The Constitutional Relevance of Citizenship and Free Movement in an Enlarged Union

• Date: 01 November 2005
• DOI: http://doi.org/10.1111/j.1468-0386.2005.00282.x
• Author: Norbert Reich
• Published date: 01 November 2005

The Constitutional Relevance of

Citizenship and Free Movement in an

Enlarged Union

Norbert Reich*

Abstract: The concept of citizenship is analysed on three seemingly contradictory levels:

its integration by the recent case law of the European Court of Justice into the existing

free movement acquis,its restriction in the accession treaties with new Member States

concerning free movement of workers, and its redef‌inition by new Member States them-

selves. The result is a somewhat blurred picture: While the European Court of Justices

uses citizenship to f‌ill gaps left by primary and secondary law mostly with regard to non-

discrimination, the accession treaties have allowed a ‘re-nationalisation’ of free movement,

against the promises of equality inherent in the citizenship concept, which also includes

nationals from new Member countries. The concept of citizenship itself in new Member

countries, as the examples of Latvia and Estonia on the one hand, and Hungary on the

other demonstrate, is very much related to the (somewhat sad) lessons of the past and

therefore highly politicised; it has not been shaped with regard to free movement in the

EU. The author suggests a gradual ‘communitarisation’ of citizenship itself even though

the EU seems to miss competence in this area, for example, by paying greater attention

to residence as basis for Community rights.

I Introduction

The topic of ‘Union Citizenship’ has kept me busy for some time.1Certainly, it is a con-

siderable task to follow its passage into the proposed EU Constitution, namely the

somewhat unfortunate Draft Treaty Establishing a Constitution for Europe signed on

European Law Journal, Vol.11, No. 6, November 2005, pp. 675–698.

© 2005 The Author

Journal compilation © 2005 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Professor, University of Bremen, Faculty of Law; Ex-Rector, Riga Graduate School of Law (till

31 December 2004). Revised and updated paper of the Annual Lecture 2004 at the Centre for European,

Comparative and International Law (CECIL), Department of Law, University of Sheff‌ield, on

26 February 2004, also published as RGSL Working paper No. 19 and presented at the Conference on the

Future of the Tampere Process on 1 November 2004

1See N. Reich, ‘Union Citizenship—Metaphor or Source of Rights’, (2001) 4 European Law Journal, and

my inaugural lecture as Rector of RGSL: ‘Citizenship—Yesterday, today and tomorrow’, RGSL Working

Paper 3, 2001. For a later account, see my remarks (with S. Harbacevica), ‘The Stony Road to Brussels—

The Many Ways of EU Nationals and Residents into Union Citizenship—and the Many Ways to Keep

them Out’, (2002) Europarattslig Tidskrift 411; ‘Citizenship and family on trial: A fairly optimistic

overview of recent court practice with regard to free movement of persons’, (2003) Common Market Law

Review,615; and in N. Reich, Understanding EU Law,2nd edn (Intersentia,2005), pp. 70–89.

29 October 2004 in Rome (in the following: Draft Constitution).2Of course, this involves

analysing the position of the new Member Countries, in particular the Baltic States with

regard to the twofold challenge they are facing.The f‌irst of these is to take over the exist-

ing acquis.3This implies an enormous change in the existing political and legal infra-

structure, which, in many areas, is still in its infancy.4The second challenge is to f‌ind a

position in the new structures envisaged in the Draft Constitution, which had only been

debated superf‌icially in these countries. The delay in its adoption will allow more time

to discuss the constitutional implications of membership for these countries. This is par-

ticularly important with regard to the sensitive topic of citizenship and free movement

of persons. Indeed, the Draft Constitution contains an article, Article I-10, on ‘Citizen-

ship of the Union’. However,this more or less followed its Maastricht, Amsterdam, and

Nice precursors, without any rethinking of the constitutional concept, particularly as to

rights and duties of the EU citizen towards the Union.5It insists that ‘citizenship of the

Union shall be additional to national citizenship; it shall not replace it’. Free movement

and residence is—as before in Article 18 EC—regarded as being at the heart of citizen-

ship, directed against Member States.

This close interrelationship between free movement of persons and citizenship is

indeed one of the fundamentals of the European Union/Community as an institution,

and of the bundle of rights (to a lesser extent: obligations) that its citizens (respectively

the citizens of the Member States) are entitled to. One might think that this package

of rights and structures will automatically be transferred to the new Member States

taking over the acquis from 1 May 2004 onwards. However, as we know, things are not

that easy. Transitional arrangements exist that provoke critical analysis from the Euro-

pean lawyer. In addition, peculiarities in the citizenship concepts of some new Member

States—including Latvia—stand in potential conf‌lict with the principles from which

EU law seems to depart. All this needs ref‌lection, too.

These preliminary remarks allow structuring of this paper in a somewhat clearer and

more fundamental way. Section II develops the existing acquis with regard to EU

citizenship. This is based on the case law of the European Court of Justice, itself char-

acterised by an extensive reading of the concept, particularly by linking it to the non-

discrimination principle of Article 12 EC. Recent case law tries to clarify some

conf‌licting concepts, particularly with regard to access of citizens, who are not workers,

to social benef‌its—I refer to this later. The third section follows opposite directions

written into the accession treaties whereby so-called transitory arrangements allow a

suspension of full citizenship for nationals of new Member countries for a maximum of

seven years. The fourth section looks at potential fault lines. That is, we start with the

EU concept of citizenship, itself closely linked with free movement. We then

contrast this, f‌irst with a restrictive concept in Latvia (and to a lesser extent Estonia),

which denies so-called ‘non-nationals’ the privilege of Latvian nationality. These non-

nationals—mostly of Russian origin—now make up about one quarter of the country.

The contrast continues with the broader concept in Hungary, which aims to extend cit-

izenship to non-residents of Hungarian origin living in Romania, Ukraine, and Serbia.

European Law Journal Volume 11

676 © 2005 The Author

Journal compilation © Blackwell Publishing Ltd. 2005

2OJ C 310 00/00/2004, a prior version by the Convention was published in OJ C 169 00/00/2003.

3See the highly instructive paper by Christian Boye Jacobsen, ‘Implementing the acquis communautaire—

the f‌ight over 80,000 pages’, RGSL Working Papers No. 7, 2003.

4Also highly instructive is the article by F. Emmert, ‘Administrative and Court Reform in Central and

Eastern Europe’, (2003) European Law Journal, 288.

5This is rightly criticised by M. Nettesheim, ‘Die Unionsbürgerschaft im Verfassungsentwurf—Verfassung

des Ideals einer politischen Gemeinschaft der Europäer?’ (2003) Integration, 428.