Keeping EU Citizenship alive – A comment on AG Szpunar’s Opinion in Rendon and CS

Donald Tusk’s proposal for a new settlement with the United Kingdom has caused quite a stir. However, on the same week that the European Council President’s proposal was made public, another relevant document, authored by another Pole, came to the light of day. This other (yet more politically discreet) text has not made the headlines, but it is probably just as relevant as Tusk’s offer to the British government.

In his Opinion in the cases of Rendon and CS, Advocate General Szpunar has brought back to life the very essence of European citizenship. This is not a flamboyant or obscure way of putting it; this is really what AG Szpunar has tried to do: he has provided what is probably the most elaborate analysis so far of what the Court has called, in the seminal case of Ruiz Zambrano, the “genuine enjoyment of the substance of the rights of Union citizenship”.

It all goes back to 2011 and to a case that stood as the most revolutionary decision delivered by the Court of Justice since Van Gend en Loos and Costa/Enel. In Ruiz Zambrano the Court of Justice emancipated EU citizenship from national nationality, allowing EU citizens to claim their status of EU citizens even against their Member State of nationality, when a domestic measure affects the ability of a EU citizen to enjoy the rights enumerated in Article 20 TFEU. It was a momentous decision, whereby EU citizenship proved to be an autonomous statute, just as EU law is autonomous vis-à-vis national and international law.

Ruiz Zambrano was criticized for its laconic reasoning and the Court’s inability to explain itself properly, but hardly anyone dared to question the practical outcome of the judgment. Overall, the situation of the Ruiz Zambrano family was so intolerable under any standard, that nobody challenged the Court of Justice’s willingness to give practical content to EU citizenship in such a case.

The lack of reasons in the judgment gave academics much to discuss (and criticize), but when the Court of Justice started to flesh out Ruiz Zambrano in subsequent decisions (McCarthy, Dereci, etc…), pro-citizenship lawyers who had criticized violently Ruiz Zambrano for its reasoning, realized that their disapproval had backfired. The Court of Justice quickly started to walk away from Ruiz Zambrano, and, in a rather paradoxical way, the critics who had questioned the Court’s poor reasoning began to miss Luxembourg’s ability to render judgments like Ruiz Zambrano. It was quite sad to see how Ruiz Zambrano’s unwilling executioners were many eminent lawyers who had supported the noble cause of EU citizenship in the past. Either because they didn’t see it coming, or because they didn’t like the reasoning, or because they weren’t astute enough to realize that the Court needed the help of academia in fleshing out Ruiz Zambrano, many citizenship and constitutional experts disdainfully and clumsily helped the real enemies of EU citizenship in burying what was probably the Court of Justice’s most innovative, daring and constitutionally relevant decision in decades.

Last week, when everyone thought that Ruiz Zambrano was well buried and forgotten, AG Szpunar brought it back from the dead.

Rendon and CS deal with two expulsion orders issued by Spanish and UK authorities, respectively, in a situation like Ruiz Zambrano’s, but in which the third-country parent has been criminally convicted by the Member State’s courts. In such circumstances, does the Ruiz Zambrano test apply and, if so, is it justified in any way for a Member State to order the expulsion of the third-country parent that will entail the de facto expulsion of the infant EU citizen? AG Szpunar has provided an extremely well thought and reasonable solution to both cases, and has come to the conclusion that Ruiz Zambrano applies indeed and protects the infant EU citizen. In the Spanish case, where an automatic statutory rule entails the expulsion of a migrant when he or she has a criminal record, the AG considers that such rule breaches article 20 TFEU as interpreted in Ruiz Zambrano. In the case of CS, the AG strikes a careful balance that allows UK authorities to use their discretion, but based only on an imperative reason relating to public security.

The most interesting part of the Opinion deals with the “substance of the rights” test in Ruiz Zambrano. The AG makes a careful analysis of European academic literature about fundamental rights, the categories that most resemble what the Court referred to in Ruiz Zambrano (the “essential content” of fundamental rights, mostly) and finally draws practical conclusions applicable to the specific cases of Rendon and CS. The Opinion is a tour de force, carefully construed and balancing intellectual rigor with practical common sense. It fills in many gaps that were left open in Ruiz Zambrano and that the Court, in its subsequent and very restrictive case-law (sometimes even reactionary, as in Iida or Alokpa), had been unable to fill. For example, the question of whether is it possible to do a proportionality test in Ruiz Zambrano situations, is a point that had been left untouched and that the AG deals with in a very convincing way.

But above all, Rendon and CS show that EU citizenship is still a category in the making that needs the help of those who believe in the promise of European integration. At a time in which some Member States want to depart from “an ever closer Union” and others look for ways to sideline the rule of law, the EU is still a magnificent source of inspiration and justice for citizens, Europe’s best (and probably sole) guarantee of peace and prosperity in the continent. Ruiz Zambrano was a message in a bottle that, quite surprisingly, the supporters of EU citizenship ignored and tried hard to sink forever. With Rendon and CS, a second chance has been given to Ruiz Zambrano. With the contribution of AG Szpunar, and (hopefully) the help of those who clumsily almost put Ruiz Zambrano to rest, the Court of Justice will have the chance of keeping the flame of the noble dream of citizenship burning for many years to come.

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