Union Citizenship—Metaphor or Source of Rights?

• DOI: http://doi.org/10.1111/1468-0386.00116
• Author: Norbert Reich
• Date: 01 March 2001
• Published date: 01 March 2001

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Union CitizenshipÐ

Metaphor or Source of Rights?

Norbert Reich*

Abstract: After nearly ten years of introducing Union Citizenship as a concept into

Community law it seems time to draw a preliminary evaluation of its importance in

reshaping the legal and social positions of citizens living in the EU, more precisely in its

Member States. The balance sheet is however mixed: On the one hand, the prevalent

position in legal doctrine seems to be that Union citizenship is merely a derived condition

of nationality, while on the other side certain fundamental rights are based on criteria

other than citizenship/nationality alone. The European Charter on Fundamental Rights

will not overcome this dilemma. This can be shown in con¯ictual areas which are in the

centre of discusion in the paper, namely the (limited!) use of the concept of citizenship to

extend existing free movement rights in the new case law of the Court of Justice, the

resistance towards granting `quasi-citizenship' rights to third country nationals lawfully

resident in the Union for a longer period of time, and the yet unsolved problem of

imposing `implied duties' based on a doctrine of `abus de droit' upon citizens paralleling

the rights granted to them. As a conclusion the author is of the opinion that the question

asked for in the title can be answered in the positive only to a limited extent. Citizenship

appears to be a sleeping fairy princess still be be kissed awake by the direct eect of

Community law.

I Great Confusion and Small Rewards

Union citizenshipÐis it a `¯ag which fails to cover its cargo', as Laurence Gormley

says,

1

or may it be regarded as `a positive contribution to the legitimacy of the

European Union which an active and participatory concept of social citizenship may

make', as Jo Shaw has concluded?

2

In a broader sense, is citizenship as mere metaphor

`a creation of another type of expressiveness', maybe even `a ®ction as the creation of

another type of semantic reality' in the sense of the Flemish legal philosopher Jan

Broekman,

3

or can it be regarded as a source of rights which extends the scope of the

citizen rights that already exist in the European Treaties, as I have argued elsewhere

European Law Journal, Vol. 7, No. 1, March 2001, pp. 4±23.

#Blackwell Publishers Ltd. 2001, 108 Cowley Road, Oxford OX4 1JK, UK

and 350 Main Street, Malden, MA 02148, USA

* Professor of German and European Civil and Economic Law, University of Bremen. Amended and

updated version of a paper originally delivered at the University of Helsinki Law School on the occasion

of being awarded the title `Dr iuris honoris causae' on 5 May 2000.

1

In: Kapteyn/VerLoren van Themaat, Introduction to the Law of the European Communities, 3rd ed

(Kluwer 1999), p. 157.

2

`Citizenship of the Union: Towards Post-National Membership?', in the European University Institute

(ed), Collected Courses of the Academy of European Law, Vol. VI-1 (Nijho 1998), 237 at 346.

3

A Philosophy of European Law (Peeters 1999), p. 142.

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with regard to the principle of non-discrimination?

4

But what about fundamental

rightsÐa particular concern to Siofra O'Leary

5

who criticises the `failure to recognise

an explicit link between fundamental rights and the scope and operation of the

Community citizenship?

6

Will this failure be overcome by the adoption of a `Charter of

Fundamental Rights in the European Union'

7

which, however, only aims at restating

the `acquis'?

A ®rst reading of the concept of citizenship as introduced by the Maastricht Treaty

and reinforced by the Amsterdam Treaty seems to suggest its character as a metaphor.

Article 8 of the Maastricht Treaty, now Article 17 of the Amsterdam Treaty simply

says that `citizenship of the Union is hereby established. Every person holding the

nationality of a Member State shall be a citizen of the Union'. The Amsterdam Treaty

added the following sentence: `Citizenship of the Union shall complement and not

replace national citizenship'.

The following articles of the Treaty make clear that citizens of the Union enjoy

the rights conferred by this Treaty and shall be subject to the duties imposed

thereby. The most important rights relate to free movement (Article 18), the right

both to vote and to stand as a candidate for municipal elections, and elections to

the European Parliament (Article 19), the right of diplomatic and consular

protection (Article 20), and the right of petition and protection by the Ombudsman

of the European Parliament (Article 21). Nothing is said about corresponding

duties.

It is also well known that some of the rights which are included in Union

citizenship have already been developed by Court practice in its extensive inter-

pretation of the fundamental freedoms of the EC Treaty and the right to non-

discrimination based on nationality and gender. The combination of these develop-

ments was highlighted by the Cowan case of 1989

8

where the right of every tourist in

the Union to receive services was taken as a basis for a general prohibition of

discrimination based on nationality. What, therefore, does Article 18 add to this

already established right of the European citizen in his or her role as consumer? Is

there a paradigm-change from granting rights not only to the market citizens

(bourgeois) but also to the `Union citizens' who, strictu sensu, do not enjoy an

economic role (citoyen)?

9

Or, to put it dierently: is citizenship merely a legal concept which de®nes a formal

link of European citizens via nationality, or can it be extended to some fundamental,

civic, political, and social links as has been suggested by the more general theory of

citizenship as developed by the English sociologist T. Marshall

10

to whom Jo Shaw

March 2001 Union CitizenshipÐMetaphor or Source of Rights?

#Blackwell Publishers Ltd. 2001 5

4

Reich, Bu

Èrgerrechte in de EU, (Nomos 1999), pp. 427±428.

5

`The Relationship between Community Citizenship and the Protection of Fundamental Rights in

Community Law', [1995] CMLR 519; ibid., The Evolving Concept of Community Citizenship (1996).

6

op. cit. p. 537.

7

Dok. Charte 4487/00; cf. S. Baer, `Grundrechtscharta ante Portas' (2000) Zeitschrift fu

Èr Rechtspolitik

(ZRP) 361; J. Meyer/M. Engels, `Aufnahme von sozialen Grundrechten in die Europa

Èische Grundrecht-

scharta', (2000) ZRP 368; N. Reich, `Zur Notwendigkeit einer europa

Èischen Grundrechtsbeschwerde',

(2000) ZRP 371; K. Rigen, `Grundrechtsschutz in der EU', (2000) ZRP 371; K. Laenerts, `Respect for

Fundamental Rights as a Constitutional Principle of the EU' (2000) ColJEL 1; J. Weiler, `Does the EU

Truly Need a Charter of Rights?' (2000) 6 ELJ 95.

8

See Case 186/86, Cowan v Tre

Âsor Public, [1989] ECR 195; for a discussion, see T. Tridimas, The General

Principles of EC Law (Oxford 1999), p. 84.

9

O'Leary supra note 5, p. 524; Reich supra note 4, p. 53.

10

Citizenship and Social Class (1950).