A Real European Citizenship; A New Jurisdiction Test; A Novel Chapter in the Development of the Union in Europe

Abstract

The reach of the law of the European Union (EU) is strictly limited. It only applies to the situations falling within its scope. Until very recently, in the case of EU citizens, in order to fall within this scope, a so-called “cross-border situation” was required – a demonstration that their situation had a Union dimension and was not confined to one of the Member States. This is no longer always the case. Under the new approach, it is the intensity of the Member States’ interference with the rights of EU citizens, and not the borders, which trigger the application of EU law. The consequences of the recent case law of the Court of Justice of the EU, including the Rottmann, Ruiz Zambrano, and McCarthy cases, which brought about this change, are truly groundbreaking. The new legal paradigm amounts to a tectonic shift in the border dividing the material scopes of the EU and the Member States’ legal orders, with clear implications for the status of EU citizenship and the sovereignty of the Member States. This article provides a first analysis of this fundamental development, discussing the reasons for, and the limits of the new approach as well as anticipating its consequences for a number of key elements of EU law, including citizenship, territory and the principle of equality. We are witnessing the creation of a real European citizenship by the Court.

Keywords: CJEU, ECJ, Jurisdiction, EU Citizenship, EU, Law, Rottmann, Zambrano, McCarthy, Nationality, Reverse Discrimination, Wholly Internal Situaiton, Human Rights, Cross-Border, Federalism, European Union