The fact that fundamental rights are an essential component of the European Union is today a consolidated state of affairs. In this sense, the EU seems to have undergone a true genetic transformation, evolving from a sui generis international organization, mainly focused on market integration, to an autonomous legal order protecting and promoting the rule of law within and outside its boundaries.
The Impact of Citizenship Provisions of the Lisbon Treaty
The previous considerations exclude more advanced interpretations in the absence of treaty reforms and specific secondary legislation. The modifications brought about by the Lisbon Treaty have divided legal literature.
Indeed, the new provisions on EU citizenship have been criticized for being incapable of determining significant advancements in this area. Changes in the formal status of citizens have been deemed to be limited, and labelled as merely “cosmetic”.55 Moreover, it has been argued that “[t]he indicators are that the Court will not, in the current political climate, use the Charter in a more proactive way when it is made legally binding.”56
It could thus be argued that the case law developed by the ECJ under the former treaties will remain valid and the scope of citizenship unaffected. 57 However, the potential for further enhancing the scope and status of EU citizenship should be analyzed bearing in mind the judicial activism which has characterised the ECJ58 and, as previously suggested, the possible added value of the newly binding Charter. On the other hand, it should not go unnoticed that unlike Art. 17 TEC - according to which EU citizenship complemented national citizenship - Art. 9 TEU specifiesthat “Citizenship of the Union shall be additional to national citizenship,” although nationality will not be replaced.
Before the entry into force of the Lisbon Treaty, some authors have described the influence of the Charter as minimal since the majority of the rights enshrined in Title V (Citizens’ Rights) were already binding as part of Community law.59 Others highlighted the central role of the CFR in broadening the concept of EU citizenship.60 In this sense it has been suggested that “a broader and clearer catalogue of fundamental rights may promote greater judicial activism in the review of legislative and administrative acts of the EU institutions”.61 This remark is supported by AG Tizzano who, immediately after the adoption of the CFR, emphasized that “the Charter cannot be ignored [being] a substantive point of reference for all those involved - Member States, institutions, natural and legal persons - in the Community context”.62 However, as recently pointed out by Jacobs, it is puzzling how far considerations of national interest in the allocation of public funds can limit the rights of individuals considering the uncertainty which surrounds the additional guarantees which the Court could legitimately recognize the citizens.63
Now that the Lisbon Treaty has become operative the admissibility of economic limitations excluding some persons from the scope of application of a fundamental freedom is debatable in the least.64 The legal force attributed to the Charter is certainly capable of injecting more coherence in the case law on free movement of EU citizens, where the ECJ appears to be shrouded in the foggy mists of abstraction. In addition, the wording of Art. 9 TEU appears to endow EU citizenship with an autonomous status.
Further rights may be added, without removing the existing ones,65 thereby making it possible to move “towards a more independent Unioncitizenship”.66 This modification is particularly important: the EU citizen should enjoy “dual citizenship, national citizenship and European citizenship; and [shall be] free to use either, as he or she chooses.”67 To attain this objective, political difficulties as well the fear of losing the patriotic sense of belonging has first of all to be overcome within and by the Member States.
That being said, the following sections aim at clarifying whether a binding catalogue of fundamental rights can provide for a unitary notion of EU citizenship capable of removing the limitations to free movement and residence deriving from the lack of appropriate financial means.
The Impact of Art. 45 CFR
The evaluation of the impact of the binding Charter on free movement of Union citizens must begin with the analysis of Art. 45 CFR, which confers to “[e]very citizen of the Union [. . .] the right to move and reside freely within the territory of the Member States”. Occasionally this provision has been quoted by Advocates General in their Opinions.68 Broadly speaking; its use was functional to the consolidation of previous case law on Art. 18 TEC (now Art. 21 TFEU) which the Court considers to affirm a fundamental freedom69 with a constitutional ranking.70
The considerable impact of a binding Charter is supported by some authoritative Opinions. AG Colomer has recently pointed out that it is not advisable to underestimate the impact of fundamental rights on citizens’ prerogatives.
In his view: [a]s an integral part of the status of citizenship, the fundamental rights strengthen the legal position of the individual by introducing a decisive aspect for the purposes of substantive justice in the case concerned. Holding their fundamental rights as prerogatives of freedom, citizens of the Union afford their claims greater legitimacy.71
With the Lisbon Treaty in force, Art. 45 CFR is currently a binding primary norm overlapping with Arts. 20 (2a) and 21 TFEU. Some scholars have criticized the superimposition of rules arguing that all duplications should have been avoided.72 This situation could deprive Art. 45 CFR of any innovative character73 considering that Art. 52(2) CFR clearly indicates that the rights contained in the Charter are to be applied ‘under the conditions and within the limits defined by the Treaties.’74
On the one hand, this interpretation is consistent with Art. 21 TFEU, where it states that this right is “subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect”, even though Art. 45 CFR does not contain any reference to these limits. On the other hand, it is questionable whether the limits defined by the Treaties should also include the conditions defined by secondary legislation. The possible restrictions would in fact be inconsistent with the status of free movement rights.75 The inclusion of the latter in what can be considered as a Bill of Rights should preclude the discrimination of citizens on the sole basis of their economic resources. In fact, the Charter recognizes a sort of ‘right to solidarity’ without clarifying the duties of the Member States or introducing a solidarity obligation. But, at the same time, it is puzzling how the denial of a right (the right to free movement) to inactive indigent people is justified by the refusal of the Member States to recognize a second right, i.e. the right to solidarity. In the present historical moment, the world is dominated by a new sensitivity with regard to human rights, but it is hard to disagree with the bitter observation that “ [f]ree movement is only free as it does not cost money.”76These perplexities are shared by Poiares Maduro who questions “the lawfulness of some conditions currently imposed by Community legislation on the free movement of persons.”77 Still, it is difficult to address the problems stemming from the binding character of the Charter as it is very difficult to determine a priori whether Art. 45 CFR is capable per se of bringing about any change at all. In this event, the rights and the principles contained elsewhere in the Charter could be used as interpretative tools in order to avoid discrimination of citizens on the basis of their economic status. In fact, it cannot be denied that free movement is linked to other fundamental rights included in the Charter.
This position is shared by many Advocates General. For instance, in analyzing the connection between free movement and access to student grants,AG Colomer considered that “Article 14 of the Charter of Fundamental Rights of the European Union proclaims that everyone has the right ‘to education and to have access to vocational and continuing training.’”78 Moreover, AG Sharpston quoted Art. 24 CFR in a case concerning the surname to give to a Danish child resident in Germany.79
Furthermore, considering how the use of the solidarity principle allowed the ECJ to partially erode the economic limits of free movement, it would not come as a surprise if some rights contained in Title “Solidarity” of the CFR were used to extend the right of free movement to the indigents. This solution appears reasonable given that the ECJ’s efforts have been directed for a long time at connecting the status of citizens to fundamental rights such as, for instance, family life and privacy.80 In this sense, “movement would simply become a trigger for activating the Charter.”81
A new impulse towards social rights protection can be found in some ECJ judgments in which solidarity was used to clarify principles included in the notion of Union citizenship.82 Citizenship should not be considered isolated from the other provisions of the CFR, as suggested by the preliminary reference in Ruiz Zambrano.83 Here the Tribunal du travail de Bruxelles asked the ECJ to clarify the rights granted to EU citizens under Arts. 12, 17 and 18 TEC (now Arts. 18, 20 and 21 TFEU) read jointly with Arts. 21, 24, and 34 CFR. This demonstrates a new sensitivity towards the Charter which can undoubtedly allow innovative interpretations. The freedom of movement now reserved to active and economically reliable persons could be extended to the indigent. This is perhaps one of the most relevant consequences following an extensive interpretation of EU law in light of the provisions of the Charter not specifically dedicated to “Citizens’ Rights.”