European Citizenship and the Right to Reside: ‘No One on the Outside has a Right to be Inside?’

• DOI: http://doi.org/10.1111/eulj.12196
• Published date: 01 July 2016
• Date: 01 July 2016

European Citizenship and the Right to

Reside: ‘No One on the Outside has a Right to

be Inside? ’

Chiara Raucea*

Abstract: This paper deals with the question: Who ought not to be excluded from the

enjoyment of European citizenship rights? Recently, the Court of Justice has ruled

that, in exceptional situations, the ‘genuine enjoyment of the substance of rights

attaching to European citizenship’can be invoked in order to also extend legal pro-

tectiontospecif‌ic categories of third country nationals. I will argue that the ‘genuine

enjoyment’formula is not only setting an innovative jurisdictional test concerning

European citizenship rights, but that it is also highlighting how the traditional account

of citizenship (from status to rights) can be conceptually reversed. This happens in

threshold cases, where the tenability of the schema of distribution of rights, agreed within

a political community, depends on the possibility to readjust the boundaries of political

membership.

I Introduction

Citizenship rights are rights claimed on the basis of political membership. However,

the entitlement to membership cannot, in itself, be claimed as a right towards a polit-

ical community. In short these two sentences illustrate the relation between member-

ship status and membersh ip rights, according to th e classical conceptuali sation of

citizenship. They also represent a starting point shared across a wide range of diver-

gent positions in the co ntemporary citizensh ip debate.

1

1

Reasons for disagreeme nt

among political theorists are manifold, but they can be grouped around two main dis-

putes concerning the concept of citizenship today.

2

2

On the one hand, we have authors who focus on the challenge posed to the institution

of citizenship by the internal diversity of liberal democracies. To this f‌irst group belong

theorists who question the content of the in stitution of citizenship in terms of rights.

Their main concerns are directed towards the following questions: Which rights should

be included in the list of citize nship rights? And to what ext ent can the protection

*

PhD Candidate,Tilburg University.

1

L. Dominique,‘Citizenship’, inE. N. Zalta (ed.), The StanfordEncyclopedia of Philosophy (Spring,2014 edn.),

availableat http://plato.stanford.edu/archives/spr2014/entries/citizenship.

2

This short panoramic is not meantto be a detailed and exhaustiverepresentation of all the different positions

and models elaborated upon by politicaltheorists. Rather, it is aimed at mapping a territory thatwill remain

outside thescope of this article. Indeed,rather than placing EU citizenship withinone of the different concep-

tionsin the citizenship debate,the present enquiryis directed primarilyat showing the way inwhich the relation

between ‘citizenstatus’and ‘citizenship rights’is traditionally takenfor granted in the literature.

European LawJournal, Vol. 22, No. 4, July 2016, pp. 470–491.

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of such rights be graduated without hollowing out the very notion of citizenship?

3

On

the other hand, we have authors who consider the limits of traditional nation-states

when it comes to capturing the dynamics of politics in a globalised world. To this sec-

ond group belong theorists who contribute to the body of literature known as ‘critical

citizenship studies’, and who question the tenability of the concept of citizenship out-

side the context of the nation-state

4

and doubt that political agency is possible at a

transnational level. T he main concerns of this seco nd group of theorists revo lve

around questions as the following: Is the connection between citizenship and nation-

states contingent or necessary?

5

Do nation-states have an unconditional right to close

their borders and shape their nationality laws?

6

The different strands in the contemporary citizenship debate f‌ind their parallels in

the more specif‌ic debate about European citizenship where, again, two main theoret-

ical positions can be distinguished. To the f‌irst group belong theorists who challenge

the tenability of EU citizenship in terms of rights.

7

The criticism is foremost directed

at the lack of an exhaustive list of European citizenship rights, something that they

claim is likely to result in European citizenship being a ‘thin’form of citize nship.

In this regard, the fact that EU law is only applicable if cross-border economic ac-

tivity or at least movement are involved,

8

coupled with a rather self-restrained under-

standing of its own competence to decide on fundamental rights questions put

forward by the Court of Justice of the European Union (hereafter, CJEU),

9

has

led to doctrinal warnings about the risk of EU citizenship being a rather too gen-

eral lable, which solely covers a set of economic entitlements.

10

Among the other

main weaknesses of EU citizenship, the fact that it does not seem to come hand

in hand with civic duties

11

stands out, because this feature is in contrast with the

notion of citizenship as membership of a particular political community, where

3

The positionsof theoristsbelonging to this f‌irst groupare not homogeneous.They tend to argue thatcitizenship

is a legal statusthat confers civil, political andsocial rights upon all the full membersof the polity. However,

disagreementsarise aboutthe role played by equalityin the arrangementsconcerningthe distribution ofcitizen-

shiprights. Some theoristssupport a conceptionof citizenshipfocused on securingan identical set ofrights to all

members. Among others, T.H. Marshall, Citizenship and Social Class: and Other Essays (University press

CambridgeUniversity Press,1950). Others argue insteadthat equal concernfor all members may justifydiffer-

entiatedtreatment for some. Amongothers, I.M. Young, ‘Polityand Group Difference:A Critique of the Ideal

of Universal Citizenship’,(1989)99Ethics,250–274.

4

S. Sassen, ‘The Repositioning of Citizenship and Alienage:Emergent Subjectsand Spaces forPolitics’,(2005)2

Globalizations,79–94.

5

Amongothers, R. Bauböck, Transnational Citizenship(Edward Elgar,1994); J. Habermas, The Inclusionof the

Other: Studiesin Political Theory (MIT Press,1998).

6

See theextensive elaborationon the right to hospitalityand on porousborders in, S. Benhabib,Another Cosmo-

politanism (Oxford UniversityPress, 2006); and S. Benhabib, The Rightsof Others: Aliens, Residents,and Cit-

izens (CambridgeUniversity Press, 2004).

7

D. Kochenov, ‘The Right to Have What Rights? EU Citizenshipin Need of Clarif‌ication’,(2013)19European

Law Journal,502–516.

8

F. Wollenschläger, ‘A NewFundamental Freedombeyond Market Integration:Union Citizenshipand Its Dy-

namics forShifting the Economic Paradigm of EuropeanIntegration’,(2011)17European Law Journal,1–34.

9

S. IglesiasSanchez, ‘FundamentalRights and Citizenshipof the Union at a Crossroads:A Promising Alliance

or a Dangerous Liaison?’,(2014)20European Law Journal,464–481; C. Raucea, ‘Fundamental Rights: The

Missing Piecesof European Citizenship?’,(2013) 14 German La w Journal, 2021–2039.

10

P. Caro de Sousa,‘Quest for the Holy Grail—Isa Unif‌ied Approach to theMarket Freedoms and European

CitizenshipJustif‌ied?’,(2014)20European Law Journal,499–519.

11

R. Davis, ‘Citizenship of the Unio n…Rights for all?’, (2002) 27 European Law Review,121–137; D.

Kochenov,‘EU Citizenship without Duties’(2014) 20 EuropeanLaw Journal,323–343.

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