The impact of EU citizenship on the traditional balance between national migration policies and the protection of fundamental rights

The aim of this article is to examine how the concepts of EU citizenship and of European integration have developed over the years in terms of their capacity to challenge state sovereignty and authority in the field of immigration. While as a matter of wellestablished international law, every sovereign State has the power to refuse the entry of aliens into its territory and to expel them from it – subject to international commitments undertaken in the fields of human rights protection and humanitarian law – EU citizenship to some extent challenges this traditional view, since it implies the enjoyment of fundamental freedoms for EU citizens, like those to move between and to reside within the territory of Member Countries, that go beyond the classical limits imposed on state sovereignty by human rights law. Starting from this premise, this article addresses the question of whether and to what extent States are obliged to respect particular rights attached to EU citizenship, even in situations that apparently lack any link with EU law. To that end, it reviews the case law of the ECJ, which has made a significant contribution to promoting EU standards and European integration in its decisions on the consistency with EU law of national measures the ultimate, indirect effect of which is that of limiting citizens’ rights. It should be noted in this regard that a significant part of this practice, on which this paper will focus, concerns questions related to indirect integration, or rather the EU-level relevance of decisions regarding the expulsion or admission into the State of third country nationals who are relatives of an EU citizen, with particular reference to situations where the interests of minors are at stake. These cases fall in principle outside the scope of EU law, and they should be therefore regulated by national legislation, being only subject to the limits deriving from human rights law; the analysis of the practice of the ECJ will be therefore conducted through a comparison with that of the ECtHR, in order to see: first, whether the two Courts have adopted different standards as regards the balance between national interests and the protection of fundamental rights – with particular reference to the respect for family life and the best interest of the child – in matters of immigration; second, whether the more “generous” approach followed by the ECJ can be legally justified under the Treaty and the EU Charter; and, finally, what are the future implications of this case law for the exercise of state sovereignty.