Type: Opinions of Advocate General

Authority: European Authorities: Euopean Union' Court of Justice

Date: 09/30/2010

Subject: The Advocate General proposed that the Court should answer the questions affirming that Articles 20 and 21 TFEU (formerly Articles 17 and 18 EC) are to be interpreted as conferring a right of residence in the territory of the Member States, based on citizenship of the Union, that is independent of the right to move between Member States. He does not think that exercise of the rights derived from citizenship of the Union is always inextricably and necessarily bound up with physical movement. Those provisions do not preclude a Member State from refusing to grant a derived right of residence to an ascendant relative of a citizen of the Union who is a national of the Member State concerned and who has not yet exercised rights of free movement, provided that that decision complies with the principle of proportionality. Article 18 TFEU (formerly Article 12 EC) should be interpreted as prohibiting reverse discrimination caused by the interaction of Article 21 TFEU with national law that entails a violation of a fundamental right protected under EU law, where at least equivalent protection is not available under national law. Considering that according to the Court’s settled case-law, EU fundamental rights may be invoked when (but only when) the contested measure comes within the scope of application of EU law, the Advocate general affirmed that at the material time in the main proceedings, the fundamental right to family life under EU law could not be invoked as a free-standing right, independently of any other link with EU law, either by a non-Member State national or by a citizen of the Union, whether in the territory of the Member State of which that citizen was a national or elsewhere in the territory of the Member States because the necessary constitutional evolution in the foundations of the EU, such as would justify saying that fundamental rights under EU law were capable of being relied upon independently as free-standing rights, had not yet taken place.

Classification: Freedoms - Art. 7 Privacy - Equality - Art. 21 Non discrimination - Art. 24 Children’s rights - Citizens’ rights - Art. 45 Freedom of movement - Freedom of residence

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Notices: The Advocate General underlines that the EU has reinforced its policy on fundamental rights through setting up a Fundamental Rights Agency, creating an independent portfolio within the Commission responsible for fundamental rights, supporting humanitarian projects throughout the world and transforming the Charter of Fundamental Rights of the EU from a non-binding text (‘soft law’) into primary law. Fundamental rights have thus become a core element in the development of the Union as a process of economic, legal and social integration aimed at providing peace and prosperity to all its citizens. Even if the Court of Justice is not, as such, a ‘human rights court’, as the supreme interpreter of EU law, it nevertheless has a permanent responsibility to ensure respect for such rights within the sphere of the Union’s competence. The Advocate general affirms that the desire to promote appropriate protection of fundamental rights must not lead to usurpation of competence. Even if he considers that the clearest rule would be one that made the availability of EU fundamental rights protection dependent neither on whether a Treaty provision was directly applicable nor on whether secondary legislation had been enacted, but rather on the existence and scope of a material EU competence, he concludes that this solution would involve introducing an overtly federal element into the structure of the EU’s legal and political system that requires both an evolution in the case-law and an unequivocal political statement from the constituent powers of the EU (its Member States), pointing at a new role for fundamental rights in the EU. According to the Advocate general the Court should not overtly anticipate change, but sooner rather than later the Court will have to choose between keeping pace with an evolving situation or lagging behind legislative and political developments that have already taken place. At some point, the Court is likely to have to deal with a case that requires it to confront the question of whether the Union is not now on the cusp of constitutional change. Answering that question can be put off for the moment, but probably not for all that much longer.