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

• Date: 01 July 2014
• Author: Sara Iglesias Sánchez
• Published date: 01 July 2014
• DOI: http://doi.org/10.1111/eulj.12094

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

bs_bs_banner

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

citizens.9

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.

5ibid.

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 http://aei.pitt.edu/15107/1/Guild_Jean_Monnet_speech_e-version.pdf.

10 Extensively, Blumann, op cit n7supra.

July 2014 Union Rights and Citizenship at Crossroads

465

© 2014 John Wiley & Sons Ltd.