HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

of Fundamental Rights of the European Union (“the Charter”) and its troubled relations with EU citizenship. Finally, I will examine the broader consequences of the Court’s approach and the position where the Court now stands. 1. Brief Summary of ECJ Case-Law and Its Main Tendencies The first landmark case is Ruiz Zambrano 2 from 2011. In this case, the European Court of Justice (“the ECJ”) formulated, firstly, the “substance of the rights test”, secondly, used this test as a trigger to broaden the scope of EU law to purely internal situations, thereby going beyond the “cross-border test”. In its reasoning, the ECJ once again stated that “ citizenship of the Union is intended to be the fundamental status of nationals of the Member States ”, 3 then proceeded to formulate a new approach towards citizenship by saying that “ In those circumstances, Article 20 TFEU precludes national measures which 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 ”. 4 To understand it fully, I will briefly describe the facts of this case. Mr Ruiz Zambrano, a Colombian national, was residing in Belgium without permission. Belgian authorities decided to make him leave Belgian territory. The issue was that during his residence he fathered two children, who became Belgian nationals due to domestic law. And therefore, they also became EU citizens. The question before the ECJ was: is it a breach of the genuine enjoyment of the substance of the rights if two EU citizens, at that time minors, are forced to leave the EU because they follow their parents, who are non-citizens and are not allowed to stay in the EU? The answer was yes. Since the deprivation of the genuine enjoyment of the substance of the rights was found, albeit in a situation where there was no cross-border element, the ECJ concluded that the Member State’s decision was contrary to Article 20 TFEU. This truly revolutionary decision caused a heated debate among legal scholars. Some of them expressed their disagreement regarding the ECJ argumentation and ultimately its conclusion: the ECJ’s judgment lacked a foundation in written law, which raises the question of whether the ECJ acts in accordance with principles of legality and rule of law, two values of the EU. 5 Some argued that the ECJ legal reasoning was unpersuasive and elusive, despite agreeing with the result it produced. 6 3 Ruiz Zambrano, paragraph 41. This declaration was firstly articulated in case C-184/99 Grzelczyk, in 2001. (see paragraph 31 of the case). From that moment on, this particular statement has made its way to other ensuing cases, such as Baumbast and R., paragraph 82, Garcia Avello, paragraph 22, Zhu and Chen, paragraph 25 and Rottmann, paragraph 43. 4 Ruiz Zambrano, paragraph 42. 5 “(…) it is questionable whether Court still acts in accordance with the principle of legality and the rule of law, which are among the values of the Union” page 167, see also chapter “Zambrano”; SVOBODOVÁ, M. Občanství Evropské unie. Praha: Auditorium, 2021, p. 155–169. 6 KOCHENOV, D. The Right to Have What Rights? EU Citizenship in Need of Clarification. European 2 C-34/09, Ruiz Zambrano.

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