(32) The EU Charter of Fundamental Rights
The process of scientific discovery is, in effect, a continual flight from wonder.
Albert Einstein
Free Movement of “Needy” Citizens After the Binding Charter. Solidarity for All?
From Market Citizenship to Union Citizenship
The European Court of Justice (herein ECJ or EUCJ) has always liberally interpreted Community law in order to foster the effet utile and encompass as many people as possible in the personal scope of application of the provisions on fundamental freedoms.
In the beginning, the broad definition of “worker” allowed individuals whose income was below the subsistence level of the host Member State to be included in this notion,1 so long as their work activities were genuine and effective2 even if the migrants had requested social assistance.3 This approach provided a partial solution to the situation outlined by the Treaty of Rome, which conferred free movement rights only to economically active people.
However, extensive interpretation cannot be blamed for broadening rights in order to overcome the restrictions on EU law and hence for creating rights that do not exist.4 In other terms, the Court could not overturn a situation in which the Markbürgerschaft granted free movement andresidence rights only to the Marktbürger.5 Judicial activism must stay within the boundaries determined by the treaties and only modification of the latter or the introduction of new secondary norms can determine new developments. It follows that the evolution of free movement and residence rights could not be left to the ECJ alone.
Thus, at the beginning of the 1990s the Council adopted three Directives which granted free movement rights to students, retired persons and other inactive individuals.6 But Member States feared social tourism.7 Free movement and residence was possible only if inactive Member States nationals did not amount to a burden for the host Member State’s public finances.8 In other words, residence rights were accorded only to economically inactive people with sufficient financial means and an adequate health insurance. The introduction of EU citizenship by the Maastricht Treaty represented the real turning point, transforming Market citizenship into Union citizenship. 9 Such a transformation should have granted free movement to all citizens, regardless of their financial means. But the new provision on EU citizenship conditioned this right to the respect of the existing legislation, i.e. to the free movement Directives and the limits thereof. Originally thisconcept had a rather symbolic value (as opposed to a substantive role),10 but over the years the ECJ put flesh on the bones of citizenship.11 In 2001 the political environment allowed for judicial activism on the part of the ECJ, due to the adoption of the EU Charter of Fundamental Rights (herein CFR),12 “which, even though [it] d[id] not [. . .] produce for the Community any binding effects comparable to primary law, may be referred to as a source of legal guidance.”13 In spite of its non binding nature, the Charter mitigated the importance of economic resources as a limit to the free movement of citizens. In fact, the CFR – which improved “[t]he normative-judicial role of the EU human rights”14 – deals with the fundamental rights of EU citizens separately from the specific rights granted to workers.
According to these main lines of reasoning, the case law shows that EU citizenship confers the right to move, enter and reside without discrimination based on nationality in relation, for instance, to the language used in criminal proceedings, 15 entrance to university education,16 taxation level,17 the right to use one’s surname according to the laws of the State of origin18 and to have the name spelled without modification of its pronunciation. 19 Discrimination is prohibited not only on the basis of nationality, but also when it is a consequence of a change in residence.20 EU citizenship allowed the Court to further consolidate the role of individuals by granting Art. 18 TEC (now Art. 21 TFEU) direct effect.21 The movement and residence rights could be considered an essential element in the life of every national of the Member States. Therefore, any restriction must be strictlyinterpreted 22 and must be objectively justified and proportionate to the legitimate aim of national norms.23
In this regard, legal commentators often quote the paragraph in which the ECJ declared that:
Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.24
Even so, EU citizenship complements national citizenship, but does not replace it. The judgement is projected towards the future, underlining how EU citizenship was yet to play a key role in the development of the rights granted to nationals of the Member States by Community Law.25 Nonetheless, Union citizenship was indisputably destined to become the fundamental status of nationals of the Member States. As a consequence, the quoted paragraph could simply indicate the willingness of the judges to progressively recognize the centrality of this condition having taken note that the Community “is an example of the burgeoning of a broader concept of citizenship”.26
The cautious approach followed by the ECJ in Grzelczyk was later confirmed by the case law on the free movement of EU citizens, where the Court seemed to consider Union citizenship only after having evaluated whether the individual could benefit from other Treaty provisions.27 Thisstance can be traced to the fact that the movement and residence rights of EU citizens are not unlimited and that the norms concerning economically active people are much more favourable than the rights connected to Union citizenship. This situation could be linked to the order in which the relevant preliminary rulings were submitted, but it cannot be excluded that it may reveal an ‘unconscious acknowledgement’ of the impossibility to state the real centrality of the citizens’ prerogatives without substantial changes in primary or secondary legislation.
1. See, for instance, Case 75/63 Unger [1964] ECR 177, para 1; Case 53/81 Levin [1982] ECR 1035, para 16; Case 66/85 Lawrie-Blum [1986] ECR 2121, paras 21–22; Case C-292/89 Antonissen [1991] ECR I-745, para 13; Case C-357/89 Raulin [1992] ECR I-1027, para 11; recently Joined Cases C-22/08 and C-23/08 Vatsouras and Koupatantze ECR I-4585 [2009], para 28. On the notion of ‘worker’, see L.S. Rossi, ‘I beneficiari della libera circolazione delle persone nella giurisprudenza comunitaria’, (1994) 117 IV Foro italiano 101–104.
2. Case C-53/81 Levin, n. 1 above, para 17; Case C-456/02 Trojani [2004] ECR I-7573, para 29; Joined Cases C-22/08 and C-23/08 Vatsouras and Koupatantze, n. 1 above, para 26.
3. Case 139/85 Kempf [1986] ECR 1741, para 14; Case C-237/94 O’Flynn [1996] ECR I-2617, para 30.
4. This critical observation was raised by K. Hailbronner, ‘Union citizenship and access to public benefits’, (2005) 42 Common Market Law Review 1254.
5. The concept of Marktbürgerschaft (i.e. Market Citizenship) was introduced by .P. Ipsen and G. Nicolaysen, ‘Haager Kongress für Europarecht und Bericht über die aktuelle Entwicklung des Gemeinschaftsrechts’, (1964) 17 Neue Juristische Wochenschrift 339–344.
6. Council Directive 90/364/EEC on the right of residence, [1990] OJ L 180/26; Council Directive 90/365/EEC on the right of residence for employees and self-employed persons who have ceased their occupational activity, [1990] OJ L 180/28; Council Directive 93/96/EEC on the right of residence for students, [1993] OJ L 317/59.
7. The 1980s were characterized by the increase of migration towards the European Community by third country nationals, including asylum seekers. Therefore, ‘[t]he member States’ delegations could not be persuaded to distinguish between EC-nationals and third country nationals, even though the Commission’s proposal only focuses on the former. The preponderant opinion was that a foreigner is a foreigner’. H.C. Taschner, ‘Free movement of students, retired persons and other European citizens. A difficult legislative process’, in H.G. Schermers, C. Flinterman, A.E. Kellermann, J.C. van Haersolte and G.W.A. van der Meent (eds.), Free movement of persons in Europe. Legal problems and experiences (Nijhoff, 1993) 431.
8. It seems indeed that ‘one of themost remarkable aspects of the development of a general right of residence in the Community is the length of time it took to the Community to concede so little.’ S. O’Leary, The evolving concept of community citizenship. From the free movement of persons to Union citizenship (Kluwer, 1996) 119. The economic limits were reiterated in Directive 38/2004/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, [2004] OJ L 158/77, also known as the Citizen’s Directive.
9. S. Carrera, ‘What does free movement mean in theory and practice in an enlarged EU?’, (2005) 11 European Law Journal 700.
10. Case C-228/07 Petersen [2008] ECR I-6989, AG Colomer, para 26.
11. This expression is borrowed from S. O’Leary, ‘Putting flesh on the bones of European citizenship’, (1999) 24 European Law Review 68–79.
12. D. Kostakopoulou, ‘European Union citizenship: Writing the future’, (2007) 13 European Law Journal 635.
13. Case C-97/08 P Akzo Nobel NV [2009] ECR I-8237, AG Kokott, note 63.
14. G. De Búrca, ‘Beyond the Charter: How enlargement has enlarged the human rights policy of the EU’, (2003–04) 27 Fordham International Law Journal 679.
15. Case C-274/96 Bickel and Franz [1998] ECR I-7637.
16. Case C-147/03 Commission v Austria [2005] ECR I-5969.
17. Case C-520/04 Turpeinen [2006] ECR I-10685.
18. Case C-148/02 García Avello [2003] ECR I-11613; Case C-96/04 Standesamt Stadt Niebüll [2006] ECR I-3561.
19. Case C-168/91 Konstantinidis [1993] ECR I-1191.
20. Case C-224/98 D’Hoop [2002] ECR I-6191.
21. Case C-413/99 Baumbast [2002] ECR I-7091, para 84.
22. See, e.g., Case 67/74 Bonsignore [1975] ECR 297, para 6; Case 36/75 Rutili [1975] ECR 1219, para 27; Case 30/77 Bouchereau [1977] ECR 1999, para 33; Case C-348/96 Calfa [1999] ECR I-11, para 23; Joined Cases C-482 and C-493/01 Orfanopoulos [2004] ECR I-5257, paras 64–65; Case C-503/03 Commission v Spain [2006] ECR I-1097, para 45; Case C-441/02 Commission v Germany [2006] ECR I-3449, para 34.
23. Case C-413/99 Baumbast, n. 21 above, para 91; Case C-406/04 De Cuyper [2006] ECR I-6947, para 40.
24. Case C-184/99 Grzelczyk [2001] ECR I-6193, para 31. See also Case C-413/99 Baumbast, n. 21 above, para 82; Case C-148/02 García Avello, n. 18 above, para 22; Case C-200/02 Chen [2004] ECR I-9925, para 25; Case C-209/03 Bidar [2005] ECR I-2119, para 31; Joined Cases C-11 and 12/06 Morgan and Bucher [2007] ECR I-9161, AG Colomer, para 65.
25. J.-Y. Carlier, ‘Case C-200/02, Kunqian Catherine Zhu, Man Lavette Chen v. Secretary of State for the Home Department, with annotation’, (2005) 42 Common Market Law Review 1124. The third recital of the Directive 38/2004/EC, n. 8 above, uses hypothetical wording affirming that ‘Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence’.
26. K. Rubenstein, ‘Citizenship in a borderless world’, in C.G. Weeramantry, A. Anghie and G. Sturgess (eds.), Legal visions of the 21st century: Essays in honour of Judge Christopher Weeramantry (Nijhoff, 1998) 203.
27. This approach was followed for example in Case C-184/99 Grzelczyk, n. 24 above; Case C-224/98 D’Hoop, n. 20 above; Case C-413/99 Baumbast, n. 21 above; Case C-456/02 Trojani, n. 2 above; Case C-200/02 Chen, n. 24 above. Sometimes the ECJ examinedthe right of the citizen directly on the basis of Art. 18 TEC (now Art. 21 TFEU) (see for instance Case C-224/02 Pusa [2004] ECR I-5763; Case C-148/02 García Avello, n. 18 above). This different approach was probably used in these cases because the situation concerned persons that could not, even artificially, be considered ‘economically relevant’.
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