I diritti fondamentali dei familiari di cittadini europei fra garanzie della famiglia e garanzie della libera circolazione

The effective protection of fundamental rights of individuals has been ever, in the case law of the European Court of Justice (EUCJ), a persuasive argument to promote the Treaty (TEC) freedoms and (concurrently) to preserve the unity of the European citizen's family. Protection of the family of the moving European citizen arose, indeed, from the texture of secondary law. In the past decade, however, it emerged as an interpretative tool aimed at identifying a new kind of restrictions to the exercise of primary freedoms of movement. The Court has so equated the "interference with the right to respect for private and family life", under article 8 of the European Convention of Human Rights (ECHR) and article 7 of the Charter of fundamental rights of the European Union, to an obstacle to the enjoyment of economic and civic freedoms protected by the Treaty (TEC, now TFEU). Such an integration of the fundamental rights in the fundamental freedoms of movement has come to an end in the aftermath of the Zambrano case law. The aforementioned equation between fundamental rights and fundamental liberties (of movement) has seemingly now been reversed. The EUCJ gives up to the competence of the Member States the protection of the European family where the factual circumstances are insufficiently linked with the aims of the European market or of the European Citizenship. The new "restrictive tune" bestows discretion to the EU legislator and to the Member States, but carries some detrimental effect (and considerable uncertainty) against the protection (and unity) of the European citizens' family.