Quest for the Holy Grail—Is a Unified Approach to the Market Freedoms and European Citizenship Justified?

Date01 July 2014
Published date01 July 2014
AuthorPedro Caro Sousa
Quest for the Holy Grail—Is a Unif‌ied
Approach to the Market Freedoms and
European Citizenship Justif‌ied?
Pedro Caro de Sousa*
Abstract: The case law of the CJEU on the economic free movement of people has
departed from the traditional requirement that a nexus must be established between
individual free movement and cross-border economic activity, which has led to an exten-
sion of its scope. It is submitted that concerns with the protection of fundamental rights
of European citizens are driving this process, and that the CJEU has sought to protect
these fundamental rights through the market freedoms in two ways: by arguing that
market freedoms are fundamental right themselves, and/or that European Citizenship
has changed their normative underpinnings and status. This Article criticises both lines
of argument, and defends a third: that the protection of these fundamental rights must be
achieved at European level, if at all, through a conception of European Citizenship able
to stand on its own.
I Introduction
Are the EU free movement provisions converging? Such convergence could
potentially lead to the development of a unif‌ied approach to all free movement
provisions. Even though this question is usually concerned solely with the market
freedoms,1there is no prima facie reason why it should not also apply to European
Citizenship2as well. The interaction between market freedoms and European
Citizenship is one of the most interesting phenomena in EU law today. It is clear
that the Court of Justice of the European Union (the ‘Court’ or the ‘CJEU’) has
adopted a methodological approach common to both; nonetheless, beneath the
sheen of this common methodological surface lurk serious substantive normative
* DPhil, Oxon. Visiting Tutor at the University of Oxford, Advogado and Barrister of England and
Wales. Special thanks are due to Alina Trifonidou, Stephen Weatherill, Carlos Pinto Correia, Miguel
Poiares Maduro, Agustin Jose Menendez and the two anonymous academic reviewers for either having
reviewed this article, discussed its contents with the author, or both. The usual academic disclaimer
1To which I will also refer as ‘economic free movement provisions’. For the avoidance of doubt, these are
the free movement of goods, services, establishment, capital and workers.
2I will be focusing on the free movement element in European citizenship. As such, European Citizenship
and the market freedoms will be jointly referred to as the ‘free movement provisions’.
European Law Journal, Vol. 20, No. 4, July 2014, pp. 499–519.
© 2014 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
The framing and critique of these interactions constitute the main subject of this
article. I will start by summarising how the Court has gradually privileged the free
movement of people by comparison to other market freedoms. I will then pursue an
analysis of how the protection of the free movement of people in the case-law of the
Court ref‌lects concerns with fundamental rights, particularly those concerning a right
to family life, that go beyond market integration. An assessment of the impact
European Citizenship has had on market freedoms will follow, which will conclude
that the Court has unwittingly developed a line of case-law with potentially explosive
consequences, which could lead to the de facto creation of a new European funda-
mental rights jurisdiction. This was achieved by the Court building on the methodo-
logical similarities between European Citizenship and market freedoms, while
simultaneously adopting an under-theorised approach to the substantive differences
between them and to the way in which they interact. It will be submitted that
European Citizenship and market freedoms must be distinguished in order for the
true normative impact of European Citizenship to be ascertained: is it merely a
non-economic version of the market freedoms, or is it something akin to true citizen-
ship that requires the protection of fundamental rights at European level regardless of
the existence of a cross-border element?3
II The Legal Background
All EU free movement provisions, by means of their direct effect, create ‘subjective
public rights’4—meaning that they protect both public and private interests, and
thereby create duties for public authorities that can be judicially enforced by individ-
uals.5In other words, subjective public rights are protection rights that can be invoked
judicially against acts or omissions by the State whenever there is a public law goal
imposing on the State an administrative duty to protect individual rights. Subjective
public rights include (but are not limited to) fundamental rights, inasmuch as these
rights contain both an objective content setting the values to be protected against
State interference, and a corresponding subjective right entitling individuals to judicial
Some authors have gone as far as to argue that market freedoms are not only
subjective public rights but also fundamental rights,7a line of argument which has
3See AG Sharpston’s Opinion in Case C-34/09 Zambrano [2011] ECR I-01177, para. 3.
4T. Kingreen and R. Störmer, ‘Die subjektiv-öffentlichen Rechte des primären Gemeinschaftsrechts’
[1998] EuR 263, 266; N. Reich, Bürgerrechte in der Europäischen Union (Nomos, 1999), at 450–451.
Specif‌ically regarding market freedoms, J. Drexl, ‘Competition Law as Part of the European Constitu-
tions’, in A. von Bogdandy and J. Bast (eds), Principles of European Constitutional Law (Hart Publish-
ing, 2006), at 644–645.
5S. Hölscheidt, ‘Abschied vom subjecktif-öffentlichen Recht?’ [2001] EuR 376, 379.
6J.J.G. Canotilho, Direito Constitucional e Teoria da Constituição (Almedina, Coimbra, 3rd edn, 1998),
at 273; D.A. Stoppel, Grundfreiheitliche Schutzpf‌lichten der Mitgliedstaaten im Europäischen
Gemeinschaftsrecht (Heinrich-Heine-Universität Düsseldorf, 2003), at 41–42; D. Ehlers, ‘General Prin-
ciples’, in D. Ehlers (ed), European Fundamental Rights and Freedoms (de Gruyter, 2007), at 193.
7Mainly from an ordo-liberal perspective, as economic fundamental rights: see M.P. Maduro, ‘Reform-
ing the Market or the State? Article 30 and the European Constitution: Economic Freedom and
Political Rights’, (1997) 3 European Law Journal 55, 64; A. Bleckman, ‘Die Freiheiten des Gemeinsamen
als Grundrechte’, in R. Bieber and D. Nickel (eds), Das Europa der zweiten Generation—Gedächtnisshrift
für Christoph Sasse (N. Engel Verlag, 1981), 665 ff.; from a transnational perspective, as political
fundamental rights, see Maduro 73.
European Law Journal Volume 20
500 © 2014 John Wiley & Sons Ltd.

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