EU Citizenship without Duties

• DOI: http://doi.org/10.1111/eulj.12095
• Date: 01 July 2014
• Published date: 01 July 2014

EU Citizenship without Duties

Dimitry Kochenov*

Abstract: Many believe that duties should be at the essence of citizenship. This paper

dismisses this view, using EU law as the main context of analysis, by making five

interrelated claims. (1) There are no empirically observable duties of EU citizenship;

(2) such duties would lack any legal-theoretical foundation, if the contrary were true;

(3) legal-theoretical foundations of the duties of citizenship are lacking also at the

Member State level; (4) EU law plays an important role in undermining the ability of

the Member States where residual duties remain to enforce them; (5) this development

is part of a greater EU input into the strengthening of democracy, the rule of law and

human rights in the Member States and reflects a general trend of de-dutification of

citizenship around the democratic world. If these conclusions are correct, it is time to

stop categorising EU citizenship duties among the desiderata of EU law.

I Introduction and Structure

This paper critically engages with the concept of EU citizenship duties, looking at the

evolution of the substance and content of such duties, as well as their theoretical

essence.1Besides being once mentioned in the Treaty,2the duties of EU citizenship are

frequently invoked in the scholarly literature as a sign of immaturity of EU citizen-

ship.3In the face of a strong presumption in favour of such duties, their scholarly

* Professor of EU Constitutional Law, University of Groningen, The Netherlands. Many thanks to J.H.H.

Weiler, who first made me think about citizenship duties seriously. The article benefited from the

comments of a number of academics. In particular, I would like to thank Daniel Augenstein, Carlos

Closa Montero, Gareth Davies, Laurence W. Gormley, Dora Kostakopoulou, Giacopo Martire, Niamh

Nic Shuibhne and Suryapratim Roy.

1On EU citizenship, see eg D. Kochenov, ‘The Cherry Blossoms and the Moon of European Citizenship’,

(2013) 62 International and Comparative Law Quarterly 97; J. Shaw, ‘Citizenship: Contrasting Dynamics

at the Interface of Integration and Constitutionalism’, in P. Craig and G. de Búrca (eds), The Evolution

of EU Law (Oxford University Press, 2nd edn, 2011), at 575; F. Wollenschläger, ‘A New Fundamental

Freedom beyond Market Integration’, (2011) 17 European Law Journal 1; D. Kostakopoulou, ‘European

Union Citizenship: Writing the Future’, (2007) 13 European Law Journal 623.

2Art 20(2) TFEU.

3J.H.H. Weiler, ‘Europa: “Nous coalisons des Etats, nous n’unissons pas des hommes” ’, in M. Cartabia

and A. Simoncini (eds), La sostenibilità della democrazia nel XXI secolo (Il Mulino, 2009), at 51, 59 et

seq; M. Condonazzi et al., Citizenship of the Union and Free Movement of Persons (Martinus Nijhoff,

2008), at 19; R. Davis, ‘Citizenship of the Union . . . Rights for All?’ (2002) 27 European Law Review

121; N. Neuwahl, ‘The Place of the Citizen in the European Construction’, in P. Lynch et al. (eds),

Reforming the European Union—From Maastricht to Amsterdam (Longman, 2000), at 191, 193; J. Shaw,

‘Citizenship of the Union: Towards Post-National Membership?’ (1998) 6 Collected Courses of the

Academy of European Law 343–344; W. Streek, ‘Citizenship under Regime Competition’, Jean Monnet

Working Paper No.09, 1997.

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European Law Journal, Vol. 20, No. 4, July 2014, pp. 482–498.

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assessment is long overdue.4If the lack of clarity concerning duties really harms EU

citizenship as numerous scholars claim, it is imperative to scrutinise the essence of

such duties, the actual role they play and their likely contribution to the achievement

of the goals of the Union. Alternatively, should such duties be yet another myth in a

long row of legal notions glorified in EU law, while, in reality, boasting only a feeble

substance in the Union context, be it justice,5democracy6or equality,7this should be

put straight: the presumption of importance of EU citizenship duties should be

dismissed once and for all. To do this is the core ambition of this paper.

Unlike a myriad scholars claiming that, to quote J.H.H. Weiler, ‘la cultura dei

diritti, che lo si voglia o no, indebolisce alquanto la contro-cultura della reponsabilità

e del dovere’,8this paper demonstrates that duties of EU citizenship only exist as one

word in the Treaty, which does not happen to correspond to anything in either

contemporary legal theory or in practice: both theory and day-to-day reality mandate

a conclusion that there is simply no ‘contro-cultura’ which is at the centre of the

regrets, expressed in current mainstream scholarship, which is most likely mistaken.9

Moreover, the fact that there is no such ‘contro-cultura’ is a good thing, unlike what

all the scholars listed in footnote three and their numerous associates claim.

Crucially, this situation is not specific to EU citizenship and boasts multiple par-

allels at the Member State level, where duties have been in marked recess during the

last half a century at least. Speaking of citizenship duties,10 scholars fail to take into

account the core function of ‘classical’ citizenship duties,11 which consisted in the

uniformisation of societies through punishing difference, as well as in the preservation

of the status quo through providing a justification for sex and race discrimination,

thus crushing individuality and silencing dissent. Once such ends have been made

unacceptable with the rise of tolerance, inclusion and respect, the tool for achieving

them—duties—logically fell out of use in the citizenship context. EU Member States

falling outwith the general de-dutification trend, such as Greece or Estonia with their

conscription laws, or Belgium with its obligatory participation in elections, are now

the odd ones out, providing exceptions to the mainstream picture rather than

reaffirming the main rule. This bears on the essence of citizenship as such: liberated

from the ties of duties, it became less totalitarian, less intrusive and more inclusive.

4What is meant by duties here, are the duties in the person of the citizen, not the duties of the authorities

vis-à-vis the citizen.

5D. Kochenov, G. De Búrca and A. Williams (eds), Europe’s Justice Deficit? (Hart Publishing, 2014)

(forthcoming); A. Williams, The Ethos of Europe (CUP, 2010).

6Weiler (2009) ‘Europa’, 51.

7D. Kochenov, ‘Citizenship without Respect’, Jean Monnet Working Paper No. 8/2010; G. de Búrca,

‘The Role of Equality in European Community Law’, in A. Dashwood and S. O’Leary (eds), The

Principle of Equal Treatment in EC Law (Sweet and Maxwell, 1997), at 13.

8Weiler (2009) ‘Europa’, 80. For more criticism of rights, M. Tushnet, ‘An Essay on Rights’, (1984) 62

Texas Law Review 1363.

9Also, C. Joppke, ‘The Inevitable Lightening of Citizenship’, (2010) 51 European Journal of Sociology 37.

10 It is necessary to distinguish the legal concept of citizenship for the purposes of this paper from

‘industrial’, ‘ecological’, ‘social’ and other ‘citizenships’, not essentially connected to possessing a

nationality regulated by law; S. Maillard, L’émergence de la citoyenneté sociale européenne (Presses

Universitaires d’Aix-Marseille, 2008); G. Mundlak, ‘Industrial Citizenship, Social Citizenship, Corpo-

rate Citizenship: I Just Want My Wages’, (2007) 8 Theoretical Inquiries in Law 719. For an example of

confusion eg Streek (1997).

11 See, eg parts of G. Mazzini, ‘Dei doveri dell’uomo’, Opere politiche (UTET, 2nd edn, 2005), at 851.

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