The constitutional dimension to the case law on Union citizenship

Abstract:

This article considers the constitutional basis of the ECJ's recent case law on Union citizenship; in particular, the rule established in Baumbast that national authorities must apply any limitations or conditions imposed by the Community legislature on the right to free movement under Art.18 EC in accordance with the principle of proportionality. It is argued that Baumbast represents a new development in the Community's system of judicial review: the assertion that Union citizenship is destined to be the fundamental status of Community nationals has imbued the individual right created by Art.18 EC with sufficient potency to justify a more intrusive scrutiny over the Community legislature than has traditionally applied in the context of the economic free movement provisions; albeit that this heightened review can only realistically be achieved indirectly, through the medium of the national authorities as they enforce Community legislation on the ground. A more difficult question is how far this Baumbast rule might extend beyond the residency and equal treatment rights of economically inactive Union citizens. The adoption of Directive 2004/38 creates a powerful argument in favour of a unified approach to the judicial protection of all migrant Union citizens. More ambitiously, one might envisage the future extension of the Baumbast rule to all Community legislation which restricts any fundamental freedom recognised pursuant to the Treaty, so as the Court not only guards (in a negative sense) against the "manifest inappropriateness" of Community regulatory acts, but also seeks (more positively) to ensure the fair treatment of individuals even in situations not expressly contemplated or accommodated by the Union's political institutions.