L’articolo si propone di valutare, alla luce dei recenti sviluppi normativi e giurisprudenziali, in quale misura la cittadinanza dell’UE e gli obiettivi di integrazione europea, cui l’introduzione di tale istituto si accompagna, condizionino il libero esercizio da parte degli Stati delle loro prerogative sovrane nel settore del controllo della immigrazione. L’istituzione della cittadinanza dell’UE sembrerebbe porre infatti in discussione il consolidato principio di diritto internazionale, secondo cui gli Stati godono di un potere assoluto di regolamentare l’ingresso e l’espulsione dal proprio territorio di cittadini stranieri. Da essa infatti discendono diritti, come quello di libera circolazione o di residenza nei Paesi membri, che impongono nei confronti degli Stati obblighi ulteriori rispetto a quelli tradizionalmente previsti dalle norme a tutela dei diritti umani e dal diritto umanitario. La questione è stata oggetto di una significativa giurisprudenza della Corte di giustizia, dalla cui analisi il ragionamento che si intende svolgere non può prescindere. Pur avendo in generale ad oggetto la questione della compatibilità con il diritto UE di misure nazionali aventi un impatto sull’esercizio, seppure in prospettiva, dei diritti derivanti dalla cittadinanza dell’Unione, tale giurisprudenza ha soprattutto riguardato ipotesi di integrazione indiretta; si tratta di casi concernenti il diritto di soggiorno negli Stati membri di soggetti che, pur provenendo da Paesi terzi, abbiano tuttavia un legame di natura familiare con un cittadino comunitario, con particolare riguardo alle ipotesi concernenti minori cittadini dipendenti da genitori stranieri. Apparentemente rientranti nella sola competenza delle autorità nazionali, il cui esercizio dovrebbe essere unicamente limitato dall’obbligo del rispetto dei diritti umani, tali situazioni, ad avviso della Corte di giustizia, assumerebbero invece una rilevanza comunitaria. Il ragionamento svolto per giungere a questa conclusione è di particolare interesse ai fini del presente articolo, il cui scopo ultimo è quello di stabilire se, in casi rientranti nella competenza di più corti (sia nazionali che europee), queste abbiano aderito al medesimo approccio nel bilanciamento tra diritti individuali e interessi dello Stato in materia di politiche migratorie e se eventuali divergenze interpretative, per quanto riguarda gli standard seguiti nell’effettuare tale bilanciamento, siano giuridicamente giustificate o giustificabili alla luce del particolare contesto dell’UE e degli obiettivi di integrazione su cui essa si fonda. 

SOMMARIO:

I. The impact of EU citizenship on national migration policies. - II. Recognition of personal status and the link with EU law of national measures that are capable of causing serious inconveniences to citizens’ freedoms and rights. - III. Is there a right for EU citizens to live with family members who are third country nationals? The controversial competence of the ECJ to pronounce on purely internal situations: from the impediment effect to the deprivation effect. - IV. Balancing fundamental rights with public concerns: two courts, two different standards? - V. Concluding remarks: rethinking EU citizens’ rights in light of the principle of effectiveness. - NOTE

I. The impact of EU citizenship on national migration policies.

International rules on migration are traditionally based upon the distinction between nationals and aliens. As regards the former, it is a very well established principle of international law that a State may not prohibit its nationals from entering or remaining in its territory unless particular and exceptional circumstances justify a derogation, i.e. cases of public emergency threatening national security. Conversely, concerning aliens, it is also accepted that every sovereign State in principle has the power – subject to international commitments undertaken in the fields of human rights protection and humanitarian law – to refuse their entry into its territory and to expel them from it. EU citizenship, which was established by the Treaty of Maastricht in 1992, to some extent challenges this traditional view. According to art. 8 of the TEU (now art. 20 of the Treaty on the Functioning of the European Union-FEU), EU citizenship is the status of people having the nationality of EU countries [1], and it implies further rights and guarantees, descending from both the Treaties and the EU Charter, the protection of which States are obliged to ensure. In particular, the freedoms to move and to reside freely within the territory of the Member States are among  the fundamental rights of EU citizens [2]. The exercise of sovereign powers concerning control over the territory and its boundaries is therefore subject to respect not only for the rights enshrined in the European Convention on Human Rights (ECHR), but also for those stemming from EU citizen status, which has acquired growing importance as a means of promoting integration goals. Thus, a distinction is currently made between migration law regarding aliens and free movement legislation dealing with the movement of EU citizens from one Member State to another [3]. While the conditions for the admission and expulsion of aliens are generally regulated by national legislation, subject only, as stated above, to the limitations deriving from human rights and humanitarian law, when it comes to the treatment of EU citizens, States are also bound by stricter obligations. These, in principle, apply when the person is outside his or her Member State [4] and are aimed at ensuring the achievement of EU freedoms and goals. Among these objectives, the integration of European citizens into States different from the one of their nationality is the fundamental premise for [continua ..]

II. Recognition of personal status and the link with EU law of national measures that are capable of causing serious inconveniences to citizens’ freedoms and rights.

The importance of EU citizenship as the fundamental status of nationals of EU Member States was first emphasised in cases regarding the recognition in the host country of family or personal status legally acquired according to the law of the State of nationality. In Garcia Avello the ECJ was asked to pronounce on the question of whether the existence of different criteria for the attribution of surnames, and the circumstance of being prevented from bearing the one to which the person would be entitled according to his or her national law, may amount to a violation of the non-discrimination principle as regards the enjoyment of citizens’ rights [10]. The particular situation brought to the attention of the judges concerned two children with Spanish-Belgian dual nationality whose parents claimed that the surname attributed on the basis of Belgian law should be changed to the one to which they should have been entitled to according to Spanish law. The refusal by state authorities, which gave priority to the Belgian citizenship, amounted, in the opinion of the Court, to an act of discrimination on the grounds of nationality, which was, as such, deemed to be inconsistent with EU legislation and, in particular, with artt. 12 and 18 of the Treaty (now artt. 18 and 20 TFEU). Notwithstanding the fact that the Court did not pronounce on the individual rights of EU nationals, but focused its reasoning on discrimination issues, the judgment rendered in Garcia Avello should nevertheless be considered a particularly important step towards citizen protection. It suggests that, in order for a national measure to fall within the scope of EU law, it is no longer required that the person concerned actually move from one country to another [11], nor that they provide evidence that the measure produced the loss of citizens’ freedoms, it being enough that the measure is liable to cause ‘serious inconveniences’ to a right attached to the status of a EU citizen [12].  The same conclusion was reached some years later in Grunkin Paul, where the Court was called again to pronounce on the problem of surname attribution and recognition and on its impact on citizens’ rights. In this case, in which a question regarding the violation of the non-discrimination principle was not raised, the ECJ only concentrated on the question of whether EU law precludes the competent authorities of a Member State from [continua ..]

III. Is there a right for EU citizens to live with family members who are third country nationals? The controversial competence of the ECJ to pronounce on purely internal situations: from the impediment effect to the deprivation effect.

The issue of whether the status of EU citizenship implies per se the enjoyment of rights descending from EU law, regardless of whether the person concretely moves or is highly likely to move to a country different from the one of nationality was further addressed by the ECJ in cases concerning the issuance of residence permits to third country nationals. In these cases, the third country nationals, although they lacked the prerequisites for obtaining a residence visa, were relatives of EU nationals living on the required State. This situation should, in principle, be regulated by national law in the absence of a link with EU legislation: as stated above, it does not fall within the scope of either Directive 2004/38 or Directive 2003/86.  In Zambrano, the first case to deal with the matter, the ECJ was required to pronounce on whether the denial of a residence visa by national authorities of a Member State to the father of an EU citizen was consistent with art. 20 of the Treaty, given the fact that the latter had never exercised his freedom of movement [16]. The question was, therefore, whether rights stemming from citizenship also extend to internal situations like that one. According to the interpretation given by the Court, art. 20 TFUE does not require the prior physical movement of the person. The rights granted by the norm are, in fact, strictly connected to citizen status, and, as such, they can also be asserted against the individual’s own Member State in cases where a national measure interferes with the freedoms granted by EU law. [17] Following this line of reasoning, the Court concluded that the denial of a residence permit to a third country national, who is also the parent of minor children economically dependent on the father (or the mother), which would have the effect of forcing the minors to leave the EU Member State of which they are citizens and of depriving them of the rights stemming from their status, should be considered to be inconsistent with EU law, and in particular with art. 20 TFUE [18]. The link with EU law is here provided by the impact that the national measure has on the exercise (present and future) by a EU citizen of the rights attached to his or her status. Differently from what was established in its previous case law, in Zambrano the ECJ deems it no longer necessary to assess the likelihood that the person concerned will move between Member States in the light [continua ..]

IV. Balancing fundamental rights with public concerns: two courts, two different standards?

The judgment rendered in Chavez-Vilchez marks a new and very important stage in the developing case law of the Court on EU citizenship. On the one hand, it confirms that a measure which is likely to produce a deprivation effect on citizens’ rights may be, as such, subject to the scrutiny of the ECJ. Even if in principle it refers to a purely internal situation, the impact on the rights and freedoms provided by the Treaty suffices in and of itself to establish a link with EU law. On the other hand, it clarifies that in cases regarding children, even if they have, in the abstract, the opportunity to stay in EU territory with a family member who could potentially provide for them, the expulsion of the mother may cause a deprivation effect where living with her in the Member State of residence is in the best interest of the child in the light of all the relevant elements of the situation at stake. This line of reasoning might be challenged on two grounds. In the first place, it may be contended that the Court made reference to human rights standards merely as a supporting argument in order to demonstrate the existence of a dependence link and the consequent connection of the situation at stake with EU law. Second, it has been contended that, when applying human rights, the Court departs from the principles established by the ECtHR [27]; this situation could have the effect of binding EU Member States to apply a different standard when considering the right of third-country nationals to stay in the territory, depending on whether or not they are the parents of an EU citizen. This consequence may amount to a violation of the non-discrimination principle, which is enshrined both in art. 14 of the ECHR and in art. 21 of the EU Charter. As regards the first challenge, the Court actually makes reference to the EU Charter, and in particular to concepts like the right to family life and the best interest of the child, in support of its conclusion on the deprivation effect of the expulsive measure. In other words, it indirectly draws from human rights law arguments to state that the situation has a link with EU law, while art. 51 of the Charter, providing that this only applies when the implementation of EU law by States or institutions is at issue, seems to imply exactly the opposite; namely that once it has been established that a situation falls within the scope of EU law or competence, the Charter can be used as a parameter for assessing, in [continua ..]

V. Concluding remarks: rethinking EU citizens’ rights in light of the principle of effectiveness.

The important contribution made by the ECJ in clarifying the scope of EU citizenship and in strengthening the rights deriving from this status has been challenged on two main grounds. First, it has been noted that the judges, starting from Zambrano, seem to have «put the cart in front of the horse: instead of arguing that the matter was not purely internal to establish competence, before considering any adverse effects, it considers adverse effects to establish competence» [41]. Second, as regards the application of human rights standards, it has been stated that the Court, contrary to art. 52 of the EU Charter, departs somehow from the case law of the ECtHR by striking a different balance between the public interest of the State to control its borders and the individual right to family unity of a person claiming to live with his or her family relatives on the territory of that country.   As regard the first issue, it is worth noting that the ECJ’s reasoning in the analysed cases may appear to be, and probably is the result of a judicial policy intended to promote «a more coherent system for the protection of fundamental rights which guarantees equal levels of rights and protection in all Member States whenever EU law is being implemented, as regards the specific profile of the integration of citizens of the Union». [42] This approach is also grounded on a legal basis: it bears remembering that all cases submitted to the scrutiny of the ECJ originate from a preliminary ruling, so that the main question raised regards the correct interpretation to be given to art.s 20 and 21 TFEU, in order to enable national authorities to correctly apply these norms. Among the legal tools that the Court relies on for interpreting EU rules, the principle of useful effect implies, as it argued in Baumbast, that, «where children have the right to reside in a host Member State», EU law «must be interpreted as entitling the parent who is the primary carer of those children, irrespective of his nationality, to reside with them in order to facilitate the exercise of that right» [43]. In other words, in order for the freedoms provided by the Treaty to be effective, the EU citizen should be in a condition allowing for the exercise of his or her rights. While, however, in Baumbast and other mentioned cases, [44] the right to stay was linked to the opportunity to [continua ..]

NOTE