HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

CHAVEZ-VILCHEZ AND ENHANCED NOTIONS OF CITIZENSHIP Antonín Pelikán

Abstract This article analyses case C-133/15 Chavez-Vilchez. In this pivotal case, the ECJ expanded its revolutionary concept of EU citizenship, as established in Ruiz Zambrano. The Chavez-Vilchez case concerned a group of children – EU citizens, their mothers – non-EU citizens, and their fathers/partners – EU citizens. The issue was whether the mothers could be forced to leave the EU if they did not have a residence permit when the children could be looked after by their fathers. The ECJ ruled that it would be contrary to the effectiveness of EU citizenship if the children were left without their mothers, thus being forced to leave the EU. This conclusion, having reaffirmed Ruiz Zambrano, went even further and granted the effect of EU citizenship in a situation where there was a parent holding EU citizenship (in contrast to Ruiz Zambrano, where both parents were not EU citizens). This article puts the case into perspective by providing the necessary context of previous judgments by the ECJ. Furthermore, in this article, fundamental topics are explored, such as the relationship between EU citizenship and fundamental rights, the “substance of the rights test”, and the possible future of EU citizenship. In particular, this article comments on the “Reverse Solange” doctrine, arguing that this approach is unrealistic. Also, the tension between two concepts of EU citizenship – human rights-based citizenship or citizenship as a tool for integration – is addressed. The article concludes by stating that the ECJ has framed EU citizenship more as a tool for integration, to large extent omitting its human rights potential. However, EU citizenship has gained enough momentum to accommodate the human rights foundation, even in its current framing. Introduction No one would have assumed that by adopting the Maastricht Treaty in 1993 and introducing EU citizenship a revolution was bound to happen. The revolution has borne fruits in a line of cases. The latest case, Chavez-Vilchez , 1 will be the subject of this article. Firstly, I will consider the fruits of this revolution, putting every case into a frame to see clearly what the main tendencies and directions are. In the following section, the “substance of the rights test” will be discussed. Then I will comment on the Charter

C-133/15, Chavez-Vilchez.

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