Citizenship fatigue at the Court of Justice?

Is there an anti-citizenship agenda in the Court of Justice? Has the Court decided to put an end to the noble but sometimes unpopular task of fleshing out “the fundamental status of nationals of the Member States”? Has populism taken its first victim in Luxembourg, in the form of judgments like Martinez Sala, Carpenter, Chen or Ruiz Zambrano?

After Dano, these questions are becoming widespread in EU Law circles, even amongst politicians. For those who have spent some time dealing with EU citizenship, these doubts appeared when the Court started issuing strange judgments. It all began with Akrich and then De Cuyper. It got even stranger when, shortly a few weeks after the landmark decision in Ruiz Zambrano, the Court came up with a bizarre judgment in MacCarthy. Förster sent another odd message, this time to moving students. And then came the subtle overrulings of previous judgments in cases like Iida, Alopka and now, with a fanfare as background, in Dano, where a judgment like Trojani was discretely put to rest.

I am a convinced European and a believer in EU citizenship. I have always applauded the Court’s brave judgments in this terrain and I have had the privilege of working at the Court, where I always defended (in a very modest capacity) exactly the same position.

But having said that, allow me to agree with, or at least understand, the Court’s apparently citizenship-skeptic case-law.

First, I will start by saying that, in my humble opinion, there is no citizenship-skeptic case-law coming from the Court. There might be judges at the Court who are not huge fans of the Treaty’s citizenship rules, but overall I believe, in contrast with some commentators, that the Court has no preconceived plan to undermine or to critically reconsider the status of EU citizenship.

Second, I do agree with the critics that there is a lot of confusion and contradiction in the Court’s citizenship case-law, particularly in the past five to ten years. This can probably be explained (mostly, but not only) through a simple fact: attribution of cases. One day a citizenship case is entrusted to reporting judge A, the next day another case lands in the desk of reporting judge B. This might seem irrelevant for an outside observer, but anyone who has worked at the Court knows how important these decisions are. If a case concerning rights of third country nationals ends up in the hands of a hawkish reporting judge, the chances of having a hawkish judgment will skyrocket. Therefore, despite the main argument I will be making in this post, I agree with the critics that the Court could have done a much better job in being coherent. A clear-cut overruling like the one in Metock is much better than the confusing non-overrulings (which actually are overrulings) in cases like Förster (vis-à-vis Bidar) or Dano (vis-à-vis Trojani).

Third, despite all the concerns, we should not forget that the Court is still showing its ability to render important and forward-looking judgments in the area of citizenship. Dano has made a lot of noise, but I have hardly heard anything about the Grand Chamber’s recent decision in McCarthy, on the right of entry of third national spouses of EU citizens legally residing in another Member State. The same applies to Bero and Pham, where the Court took a very critical stance towards internment measures of third country nationals. The recent case-law on student grants is also good proof of how the Court is still struggling with courage to bring down barriers in favor of EU citizens.

However, there are obvious signs of citizenship exhaustion in the case-law. Dano might be the paradigm, but the exhaustion has been showing for several years. I have no insider information about the reasons of the Court’s fatigue. All I have is a possible version of the story, and the arguments explaining why I tend to understand such fatigue.

Free movement rules are crucial for the EU. But when it comes to free movement of individuals, such rules play a practical role and also a symbolic one. By extending free movement to all citizens of the Union and their third-country relatives, the Union embarked in a much more ambitious project. The goal was not only to integrate a market, but also the peoples of Europe. Free movement of persons is thus a very relevant piece in the backbone of political integration.

For quite some time now, it is obvious that the rules on free movement of persons have been used by the Court as a tool of integration. However, the Union has undergone momentous changes in the past years. The reforms introduced by the Treaties of Amsterdam, Nice and Lisbon have changed the face of the Union quite dramatically since 1992. Therefore, the “political Union” and the “EU citizenship” envisaged in the Maastricht Treaty looks modest and remote when compared with today’s European project. Despite all the troubles underlying integration during the recent economic crisis, it is undeniable that the EU has become a much more politically-driven organization. The role of the European Parliament and national parliaments, the creation of a single organization under the matrix of the Union, the gradual emergence of a system of economic governance, or the enactment of a Charter of Fundamental Rights, are only but a few examples of how politically centered the Union has become.

In the present Union, I doubt that the idea of EU citizenship can be only understood through the looking-glass of free movement rules. In a Union that unashamedly claims its democratic legitimacy, EU citizenship is destined to become something more than residence rights, social security coordination or review of expulsion orders. In fact, free movement is and has always been one among several rights that make up the statute of EU citizenship.

Seen in this light, it is unsurprising for the Court to show a certain degree of free-movement fatigue. Other rights of the statute of EU citizenship have enormous challenges ahead, whilst free movement of persons seems almost like a fait accompli. In the years to come, the Court will still have to flesh out many provisions of the Charter of Fundamental Rights, a delicate task that only began in Akerberg Fransson, Melloni or Digital Rights Ireland, among others. The role of national Parliaments and of the European Parliament is still awaiting many decisions from the Court, whilst certain aspects very close to the heart of democracy, such as transparency in the EU’s decision-making process, still have a long way to go in the Court’s case law.

Furthermore, in several member States where the rule of law is under serious attack, the EU must give some kind of response and, sooner or later, the Court will have something to say in the matter. Despite its abstract appearance, the definition (and, above all, the enforcement) of the rule of law in the EU will have a direct impact in citizens’ lives.  It will guide the EU’s actions in support of minorities or independent institutions in contexts in which the EU’s competence might be not so clear. It will be no easy task for the Court.

This is why I believe that the future of EU citizenship will not be the result of free movement rules, but rather the outcome of the Treaty’s rules on democracy, fundamental rights and the rule of law. It is in the interpretation of these provisions that the Court will have to invest much of its prestige and authority in the near future, but also at present.

To give but one recent example: the Delvigne case. In this preliminary reference procedure, the Court will have to rule on the conformity with the Treaties and the Charter of a French rule depriving prisoners from civil and political rights. In the case at hand, the rule applied to voting rights to the European Parliament. To make things trickier, the French Parliament repealed the ancillary penalty in 1992, but the new rules did not apply to prior convictions, like the one that applied to Mr. Delvigne. The Court must now decide whether a criminal rule that precludes prisoners from exercising voting rights to the European Parliament comes under the scope of application of the Charter. It will also have to decide if a transitory rule, such as the one limiting the effects of a criminal reform to future convictions, comes also under the scope of the Charter.

The Court might be tempted to decide in the same way its AG has recently suggested, interpreting Akerberg Fransson strictly and discarding part of the case for lack of jurisdiction. Or it could disagree and protect Mr. Delvigne in all its extent, guaranteeing his voting rights and inviting the referring judge to set aside the transitory rule which, after all, is impeding the exercise of a crucial political right of EU citizens that is enshrined in the Charter, yes, but also in articles 10 TEU and 20 TFEU. The case shows quite neatly how the Charter and EU citizenship can go hand in hand, and how the Court will have to move beyond free movement in order to flesh out the status of citizenship.

If anyone wants to know where EU citizenship is heading to, these are, in my opinion, the cases to follow.

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