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False Friends and True Cognates: On Fundamental Freedoms, Fundamental Rights and Union Citizenship

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The Reach of Free Movement

Abstract

Both the case law on fundamental freedoms, and the selective manner in which these freedoms are incorporated in the Charter of Fundamental Rights of the EU are consistent with an account of fundamental rights that places a non-instrumental focus on the protection of the interests of the right-holder (the Union citizen). According to the account advanced here, those free movement rights that are non-instrumental in nature are treated as fundamental rights, whereas those free movement rights that remain predominantly instrumental are not. Yet, developments in the case law on Union citizenship that have occurred during the current decade present a challenge to this account. On the one hand, they appear to draw on the conceptual toolkit of fundamental rights; on the other, they contradict key features of a fundamental rights conception of Union citizenship.

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Notes

  1. 1.

    De Cecco 2014.

  2. 2.

    In fact, in the language of human rights, “fundamental freedoms” and “fundamental rights” are used interchangeably.

  3. 3.

    Apart from a negligible reference in the Preamble which simply states that securing the four freedoms is an objective of the Union.

  4. 4.

    Case C-50/96, Schröder, ECLI:EU:C:2000:72, paras 55–59.

  5. 5.

    Note that the Court in Lilli Schröder refers to fundamental human rights. Its approach, however, also applies to those rights that are not human rights, but simply fundamental rights. The key difference between human rights and fundamental rights is that while the former are universal, the latter are grounded in a specific political and legal context. This explains the variation in the substantive interests that are regarded as fundamental among different political and legal systems. As far as the EU context is concerned, there are rights that are peculiar to the EU and are not (in any meaningful way) expression of human rights. Of course, this is true only of a minority of EU fundamental rights, the majority being derived either from the ECHR or from domestic constitutions.

  6. 6.

    Raz 1986, p. 192. Note that the account of fundamental rights proposed here does not seek to do justice to Raz’s theory of rights, but to offer a basic rationale for the partial equivalence between free movement rights and fundamental rights that can be found in the case law.

  7. 7.

    Ibid., p. 200.

  8. 8.

    Regulation (EEC) No. 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, O.J. 1968, L 257/2 now replaced by Regulation (EU) No. 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union, O.J. 2011, L 141/1.

  9. 9.

    The preamble was repeatedly relied on by the Commission in its submissions before the Court, and was eventually adopted by the Court itself. In Levin, both the Commission and the Advocate General emphasised the characterization by Regulation 1612/68 of free movement of workers as a fundamental right, and later, in Forcheri, the Court itself adopted that terminology. Opinion of Advocate General Slynn in Case 53/81, Levin, ECLI:EU:C:1982:10, para 1057; Case 152/82, Forcheri, ECLI:EU:C:1983:205, para 11. In Heylens, the Court held that access to employment was a fundamental right conferred by the Treaty: “Since free access to employment is a fundamental right which the Treaty confers individually on each worker in the Community, the existence of a remedy of a judicial nature against any decision of a national authority refusing the benefit of that right is essential in order to secure for the individual effective protection for his right”. Case 222/86, UNCTEF v. Heylens, ECLI:EU:C:1987:442, para 14.

  10. 10.

    Opinion of Advocate General Jacobs in Case C-344/87, Bettray, ECLI:EU:C:1989:113, para 29.

  11. 11.

    This approach starkly contrasts with the original blueprint offered by the Spaak Report. In line with the neo-functionalist logic that prevailed in the early stages of economic integration, the Report treated labour in instrumental terms, as a “factor of production” that would move across borders to meet demand. Rapport des Chefs de Délégations aux Ministres des Affaires Etrangères (Brussels 1956). On the limitations of this blueprint see O’Leary 2011. In light of this evolution, it is plain that the right to free movement of workers protects even those workers that move from countries with low unemployment to countries with high unemployment levels, in the same way that sex discrimination breaches Article 157 TFEU even where no distortion of competition can be discerned. Of course, this is not to say that Member States will seek to curtail free movement of workers in view of difficulties faced by their economies or by perceived difficulties faced by their welfare systems. None of the fundamental rights discussed in this chapter are absolute—all may be limited in their exercise.

  12. 12.

    Case C-378/97, Wijsenbeek, ECLI:EU:C:1999:439.

  13. 13.

    Opinion of Advocate General Cosmas, Case C-378/97, Wijsenbeek, ECLI:EU:C:1999:144, para 83 (with added emphasis).

  14. 14.

    Para 84 (with added emphasis).

  15. 15.

    Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-386/02, Baldinger, ECLI:EU:C:2003:671, para 25 (with added emphasis).

  16. 16.

    Case 186/87, Cowan v Trésor Public, ECLI:EU:C:1989:47.

  17. 17.

    Case C-416/96, Eddline El-Yassini, ECLI:EU:C:1999:107, para 45.

  18. 18.

    See Case C-200/02, Zhu and Chen, ECLI:EU:C:2004:639; Recital 11 of the Preamble to Directive 2004/38 O.J. 2004, L 158/77.

  19. 19.

    On which see O’ Leary 2011.

  20. 20.

    This does not mean that citizenship is the foundation of all fundamental rights. Citizenship is a status, and not a right. As a status, citizenship gives rise to certain rights (e.g. the right to move and to reside throughout the territory of the EU) and, to a certain extent, colours the interpretation of pre-existing free movement rights.

  21. 21.

    ‘Les conceptions économiques qu’expriment nombre de règles du traité correspondent à une conception instrumentaliste du libéralisme économique et non à l’idée qu’il est l’Ordnungsprinzip des économies intégrées’. Mertens de Wilmars 1976.

  22. 22.

    Opinion of Advocate General Tesauro in Case C-292/92, Hünermund and Others, ECLI:EU:C:1993:863. See also Opinion of Advocate General Tizzano in Case C-442/02, CaixaBank France, ECLI:EU:C:2004:187, paras 68–78.

  23. 23.

    Joined Cases C-267/91 and C-268/91, Keck and Mithouard, ECLI:EU:C:1993:905, para 16.

  24. 24.

    Case C-112/00, Schmidberger, ECLI:EU:C:2003:333 (with added emphasis).

  25. 25.

    Snell 2004.

  26. 26.

    Opinion of Advocate General Trstenjak in Case C-271/08, Commission v Germany, ECLI:EU:C:2010:183, paras 183–199. Opinion of Advocate General Mengozzi in Case C-341/05, Laval un Partneri, 2007 E.C.R. I-11767, para 84.

  27. 27.

    The view is shared by Tryfonidou 2016, who draws far-reaching substantive implications from a systematic categorisation of free movement rights as fundamental rights.

  28. 28.

    That is, unless the case can be made that the measure impedes foreign products’ access to the market more than it impedes the access of domestic products.

  29. 29.

    Case C-391/92, Commission v Greece, ECLI:EU:C:1995:199.

  30. 30.

    Id., para 31 (with added emphasis).

  31. 31.

    Id., para 59.

  32. 32.

    The restrictions on use case law includes “any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept” see Case C-110/05, Commission v Italy (Italian Trailers), ECLI:EU:C:2009:66, para 37; Case C-142/05, Mickelsson and Roos, ECLI:EU:C:2009:336, para 24.

  33. 33.

    Granted, the distinction between the impact on individual traders and the impact on trade flows is often an artificial one, as measures that affect trade will necessarily affect individuals.

  34. 34.

    See Spaventa 2009, p. 343.

  35. 35.

    One may object that the adoption by the Court of a restrictions test across most of free movement law has already relegated the interest in market integration to a secondary consideration. There are two responses to this objection. First, free movement of goods does not follow the restrictions approach adopted in the other areas of free movement law. Second, as will be argued in the following pages, while free movement of capital does follow a broadly-formulated restrictions test, at a normative level, it should be open to the Court, to the extent that it may be necessary to do so in light of the evolution of the internal market, to adopt a different interpretation of this fundamental freedom and distinguish more markedly the scope of free movement of capital from that of the free movement of people provisions. Arguably, a fundamental rights approach may inhibit this possibility.

  36. 36.

    Horsley 2012.

  37. 37.

    The so-called ‘impossible trinity’ theorem (severally) attributed to Fleming 1962 and Mundell 1963.

  38. 38.

    Case 203/80, Casati, ECLI:EU:C:1981:261.

  39. 39.

    Alongside direct and indirect discrimination, the Court now applies a broad “restrictions” test. E.g. Case C‐302/97, Konle, ECLI:EU:C:1999:271; Case C-112/05, Commission v Germany, ECLI:EU:C:2007:623; Case C‐194/06, Orange European Smallcap Fund, ECLI:EU:C:2008:289. See Snell 2011.

  40. 40.

    Case C-101/05, A, ECLI:EU:C:2007:804, para 31. However, the Court has also pointed out that, even allowing for this difference in purpose, the Member States have chosen to enshrine free movement of capital in the Treaty ‘in the same terms for movements of capital taking place within the Community and those relating to relations with third countries’ (ibid.). But see O’Brien 2008.

  41. 41.

    See Nic Shuibhne 2002; Spaventa 2008; Kochenov 2011. See also the Opinion of Advocate General Sharpston in Case C-212/06, Walloon (Flemish Care Insurance Scheme), ECLI:EU:C:2008:178; and Opinion of Advocate General Sharpston in Case C-34/09, Ruiz Zambrano, ECLI:EU:C:2010:560.

  42. 42.

    Case C-34/09, Ruiz Zambrano, ECLI:EU:C:2011:124.

  43. 43.

    Ibid., para 42.

  44. 44.

    Case C-434/09, McCarthy, ECLI:EU:C:2011:277; Case C-256/11, Dereci and Others, ECLI:EU:C:2011:734; Case C-40/11, Iida, ECLI:EU:C:2012:691; Case C-87/12, Ymeraga and Ymeraga-Tafarshiku, ECLI:EU:C:2013:291; Case C-86/12, Alokpa and Moudoulou, ECLI:EU:C:2013:645.

  45. 45.

    Shaw 2010.

  46. 46.

    Case C-72/03, Carbonati Apuani, ECLI:EU:C:2004:506. The Court’s approach was partly based on the one adopted in Joined Cases C‐363/93, C-407/93 to C-411/93, Lancry, ECLI:EU:C:1994:315.

  47. 47.

    That is, because internal borders undermine in practice the integrity of the customs union.

  48. 48.

    Opinion of Advocate General Geelhoed in Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C-540/99, Reisch and Others, ECLI:EU:C:2001:618, para 104.

  49. 49.

    Opinion of Advocate General Szpunar in Case C-165/14, Rendón Marín, ECLI:EU:C:2016:75. The Court has decided that the two cases should be heard jointly before the Grand Chamber.

  50. 50.

    For an earlier recognition of this equivalence see Schütze 2012 at 419.

  51. 51.

    Case C-292/97, Karlsson, ECLI:EU:C:2000:202, para 45 (with added emphasis).

  52. 52.

    E.g. Case C-426/11, Alemo-Herron, ECLI:EU:C:2013:521; Case C-362/14, Schrems, ECLI:EU:C:2015:650.

  53. 53.

    Joined Cases C-293/12 and C-594/12, Digital Rights Ireland, ECLI:EU:C:2014:238.

  54. 54.

    Case C-283/11, Sky Österreich, ECLI:EU:C:2013:28; Case C-547/14, Philip Morris Brands and Others, ECLI:EU:C:2016:325.

  55. 55.

    See Lenaerts 2011 at 15 and Opinion of Advocate General Szpunar in Case Rendón Marín (n. 49 above), para 132.

  56. 56.

    See footnote 52 above.

  57. 57.

    This would be a review that allows interference with the right to the extent that interference does not negate the very essence of that right. In ECHR parlance, it is an expression of the margin of appreciation that Member States are afforded. For an example in the ECtHR case law of a review that confined itself to finding that the interference with the right did not negate the essence of the right see Rees v United Kingdom (1987) 9 EHRR 56, at [50].

  58. 58.

    But see Lenaerts 2012 at p. 387 who interprets this ruling differently. Since the contested decision ‘did not fall within the scope of the Treaty provisions on EU citizenship’ and Austria was not ‘implementing EU law’, the ECJ lacked jurisdiction to examine whether such refusal was compatible with the Charter. However, as the same author has later acknowledged, whether or not the Union citizen would have to leave the territory of the Union ‘is clearly a factual question for the national court to determine’, which suggests the possibility that the situation may indeed fall within the scope of EU law. See Lenaerts 2013, p. 575 footnote 32.

  59. 59.

    Opinion of Advocate General Wathelet in Case C-115/15, NA, ECLI:EU:C:2016:259, para 122.

  60. 60.

    Ymeraga and Ymeraga-Tafarshiku (supra n. 44), para 42.

  61. 61.

    There are some key factual differences between the situation at issue in Ymeraga and some of the situations at issue in Dereci, the most important being the fact that in Ymeraga the Union citizen was not a minor and did not depend on his parents (nor did his parents depend on him).

  62. 62.

    Indeed, this reading of the Advocate General’s Opinion seems to reflect the Court’s statement in Rottmann to the effect that a decision entailing the loss of citizenship should be assessed against the principle of proportionality. Case C-135/08, Rottmann, ECLI:EU:C:2010:104. It is worth noting that the Advocate General’s opinion in CS does not articulate in full detail the upshot of the essence test in the case at hand. Were the essence test to represent an absolute limit, and if the deportation decision amounted to an impossibility for the child to exercise her citizenship rights for an indefinite period, it would be difficult to see how such decision could ever be found not to be disproportionate and to negate the essence of citizenship.

  63. 63.

    Case C-333/13, Dano, ECLI:EU:C:2014:2358.

  64. 64.

    See Thym 2015 and Nic Shuibhne 2015.

  65. 65.

    Case C-378/12, Onuekwere, ECLI:EU:C:2014:13; and Case C-400/12, M.G., ECLI:EU:C:2014:9. See Loïc Azoulai 2014.

  66. 66.

    Opinion of Advocate General Wathelet in Case C-333/13, Dano, ECLI:EU:C:2014:341, para 131.

  67. 67.

    See Thym 2015 and Nic Shuibhne 2015 who point out that, in Dano¸ the Court has set aside the distinction between the existence of a right and its exercise.

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Acknowledgements

I am grateful to Eleanor Spaventa for her comments. The usual disclaimer applies.

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  1. Newcastle Law School, Newcastle University, 21-24 Windsor Terrace, Newcastle upon Tyne, UK

    Francesco De Cecco

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  1. Faculty of Law, University of Oslo, Oslo, Norway

    Mads Andenas

  2. Faculty of Law, University of Oslo, Oslo, Norway

    Tarjei Bekkedal

  3. Faculty of Public Management, Law and Safety, The Hague University of Applied Sciences, The Hague, The Netherlands

    Luca Pantaleo

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De Cecco, F. (2017). False Friends and True Cognates: On Fundamental Freedoms, Fundamental Rights and Union Citizenship. In: Andenas, M., Bekkedal, T., Pantaleo, L. (eds) The Reach of Free Movement. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-195-1_11

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