Martijn van den Brink (Hertie School of Governance) has posted Time to Abolish the Substance of EU Citizenship Rights Test? (European Journal of Migration and Law (2021) 23, pp. 13-28) on SSRN. Here is the abstract:
It is almost ten years since the CJEU decided in Ruiz Zambrano that Article 20 TFEU ‘precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’. Much was uncertain after this judgment was delivered, but the CJEU has developed an important line of cases clarifying when the substance of rights test applies. Can we make sense of the substance of rights test ten years on? Having explained relevant legal developments, the article addresses certain inconsistencies and unresolved puzzles in the CJEU’s reasoning. First, contrary to what the Court initially appeared to suggest, EU citizens can be deprived of the genuine enjoyment of the substance of their rights. Second, contrary to what the Court used to suggest, the substance of rights test is not independent from but grounded in the right to move and reside freely within the Member States. Therefore, the same level of protection can be conferred on EU citizens without this test, simply by relying on EU free movement law. The paper concludes by suggesting that these deficiencies can only be resolved by reconsidering the substance of rights test altogether.
