Rescue Package for Fundamental Rights: Comments by DIMITRY KOCHENOV

Armin von Bogdandy and his team came up with a most fascinating proposal which advances our understanding of the profound connection between EU citizenship and rights. While the general line of argument in the proposal is promising, it is submitted that the proposal is probably not as innovative and not as practical as its authors suggest. Nevertheless, it is an important starting point for further scrutiny of the evolution of the interrelation between EU citizenship, fundamental rights, and the division of competences between the EU and the Member States.

In my response I adopt an approach to EU federalism (to use the term in the vein of Robert Schütze (From Dual to Cooperative Federalism, OUP, 2010)) centering on the individual in tune with numerous Dora Kostakopoulou’s writings, putting our simple human needs, joys, and fears above the self-contained aspirations of Begriffsjurisprudenz. I thus fully share von Bogdandy’s view that ‘Citizenship and fundamental rights are […] two mutually strengthening concepts which essentially pursue the very same objective, i.e. to bring the Union closer to the individual’. Such an approach provides a solid starting point for the analysis of the potential of EU citizenship’s interaction with fundamental rights.

A preliminary observation

My preliminary observation is that the proposal is probably not as revolutionary, as the authors claim it to be. In a consistent line of case-law the Court of Justice has by now formulated a second jurisdiction test, which is an alternative to the classic cross-border situation approach. This new test, first hinted at in Rottmann, developed in Ruiz Zambrano and reconfirmed in McCarthy and Dereçi is essentially constructed around the logic identical to that of the von Bogdandy proposal. The infringement of some essential rights of EU citizens can activate EU law ...

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