When EU Citizens become Foreigners

• DOI: http://doi.org/10.1111/eulj.12093
• Published date: 01 July 2014
• Author: Dora Kostakopoulou
• Date: 01 July 2014

When EU Citizens become Foreigners

Dora Kostakopoulou*

Abstract: Although EU citizenship has matured as an institution, a combination of hope

and caution ought to accompany the tale of its evolution. Contradictory processes of

inclusion and greater equalisation coexist with exclusionary logics. These would have to

be taken into account, and be addressed, by assessments of its present state and its future

evolution. A focus on three key manifestations of state sovereignty, namely, the erasure

of citizenship status, expulsion and the disappearance of individuals owing to extraor-

dinary rendition, sheds light onto the edges of EU citizenship and the undesirable effects

of untrammelled state power on the lives of individuals. Probing into the moments when

EU citizens are treated as aliens or foreigners, and the troublesome ambiguities, tensions

and limitations surrounding them, reveals the gaps in the protection of EU citizens and

the constraints that stand in the way of change in the institutional scheme of things.

I Introduction

Political life becomes crystallised in institutions, practices, both formal and informal,

laws and policies. But despite human beings’ desire for stability and certainty, change

is endemic in political life thereby propelling the adaptation of all the above to new

conditions and circumstances and necessitating juridical and political reform.

Although the forces of change are not always eruptive, and thus clearly visible, and

quite often are so varied that one loses sight of their direction and their specif‌ic impact

on political life, it is, nevertheless, true that all institutions constantly adapt, and

adjust, to changing conditions, expectations and circumstances. In this respect, the

fact that EU citizenship, which was formally established by the Treaty on European

Union 21 years ago, not only has matured but has also been recently elevated to a

central building block of the European polity edif‌ice is not surprising at all. Despite

the pessimistic assessments of its role and constructive potential1in the 1990s, the

* School of Law, Warwick University.

1See J.H. Weiler, ‘Does Europe Need a Constitution? Ref‌lections on Demos, Telos and the German

Maastricht Decision’ (1995) 1(3) European Law Journal 219–58; G. de Burca, ‘The Quest for Legitimacy

in the European Union’ (1996) 59(3) Modern Law Review 349–379; D. Curtin, Postnational Democracy:

The European Union in Search of a Political Philosophy (Kluwer, 1997); C. Closa, ‘The Concept of

Citizenship in the Treaty of European Union’ (1992) 29 Common Market Law Review 1137; ‘Suprana-

tional Citizenship and Democracy: Normative and Empirical Dimensions’, in M. La Torre (ed.), Euro-

pean Citizenship: An Institutional Challenge (Kluwer, 1998); E. Meehan, European Citizenship (Sage,

1993); T. Kostakopoulou, ‘Towards a Theory of Constructive Citizenship in Europe’ (1996) 4(4) Journal

of Political Philosophy 337–358; T. Kostakopoulou, ‘European Citizenship and Immigration after

Amsterdam: Silences, Openings, Paradoxes’ (1998) 24(4) Journal of Ethnic and Migration Studies 639–

656; U. Preuss, ‘Two Challenges to European Citizenship’ (1996) XLIV Political Studies 534–552;

J. Shaw, ‘The Many Pasts and Futures of Citizenship in the EU’ (1997) 22 European Law Review

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European Law Journal, Vol. 20, No. 4, July 2014, pp. 447–463.

© 2014 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

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Court of Justice of the European Union (CJEU) has made a number of important

interventions which have resulted in procuring transformative institutional change.2

Following a period of judicial minimalism (1993–1997), the importance of the

normative template of equal treatment entailed by Union citizenship was highlighted

by the CJEU in Martinez Sala (this was a phase of ‘signalling intentions’).3In the new

millennium, the Court proceeded to transform it into living instrument by adopting

more robust normative frames which have had an empowering effect on EU citizens.

In addition to the Court’s decisive interventions, the adoption of the Citizenship

Directive, the fully binding Charter of Fundamental Rights, the appointment of a

Commissioner in charge of the ‘Justice, Fundamental Rights and Citizenship’ DG, the

adoption of the Stockholm Programme on an ‘open and secure Europe serving and

protecting the citizen’ and an ambitious policy programme aiming at removing obsta-

cles to the exercise of EU citizenship rights adopted by the Barosso II Commission,4

all have reinforced EU citizenship and opened up possibilities for its broadening and

deepening.5

Encouraged by these developments, scholars diagnose a new chapter in European

federalism and anticipate a linkage between fundamental rights and EU citizenship so

that EU citizens, be they ‘static’ or ‘mobile’, can invoke both within the parameters

established by the EU law.6But such assessments might be premature. In what

follows, I argue that a combination of hope and caution ought to accompany the tale

of the evolution of the experimental institution of EU citizenship.7Contradictory

processes of inclusion and greater equalisation coexist with exclusionary processes,

and these would have to be taken into account, and be fully addressed, by perspec-

tives on EU citizenship’s present as well as future. Probing into the not-so-clearly

visible edges of EU citizenship, that is, the moments when EU citizens are treated as

aliens or foreigners, and the troublesome ambiguities, tensions and limitations sur-

rounding them, reveals the gaps in the protection of EU citizens and the constraints

that stand in the way of change in the institutional scheme of things.

The subsequent discussion is structured as follows. Section 1 brief‌ly discusses the

archetypical account of EU citizenship, while in section 2 I shift the attention from the

centre to the ‘margins’. Three case studies addressing the ‘edgelands’ of EU citizen-

ship reveal how easy it is for the EU citizen status to be shaken off and thus to

become devoid of signif‌icance as national sovereignty and state power reassert them-

selves, thereby turning EU citizens into foreigners. Shedding light onto these edges of

554–572; A. Wiener, ‘Assessing the Constructive Potential of Union-Citizenship—A Socio-Historical

Perspective’ (1997) 1(17) European Integration On-line Papers (http://eiop.or.at/eiop/); Building Institu-

tions: The Developing Practice of European Citizenship (Westview, 1998).

2I borrow this from T. Kostakopoulou, ‘Ideas, Norms and European Citizenship’, (2005) 65(2) Modern

Law Review 233–267.

3Ibid.

42013 has also been designated as the European Year of Citizens; Proposal for a Decision of the

European Parliament and the Council on the European Year of Citizens (2013) COM (2011) 489.

5See T. Kostakopoulou, ‘Co-creating EU Citizenship: Institutional Process and Crescive Norms’, (Forth-

coming, 2013) 15 Cambridge Yearbook of European Legal Studies 255–281.

6D. Kochenov, ‘The Citizenship Paradigm’, (Forthcoming, 2013) 15 Cambridge Yearbook of European

Legal Studies 197–225.

7See further, T. Kostakopoulou, ‘The European Court of Justice, Member State Autonomy and Euro-

pean Union Citizenship: Conjunctions and Disjunctions’, in B. de Witte and Hans-W. Micklitz (eds.)

The European Court of Justice and the Autonomy of the Member States (Intersentia, 2012), at 175–203,

177 et seq.

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