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

• Date: 01 July 2014
• Published date: 01 July 2014
• DOI: http://doi.org/10.1111/eulj.12091
• Author: Pedro 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

differences.

* 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

applies.

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’.

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European Law Journal, Vol. 20, No. 4, July 2014, pp. 499–519.

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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

protection.6

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.

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