18 Colum. J. Eur. L. 55 (2011)
Dimitry Kochenov, LL.M. (CEU Budapest), LL.D. (Groningen), Professor of EU Constitutional Law and Fellow of the Graduate School of Law, University of Groningen, Oude Kijk in ‘t Jatstraat 26, 9712 EK, Groningen, The Netherlands.
The reach of the law of the European Union is strictly limited It only applies to those situations that fall within its scope. Until very recently, in the case of European Union citizens, in order to fall within this scope, a so-called “cross-border situation” was required-a demonstration that the parties’ situations had a Union dimension and was not confined to one of the Member States. In the wake of a series of seminal Court of Justice of the European Union cases, this strict cross-border situation test is no longer the only means by which the Court will decide whether EU law applies. Under the new approach, it is the intensity of the Member States’ interference with the rights of EU citizens, and not the borders, which triggers the application of EU law. The consequences of the recent case law of the EU, which brought about this change, including the Rottmann, Ruiz Zambrano, and McCarthy cases, are truly groundbreaking. The new legal paradigm amounts to a tectonic shift in the border dividing the material scopes of the EU and the Member States’ legal orders, with clear implications for the status of EU citizenship and the sovereignty of the Member States. This Article provides a first analysis of this fundamental development, discussing the reasons for, and the limits of the new approach as well as anticipating its consequences for a number of key elements of EU law, including citizenship, territory, and the principle of equality. We are witnessing the creation of a real European citizenship by the Court.
