EU citizenship as a means of reinforcing the application of EU fundamental rights: challenges, developments and limits

Abstract

The EU is no longer an organisation that merely pursues economic objectives, but it also evolves towards a more political and constitutionalised Union. The thesis supports that the political integration in the field of EU fundamental rights, is primarily evolving through a ‘triangular’, inter-connected system of protection, including the constructivist transformation of EU citizenship, the institutionalised developments, such as the EU Charter, and the protection of fundamental rights as general principles of EU law. Yet major components of a flawless fundamental rights policy as a whole, are still absent and this is even more perceptible during periods of crises, such as the recent financial crisis, where a lack in citizens’ rights protection is evident, especially in effective judicial protection, due to the difficulty in challenging the consequences of the conditionality imposed. The deficient protection largely derived from the restricted scope of application of fundamental rights under the Charter, its unstable judicial interpretation, and in turn from the unwillingness of the Court to rule on complex financial cases. The financial crisis and its mechanisms, therefore, constitute a useful case-study to assess the modern ‘triangular’ protection of rights and stimulate the interest in assessing new legal paths to reinforce it, by broadening fundamental rights’ scope of application. Although EU citizenship has not played any substantial role in the financial crisis, it is believed that is not constrained to its current, ‘confined’ form, due to its evolving character, designed to encounter constant evolution and progress. The constructivist nature of EU citizenship has culminated with the judicially developed ‘substance of the rights’ doctrine, initiated with Rottmann, according to which an internal fundamental rights violation, can possibly fall within the scope of EU law, if it amounts to detaching Union citizenship rights of their substantive meaning. The doctrine has not only largely overcome the limits faced by the cross-border requirement and created an EU self-standing test towards wholly internal situations, but has importantly prompted the inclusion of new, unwritten rights in the concept of EU citizenship, such as the ability to benefit from equality in purely internal situations. This new jurisdictional test, can be effectively compared to the approach adopted in the financial crisis ruling of Associação Sindical dos Juízes Portugueses, where through the exercise of judicial activism, the ECJ managed to overcome the legal barriers of the Charter and rely on effective judicial protection under Art. 19(1) TEU, in a wholly internal situation. Through this comparison, the thesis aims to bring the doctrine a step further and propose an alternative, more effective use of rights, by establishing a link between EU fundamental and EU citizenship rights. The proposal consists in a three-step jurisdictional test that will allow fundamental rights, beyond the ones enshrined in the citizenship rights list, to be used in specific internal situations, through a combined dynamic reading of Art. 2 TEU, the general principles of EU law and Art. 20 TFEU.