Crossroads
© 2014 John Wiley & Sons Ltd.

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