The Right to Have What Rights? EU Citizenship in Need of Clarification

Date01 July 2013
Published date01 July 2013
The Right to Have What Rights?
EU Citizenship in Need of Clarif‌ication
Dimitry Kochenov*
Abstract: This paper provides a brief critical overview of the recent EU citizenship
case-law of the Court of Justice including Rottmann,Ruiz Zambrano,McCarthy and
Dereci. While these cases open a number of new avenues of fundamental importance
for the development of EU law, they also undermine legal certainty and send
contradictory signals as to the essence of the EU citizenship status and the role it ought
to play in the system of EU law. Most importantly, the Court’s reluctance to specify
what is meant by the ‘essence of rights’ of EU citizenship potentially has disastrous
consequences following its own determination that such rights play a crucial role in
moving particular factual constellations within the material scope of EU law. The
substance and meaning of such rights is however left in suspense to harmful effects. An
urgent clarif‌ication is needed.
‘Lament, then, leads the theologian into that most diff‌icult of intellectual tasks, the thinking of the
point of contact between our theories about faith and its practice.’1
I Introduction
The Court of Justice of the EU (European Court of Justice (ECJ)) stands to
be criticised for the lack of clarity, which its recent EU citizenship case-law abun-
dantly demonstrates. The recent cases, including Rottmann,2Ruiz Zambrano,3
* Professor of EU Constitutional Law, University of Groningen, The Netherlands. Many thanks to Rainer
Bauböck and Jo Shaw out of whose profound scepticism this lament arose.
1E. Farasta and B. Brock, ‘Introduction’, in E. Farasta and B. Brock (eds), Evoking Lament: A Theo-
logical Discussion (Continuum, 2009), at 3.
2Case C-135/08, Rottmann [2010] ECR I-1449. Analysed in J. Shaw (ed), ‘Has the European Court of
Justice Challenged the Member State Sovereignty in Nationality Law?’ EUI RSCAS Paper No. 62
(2011); G.-R. de Groot, ‘Overwegingen over de Janko Rottmann-beslissing van het Europese Hof van
Justitie’, (2010) 1 Asiel & Migrantenrecht 293; D. Kochenov, ‘Annotation, Case C-135/08 Rottmann’,
(2010) 47 Common Market Law Review 1831; S. Iglesias Sánchez, ‘¿Hacia una nueva relación entre la
nationalidad estatal y la ciudadanía europea?’, (2010) 37 Revista de Derecho Comunitario Europeo
3Case C-34/09, Ruiz Zambrano [2011] 2 CMLR 46. Annotated by P. Van Elsuwege, ‘Shifting Boundaries?:
European Union Citizenship and the Scope of Application of EU Law’, (2011) 38 Legal Issues of
Economic Integration 263; K. Hailbronner and D. Thym, ‘Annotation, Case C-34/09 Gerardo Ruiz
Zambrano’, (2011) 48 Common Market Law Review 1253; A. Lansbergen and N. Miller, ‘Citizenship
Rights in Internal Situations: An Ambiguous Revolution?’, (2011) 7 European Constitutional Law Review
European Law Journal, Vol. 19, No. 4, July 2013, pp. 502–516.
© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA

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