On the CJEU’s post-Brexit case-law on European citizenship. The recovery of the identity Ariadne’s thread?

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by Professor Alessandra Silveira, Editor

The CJEU over the years has helped forging a concept of citizenship directed to be the “fundamental status of Member States nationals”. However, since the ruling Dereci of 2011, the proactivity of the CJEU concerning the development of the European citizenship seemed to have gradually exhausted its potentialities, mostly on the so-called social citizenship. It happens, tough, that the crucial moment the European Union faces demands the enhancement of its vertical relation with the citizens it upholds – it is either this or fragmentation. And maybe this is the subliminal message from the CJEU in three post-Brexit rulings that, decided in the Grand Chamber, surprisingly recover and develop the most emblematic case-law about the European citizenship – namely the Rottmann[i] and Zambrano[ii] rulings – whose political potential and/or identity potential seemed irrevocably muzzled.

In the ruling Rendón Marín[iii] and CS[iv], the core issue involved the expulsion and the automatic refusal of the concession of residence to third states nationals who have a dependent minor European citizen – in  both cases due to the parent’s criminal records. The CJEU recovered the Zambrano assertion, according to which Article 20, TFEU precludes national provisions that have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union[v] and, in this sense, it must be attributed the derived right of residence to the national from a third State, under this risk of the useful effect of the European citizenship being affected, if the minor is forced to leave the territory of the Union to follow his/her parent[vi]. In both rulings, the novelty is the way the CJEU appreciates, in the light of the fundamental rights of the European citizen, the possibility of a Member State to introduce limits to such derived right of residence which arises from Article 20, TFEU.

On the Petruhhin[vii] ruling the legal issue was an extradition request presented by Russian authorities to Latvian authorities concerning an Estonian national. The referring national court basically intended to know whether the lack of protection for Union’s citizens against extradition, namely when they move to a Member State different from the one of their nationality, would or would not be contrary to the essence of the European citizenship – or, more concretely, to the Union’s citizens right to the equivalent protection that the host Member States nationals have there. Recovering the Rottmann[viii] ruling, the CJEU recognised that, in the absence of an international agreement between the Union and such third country, the rules in the matter of extradition are within the Member States competences, but that does not prevent that in situations comprised by the EU law the internal law complies with it[ix]. So, Articles 18 and 21º, TFEU impose that the Member State recipient of an extradition request by a third State i) informs the Member State of the nationality of the European citizen and, if so, at request of this Member State, ii) surrender its national in compliance with the rules of the Council Framework Decision 2002/584/JHA (on the European arrest warrant and the surrender procedures between Member States, as amended by the Framework Decision 2009/299/JHA), as long as the Member State of the nationality is competent to criminally proceed against such citizen for acts committed out of its territory[x]. The novelty in this case is how the CJEU appreciates, in the light of the fundamental rights of the European citizen, the possibility of the Member State of execution to extradite the national from another Member State at request of a third State.

Such post-Brexit rulings highlight the connection between European citizenship and the fundamental rights protection in the EU – which, all considered, the rulings Rottmann and Zambrano themselves opted not to point out. They might represent an attempt to recover the identity dimension of the European citizenship, nourished by a sense of belonging to a rights and obligations community. In the absence of the nationality link, the European identity was built upon the exercise of rights – that is, as a citizenship of rights. Yet, the avalanche of challenges that the EU has been confronted with undermined the safe exercise of fundamental rights – what weakens the mentioned link between the Union and its citizens. Well, the dynamics of the European integration depends largely on the CJEU case-law; but it has been inevitably influenced by political-economic dynamics of each historical moment. The CJEU, in its constitutional court clothing, has made “politics by law lines”. Good or bad politics – only some time distance will be able to assess. It remains to be ascertained the consequences of the price the EU made itself available to pay for the continuity of the United Kingdom – which, as seen, revealed to be useless. Will have the CJEU, with its post-Brexit case-law, recovered the identity Ariadne’s thread that will re-conduct it to the evolving route of the European citizenship?

(The author’s full text on this theme will be published in the next edition of UNIO – EU Law Journal)

[i] Ruling Rottmann, of 2nd March 2010, C-135/08.

[ii] Ruling Zambrano, of 8th March 2011, C‑34/09.

[iii] Ruling Rendón Marín, of 13th Sep. 2016, C‑165/14.

[iv] Ruling CS, of 13th Sep. 2016, C‑304/14.

[v] See ruling Zambrano, cit., recital 42, ruling CS, cit., recital 26, ruling Rendón Marín, cit., recital 71.

[vi] See ruling Zambrano, cit., recitals 43 and 44,  ruling CS, cit., recital 29, ruling Rendón Marín, cit., recital 74.

[vii] Ruling Petruhhin, of 6th Sep. 2016, C‑182/15.

[viii] See ruling Rottmann, cit., recital 41.

[ix] See ruling Petruhhin, cit., recitals 26 and 27.

[x] See ruling Petruhhin, cit., recital 50.

Picture credits: SteliosMousarris,  by designmilk.

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