Is It Time to Abolish the Substance of EU Citizenship Rights Test?

It is almost ten years since Ruiz Zambrano decided that Article 20 TFEU precludes national measures which deprive EU citizens of the genuine enjoyment of the substance of their citizenship rights. The CJEU has since then clarified when the substance of rights test applies. This article highlights several inconsistencies and unresolved puzzles in the case law. First, contrary to what was initially suggested, EU citizens can be deprived of the substance of their rights. Second, contrary to what initial judgments suggested, the substance of rights test is not independent of but grounded in the right to free movement. This suggests that the same level of protection can be provided to EU citizens without this test, simply by relying on EU free movement law. The paper concludes by suggesting that these deficiencies can only be resolved by reconsidering the substance of rights test altogether.

Introduction

This introductory chapter sets out the themes of the book. Doctrines of judicial deference have begun to appear with growing regularity in the European Court of Justice’s free movement case law, especially in relation to Member State action. Their application has been controversial, which is unsurprising in light of the constitutional issues which deference raises: should judges intervene in the work of the legislators? How far can the EU restrict national autonomy? And what is the division of power between European and Member State courts? The chapter sketches the approach taken in the book and explains the empirical study on which the analysis is based. The idea of the ‘passive virtues’ is introduced and linked to the developments in EU free movement law.

Decentralized Judicial Review

This chapter explores the practice of decentralized judicial review and its implications for the European Court of Justice’s relationship with Member State courts. The division of judicial powers in the EU is assessed with a focus on justification and proportionality review. Drawing on the data from the case law survey, the analysis sheds light on the role allocation between European and national judges in free movement disputes. It investigates to what extent the distinctions between law/fact and interpretation/application capture their respective functions. The findings show that the power of Member State courts has grown significantly over time, with the Court of Justice delegating an ever greater number of decisions to the domestic judiciaries. As a result of this, EU free movement law is being increasingly shaped at the national level.