HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

protection 20 ) and space to address various human rights issues raised in connection with the case-law of the ECJ. 21 So, it can be concluded that there has been a “ growing role for the Court as a human rights tribunal ”. 22 However, the “substance of rights test” was not explained in greater detail. Notably, the ECJ interpretation was rather restrictive, having in each of above mentioned cases found no deprivation of the substance of rights or connection with EU law. These cases “ illustrate the inherent change of direction from an aspirational trajectory to a more modest approach which effectively reigned in the revolutionary potential of the judicial innovation ”. 23 Additionally, the original issue of not exhaustive definition of the substance of rights remained – “ It even seems to go as far as to entrust the national courts of the Member States with determining whether a particular factual situation amounts to the deprivation of EU citizens of the essence of their rights associated with this status, as it has done in Dereci ”. 24 All in all, Ruiz Zambrano and the following case-law have sparked a new era for EU citizenship, introducing “a real citizenship”, and starting a deeper relationship with fundamental rights – moving from the interpretative relevance of the Charter to thematic relevance 25 (i.e.: explicitly or implicitly reflecting on the Charter, albeit the ECJ does so with almost palpable hesitation). In addition, it has diminished the importance of the “cross-border test”, 26 to such an extent that one might argue that 20 LEARY, S O’. The relationship between Community citizenship and the protection of fundamental rights in Community law. Common market law review. [online]. 1995, edit. 32, no. 2, p. 519–554. Available at: https://doi.org/10.54648/COLA1995023. p. 545–547. 21 A good example of this fragmentary protection, which is based on general principles, is the case C-159/90 Gordan. In a nutshell, in Ireland in 1990 there were prohibited abortions. The case concerned a student association which was disseminating information about abortion clinics in the UK. The legal issue was whether carrying out abortions was a service according to “EU law” and, thus, whether it was contrary to “EU law” to prevent this association from providing this type of information. The answer, given by the ECJ, was that carrying out abortion was a service, but that it was not contrary to “EU law” to prohibit information about this kind of service. What is striking is the clear human rights undertone in this case and that it was not comprehensively addressed, therefore “it is not clear, whether the right to information is protected as a corollary of the free provision of services, or to what extent freedom of expression is protected in the context of Community law.” Ibid. p. 545–546. 22 Ibid, paragraph 170. 23 VERSCHUEREN, H. Residence, employment and social rights of mobile persons: on how EU law defines. Cambridge: Intersentia, 2016. p. 11–38. 24 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. Available at: https://doi.org/10.1111/eulj.12043. p. 504. 25 KOSTAKOPOULOU, D. EU citizenship and fundamental rights. In: EU citizenship and fundamental rights. United Kingdom: Edward Elgar Publishing, 2020. p. 92-128. Available at: https://doi.org/10.43 37/9781786431592.00010. 26 BOBEK, M. Kam až sahá právo EU? K věcnému aplikačnímu rámci unijního práva v členských státech. Právní rozhledy. 2013. [online]. Or KROEZE, Hester a VAN ELSUWEGE, Peter. Revisiting Ruiz Zambrano: A Never Ending Story? European journal of migration and law. [online]. 2021, edit. 23, no. 1, p. 1–12. Available at: https://doi.org/10.1163/15718166-12340091. p. 5

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