HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

of Article 20 TFEU, using the Charter as a corrective. 34 But this would be a divergence from the ECJ’s previous case-law (as mentioned in the section above). I think that the ECJ made obvious the willingness to use the Charter, albeit in a manner that is still far from being concise and flawless – it even can be “ a bit of tea-leaf reading exercise ”. 35 Overall, the move to “Charter-compliant” is something to be applauded, although one might at the same time hope to see more precise legal reasoning. However, there is a more conceptual problem with fundamental rights and citizenship. Since citizenship is based on exclusivity, rather than inclusivity (i.e. the cleavage between us, citizens, and them, not citizens, is determinative for citizenship), Van den Brink argues that citizenship is not the right tool for promoting human rights. 36 Especially so, when the ECJ so far protects rights that are not citizen-based rights (unlike the right to vote, the right to family life or protection of children could be enjoyed by all). I think that this criticism is right to some extent – but I hold the view that this approach is quite understandable. The ECJ “tests” its revolutionary concepts on areas that are not as controversial as some others (political rights vs rule of law etc.). It remains a question whether the ECJ will go further, whether the ECJ will try to enlarge the substance of rights to more pressing issues like the rule of law in Poland or Hungary. Or if the ECJ will encompass all rights guaranteed in the Charter, as was predicted. 37 This brings me to a contrary opinion claiming that the opposite is the case: fundamental rights are only an added bonus, not being the formative part of the ECJ legal reasoning. In fact, these so-called citizenship cases, including Chavez-Vilchez , are still based on the market-citizenship concept, because they are still primarily concerned about free movement rights, not fundamental rights. 38 Additionally, 36 “Citizenship is a powerful tool for the promotion and protection of rights, but does not serve the same purpose as fundamental rights. Both are informed by different rationales, external closure being the idea informing citizenship and universality being that of fundamental rights. We should resist conflating the two” on p. 31 in BRINK, M. EU citizenship and (fundamental) rights: Empirical, normative, and conceptual problems. European law journal: review of European law in context. [online]. 2019, edit. 25, no. 1. Available at: https://doi.org/10.1111/eulj.12300. p. 21–36. See also VAN DEN BRINK, M. The Origins and the Potential Federalising Effects of the Substance of Rights Test. In: The Origins and the Potential Federalising Effects of the Substance of Rights Test. Cambridge University Press, 2017. p. 85–106. Available at: https://doi.org/10.1017/9781139680714.004. 37 EECKHOUT, P. The EU Charter of Fundamental Rights and the Federal Question. Common market law review. [online]. 2002, edit. 39, no. 5, p. 945-994. Available at: https://doi.org/10.54648/5102448. p. 971. 38 “the overall message from the CJEU about EU citizenship is that of it being about free movement, with fundamental rights protection as an added bonus” on p. 156 in KOSTAKOPOULOU, D. a THYM, D. Free movement or fundamental rights? EU citizenship as a legal gateway to fundamental rights protection. In: Free movement or fundamental rights? EU citizenship as a legal gateway to fundamental rights protection. United Kingdom: Edward Elgar Publishing Limited, 2022. Available at: https://doi. org/10.4337/9781788972901.00016. Or also “Almost every substantive judgment on EU citizenship 34 Ibid. p. 9. 35 Ibid. p. 14.

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