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The Court's Ambivalent Stance towards the Outer Limits of the Union Citizenship Provisions: The Zambrano-McCarthy-Dereci Trilogy

Alina Tryfonidou

In the late 1970s, the Court of Justice established that the market freedoms are only applicable in situations which are not purely internal to a Member State, and this has always been treated as synonymous with a requirement of inter-State movement. When the Union citizenship provisions were introduced into the Treaty in the 1990s, the question arose whether the purely internal rule and its reading as a requirement of a cross-border element, would also be used in delimiting the scope of application of the citizenship provisions. In the Uecker and Jacquet judgment in 1997, the Court of Justice made it clear that this was the case and it was, also, noted that the introduction of this new status was not intended to extend the scope of application of EU law to situations that are purely internal to a Member State. More than a decade later, the Court in its ruling in Zambrano in 2011, took the revolutionary step of including within the scope of Article 20 TFEU a situation that did not involve any type of a cross-border element but which, nonetheless, concerned the application of a national measure which had the effect of “depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status”. Although this pronouncement appeared to be capable of a very broad interpretation and a corresponding extension to the scope of application of Article 20 TFEU, the Court in its subsequent judgments in the same year in McCarthy and Dereci, sought to downgrade its importance and to limit its application to rather exceptional circumstances like those pertaining on the facts in Zambrano. This paper will purport to analyse these three judgments and, more generally, the Court’s ambivalent stance towards the outer limits of the Union citizenship provisions.

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