The Court of Justice and the Union Citizen

Date01 November 2005
AuthorJames D. Mather
Published date01 November 2005
*LL.B (Hons), C.E.P.E., LL.M. Doctoral Research Student at the Jean Monnet European Centre of Excel-
lence and the Centre for the Study of Law and Policy in Europe, University of Leeds.
The Court of Justice and
the Union Citizen
James D. Mather*
Abstract: Over a decade since the conception of the Union citizen, the aim of this article
very simply is to measure his growth and maturity with a sustained analysis of the jurispru-
dence of the Court of Justice in this regard. After all, it was Advocate General Lèger who
stated that it was for the Court to ensure that its full scope was attained. The article
focuses predominantly on three areas of study: Member State nationality law and citi-
zenship, the effect and meaning of Article 18 EC, and the ever-evolving right to equal
treatment for the Union citizen. It is fully updated in the light of recent case law, the
Treaty establishing a Constitution for Europe, and the newly adopted Directive 2004/58
I Introduction
Citizenship of the European Union was formally established in the Treaty on Euro-
pean Union—somewhat paradoxically under Article 17(1) of the Community pillar—
which came into force over a decade ago. According to its Preamble, the 12 ratifying
Member States were resolved to establish a citizenship that was to be common to the
nationals of their countries. Their overall ambition, upon Article 2 TEU, was that it
would strengthen the protection of their rights and interests. These provisions were to
lead to the positing of much academic and legal opinion on the whole nature and
essence of this so-called ‘citizenship’. Would the inclusion of such a concept pave the
way to the creation of a direct bond between the individual and the Union, devoid of
the Member States? Would the Union as an imprecise politico-economic entity be truly
capable of creating a sense of belonging and identity amongst the peoples of Europe?
Could there ever be a genuine supranational citizenship having its roots in a post-
national community and separated from the traditional notions of ‘State’, ‘nation’, and
The aim of this paper is not so much to provide an analysis of such politico-
philosophical underpinnings of Union citizenship, important as they are. Instead, over
ten years since the entry into force of the Treaty of Maastricht, it has as its principal
objective the re-evaluation, with predominantly legal analysis, of O’Keefe’s assertion
in 1993 that the importance of the rather minimalist citizenship provisions lay not in
European Law Journal, Vol.11, No. 6, November 2005, pp. 722–743.
© 2005 The Author
Journal compilation © 2005 Blackwell Publishing Ltd 2004, 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
their content but rather in the promise they held out for the future; the concept of
Union citizenship being ‘a dynamic one, capable of being added to or strengthened,
but not diminished’.1This article thus intends to provide a critical analysis of the con-
tribution that the Court of Justice has made to the interpretation of the citizenship
provisions and to the overall maturation of the EU citizen. All accept that the Court
of Justice has played a signif‌icant role in the development of the unique Community
legal order, but to what extent has it assisted in the shaping of EU citizenship as it
stands a decade on from its formal, rather minimalist introduction? Can it be said that
Union citizenship now confers any more signif‌icant rights than those originally
enshrined in the Treaty? It is pertinent here to recall the words of Advocate General
Lèger in Boukhalfa that, ‘it was for the Court to ensure that its full scope be attained’.2
I pose the question, therefore,to what extent has the Court of Justice sought to nurture
the rather pale and premature Union citizen that was born in 1993 after its conception
in 1992? I also ask how far will new Directive 2004/58 EC, adopted partially on the
legal basis of Article 18 EC and specif‌ically concerning the right of citiz ens of the
Union to move and reside freely within the territory of the Member States, help raise
him or her into adulthood?
II Member State Nationality Laws and Citizenship
When the Treaty of Rome was signed in 1957, Article 39 EC provided for the free move-
ment of workers across the common market; this freedom being dependent upon the
possession of nationality of one of the Member States. Similarly, 41 years later, the
inclusion of Article 17(1) EC at Maastricht provided that ‘every person holding
the nationality of a Member State shall be a citizen of the Union’. Upon this, Union
citizenship appeared to many to amount to a formal-legal construct which was acquired
only by satisfying the condition precedent of being a national of a Member State,
thereby rendering those not possessing such nationality but residing on its territory
excluded from the catalogue of rights. In short, Union citizenship was said to be based
upon an indirect relationship between the individual and the Union; in the words of
Closa, it amounting merely ‘to a derived condition of nationality’.3However, the
question remains: has any inroad into this limitation of its personal scope been
attempted? Has there at least been any weakening of the link between Member States’
exclusive determination of nationality and acquisition of citiz enship?
Insofar as its limited personal scope is concerned, it has not been widened since 1992
and in anticipation of the ratif‌ication of the Treaty establishing a Constitution for
Europe, this will not take place; it continuing to be parasitic on Member State nation-
ality.4Acknowledging the status quo,it is now f‌itting to turn to the question of deter-
mination of nationality. Prior to the introduction of citizenship, the Court of Justice
in 1992 in the Micheletti case5conf‌irmed that it rested within the exclusive competence
November 2005 The Court of Justice and the Union Citizen
© 2005 The Author 723
Journal compilation © Blackwell Publishing Ltd. 2005
1D. O’Keefe,‘Union Citiz enship’, in D.O’Keefe and P.Twomey (eds), Legal Issues of the Maastricht Treaty
(Chancery Wiley, 1994) at 106.
2Case C-214/94 Boukhalfa v Federal Republic of Germany [1996] ECR I-2253, para 63 of Advocate General
Lèger’s Opinion.
3C. Closa, ‘Citizenship of the Union and Nationality of Member States’(1995) 32 Common Market Law
Review 487, 510.
4Art I-10 (1) of the Treaty Establishing a Constitution for Europe, CIG 87/2/04 (29 October 2004).
5Case C-369/90, Micheletti and Others v Delegación del Gobierno Cantabria [1992] ECR I-4239.

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