EU citizenship and (fundamental) rights: Empirical, normative, and conceptual problems

Date01 January 2019
DOIhttp://doi.org/10.1111/eulj.12300
Published date01 January 2019
ORIGINAL ARTICLE
EU citizenship and (fundamental) rights: Empirical,
normative, and conceptual problems
Martijn van den Brink*
Abstract
There is a close connection between EU citizenship and rights, both in the law and literature. This
article claims that EU lawyers' understanding of EU citizenship and rights suffers from empirical,
normative, and conceptual shortcomings. I will point out that there has been insufficient awareness
for the boundedness of EU citizenship, the political structure of the EU and the constraints this
(realistically) imposes on the meaningfulnessof EU citizenship. EU citizenship must not be
understood as requiring an elaborate set of equal rights for all Union citizens throuzghout the EU,
but valued for its ability to allow its status holders to enjoy (almost) full membership in the Member
States of which they do not possess nationality.
1|INTRODUCTION
There is a close connection between EU citizenship and rights, both in the law and literature. When the Court of
Justice of the European Union (CJEU) decides a case bearing on the position of an EU citizen, one question almost
inevitably emerges: did it sufficiently safeguard EU citizenship rights?
1
The strengthening of the rights of Union
citizens is often said to contribute to a more realor meaningfulcitizenship.
2
If, on the other hand, the Court
undermines previously acquired rights, EU lawyers speak of the return of EU citizenship to its market origins and find
that it fails to live up to its potential.
3
I believe that much is missed by such rightsbased approaches. Questions of
authority and legitimacywho is to decide questions of Union citizenshipremain underexplored,
4
but most of all,
I shall argue in this article, EU lawyers' understanding of EU citizenship and rights is problematic in itself. It suffers
from empirical, normative, and conceptual shortcomings.
*MaxPlanckInstitut zur Erforschung multireligioser und multiethnischer Gesellschaften. I wish to thank Claire Kilpatrick, Daniel
Halberstam, Rebecca Scott, and Filipe Brito Bastos for comments on earlier drafts. The usual disclaimer applies.
1
An instructive example: D. Kochenov (ed.), EU Citizenship and Federalism: The Role of Rights (Cambridge University Press, 2017).
2
D. Kochenov, A Real European Citizenship; A New Jurisdiction Test: A Novel Chapter in the Development of the Union in Europe
(2011) 18 Columbia Journal of European Law, 55; A. Tryfonidou, Family Reunification Rights of (Migrant) Union Citizens: Towards a
More Liberal Approach(2009) 15 European Law Journal, 634.
3
For two good examples of that approach, see C. O'Brien, Civis Capitalist Sum: Class as the New Guiding Principle of EU Free
Movement Rights(2016) 53 Common Market Law Review, 937; E. Spaventa, Earned Citizenship: Understanding Union Citizenship
Through Its Scope, in D. Kochenov (ed.), EU Citizenship and Federalism: The Role of Rights (Cambridge University Press, 2017).
4
The classic exception remains K. Hailbronner, Union Citizenship and Access to Social Benefits(2005) 42 Common Market Law
Review, 1245. See, also, N.N. Shuibhne, The Third Age of EU Citizenship: Directive 2004/38 in the Case Law of the Court of Justice,
in P. Syrpis (ed.), The Judiciary, the Legislature and the EU Internal Market (Cambridge University Press, 2012).
Received: 23 October 2017 Revised: 26 August 2018 Accepted: 11 October 2018
DOI: 10.1111/eulj.12300
Eur Law J. 2019;25:2136. © 2018 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 21
Rather than providing for an elaborate set of equal rights for all Union citizens throughout the EU, the true
strength of EU citizenship emanates from its ability to allow its status holders to enjoy (almost) full membership in
the Member States of which they do not possess nationality. To explore these issues, I will zoom in onto one
particular aspect of the debate on EU citizenship and rights, namely the interaction between EU citizenship and
fundamental rights.
5
For heuristic purposes, I will focus on the empirical, normative, and conceptual assumptions
underlying the by now famous Heidelberg proposal for the protection of fundamental rights through EU citizenship.
6
I will argue that we would be mistaken, empirically, normatively, and conceptually, to intertwine citizenship and
fundamental rights. Through that discussion, I will draw attention to broader conceptual and normative shortcomings
in dominant approaches to EU citizenship, on its relationship with rights, its position within the EU's political
framework, and the position of those not enjoying EU citizenship status. I will point out that there has been
insufficient awareness of the boundedness of EU citizenship, the political structure of the EU and the constraints this
(realistically) imposes on the meaningfulnessof EU citizenship. EU citizenship must not be understood as requiring
an elaborate set of equal rights for all Union citizens throughout the EU, but valued for its ability to allow its status
holders to enjoy (almost) full membership in the Member States of which they do not possess nationality.
Having provided an outline of the core arguments in favour of a stronger connection between EU citizenship
and fundamental rights (section 2), I will go on to demonstrate the empirical, normative, and conceptual
weaknesses of these proposals. Section 3 discusses the empirical side and explains that debate has overlooked
the disentanglement between citizenship and rights that has occurred in recent decades. Section 4 argues that this
disentanglement is also normatively desirable over providing only those in the possession of the status of
citizenship with a set of basic rights; fundamental rights' presumption of universality is diametrically opposed to
the bounded and exclusionary nature of citizenship. The project of linking fundamental rights and EU citizenship
may be motivated by the intention to overcome existing divisions within the EU, but it presupposes a new fault
line based on the boundaries of nationality, which likely comes at the expense of thirdcountry nationals. Section
5 challenges on conceptual grounds the idea that for EU citizenship to have sufficient substance, an all
encompassing set of Europeanwide fundamental rights is needed. Adherents of this idea tend to misconceptualise
the concept and misunderstand EU citizenship's normative import, resulting in a questionable push for homogeni-
sation and harmonisation.
2|FUNDAMENTAL RIGHTS AND THE SUBSTANCE OF EU CITIZENSHIP
TheTreaty of Maastricht introduced a common European Union citizenship for all nationals of EU Member States. To
many, that new common citizenship did not live up to its potential and it was dismissed as a meaningless addition to
theTreaties, a symbolic gesture at most: a pie in the sky
7
and a cynical exercise in public relations.
8
That is because
5
I have focused on this interaction in the past. Readers familiar with my earlier argument will note that the argument developed in this
article represents a break with my earlier thoughts on the matter. A few years ago, I argued for a deeper interaction between
fundamental rights and EU citizenship (M. van den Brink, EU Citizenship and Fundamental Rights: Taking EU Citizenship Rights
Seriously?(2012) 39 Legal Issues of Economic Integration, 273). Some of the downsides of such deeper interaction I addressed earlier
in, M. van den Brink, The Origins and Potential Federalising Effects of the Substance of Rights Doctrinein Dimitry Kochenov (ed),
EU Citizenship and Federalism: The Role of Rights (Cambridge University Press, 2017). This article explores in greate r detail the various
arguments against creating a tighter connection between EU citizenship and fundamental rights.
6
A.V. Bogdandy et al., Reverse SolangeProtecting the Essence of Fundamental Rights against EU Member States(2012) 49
Common Market Law Review, 489.
7
H.U. Jessurun d'Oliveira, Union Citizenship: Pie in the Sky?, in A. Rosas and E. Antola (eds.), A Citizens' Europe: In Search of a New
Order (Sage Publications, 1995).
8
J.H.H. Weiler, European Citizenship and Human Rights, in J.A. Winter et al. (eds.), Reforming the Treaty on European Union: The Legal
Debate (Kluwer Law International, 1996), 68.
22 VAN DEN BRINK

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