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

Published date01 July 2016
Date01 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 citizenshipcan be invoked in order to also extend legal pro-
tectiontospecif‌ic categories of third country nationals. I will argue that the genuine
enjoymentformula 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
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.
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.
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.
L. Dominique,Citizenship, inE. N. Zalta (ed.), The StanfordEncyclopedia of Philosophy (Spring,2014 edn.),
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 citizenstatusand citizenship rightsis traditionally takenfor granted in the literature.
European LawJournal, Vol. 22, No. 4, July 2016, pp. 470491.
© 2016 John Wiley & SonsLtd. 9600 Garsington Road, Oxford,OX4 2DQ, UK
and 350 Main Street, Malden,MA 02148, USA
of such rights be graduated without hollowing out the very notion of citizenship?
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
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?
Do nation-states have an unconditional right to close
their borders and shape their nationality laws?
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.
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 thinform 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,
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),
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.
Among the other
main weaknesses of EU citizenship, the fact that it does not seem to come hand
in hand with civic duties
stands out, because this feature is in contrast with the
notion of citizenship as membership of a particular political community, where
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,250274.
S. Sassen, The Repositioning of Citizenship and Alienage:Emergent Subjectsand Spaces forPolitics,(2005)2
Amongothers, R. Bauböck, Transnational Citizenship(Edward Elgar,1994); J. Habermas, The Inclusionof the
Other: Studiesin Political Theory (MIT Press,1998).
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).
D. Kochenov, The Right to Have What Rights? EU Citizenshipin Need of Clarif‌ication,(2013)19European
Law Journal,502516.
F. Wollenschläger, A NewFundamental Freedombeyond Market Integration:Union Citizenshipand Its Dy-
namics forShifting the Economic Paradigm of EuropeanIntegration,(2011)17European Law Journal,134.
S. IglesiasSanchez, FundamentalRights and Citizenshipof the Union at a Crossroads:A Promising Alliance
or a Dangerous Liaison?,(2014)20European Law Journal,464481; C. Raucea, Fundamental Rights: The
Missing Piecesof European Citizenship?,(2013) 14 German La w Journal, 20212039.
P. Caro de Sousa,Quest for the Holy GrailIsa Unif‌ied Approach to theMarket Freedoms and European
CitizenshipJustif‌ied?,(2014)20European Law Journal,499519.
R. Davis, Citizenship of the Unio nRights for all?, (2002) 27 European Law Review,121137; D.
Kochenov,EU Citizenship without Duties(2014) 20 EuropeanLaw Journal,323343.
European Law Journal Volume 22
©2016JohnWiley&SonsLtd. 471

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