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It is well-recognised that EU fundamental rights apply within the scope of EU law, as established for general principles in ERT and for the Charter in Åkerberg Fransson. But can fundamental rights influence the scope of EU law? On the one hand, the whole idea seems odd. If fundamental rights only apply within the scope of EU law, using them to determine that scope involves circular logic. On the other hand, it seems normal to interpret the Treaty in the light of fundamental rights. If this is applied to the four freedoms and to EU citizenship, the inevitable consequence is that fundamental rights help to settle its reach.
The Court’s case law has waxed and waned, and its reasoning has often remained studiedly ambiguous. In the earlier case law, the prime example is the ruling in Carpenter, one of the most criticised free movement rulings ever, where the Court held that the UK immigration rules had a detrimental effect on the family life of the Carpenters and therefore on the conditions under which the free movement of services was exercised. In the words of Vassilios Skouris, a former President of the Court, the difficult task of the Court to reconcile the four freedoms and fundamental rights “becomes even more delicate when fundamental rights are used to interpret and expand the scope of a fundamental freedom”.
At Lisbon, the Member States were alert to the possibility of the Charter being used to expand the reach of EU law, and wrote down safeguards against it. Particularly important is art.51(2) CFR, according to which the “Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.” The Court took this limitation seriously in the Grand Chamber ruling in Dereci. It firmly refused to extend the reach of art.20 TFEU on EU citizenship on grounds of the right to family life. Instead a two-step approach was adopted: the applicability of the citizenship rules was to be determined first, and only if they were applicable would the EU law right to family life be of any relevance. To have done otherwise, explained President Lenaerts extra-judicially, would have violated art.51(2) CFR.
In the last couple of years the firmness of Dereci has been replaced by a more ambiguous state of affairs both for the internal market and for citizenship. In AGET Iraklis on the reach of art.49 TFEU, Advocate General Wahl straightforwardly argued that the right of establishment needed to be interpreted expansively due to the freedom to conduct a business enshrined in art.16 CFR. The Grand Chamber followed him in substance, devoting a paragraph to “certain freedoms which economic operators generally enjoy”, although it did not mention the Charter by name.
In the field of citizenship, in the case of NA, AG Wathelet firmly rejected the idea of interpreting art.20TFEU in the light of the Charter. The Grand Chamber decided not to follow that advice in Chavez. Instead, it held that when assessing whether art.20 TFEU had been breached in the first place, the authorities must take account of the right to respect for family life, as stated in art.7 CFR, read in conjunction with art.24(2) CFR on the best interests of the child. This is now becoming settled case law. In KA the Grand Chamber cited Chavez with approval and again tasked the authorities to assess the existence of a violation of art.20 TFEU in the light of the Charter.
At first glance, the approach of the Court makes sense. It is normal to use fundamental rights to interpret the Treaty—it is one of their key roles and well recognised in long-standing case law. It may also be attractive on the facts. In an art.20 TFEU case where a third-country national mother of an EU national child is facing deportation on grounds that a separated EU national father could in principle assume custody, any judge with a heart is likely to wish to interject a consideration of the best interest of the child into the assessment. The argument of the national government that the father is assumed not to be able to care for the child if he is dead, in jail or confined to an institution may not fully reassure.
Yet there are reasons for caution. From the perspective of the black letter law, the Court is doing what art.6(1) TEU and art.51(2) CFR were meant to prevent. As a matter of logic, it is relying on a circular argument where rights applying within the scope of the Treaty serve to determine that scope. This also has the capacity to drive a coach and horses through the Court’s interpretation of art.51(1) CFR. Any insistence that the limits to the Charter’s application are respected by confining it to the scope of EU law are unconvincing if that scope itself is influenced by the Charter. From the perspective of free movement law, the development casts doubts on the few remaining limits to the scope of the four freedoms. If free movement of goods is interpreted in the light of the freedom to conduct a business, how can it not apply to national rules that operate even-handedly and relate to selling arrangements or exports? For citizenship, the right to family life has the potential to push the application of Ruiz Zambrano from an exception to a rule with significant consequences for national immigration regimes.
It is also doubtful whether the extension is truly needed. AGET Iraklis could have been decided on more traditional grounds. It is well-recognised in competition law that barriers to exit, which were in issue, also act as barriers to entry. A company contemplating entry to a market will always consider whether an exit is possible if the entry proves unsuccessful. It is easy to view an exit restriction as an obstacle to market access; there was no need to bring the freedom to conduct a business into the equation. In the citizenship cases it must be remembered that the Court is not supposed to act as a general human rights court. If national immigration rules result in human rights violations, that is in the main a matter for national courts and the ECtHR, as the Court itself remarked in Dereci. Fundamental rights are of critical importance for the EU legal order, but so are the jurisdictional limits that the EU’s system of divided government depends upon. Undermining these limits is risky, even when it is done in the name of fundamental rights.
