Citizenship of the union: towards post-national membership? Josephine Shaw



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CITIZENSHIP OF THE UNION: TOWARDS POST-NATIONAL MEMBERSHIP?
Josephine Shaw
While nation-states and their boundaries are reified through assertions of border controls and appeals to nationhood, a new model of membership, anchored in the universalistic rights of personhood, transgresses the national order of things. The duality embedded in the principles of the global system is further reflected in the incongruence between the two elements of modern citizenship: identity and rights. In the postwar era, these two elements of citizenship are decoupled. Rights increasingly assume universality, legal uniformity, and abstractness, and are defined at the global level. Identities, in contrast, still express particularity, and are conceived of as being territorially bounded. As an identity, national citizenship - as it is promoted, reinvented, and reified by states and other societal actors - still prevails. But in terms of its translation into rights and privileges, it is no longer a significant construction. Thus the universalistic status of personhood and postnational elements of membership coexist with assertive national identities and intense ethnic struggles.1

I INTRODUCTION


In 1993, amendments to the EC Treaty introduced by the Treaty of Maastricht put in place a new and rather novel section on citizenship (Part Two: Articles 8-8E EC):
‘Every person holding the nationality of a Member State shall be a citizen of the Union’ (Article 8(1)).
The reference to the nationalities of the Member States is important. It states clearly the limited nature of EU citizenship.2 It links back directly to one of the framework ‘constitutional’ provisions of the Treaty of Maastricht itself, Article F(1) TEU:
‘The Union shall respect the national identities of its Member States, whose systems of government are founded on the principles of democracy’.
The rights and duties of EU citizens as defined in Article 8 are first and foremost those conferred or imposed by the EC Treaty (Article 8(2)) (i.e. including rights and duties to be found elsewhere in the Treaty). The following provisions go on to confer some specific rights including:
-the ‘right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect’ (Article 8A);

-the right to vote or stand in municipal elections for those citizens residing in Member States of which they are not nationals (Article 8B(1));3

-the right to vote or stand in European parliamentary elections for the same group of citizens (Article 8B(2));4

-EU citizens finding themselves in the territory of a third country where their own country is not represented have the right to diplomatic or consular protection by any Member State which is represented there (Article 8C);

-the right to petition the European Parliament and to apply to the Ombudsman established under Article 138E.
It will quickly be seen that this catalogue of citizenship rights is exceedingly limited and rather specific, and hardly comparable with domestic (generic) conceptions of citizenship.5 In fact, one of the key concessions made to Danish sensibilities after the first referendum which narrowly rejected the Treaty of Maastricht, was a declaratory confirmation by the European Council that nothing in the provisions of the Treaty of Maastricht in any way displaces national citizenship. Furthermore, it is not an ‘independent’ status of membership:6 EU citizenship attaches to those with the nationality of the Member States, and it is prima facie the Member States who determine - as sovereign states under international law - who are their nationals.
Perhaps the most notable feature of citizenship of the Union is that it is founded on the concept of free movement7 - a right which EU nationals hold and exercise vis-‡-vis the Member States -, and not on rights which citizens exercise first and foremost vis-‡-vis the European Union or the European Community. Moreover, it is a right which they already have had - in many cases for many years - either by virtue of the various provisions of the EC Treaty which uphold the principles of the internal market (Articles 7A, 48, 52 and 59), or pursuant to a series of Directives enacted in 1990 to confer rights of residence on a number of residual categories of persons who are not economically active (or are not the members of the families of those who are), such as pensioners, students, and those of independent economic means.8 Article 8A seems to add nothing new, in particular since it also allows the EU legislature to continue to require of those who exercise the right to intra-EU migration that they are economically active, or capable of supporting themselves during their period of residence in the host state.9
A strong impetus for the inclusion of a conception of citizenship in the EC Treaty came from a Memorandum from the Spanish Government presented to the Intergovernmental Conference on Political Union in 1990.10 It suggested that rights for European citizens would constitute an important and indeed essential core of such a conception. That suggestion was not wholly adopted. For example, the protection of the fundamental rights of EU citizens is to be found elsewhere in the Treaty system, in Article F(2) TEU:
‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.’

This is an example of how citizenship rights can be scattered across the Treaty. However, unlike Articles 8-8E EC, this provision stands outside the jurisdiction of the Court of Justice. In any event, it is essential to look beyond the formal provisions on citizenship to see how and to what extent these ‘citizens’ are constituted as ‘members’ having a stake in the European Union as a political entity. For example, the vitally important non-discrimination provision on grounds of nationality (Article 6 EC) falls outwith these provisions, and Closa notes that it is somewhat surprising that the formal catalogue of citizenship rights is not in fact grounded on this very principle.11 ‘Citizenship’ rights are likewise to be found in the case law of the Court of Justice.12 It should be added that the provisions appear an even more inadequate statement of EU citizenship if the attempt is to be made - as here - to provide a broader, contextually grounded view of citizenship issues rather than a formal legal elaboration of a bounded group of citizenship rights attaching to a particular category of persons.


Developments in the field of citizenship rights since ratification and coming into force of the Treaty of Maastricht, with the consequential amendments to the EC Treaty, have been few.13 The provisions on voting and standing in European Parliament and local elections have been brought into force. After some delay a European Ombudsman has been appointed and started work. Little or no progress has been made in the field of free movement, at least in part because of difficulties in achieving the correct balance and parallelism between controls on internal and external borders. The Court of Justice has held that the free movement right in Article 8 is residual, and not the starting point for an analysis of the constitutional nature of free movement.14 To the disappointment of some commentators, the Court has also declined to use the citizenship provisions as an aid to the interpretation of the rest of the Treaty, so as, for example, to form the foundation for holding that directives can have horizontal direct effect.15 It seems likely that in the long term, however, the Court of Justice will come to play an increasingly important role. In Boukhalfa, Advocate General LÈger found space within his Opinion to pass comment on the future development of the concept of citizenship.16 He argued that
‘it is for the Court to ensure that its full scope is attained. If all the conclusions inherent in that concept are drawn, every citizen of the Union must, whatever his nationality, enjoy exactly the same rights and be subject to the same obligations.’
Citizenship has been raised as an important theme within debates leading into the 1996 Intergovernmental Conference to consider amendments and modifications to the Treaty of Maastricht.17 Few concrete proposals have come through the consultation process, which are likely to receive sufficient support at the IGC itself. The Reflection Group Report revealed a lack of consensus in this area.18 The Irish Presidency draft containing a ‘general outline’ for a revision of the Treaties contains few proposals which are ‘headlined’ as ‘citizens’ rights’, although it suggests a specific amendment to Article 8 to state explicitly that EU citizenship is complementary to national citizenship.19
Despite all this scepticism about the concrete legal rights - past, present and future - it was perhaps inevitable that in the 1990s the theme of citizenship would rise to prominence in writing and thinking about the European Union, bringing with it a number of important new challenges which the EU must face. In legal and political studies of the EU, citizenship has become one of the most extensively discussed topics. Popular and political comment upon the development of the EU has also concentrated on the question of the role of the citizen in the government of ‘Europe’,20 and the idea of bringing Europe ‘closer to the citizen’ (echoing Article A TEU).
The reasons for this emphasis on the theme of citizenship are both internal and external to the EU. It is unfruitful to consider whether citizenship could or would have become a thorny question within the EU integration project (the internal rationale) if the external rationale (a wide-ranging resurgence of interest in citizenship) had not been operative. Suffice it to say that it is always dangerous to treat the EU as a product only of internal forces, somehow hermetically from its global or regional European environment.21 The first (internal) reason emerges if an evolutionary view of the EC/EU is taken. Whatever theoretical explanation for its development ultimately finds favour, and irrespective of whether its impact upon contemporary Europe or upon the global geo-political stage is given a positive or negative evaluation, empirically there can be no doubting that it has enjoyed a degree of success which would probably surprise all but the most optimistic of its early promoters. It has lasted more than forty years and has survived periods of great crisis and apparently interminable political and economic stagnation. The range of activities covered by the ‘Community’ method which has involved not only the representatives of the states, but also, increasingly the representatives of the ‘people’ in the form of the European Parliament, has dramatically extended. Looser forms of intergovernmental co-operation in other fields have also fostered closer links between the countries involved. [State] membership of the EC/EU has grown from six to fifteen, with a number of outstanding ‘applicant’ countries clustering around the periphery. A supranational legal order has been developed out of extremely unpromising material, creating a system in which individuals have been constructed as ‘subjects’ of EC law with a range of rights, mainly of a socio-economic nature. The practice of politics has substantially changed as ‘Community’ questions have been transformed from matters of foreign or diplomatic policy into issues of domestic policy-making. Perhaps most significantly of all, something approximating to a ‘single internal market’ has been constructed out of a group of factors which have coalesced. Amongst the relevant contributing factors are a group of treaty provisions which grant individual economic freedoms in relation to trade, Court of Justice case law which has frequently maximised the scope of individual economic freedom at the expense of national regulatory autonomy, strategic legislative interventions on the part of the Council (increasingly involving the European Parliament) driven forwards by the astute policy entrepreneurship of the Commission, and last, but not least, the impact of global economic changes which have increasingly raised the stakes involved in enhancing ‘European’ competitiveness.
Inevitably, within such a matrix - where political and economic instabilities have often appeared endemic - larger ‘constitutional’ questions about the nature of the polity within which these world-historic developments have been occurring have been raised by many observers, both in the field of ‘practical’ politics and within the academic sphere. One question which keeps recurring is the question of the role of ‘the people’: if the EU now represents a form of ‘polity’ (if not a state), then it must have a membership and a relationship to the ‘people’ who are its ‘members’. It also needs a means of exclusion - the inevitable flipside of a concept of membership. Both those points beg the question, however, of the definition of membership and the putative existence of a ‘people’ of the European Union - a suggestion which raises a mixture of incredulity and horror in many academic, political and broader popular circles. And so, not all of the impetus for the citizenship debate comes from a positive balance sheet of ‘European’ achievements. One reaction to the post-Maastricht Treaty ratification crisis has involved the suggestion that the EU governance structures need to offer something with which individuals can identify, and some means of inspiring their loyalty and a sense of identity with the fate of the EU which, while not replacing established national or regional identities, nonetheless helps to give the EU a raison d’Ítre which is not purely economic. Laffan puts it in the following terms in the context of an analysis of the politics of identity in Europe:22
‘the affective dimension of the European project is critical to the Union at this juncture because the Monnet method of integration has reached its limits...’
All of these issues throw up the dilemma of ‘citizenship’, or, to put it another way, the question whether there is (or should be) more to belonging to a class of persons who are the primary subjects of the legal order of the EU in terms of legal, political and socio-economic status than simply being a citizen of one of the Member States who enjoys - by way of ‘add-on’ - certain legal rights granted by virtue of EC law.23
The second (external) reason for a contemporary focus on citizenship in the EU comes from the resurgence - since the late 1980s - of writing about citizenship as a prism of analysis for the human condition. Aside from its use in the analysis of contemporary problems of political and social philosophy such as the nature and scope of rights, concepts of democracy and participation, and notions of identity, the issue of citizenship has been thrown most dramatically into the melting pot by the tensions between the upsurge in parallel of new and old regionalisms, nationalisms and even supranationalisms. Yet despite the frequency with which the theme of citizenship is raised, it remains a highly contested concept, and a number of different strands within the literature can be identified. For example, in virtually every work the writer suggests at least two separate usages of the term ‘citizenship’, but each of his or her usages are likely to be subtly different to every other. In particular, there remains uncertainty as to whether it is sufficient to be a ‘passive’ citizen - i.e. to receive the rights and duties of citizenship - or whether ‘active’ citizenship is a necessary component. Do we need to be ‘good’ citizens, and if so, what is a ‘good’ citizen?24 This suggests that citizenship might be an ideal worked out on the basis of a given political philosophy (e.g. liberalism, radical socialism, communitarianism, etc.) against which actual citizenship rights and duties can be measured. An alternative approach is to put forward a strongly historical analysis of citizenship, as a dynamic patchwork displayed in the constantly negotiated and re-negotiated tension between identity and rights. In view of that observation, another question which needs to be addressed is whether a universal concept of citizenship is possible in multi-ethnic and multi-cultural societies, where there may be a plurality of ‘identities’.
Taking this resurgence of interest into account, it would have been remarkable if the new types of political and legal issues raised by the EU had not been analysed in terms of the various strands of thinking about the meaning and significance - past, present and future - of citizenship. Nor has it been only those whose primary focus of interest is the EU itself who have considered these questions, but also writers with a broader range of interests in citizenship and the development and articulation of concepts of political community. Thus, for example, Mouffe has argued that
‘If Europe is not to be defined exclusively in terms of economic agreements and reduced to a common market, the definition of a common political identity must be at the head of the agenda and this requires addressing the question of citizenship. European citizenship cannot be understood solely in terms of a legal status and set of rights, important as these are. It must mean identifying with a set of political values and principles which are constitutive of modern democracy.’25
As Mouffe rightly argues, citizenship is not just a formal legal concept, which the EU can buy into when it has reached a particular stage of maturity or development26 - although the importance of citizenship of the EU as a legal status should not be underestimated. The ‘currency’ of citizenship also carries with it a huge intellectual baggage concerning the content, meaning and symbolism of citizenship which cannot be ignored and indeed can be used positively in the understanding and development of the rather bare provisions of the EC Treaty. Consequently, the theme of citizenship in the EU will be explored in this paper against the background of the twin (internal and external) rationales for its contemporary significance in the specific EU context. There are already numerous works which provide comprehensive analytical coverage of the main aspects of EU citizenship and its gradual implementation and development, as well as its earlier incremental emergence in EC law.27 This paper will not seek to replicate the fullness of this coverage, although Section IV does provide a review of the main contours of citizens’ rights and duties under EC law. Instead it will adopt a more selective approach which is contextual in nature, and which is informed by critical and feminist perspectives. It seeks to look at the dualism of identity and rights in modern citizenship highlighted by Soysal,28 but in the specific context of the challenges posed by the evolution of the EC/EU in both its constitution-building and policy-making dimensions. In other words, it will employ and build upon the twin contexts of (a) current citizenship dilemmas and issues, and (b) the nature and evolution of EU/EC integration - defined here as the principal determinants of current preoccupations with citizenship within the EU. The analysis of citizenship also carries with it both a descriptive and a normative function. Ultimately, the focus of this paper has a strong normative element: the studies of citizenship policies and practice as they currently exist in the EU are deployed in the light of a set of normative assumptions about the potential role of citizenship within an EU which is gradually moving beyond its market origins, but is still heavily structured and constrained by these origins.
Of course, not all would agree with Soysal’s characterisation of a universalist notion of rights. Bellamy, for example, argues for a preliminary focus on problems of democracy in the EU and in EU constitution-building, rather than a preoccupation with rights which, he maintains will always
‘prove too indeterminate and subject to conflicting interpretations to provide a constitutional basis for a European polity.’29
More specifically he argues that
‘since rights are subject to utilitarian considerations and reflect the traditions and understandings of the community, then our freedom will be best guaranteed, and our rights rendered legitimate, through democracy.’30
De B˙rca likewise provides a mildly sceptical view of the impact of the language of rights on processes of European integration, reminding the reader not to lionise the work of the Court of Justice in the field of individual rights, but concluding nonetheless that the language of rights can have an integrative function within the structure of the EU legal order, and the wider EU polity.31 A variant upon the rights/identity dualism which would not fall foul of the inherent limitations of rights discourse involves using a triad of rights, ‘access’ and belonging (including both questions of identity and legal ascription such as nationality).32 The perspective of access is added ‘as a means of testing the meaningfulness and hence the integrative power of formal rights’.33 Accepting that a dualism of rights and identity offers a useful and straightforward frame of analysis, this paper takes that dualism as its starting point; however, as the discussion of social citizenship and Section IV which offers a summary review of citizenship rights and duties will show, it uses a broad ‘access-oriented’ concept of rights in order to bridge the gap between rights rhetoric and reality. The importance of the concept of access will become increasingly apparent when we focus on discussions not only of who has what rights, but of how and why those rights have come to be defined, and the (participatory or exclusionary) processes which have led to the ‘giving’ or ‘taking’ of rights.
In order to construct the argument based on the twin contexts to citizenship thinking in the European Union outlined above, Section II will look in more detail at the general background to some current ideas and debates on citizenship and then at problems raised by the interactions of citizenship, nation and identity, followed by conceptions of social citizenship and citizenship rights in ‘post-modern’ welfare states. Section III will then relate some of these questions specifically to the ‘European’ case and the process of European integration. Is citizenship a necessary component of processes of European integration, or is there a misfit between these (inter-national) processes and a concept some would see as essentially national? Finally, Section IV will provide a balance sheet of citizenship rights in the EU. On the basis of that review it will be possible to assess whether or not the EU is travelling, through the adoption of a conception of citizenship and the presentation and development of a package of citizenship policies as part and parcel of the integration process, down the road towards a notion of ‘postnational’ membership.

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