HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

The first issue is that the “substance of the rights test” is not well tailored. The ECJ did not give any clear guidance as to what rights constitute the substance of the rights. In the words of one of its main critics “(…) the Court’s failure to clarify what this ‘substance of rights’ actually meas, multiplies contradictions, resulting in a massive assault on clarity and legal certainty ”. 7 Admittedly, the ECJ line of argumentation was very brief, consisting only of a handful of paragraphs, as though the ECJ did not appreciate the massive change it was about to bring. The second issue is the ECJ’s hesitation to mention the Charter. In the present case, there was no mention of the Charter at all, even though it is the Charter that would be able to make the reasoning more comprehensive, especially so, when the national court asked Charter-based question. This is even more striking given the fact that the GA Sharpston did include the Charter in her Opinion, relying on its provisions. 8 This “ odd Charter silence ”, 9 when it comes to the ECJ judgment, diminished the persuasiveness of the ruling. Case law inspired by Ruiz Zambrano did not address all the above-mentioned issues. I do not intend to summarize each and every one of them, so I will instead focus on their approach toward the Charter and the “genuine enjoyment of the substance of rights test”. The “Children” of Ruiz Zambrano are notably McCarthy 10 , Dereci 11 and Iida 12 . In McCarthy , the ECJ endorsed its argumentation established in Ruiz Zambrano , although it also adjudicated that the new approach can coexist with the old one – i.e. with the “cross-border test”. 13 When it comes to the Charter, the ECJ made a preliminary observation that the Charter is relevant, although the ECJ did so in only one paragraph. 14 Furthermore, the Charter was used only as a supportive tool in claiming the importance of the freedom of free movement and of residence. It is law journal: review of European law in context. [online]. 2013, edit. 19, no. 4, p. 502-516. Also, KOCHENOV, D. A real European citizenship: a new jurisdiction test; a novel chapter in the development of the union in Europe. The Columbia journal of European law. [online]. 2011, edit. 18, no. 1, p. 55. 7 KOCHENOV, D. The Right to Have What Rights? EU Citizenship in Need of Clarification. European law journal: review of European law in context. [online]. 2013, edit. 19, no. 4, p. 502-516. p. 212. 8 Opinion of Advocate General Ms Sharpston in Ruiz Zambrano, delivered on 30 September 2010. 9 THYM, D. Questioning EU citizenship: judges and the limits of free movement and solidarity in the EU. Oxford: Hart Publishing, 2017. Chapter 11, Union Citizens and Fundamental Rights, p. 209-239. p. 217. 10 C-439/09, McCarthy. 11 C-256/11, Dereci. 12 C-40/11, Iida. 13 “This demonstrated that, at least for the time being, the new approach can coexist with the old approach.” p. 87 in KOCHENOV, D. A real European citizenship: a new jurisdiction test; a novel chapter in the development of the union in Europe. [online]. The Columbia journal of European law. 2011, edit. 18, no. 1, p. 55. Or see KROEZE, Hester a VAN ELSUWEGE, Peter. Revisiting Ruiz Zambrano: A Never Ending Story? [online]. European journal of migration and law. 2021, edit. 23, no. 1, p. 1-12. Available at: https://doi.org/10.1163/15718166-12340091. p. 5. 14 McCarthy, paragraph 27.

109