In This Issue

AuthorAgustín José Menéndez
Published date01 July 2014
Date01 July 2014
In This Issue
Kostakopoulou opens this issue with a Janus-faced contribution. On the one hand,
the author boldly claims that European citizenship has been transformed into a ‘living
instrument’ by the European Court of Justice (ECJ). The Luxembourg judges have
built up the robust normative frames on the basis of which the case-law on European
citizenship is built. On the other hand, Kostakopoulou is eager to remind us that the
triumph of European citizenship may still turn into a pyrrhic victory. From central
building block of the European polity, European citizen may still become a ‘mere
phenomenology’. This will be the case if the normative commitment to the alleged
post-national understanding of belonging characteristic of European citizenship is not
pushed further forward by the ECJ. Three main ‘gaps’ in the protection of European
citizenship have to be filled according to Kostakopoulou. Firstly, European citizens
are insufficiently protected against the risk of becoming stateless, either as the result
of a unilateral decision of a Member State addressed to one specific individual or as
the consequence of one or several Member States (or, one may add, regions within a
Member State) exiting the Union. Secondly, the protection that Union law provides
to European citizens residing in other Member States should be strengthened. In
particular, Kostakopoulou makes a bold criticism of the excessive margin of discre-
tion left by the ECJ to Member States when constructing the grounds for expulsion of
long-term residents in the name of public security. Thirdly, European law should
protect European citizens left behind by the more or less active passivity of Member
States of the EU vis-à-vis the kidnapping of European citizens or residents in EU
territory by US agents (the so-called rendition practice), which the author tells us may
endanger the full enjoyment of their rights as European citizens.
Kuchenov puts forward a radical defense of European citizenship as the ultimate
manifestation of a post-national status. While a good deal of the literature on Euro-
pean citizenship finds that one of the key indicators of the thin, weak and problematic
character of European citizenship is the almost inexistence of duties on the side of
Europeans qua Europeans (nobody is called to die for Europe, and, more worryingly,
rarely anybody is explicitly requested to pay taxes for Europe), Kuchenov finds that
this is precisely what makes European citizenship an institution with massive norma-
tive emancipatory promise. Relying on a rather innovative (and bound to be con-
tested) reading of Hart’s and MacCormick’s analysis of the relationship between
rights and duties, Kuchenov finds that liberation from the oppressive and brutalising
homogenising power of old-fashioned nation-state citizenship leads quite naturally to
an understanding of citizenship as a status which provides individuals with legal
rights, but trusts societal links, not formally legalised, to create the socio-economic
conditions under which citizenship rights can be effective. Perhaps it is apt to say that
Kuchenov proposes the reader Stirnerian music with Hayekian lyrics, a combination
through which a radically individualistic conception of citizenship is advocated.
Iglesias Sánchez reconsiders the triangle formed by the protection of economic
freedoms, citizenship and competence basis. Unavoidably, the subjective legal
positions protected by national and supranational fundamental constitutional provi-
sions are not (exactly) the same. Affirming, as the ECJ has done in the past (and often
European Law Journal, Vol. 20, No. 4, July 2014, pp. 441–443.
© 2014 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA

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