Seeing the woods despite the trees? On the scope of Union citizenship and its constitutional effects

The body of case law on Union citizenship has grown considerably in the past ten years, giving us a varied and complex picture of citizens’ rights. Overall, Union citizens knocking at the Court’s door have found a friendly welcome and, in most cases, they have also been granted what they asked for. However, the variety of factual situations which gave rise to the cases, together with the Court’s reasoning, often complex and not always clear, causes a certain degree of disorder: if the general picture has started to take shape, its details are still as blurred as those of an impressionist painting. This article attempts to take a step back and offer a more distanced vision of the case law, so as to provide a systematic analysis of Union citizenship. In particular, it focuses on the effect that Union citizenship has had on the personal and material scope of the Treaty; and on its constitutional effects for domestic systems following the ad hoc proportionality assessment demanded by the Baumbast line of case law. We will start by recalling the personal scope of the economic free movement provisions (Section 1), to then turn to assess how the introduction of Union citizenship has affected the pre-existing situation. In this respect, the introduction of Union citizenship has not only challenged the economic paradigm that underpins the scope of the economic free movement provisions; it has also challenged the migrant paradigm, so that any Union citizen falls now within the scope of the Treaty, without having to establish cross-border credentials (Section 2). We will then turn to analyse the material scope of the Union citizenship provisions, i.e. the rights that are granted by the Treaty to Union citizens. Here, the right to move and reside anywhere in the Community conferred upon Union citizens by Article 18(1) EC has considerably expanded the material scope of the Treaty; as a result, no national rule falls a priori outside the scope of the Treaty since movement is enough to bring the situation within its scope. Thus, an increasing number of rules, especially but not only those containing a territorial element, need to be justified when they affect in any way the movement rights of Union citizens (Section 3). We will then turn to analyse the case law on the right to reside in the territory of another Member State, focusing in particular on the right to equal treatment (Section 4), to the proceed to assess whether the right to equal treatment can also be interpreted as a free standing right (Section 5). We will then conclude by analysing the constitutional effects of Union citizenship, and especially its effects on domestic systems of judicial protection (Section 6).