Princípios da legalidade e do devido processo legal

Although the Court of Justice addressed already in the case Grzelczyk the question regarding the right of Union citizens to freely reside within the territory of the Member States, the Court commented for the first on whether a Union citizenship right deploys direct effects, namely that to freely reside and move within the territory of the Member States, in the Baumbast and R. case³⁸⁴.

The Court held that the right to reside within the territory of the Member States under ex-Article 18 para. 1 TEC (Article 21 TFEU) is conferred directly on every citizen of the Union by a clear and precise provision of the Treaty on European Community³⁸⁵. Moreover, the Court pointed out that the right of citizens of the Union to reside within the territory of

384 Judgement of the Court of Justice of 17.09.2002 in the case C-413/99, Baumbast, R v.

Secretary of State for the Home Department, op. cit. Footnote 241.

385 Ibidem, para. 84.

another Member State is conferred subject to the limitations and conditions laid down by the EC Treaty and by the measures adopted to give it effect. Nonetheless, the Court reminded that the application of the limitations and conditions acknowledged in ex-Article 18 para. 1 EC in respect of the exercise of that right of residence is subject to judicial review³⁸⁶.

The Court went to conclude in the case Van Duyn that consequently, any limitations and conditions imposed on that right do not prevent the provisions of ex-Article 18 para. 1 TEC from conferring on individuals rights which are enforceable by them and which the national courts must protect ³⁸⁷ . Those limitations and conditions must be applied in compliance with the limits imposed by Community law and in accordance with its general principles, in particular the principle of proportionality³⁸⁸, which means that national measures adopted on that subject must be necessary and appropriate to attain the objective pursued.

The Court confirmed this interpretation of ex-Article 18 para. 1 TEC in the Judgment in the case Trojani³⁸⁹ pointing out that the fact that the right to freely reside and move within the territory of the Member States is not unconditional, does not impede its direct applicability³⁹⁰.

Although this jurisprudence of the Court of Justice refers expressly only to one of the citizens’ rights, namely the right to freely move and reside within the territory of the EU Member States conferred by ex-Article 18

386 Ibidem, para. 86.

387 See, to that effect, also Judgement of the Court of Justice of 04.12.1974 in the Case 41/47, Yvonne Van Duyn v. Home Office, ECR 1974, p. 01337, para. 7.

388 Judgement of the Court of Justice in the case Baumbast, op. cit. Footnote 241, para. 91.

389 Judgement of the Court of Justice of 07.09.2004 in the case C-456/02, Michel Trojani v.

Centre public d’aide sociale de Bruxelles (CPAS), ECR 2004, p. I-07573, para. 30.

390 Ibidem, paras. 31, 32.

para. 1 TEC (Article 21 para. 1 TFEU), this interpretation can be extended to all Union citizenship rights enshrined in Part Two of the Treaty on the Functioning of the European Union.

This conclusion is justified in the first place by the systematic context of the citizens’ rights made visible by the new Article 20 para. 2 TFEU³⁹¹. Whereas the Treaty establishing the European Community consecutively listed the different citizens’ rights, without establishing a normative connection among them, Article 20 TFEU summarizes all citizens’ rights in a general normative part to the citizens’ rights. By this means the structural and functional homogeneity of those rights as deriving from the same legal status, Union citizenship, is accounted for. Article 20 para. 2, second clause TFEU subjects all citizens’ rights to the same objective conditions- in particular, nationality of an EU Member State- as well as generally to the conditions and limits defined by the Treaties and by the measures adopted thereunder³⁹².

Accordingly, taking into account the interpretation of the Court of Justice of the right to freely reside and move within the territory of the Member States, there could be no other interpretation as regards the other citizens’

391 Article 20 para. 2 TFEU reads:

“Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(a) the right to move and reside freely within the territory of the Member States;

(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;

(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;

(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.”

392 Article 20 para. 2, second clause TFEU: “These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.”

rights embraced by Article 20 TFEU, so that all citizens’ rights should be deemed to be directly applicable and deploy direct effect in the Member States.

In this context, it should be noted that the Court expressly ascribed the disengagement of the right of residence from the condition to carry out an economic activity to the introduction of the Union citizenship into the EC Treaty³⁹³. By this means the argument that this Union citizenship right is a special one due to its link to the fundamental freedoms- free movement of workers and freedom of establishment- was deprived of its base, contributing thereby to the consolidation of Union citizenship rights as rights deriving merely from the Union citizenship status and submitting the functional analysis of those rights to the sole objectives pursued by Union citizenship as such. In this sense, bearing in mind that according to the Court of Justice, Union citizenship is destined to be the fundamental status of nationals of the Member States ³⁹⁴ , no differentiating interpretation may be carried out as regards the direct application/effect of the different citizens’ rights as all citizens’ rights originate from this fundamental status.

Thus, the direct effect/applicability of the right to consular protection shall be asserted according to the principles established by the case-law of the Court of Justice with regard to the “self-executing-character” of the citizens’ rights taking into account that the right to consular protection derives from the Union citizenship’ status. Therefore, the conditions and limits imposed to the exercise of the right to consular protection should be examined in order to ascertain whether these conditions are constitutive

393 Judgement of the Court of Justice in the case Baumbast, op. cit. Footnote 241, para. 81.

394 Judgement of the Court of Justice of 20.09.2001 in the case C-184/99, Rudy Grzelczyk v.

Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, op. cit. Footnote 249, para. 31.

for the creation of the citizens’ right as such or rather implementing measures that merely design the exercise of the right concerned without calling it into question³⁹⁵. In this context worth mentioning is that the Court of Justice held in the Judgement in the case Defrenne II as to the direct effect of ex-Article 141 TEC on equal pay for men and women that this is the case where the implementation measures are not indispensable for the application of the primary Union law provision in question that does not limit itself to merely refer the matter to the powers of the national legislative authorities³⁹⁶.

Thus, in the following the possible “conditions” that could prevent the provisions on consular protection from deploying direct effect will be analysed taking into consideration their aims and systematical structure.