European Union Jean Monnet Chair in cooperation with the
Max Planck Institute for Comparative Public Law and International Law Professor Armin von Bogdandy
Director of the Max Planck Institute for Comparative Public Law and International Law
European Integration: The New German Scholarship Jean Monnet Working Paper 9/03
Union Citizenship Max Planck Institute for Comparative Public Law and International Law Heidelberg, 24-27 February 2003
All rights reserved.
No part of this paper may be reproduced in any form
without permission of the author.
This project was funded by the Fritz Thyssen Foundation.
Max Planck Institute for Comparative Public Law and International Law
Abstract Union citizenship is the product of a political process which aimed at enhancing the status of the individual. Parallel to the deepening of European integration, a new role was sought for citizens that goes beyond participating in the Common Market. To achieve this goal, a strategy is followed which tries to sketch out a legal frame what has to be filled with political life. This article tries to take legal analysis and sociological aspects into account. Starting from the assumption that citizen status implies civil, social and political rights, it suggests that the existing Treaty provisions on Union citizenship are of a more symbolic nature, and that its legal potential lies in the sphere of social rights. If the ideal is creating a reflection of a full citizen status on the Union level, disappointment will be inevitable as long as the Member States remain reluctant in offering genuine political participation on both stages of the European multi-level system.
Prof. Dr. Stefan Kadelbach
Union Citizenship* 4
a)Nationality as a Condition for Union Citizenship 15
a) Fundamental Freedoms 18
b) Secondary law: Union Citizens as Taxpayers, Welfare Recipients and Consumers 19
2. Rights of Union Citizens 20
a) Freedom of Movement 21
b) Political Rights 23
3. Rights of Union Citizens and Prohibition of Discrimination 33
a) The Link between Union Citizenship and the General Prohibition of Discrimination 33
b) Derivative Social Rights 33
c) Derivative Cultural Rights 35
1. Union Citizens in the European Multi-Level System 45
a) Citizen Status and Identity 45
b) Identities of Citizenship in Multi-Level Systems 50
c) The Complementary Relationship between Citizen Status and Political Participation 54
2. Union citizenship and Democracy in Europe 55
3. Union citizenship and European Constitution 57
European Community law is the product of a process of transformation. It has emerged as an autonomous legal order from a series of international treaties. The role of the European Court of Justice was crucial in this respect. Long-term treaty objectives have been attributed direct applicability and supremacy over municipal law,1 individual rights have arisen from Member State duties,2 and the EEC Treaty, the central document of European integration, has been re-interpreted as a constitution.3 According to the Court, the law of the European Community - today the Union - has become a legal system whose subjects are not only the Member States but also their citizens.4 The Treaty of Maastricht, by inserting a new part two on union citizenship into the EC Treaty (now Arts. 17-22 EC), suggested that this path would be further followed. The individual appears to have been placed in the centre of Union law.5
Investigations into the legal substance of Union citizenship have resulted in very heterogeneous assessments which differ with the chosen reference point.6 Restricting analysis to the existing rules of the EC Treaty will ensure a conservative conclusion,7 and particularly so if such assessments are based on a comparison with rights available to national citizens. Such comparison, which is suggested by the wording of the Union treaties, almost inevitably leads to disappointment.8 Others assess Union citizenship in light of its future potential. Here too, the national citizen stands in the background and encourages diverse projections. Many of these assessments reflect the debate concerning the endurance and prospects of a European people and a European constitution.9 One line of enquiry seeks the foundations of citizenship in pre-legal identities. The appreciation of Union citizenship then depends on what is deemed indispensable for a constituency with respect to pre-existent factors of a social nature that create identity.10 Other contributions express the view that Union citizenship can be structured by law; it may thus constitute the prerequisite of an active European citizenship, the continuing development of which will be influenced by a gradual enhancement in legal status.11 It is tempting to juxtapose perspectives of citizenship relating to positive law and political theory for two reasons. The first reason is methodical in nature. Strictly speaking, both views concern two different and unrelated discourses. The question arises whether this must be necessarily the case or whether there are links which should provide more mutual interest. The second reason lies in the pioneer role which Union citizenship plays in the discussion concerning a European constitution. Both initiatives share the idea of creating integration and identification by law. The overriding question is: What value can concepts employed by theories which have a connotation with the state as a reference point have at European level?
This essay will first consider the aim which rules governing Union citizenship seek to achieve (II.). Thereupon, the positive law governing Union citizenship will be investigated in order to learn the reasons for its bad press to date (III.). The final section will consider the horizon of constitutional-political expectations opened up by the introduction of Union citizenship using the social-science debate as a basis (IV.). Comparing the state of both discussions can prove rewarding in relation to the future structure of Union citizen rights.
The Notion of Union Citizenship History The story of the metamorphosis of the individual in the Community legal order has often been told.12 It begins with the artificial birth of the “market citizen”,13 a “reduced functionalist concept of an individual”.14 This concept describes the individual as a holder of economic freedoms, the judicial enforcement of which serves to realise the Common market. The establishment of Union citizen rights in the EC Treaty represents the final chapter of this tale; for the time being, it must remain unfinished, since Union citizenship was introduced as open to development (Art. 22 EC). Accordingly, the citizen’s status in the new body politic of the European Union has yet to be defined. Confronting the market with the Union citizen may have an heuristic value. However, it is doubtful whether such comparison charts the development with sufficient clarity.
On the one hand, individuals under the Community legal order were never mere market citizens. The original EEC Treaty already provided for elections to European Parliament (Art. 138 (3), now Art. 190 EC). In 1962, even before the Court of Justice had acknowledged the direct effect of fundamental freedoms, the Commission took the view that individuals in the Community legal order did not simply exercise their fundamental rights as mere factors of production but as holders of civil rights.15 The case law relating to fundamental Community rights began in 1969 with the Stauder case which dealt with the personality right of a welfare recipient who wished to purchase products subsidized from EC funds at a reduced price without having to reveal his identity.16 Notwithstanding his capacity as a beneficiary of a programme to dismantle agricultural surpluses, it was impossible to regard him as an actual holder of economic freedoms of the EC Treaty. At the same time, legislation on co-ordinating European welfare law was established which also granted pensioners as well as relatives of employees and the self-employed outside their country of origin equal access to national systems of social welfare at their place of residence.17 The first Council initiatives with the aim of a “Europe of citizens” date from as early as 1969,18 at a time when the customs union had been prematurely realised, but direct effect of some fundamental rights had not yet been finally recognised by the Court.19 On the other hand, fundamental freedoms are not constitutive for Union citizenship and therefore do not necessarily entail the latter. A Union citizen is a person who has the nationality of a Union state (Art. 17 (1) sentence 2 EC). By contrast, holders of fundamental freedoms are all those upon whom the Community legal order has conferred such rights. The free movement of goods does not depend on the nationality of the trading partners. The right to free movement can also be extended by treaty to nationals of non-EU states, despite the fact that it is reserved to Union citizens according to the wording of the EC Treaty. Such treaties have been concluded with EFTA Member States and accession countries, including Turkey.20 Comparing the status between market and Union citizens makes clear that in Community legislation and political initiatives, personal rights have become increasingly independent of fundamental freedoms. The most important impulses emanated from European labour law and social legislation, the subjective guarantees of which initially served the freedom of employees but gradually became independent of the existence of an employment contract.21 At the same time, the demand for a political status of migrants within the EC arose. In 1974, the Council of Paris asked the Commission to review the special rights which citizens of Member States could be granted as members of the Community.22 The notion of the right to vote and stand as a candidate at municipal elections in the place of residence dates from this time.23 The Tindemans Report, submitted in 1975, recommended more citizens’ rights, inter alia equal access to public offices, dismantling of border controls, promotion of school and student exchange programmes, mutual recognition of diplomas and improved consumer protection.24 For the time being, however, the universal suffrage for the European Parliament and a uniform passport were the only obvious signs of a “Europe for citizens”.25 The Draft Treaty Establishing the European Union produced under Altiero Spinelli was passed by the Parliament in 1984 and employed the term “Union citizenship” for the first time.26 The European Council of Fontainebleau convened the Adonnino Committee – named after its chairman – which had the task of adopting Community measures “to strengthen and promote its identity and its image both for its citizens and for the rest of the world”.27 The subsequent reports of the group already contained most of the rights which Union citizens now have under the EC Treaty.28 In the same year, the ECJ granted tourists the right to rely on (passive) freedom of services and, by widening the scope of the fundamental freedoms in this way, made an important step towards defunctionalising the freedom of persons.29 The 1987 ‘Erasmus’ Decision of the Council concerning student exchange was the first legal act to refer to a “Europe for citizens”.30 In the following year, the Commission submitted its proposal for the right to vote at municipal elections.31 A little later, in 1990, the Council issued three directives on the right of persons with no occupation to reside outside their home state.32 These initiatives show that the freedom of movement and granting of political rights were seen as the most important elements in creating Union citizenship. Something of more recent provenance is a third component which has arisen from the efforts of the Union institutions to increase the identification with Europe, to make the Union more citizen-oriented and to create a sense of accountability vis-à-vis the individual. This attitude is reflected in Art. 1 (2) EU, which declares its aim to be “an ever closer union among the peoples of Europe”; decisions should be taken “as closely as possible to the citizen”. According to Article 2 (3) EU, one aim of the Union is “to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union”.
All three elements mentioned so far are reunited in the form of individual rights in the EC Treaty: Freedom of movement (Art. 18 EC), the right to vote (Art. 19 EC) and freedom of information rights in relation to Union institutions (Arts. 21, 255 EC). In its section on citizens’ rights, the Charter of Fundamental Rights of the European Union also grants the right to “good administration” which is closely connected to the third group (Art. 41 ChFR). The right to protection abroad by diplomatic and consular authorities of other Member States additionally appears as a fourth component (Art. 20 EC).
Union citizenship is not limited to these rights. It extends to all rights and duties of Union law (Art. 17 (2) EC). It therefore includes fundamental freedoms resulting from constitutional traditions common to Member States (Art. 6 EU) and social rights which have hitherto mainly existed on the basis of secondary legislation33 to which the Charter of Fundamental Rights refers (Arts. 27-38 ChFR). The rights guaranteed in Arts. 18-21 EC nevertheless have a special symbolic value. As a rule, only nationals enjoy complete freedom of movement within the state borders.34 Likewise, the right to vote and stand for election is usually reserved to them alone. Diplomatic and consular protection, the expression of the state’s sovereignty over persons, forms an important component of the reciprocal relationship of protection and obedience which exists between citizens and the state according to classical political theory.35 Since the creation of the rights of market citizens, European citizens have thus been granted many attributes which resemble political rights. Therefore, an investigation as to how far the parallels between state citizenship and Union citizenship extend and how each relates to nationality appears to be unavoidable.36 The Legal Concept of European Citizenship Nationality
Nationality and citizenship are dependent on each other but are not congruent.37 Depending on the view taken in constitutional theory, nationality describes either a status or legal relationship owing to which the individual is subject to a state’s jurisdiction.38 It has consequences in international and constitutional law.
In terms of international law, nationality forms a basis of a state’s jurisdiction and a crucial requirement for the exercise of diplomatic protection in relation to other states.39 Essentially, states are free to establish the requirements governing acquisition of nationality. However, a merely formal attribution of nationality is not sufficient to create a legal relationship which third states are bound to recognise. In its famous Nottebohm judgment concerning the exercise of diplomatic protection on behalf of a naturalised citizen, the International Court of Justice held that the legal bond of nationality had to correspond to social reality. Nationality had to be supported by a genuine, existential and emotionally rooted commitment to the state; otherwise, it would be ineffective and not give rise to any obligations vis-à-vis the claimant state.40 This restriction is primarily significant for individuals who possess more than one nationality. It accords with the conflict of laws statutes of many states to choose the effective nationality as a reference point in such cases.41 Under international law, nationality therefore serves to resolve collisions of jurisdiction.
According to most constitutions, nationality alone does not establish any rights or duties of an individual. However, it does represent a necessary condition for some of them such as the right to vote in elections, access to public offices or compulsory military service. To this extent, nationality is a framework legal relationship, to be filled out by law.42
Citizenship, on the other hand, describes the adherenceto a body politic in a way which identifies a person as a full member thereof.43 “Citoyens”, creatures of the enlightenment, are united by freedom, equality and brotherliness.44 Expressed in terms of rights, they necessarily include protective citizens’ rights of the bourgeois which aim to protect the individual against arbitrary interference by state authority. Historically, however, such rights were only limited to the states’ own nationals for relatively short periods of time.45 What is constitutive for a citizen’s status are political rights, i.e. primarily the right to vote and stand for election. In historical comparison and in political theory they constitute the criterion of exclusion which distinguishes the fully effective status of a citizen from other forms of membership, especially from that of mere subjects.46 Having regard to the consequences of industrialisation, English sociology first recognised that the status of a citizen also incorporates social rights.47 “Citizenship” may have its origin in political philosophy but this does not mean that it is not a legal concept. The German Basic Law employs it twice. Article 33 (3) GG draws a distinction between civil (bürgerlich) and citizen’s (staatsbürgerlich) rights and makes clear that both are independent of religious or other affiliation. Article 33 (1) GG guarantees all Germans equal political rights. According to the prevailing opinion, the people from whom all state authority derives according to Art. 20 (2) GG, are German citizens eligible to vote.48 This is equally so in other Union states.49 Empirically and legally, therefore, only nationals can be in full possession of all political rights. Those who stress that nationality serves as a criterion of exclusion point at this connection between nationality and citizenship.50 Whereas political philosophy sometimes refers to citizens being those who wish to live in the same system,51 in terms of constitutional law, full citizenship requires naturalisation.52 Union citizenship
Nationalityas a Condition for Union Citizenship
Taking account of the guarantees contained in Arts. 17-21 EC, it becomes clear that parallels to nationality are neither possible nor intended.53 Article 17 (1) sentence 2 EC requires nationality by granting Union citizenship to those who are the nationals of a Member State. The two are inseparable: Union citizenship cannot be acquired alone,54 nor can it be forfeited without giving up nationality.55
As a Declaration to the Final Act of the Maastricht Treaty makes clear, the concept of nationality is determined by national law and not autonomously according to Community law.56 Member States decide who is a Union citizen. A peculiarity in comparison with general international law lies in the fact that Member States must recognise mutually such decisions. In one case, an Italian – Argentine dual national wished to establish himself as a dentist in Spain following his studies in Argentina, his country of origin. The ECJ regarded the fact that Spanish law required effective nationality as incompatible with the prohibition of discrimination contained in the fundamental freedoms.57 It might follow that nationals who possess another EU nationality may not be prejudiced in comparison with beneficiaries of personal fundamental freedoms from other Member States either. Therefore, discrimination à rebours – which is otherwise not ruled out in the case law of the ECJ – is impermissible in such cases.58 These consequences represent a departure from the principles of the International Court of Justice referred to earlier. A further limit to the Member States’ jurisdiction with respect to nationality law is set by the duty of loyalty to the Community (Art. 10 EC), which prohibits Member States from obstructing a common immigration policy (Art. 63 EC).59
Union citizenship as a Complement to State Citizenship
Union citizenship is therefore based on a familiar foundation if it makes the creation of citizens’ rights dependent on nationality. Article 17 (1) sentence 3 EC makes clear that the guaranteed rights lean to those of citizens: “Citizenship of the Union shall complement and not replace national citizenship.“ This complementary element constitutes one of its crucial features.60 Union citizenship certainly aims to create political rights of participation with regard to the Union’s sovereign powers which correspond to political rights in the state. This certainly applies to the basic right to participate in European elections (Art. 190 (4) EC) as well as the rights of petition, information and access to documents (Arts. 21, 255 EC). However, Union citizenship extends beyond this for the rights of Union citizens are not solely levelled against the Union and its institutions. Addressees of the freedom of movement (Art. 18 EC) and the right to participate in European and municipal elections at the place of residence (Art. 19 (1) EC) are the Member States. To this extent, Union citizenship aims to ensure equal rights between nationals and members of other Union states throughout the Union. The provision on diplomatic-consular protection (Art. 20 EC), also addressed to Member States, extends this status to the intergovernmental field of foreign affairs.
According to these Treaty provisions therefore, the Union represents not only a supranational organisation but also a compound unit consisting of Member States, the European Communities and an overarching superstructure, i.e. a multi-level system.61 Parallel considerations between national and Union citizenship only make sense against this background.
Elements of Union Citizenship Individual Rights Based on EC Law According to Art. 17 (2) EC, citizens of the Union enjoy the rights conferred by the Treaty and are subject to the duties imposed thereby. Therefore, the rights of Union citizens are not limited to Arts. 18-20 EC. References made in the EC Treaty to “this Treaty” also include the secondary law issued on its basis.62
a) Fundamental Freedoms
Since the free movement of goods does not only relate to persons but also to products, it is available to anyone whose economic activity falls within the scope of the EC Treaty. It does not depend on Union citizenship. The same applies in relation to the free movement of payment and capital, certain restrictions notwithstanding. By contrast, personal fundamental freedoms are based on the nationality of Member States (Arts. 39 (2), 43, 49 EC). However, they may be extended to nationals of third states by international agreement.
It is important for understanding the relationship between fundamental freedoms and Union citizenship that the former require a cross-border reference, at least according to the case law of the ECJ. European citizens can only claim fundamental freedoms as against their own state if the latter intends to prevent them from exercising such rights.63 Otherwise, domestic discrimination remains permissible.64 This case law has remained unaffected by the introduction of Union citizenship.65 Hence it appears that freedoms are still understood as serving the creation of the Common market. This does not comply with the concept of all citizens being equal before the law. The question as to whether provisions constituting Union citizenship also benefit state nationals and will eventually lead to the removal of domestic discrimination can only be answered by investigating any single guarantee separately. In any event, there is no reason to believe that fundamental freedoms represent a constitutive dimension of European citizens’ rights. They amount to nothing more than their historical beginning, one of several components but have not lost their original functionalist purpose.66
b) Secondary law: Union Citizens as Taxpayers, Welfare Recipients and Consumers
Broad concepts of European citizenship also include secondary law.67 Like citizens within the national legal order, European citizens also possess rights for which nationality and thereby Union citizenship are not required. European citizens are therefore beneficiaries of rights guaranteed by Community law not only as national citizens of Member States, but because of further roles and identities. In their capacity as employees they enjoy protective rules under labour law and, as do self-employed individuals, possess the right of equal access to national welfare systems. They are affected by rules of other Europeanised legal areas in their capacity as taxpayers, consumers, students, victims of adverse environmental effects, addressees of legal measures concerning foreign nationals, members of minorities or simply as persons who have, need or spend money in the form of the new common currency. Why should the status of European citizenship not result from the sum of these rights?
Behind all of this there is no settled idea concerning the rights a person has by nature or should have by law. This is because there are different reasons for guaranteeing rights. On the European level, the harmonisation of indirect taxation as well as the establishment of employment and environmental standards were designed to create similar conditions of competition. In addition, provisions concerning consumer transactions improve transparency of cross-border competition between prices and terms. European co-ordinating social law facilitates the free movement of employees, the mobility of trainees and students being one of its pre-effects. Accordingly, some rights are granted to all those who reside, trade or buy products within the Community. Other rights concern the treatment of nationals and therefore can only be claimed by foreigners with EU nationality.
All this only affects the status of citizen insofar as that status must include the enjoyment of relevant rights on the basis of a general prohibition on discrimination (Art. 12 EC). In this respect such rights are no different from personal rights granted by statute in national legal systems. The connection to the rights of Union citizens produced by Art. 17 (2) EC is therefore misleading. One can hardly claim that citizens have a system of rights to which this Treaty clause appears to refer.