The Court of Justice and the Union Citizen

• DOI: http://doi.org/10.1111/j.1468-0386.2005.00284.x
• Date: 01 November 2005
• Author: James D. Mather
• Published date: 01 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

EC.

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

‘nationality’?

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.