ECJ – Judgment of 15.11.2011 (Grand Chamber), M. Dereci e.a. V. Bundesministerium Für Inneres, C-256/11 – «Citizenship of the Union – Right of citizens of the Union and their family members to move an reside freely – citizen of the Union residing in the S

Abstract

In Dereci the ECJ confirms the doctrine based on the privation of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union. At the same time, it ratifies its exceptional character not being sufficient to justify a simple economic convenience or the preference of the citizen for living with her family in the territory of the Union. At the same time, the ECJ grants a wide discretion to national judges to concrete this controversial application, bearing in mind that still seems to suffer from uncertainty. This is especially the case either about the question on when should be considered that a citizen must leave the Union territory or the relationships between this doctrine and the fundamental right to family life. Contrary to the enigmatic silence about his fundamental right in Ruiz Zambrano and McCarthy, this relationship is one of the main contributions of this judgement. To solve this question the ECJ designs an apparently harmonious demarcation of protection areas. Nevertheless, this evolution is not sufficient to eliminate the phenomenon of reverse discrimination, remaining therefore a certain feeling of discrimination for static European citizens. Probably, this only will be possible be means of a more determined political will by Members States.