Readers might like to watch the progress of the Zambrano case (Case C-34/09) which concerns the scope of the rights attached to Union citizenship. The Opinion of the Advocate General is now available. The central question is whether the child of non-Union citizens but who has Union citizenship has the right of residence under Union law when the child has not exercised any right of free movement. In this, the case moves a step on from the Chen case (Case C‑200/02) where, due to a rare set of circumstances, the child had Irish citizenship but was born and had not moved from the UK. Here, the nationality matches the country of residence. The question referred is significant. In thr words of the Advocate General,
‘At a more conceptual level, is the exercise of rights as a Union citizen dependent – like the exercise of the classic economic ‘freedoms’ – on some trans-frontier free movement (however accidental, peripheral or remote) having taken place before the claim is advanced? Or does Union citizenship look forward to the future, rather than back to the past, to define the rights and obligations that it confers? To put the same question from a slightly different angle: is Union citizenship merely the non-economic version of the same generic kind of free movement rights as have long existed for the economically active and for persons of independent means? Or does it mean something more radical: true citizenship, carrying with it a uniform set of rights and obligations, in a Union under the rule of law in which respect for fundamental rights must necessarily play an integral part? ‘
The conclusion of the Advocate-General was that the citizenship rights confer a right to reside which is independent of the right to move, thus enlarging the potential scope of that right by uncoupling it from the requirement (found in relation to the economic rights) that the person claiming the right had at some point moved from one Member State to another. Nonetheless the citizenship provisions do not preclude a Member State from refusing to grant a derived right of residence to an ascendant relative (e.g. a parent) 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.
As part of her discussion, the Advocate-General also considered the scope of fundamental rights protection, which according to case law must relates to areas within the scope of EU law. This then leads to further significant questions about the scope of EU competence. As the Advocate General stated:
The desire to promote appropriate protection of fundamental rights must not lead to usurpation of competence. As long as the European Union’s powers remain based on the principle of conferral, EU fundamental rights must respect the limits of that conferral.
The Advocate General warned of the federalising effect of making the application of EU fundamental rights dependent solely on the existence of exclusive or shared EU competence, despite the attractiveness of the proposition otherwise. Her conclusion was that, given the state of the Union at the time of the material facts, there was no freeestanding right to family life.
It remains to be seen what the ECJ makes of this; opinions although non-binding on the court, are followed in the majority of cases.