The European Court of Justice (hereafter “ECJ”) decision in the Zambrano case; C-34/09, of 8 March 2011, has inaugurated a new approach or, as it is said,[1] a new doctrine regarding EU citizenship rights. This judgment has tangible repercussions on the human rights debate within the boundaries of the European Union due to its implications for the rules governing family reunification of EU citizens. Consequently, it blurs the borderline between EU law and purely internal matters in this area. Moreover, the lack of exhaustive arguments provided in support of the rather innovative criterion employed in this judgement, has triggered a wave of criticism from the academic circles.
Before discussing the facts of the case, it may be useful to focus on the definition of European Citizenship contained in the Treaty, as well as the ways in which the earlier ECJ cases defined the rights that derived from this status. EU Citizenship, introduced by the Maastricht Treaty in 1993, is now defined by the provisions found in the Articles 20-24 of the Treaty on the Functioning of the European Union (hereafter TFEU). Article 20 is the central article on this issue, and it defines what it means to possess a derivative or dependent citizenship. Namely, a person is a citizen of the Union if and only if she is a citizen of a Member State. The European citizenship thus offers a complementary set of rights, which include the right to move and reside within the territory of the Member States, the right to vote and to stand as candidates in elections for the European Parliament, the right to enjoy the protection of the diplomatic and consular authorities of any Member State; the right to petition the European Parliament and to address the institutions and advisory bodies of the Union in any of the Treaty languages.[2] It would be proper to question whether this set of rights can be deemed to be meaningful. However, any attempt to evaluate its breadth would be incomplete without considering the contributions of the ECJ.
In fact, the Court has been able to “give the concept a more substantial content than the authors of the Treaties may have envisaged”.[3] The Luxembourg Court has promoted a far-reaching view of citizenship as “destined to become the fundamental status of nationals of the Member States”.[4] The potential of this ‘fundamental status’ has been demonstrated in earlier Court judgments when the ECJ relied upon citizenship as an instrument to break open the Member States’ national assistance system (e.g. Case C‑184/99 Grzelczyk ), correct the national rules governing surnames (e.g. Case C- 148/02 Garcia Avello) and extend the residence right of non-national family members (e.g. Case C‑127/08 Metock and Others).[5] In many citizenship cases there is a clearly identifiable cross-border element. Traditionally, an intra-Union movement has been considered a precondition in order to bring a situation within the ambit of the EU law, and consequently a sort of prerequisite for the invocation of rights derived from the Union citizenship[6]. Progressively, the ECJ has accepted some “dilution of the notion that the exercise of rights requires actual physical movements across a frontier”[7]. The Zambrano case seems to go further along this line, thus gradually emancipating EU citizenship rights from the above-mentioned economic paradigm. Unfortunately, it does this, without providing much information to explain the basis of this fundamental paradigm shift.[8]
The case concerns a Colombian national (Ruiz Zambrano) who had been residing in Belgium without a residence permit following the rejection of his asylum application. He had been working there without authorization for some time. Attempts to validate his residence status were rejected in protracted administrative and judicial proceedings. However, the Belgian authorities did not actively pursue coercive measures to deport the family of the failed asylum seeker. Union citizenship entered the picture when two children were born to the Ruiz Zambrano family during their illegal stay in Belgium. When the parents failed to register the births with the Colombian embassy, the children were granted Belgian nationality under domestic rules, which aim to reduce statelessness. Based on their children’s Union citizenship, the Colombian parents hoped to obtain a right to reside and work within Belgium, to which the Court willingly conceded.
As mentioned above, the EU citizenship of the two minors served as justification for the the ECJ to establish a new approach, one which transcended the cross-border requirement used in its previous precedents.[9] The two children (Diego and Jessica) would have been unable to benefit from their rights as European citizens if their father was driven out of the EU territory by national authorities. Therefore, the Court concluded that Mr Ruiz Zambrano could derive work and residence rights from EU law. The possibility for a third-country national – the father of children with EU citizenship – to reside and work within the EU, reflects the ECJ’s adoption of measures focused on the effective exercise of EU citizenship rights for nationals. Following this analysis on the possible consequences for the “integrity” of the citizenship status, the ECJ stated that “Article 20 precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of rights conferred by virtue of their status as citizen of the Union”.[10] Thus, where the substance of rights is affected, no cross-border element is required for EU law to apply.[11] The Zambrano case was deemed to be an instance, where such substantial rights were at risk of being violated.
Given the novelty of the substance of rights doctrine, there were expectations that the Court would have provided the legal community with some basic guidelines for its application. Unfortunately, the judgment did not offer precise insights into this new dogmatic category’s limits. In fact, the judges opted not even to refer to the authority in international human rights treaties, nor use the principle of non-discrimination (Article 18 TFEU). They also failed to defer to the general free movement provision (Article 21 TFEU), which characterised earlier rulings on EU citizenship. In earlier similar cases, the ECJ discussed the human rights dimension of the EU free movement rules by means of reference to the Strasbourg Court (ECtHR)[12], reminding Member States of their obligations under Article 8 of European Convention (right to private and family life). By contrast, in Zambrano there is no reference to Strasbourg’s human rights case law. One reason may be that this would not have supported the ECJ’s generous conclusion: the ECtHR consistently emphasises that the contracting parties are not obliged to guarantee family unity on their territory unconditionally[13]. Also, Strasbourg’s settled case law likewise establishes that removal of a person from his family members is permissible only when it is shown to be necessary in a “democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued”[14]. For its part, the ECJ reasoning is grounded on the concept of EU citizenship as such. Although Article 20 is mentioned in the judgment as a legal basis for the “substantive rights” doctrine, the general wording of the article does not support a self-sufficient set of rights. Article 20 concentrates on its reliance upon national citizenship, which it does not replace. Thus, the decision of the Court to legalise the status of an unemployed non-national parent of Union citizens, appears to be built only upon the alleged fundamental status aspiration that EU citizenship has represented.
What is dramatically remarkable is the Court’s silence on the human rights dimension on the right to family life. Although the Belgian authorities’ decision to order Mr Zambrano to leave Belgium constitutes a potential breach of his fundamental right to family[15], the ECJ did not take into account the European Charter of Fundamental rights, which includes numerous references to respect for family life and the rights of the child.[16] This silence is partially due to the limits imposed on the application of the Charter of Fundamental Rights: EU fundamental rights may only be invoked with regard to measures adopted by the EU institutions and acts of the Member States that fall within the field of application of EU law[17]. Despite the presence of these limits, the ECJ have used the Charter as an interpretative tool to shape the content of legislation and the scope of administrative discretion[18]. “This interpretative role is not insignificant as it can be used to shape the ideological direction of legislation”[19]. Notwithstanding the development of the Court’s case law, EU fundamental rights must respect the limits derived from the principle of conferral which European powers are based on. Advocate General Sharpston, in her opinion on the Zambrano case, uses the principle of conferred powers (Article 5 TEU) as a point of departure for a suggestion to re-orientate the availability of EU fundamental rights protection.
“Member States have conferred competencies upon the Union that empower it to adopt measures capable to take precedence over national Law… As a corollary, once those powers have been granted the European Union should have both the competence and the responsibility to guarantee fundamental rights”[20].
These competencies and responsibility should not be made conditional upon the actual exercise of legislative competence that fall within the EU ambit. In other words, EU fundamental rights should protect the citizen of the EU independently of whether those powers have in fact been exercised. Following the analysis of the AG Sharpston, such an approach would have a number of advantages. Firstly, it would avoid the need to create fictitious links with Union law[21] (e.g. cross border element). Secondly, if the fundamental rights under EU law were known to be guaranteed in all areas of EU competence, Member States might be encouraged to move forward with detailed EU secondary legislation in certain areas of particular sensitivity[22] (such as immigration law). Finally, such a definition of the scope of application of EU fundamental rights would be coherent with the full implications of a broad concept of citizenship within the Union[23]. What Sharpston’s suggestion draws, is a seamless protection of fundamental rights that matches a concept of EU citizenship as a true “fundamental status”. At the present time, the Court cannot take such a step unilaterally. What the Union needs is a constitutional change that can turn the EU citizenship from an “empty label” to an effective vehicle for fundamental freedoms and human rights. The trigger of this change could be cases like Zambrano and the final outcome an EU really founded on human rights[24].
By Pietro Palumbo
King’s College London
[1] K Hailbronner, D Thym, ‘Case Law, C-34/09 Gerardo Ruiz Zambrano v. Office National de l’emploi (Onem)’, 48 Common Market Law Review (2011) 1253-1270.
[2] Those rights are listed in the Article 20(2) of the TFEU.
[3] FG Jacobs, ‘Citizenship of the European Union – A Legal Analysis’, 13 European Law Journal (2007) 592, 591-610.
[4] Case C‑184/99 Grzelczyk [2001] ECR I‑6193, paragraph 31, confirmed later in, inter alia, Case C‑224/98 D’Hoop [2002] ECR I‑6191, paragraph 28; Case C‑413/99 Baumbast and R [2002] ECR I‑7091, paragraph 82; Joined Cases C‑482/01 and C-493/01 Orfanopoulos and Oliveri [2004] ECR I‑5257, paragraph 65; Case C‑148/02 Garcia Avello [2003] ECR I‑11613.
[5] K Hailbronner, D Thym, 1253 as cited above n.1.
[6] Article 3 (1) “Citizenship Directive” 2004/38/EC limits the scope of the Directive to « Union citizens who move to or reside in a Member State other than that of which they are national….». Thus, the directive could not be applied to Zambrano family.
[7] Opinion of Advocate General Sharpston, Gerardo Ruiz Zambrano v. Office National de l’emploi (Onem) Case C-34/09 [2010] para. 73.
[8] P.Van Elsuwege, D. Kochenov ‘On the Limits of Judicial Intervention: EU Citizenship and Family Reunification Rights’ 13 European Journal of Migration and Law (2011) 451.
[9] K Hailbronner, D Thym, 1253 as cited above n.1.
[10] Case C-34/09, judgement para.42 (emphasis added).
[11] K Hailbronner, D Thym, 1256 as cited above n.1
[12] In its Metock (Case C-127/08), the ECJ explicitly upheld that purely domestic situations are not covered by EU citizenship, while reminding the Member States of their obligations under Article 8 ECHR.
[13] In 2008, the ECtHR held in a comparable case against Norway that the denial of residence permits to third country nationals after the rejection of their asylum claims and the birth oftheir children in that country does not violate Article 8 ECHR
[14] See Mehemi v France, judgment of 26 September 1997 § 34, ECHR 1997-VI and Dalia v France, 19 February 1998 § 52, ECHR 1998-I.
[15] That is also the view of Advocate General Sharpston, cited above n.7 para. 62.
[16] Article 7 of the Charter of Fundamental Rights.
[17] Article 51 (1) of the Charter of Fundamental Rights.
[18] D Chalmers, G Davies & G Monti, European Union Law, II ed. (Cambridge 2010) 248.
[19] Ibidem, 248.
[20] Opinion of Advocate General Sharpston, cited above n.7, para. 164.
[21] Ibidem, para. 167.
[22] Ibidem, para. 169.
[23] Ibidem, para. 170.
[24] See Article 2 TEU :«The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination tolerance, justice, solidarity and equality between women and men prevail».