HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

any explanation, making its argumentation less compelling 32 (explained more in the next section). On the other hand, the ECJ did not give an exhaustive definition of the substance of rights, if only by a general observation. I would therefore conclude that the basic issue is still unresolved, although some of the question marks disappeared. Regarding the scope of this children’s rights under EU law, it should be noted that this is a very broad area, covering numerous legal situations. But I seriously doubt that the ECJ is willing to go further, to protect children’s rights even in member states, when there are no third-country nationals concerned (this will be addressed in the following section). It is worth remembering that Ruiz Zambrano , a case that is a door-opener, was followed by more restrictive cases, as though the ECJ was trying to mitigate the impact of Ruiz Zambrano . I believe that this will be the same story. To sum it up, Chavez-Vilchez can be characterized as a rights-promising case, a case which broadens the substance of the rights. Namely, it covered “family and children rights”, thereby entering a large area of law. It is possible to say that so far EU citizenship has been strengthened. Nonetheless, the ECJ did not answer the basic question – what rights do form the substance of the rights conferred on EU citizens? As a result, legal certainty was not strengthened. 3. Fundamental Rights: When Does the Charter Come In? The ECJ, when reasoning Chavez-Vilchez , relied on the Charter more than in previous cases. Namely, on article 7 and on article 24 (2) of the Charter. By enlisting the Charter as a basis for its conclusion, the ECJ made a great step from its initial “ odd Charter silence ” (as shown above). Furthermore, the Charter was deployed as a main interpretative tool and shaped the decision. In this light, it is even more surprising that in the ECJ conclusion, there is no mention of the Charter, but only of TFEU. Although it can be seen as a purely esthetical problem, I think that it would be fairer to mention expressly the Charter in its conclusion. After all, the ECJ did arrive on its conclusion thanks to the Charter. Also, there is another problem present. That is what is the relation between the Charter and the TFEU? And so, what comes first the Charter or the TFEU? Put it more bluntly: does it work like that there is a breach of Article 20 TFEU, therefore the Charter is engaged? Or there is a breach of the Charter, and therefore the Article 20 TFEU is activated? 33 The judgment is rather confusing in relation to this question, since it does not give clear guidance on how it is. As it seems from Chavez-Vilchez , one possible interpretation is that the ECJ tried to provide a “Charter-compliant” ruling regarding the assessment of the dependency of the child on the parent, all this in light 32 VAN EIJKEN, H. and PHOA, P. The scope of Article 20 TFEU clarified in Chavez-Vilchez: are the fundamental rights of minor EU citizens coming of age? European law review, 2018. 43 (6), 949-970. p. 7–9. Available at: https://dspace.library.uu.nl/handle/1874/377519. 33 Ibid. p. 7–9.

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