HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

for example Thym argues – with reference to after- Zambrano case law – that “ the Court signalled that it would not develop a thick reading of citizens’ rights ”. 39 I would agree that the ECJ has not left an ethos of market-citizenship concept, yet. But make no mistake: the ECJ has created enough space for itself to make the great step towards real citizenship, to find its judgments entirely upon fundamental rights. In Chavez-Vilchez there was an emerging ethos of protection of children, albeit wearing a “market-citizenship” clothing. This has the potential to be a foundation for more fundamental-rights-oriented decisions in the future. Nonetheless, what the future holds for us (or rather what the ECJ holds) cannot be predicted. Truth be said, there is enough space to make the great step further, but at the same time, there is just enough space to not move at all, or to move backward. 40 Bearing in mind the aforementioned issues, it should be noted that the “battle” about EU citizenship is still not won. Although the Charter is given more voice than before, there remain three basic questions: (1) What rights does “the substance of rights test” entail, or ought to entail? (2) Should the protection of fundamental rights rests on EU citizenship? (3) Has EU citizenship been freed from its market-based origins? I do think that the ECJ’s direction is bad, but it needs to be clearer and more eloquent as to the role of the Charter and ultimately the role of fundamental rights. Having accomplished this, EU citizenship will be the emblem of the EU. 4. EU Citizenship Meeting Its Destiny? “ Union Citizenship is destined to be the fundamental status of nationals of the Member States ”. 41 This formula is the essence of the high hopes for EU citizenship. In this section I will explore whether the mentioned sentence is only wishful thinking or whether it has true potential, which can be, has been, or is about to be fulfilled. An ambitious proposal was introduced in reaction to Ruiz Zambrano. The proposal, known as “ Reverse Solange ”, boils down to the idea that EU citizenship should guarantee a certain level of protection of fundamental rights. If this level would not be kept by the Member States, the ECJ would have the mandate to interfere. In the words of its proponents “The “substance of the rights” conferred on a Union citizen within the meaning of Ruiz Zambrano should basically be defined by to date has related (to borrow from the free movement of goods) actually or potentially, directly or indirectly to free movement and residence rights.” p. 1612. NIC SHUIBHNE, N. The Resilience of EU Market Citizenship. Common market law review. [online]. 2010, edit. 47, no. 6, p. 1597–1628. Available at: https://doi.org/10.54648/COLA2010068. 39 THYM, D. The Failure of Union Citizenship Beyond the Single Market. In: Bauböck, R. (eds) Debating European Citizenship. IMISCOE Research Series. Springer, Cham. [online]. 2019. Available at: https:// doi.org/10.1007/978-3-319-89905-3_20. p. 106. 40 However, such an approach is according to Kochenov unethical. KOCHENOV, D. On Tiles and Pillars: EU Citizenship as a Federal Denominator. In: EU Citizenship and Federalism. Cambridge University Press, 2017, p. 3–82. Available at: https://doi.org/10.1017/9781139680714.003. p. 15. 41 C-184/99, Grzelczyk, paragraph 82.

115