This article scrutinises the logic behind the recent judgments of the Court of Justice of the European Union (CJEU) in Ruiz Zambrano and McCarthy focusing on their implications for the right to family reunification under EU law. Specific attention is devoted to the phenomenon of reverse discrimination in the context of the new jurisdiction test established by the Court, which is based on the severity of the Member States’ interference with EU citizenship rights rather than on a pure cross-border logic. EU citizens unable to establish a link with EU law are often subject to stricter family reunification requirements in comparison to their migrant compatriots and even certain third country nationals. It is argued that this situation is difficult to accept in light of the principles of legal certainty, equality and the protection of fundamental rights. A new balance between EU citizenship and Member States’ regulatory autonomy is established but legislative action is required to solve the outstanding problems.
Spaventasupra note 42 p. 14; Nic Shuibhne 2002. ‘The European Union and Fundamental Rights: Well in Spirit but Considerably Rumpled in Body?’ in: Paul Beaumont C. Lyons and N. Walker (Eds.) Convergence and Divergence in European Public Law Hart Oxford p. 188; Kochenov supra note 20 p. 34.
Tryfonidou A.2009. ‘In Search of the Aim of the EC Free Movement of Persons Provisions: Has the Court of Justice Missed the Point?’. CMLRev. 46(5) pp. 1591–1620; Kochenov supra note 20 pp. 47–52.
Kochenovsupra note 6.
Hailbronner & Thymsupra note 50 p. 1253; Nic Shuibhne Niamh ‘Seven Questions for Seven Paragraphs’ 2011 ELRev. 36(2) pp. 161–163.
Van Elsuwege P.‘European Union Citizenship and the Purely Internal Rule Revisited’ 2011 EUConst. 7(2) p. 314.
Kochenovsupra note 6.
Thym & Hailbronnersupra note 50 p. 1255; Van Elsuwege (2011); Kochenov ibid.
Spaventasupra note 42 (and the literature cited therein).
Application No. 265/07Darren Omoregie and Othersv. Norway 31 July 2008 para. 57; Application No. 50435/99 Rodrigues da Silva/Hoogkamer v. the Netherlands 31 January 2006 para 39; Application No. 27663/95 Ajayi and Others v. the United Kingdom 22 June 1999; Application No. 44328/98 Solomon v. the Netherlands 5 September 2000.
Application No 23218/94Gülv. Switzerland judgment of 19 February 1996 para. 38; Application No. 50435/99 Rodrigues da Silva/Hoogkamer v. the Netherlands 31 January 2006 para. 39; Application No. 55597/09 Nunez v. Norway 28 June 2011 para. 66.
E.g. Application No 21702/93Ahmutv. the Netherlands judgment of 28 November 1996 para. 71; Application 53102/99 Chandra and Others v. the Netherlands decision of 13 May 2003; Application No. 265/07 Darren Omoregie and Others v. Norway 31 July 2008 para. 66.