1 ICJ 1 (2015)

handle is hein.journals/icjuris1 and id is 1 raw text is: 


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INTERN1,ATION.AL
COMPARATIVE
JURISPRUDENC


EU citizenship and the European Court of Justice's
'stone-by-stone' approach


Koen Lenaerts *,1
Court of Justice of the European Union, L-2925 Luxemburg


CrossMark


ARTICLE        INFO

Available online 19 October 2015
Keywords:
EU citizenship
Article 20 TFEU
Article 21 TFEU
Directive 2004/38
Directive 2003/86
'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'


ABSTRACT

Examining the seminal judgment of the European Court of Justice (the 'ECJ') in the Ruiz
Zambrano case (C-34/09, EU:C:2011:124) and its progeny, this paper is to illustrate the fact
that in hard cases of constitutional importance the ECJ follows an incremental approach.
This means, in essence, that the ECJ does not take 'long jumps' when expounding the
rationale underpinning the solution given to novel questions of constitutional importance.
On the contrary, the persuasiveness of its argumentative discourse is built up progres-
sively, i.e., 'stone-by- stone'.
   c 2015 Mykolas Romeris University. Production and hosting by Elsevier BY. All right
                reserved. This is an open access article under the CC BY-NC-ND license
                                (hp4tivecoMos/by- c-nd4,0/).


1. Introduction

   The European Court of Justice (the 'ECJ') operates under the principle of collegiality, which means that reaching an
outcome based on consensus is of paramount importance for the daily inner workings of the ECJ (Lenaerts, 2013).
Accordingly, for the sake of consensus, in hard cases the discourse of the ECJ cannot be as profuse as it would be if dissenting
opinions were allowed (Lasser, 2009).
   As consensus-building requires bringing on board as many opinions as possible, the argumentative discourse of the ECJ is
limited to the very essential. In order to preserve consensus, the ECJ does not take 'long jumps' when expounding the rationale
underpinning the solution given to novel questions of constitutional importance. On the contrary, the persuasiveness of its
argumentative discourse is built up progressively, i.e., 'stone-by-stone' ( s 04). It follows that, in order to fully apprehend
the approach of the ECJ in an area of EU law, a critical observer should not limit him- or herself to studying the 'groundbreaking'
case, but he or she should also read the relevant case law predating as well as postdating that case.
   The purpose of this article is to illustrate that idea by looking at the recent developments in the case law relating to the
Treaty provisions on EU citizenship, in particular at Ruiz Zam nrano (2011) and its progeny.2
   Ruiz Zambrano is a landmark case in the law on EU citizenship. In that case, the referring court asked, in essence, whether
Mr Ruiz Zambrano-a Colombian national staying illegally in Belgium- could rely on the Treaty provisions on EU citizenship


  *Tel.: +35243 03 35 53.
  E-mail address: Koen.Lert  arp.eI
  Author is President of the Court of Justice of the European Union, and Professor of European Union Law, Leuven University. All opinions expressed
herein are personal to the author.
   2 The case law relating to the Charter of Fundamental Rights of the European Union may also illustrate this point. See generally Pee  cy ener,
and' Wardi, (2014).
  Peer review under responsibility of Mykolas Romeris University.
     htp/d~oorg/] 01/.ic2050.0
2351-6674/© 2015 Mykolas Romeris University. Production and hosting by Elsevier B.V. All right reserved. This is an open access article under the CC BY-
NC-ND license (ht :y-nc-nd/4.0/).

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