Agustín José Menéndez, Universidad Complutense de Madrid and
Espen D. H. Olsen, Oslo Metropolitan University and Arena, University of Oslo
European citizenship became a central topic in European studies in the early 1990s. The collapse of ‘real communism’ seemed to have vindicated collective agency and proven the force of political ideas. This was a promising context for the comeback of a deeply political conception of citizenship, defined in its relationship with political participation. Unsurprisingly, the concept and the ideal of citizenship grew highly topical in political-philosophical debates. The case for a ‘European citizenship’, at one and the same time the projection to the continental level of national citizenship and a new form of post-national citizenship, gathered momentum. In such a context, the citizenship provisions of the Treaty of Maastricht seemed not only to herald a major shift in European integration, leading to an explicit politicisation of what was largely perceived as an economic union, but also to open up a new horizon, that of a new form of membership. Since 1993, the rulings of the European Court of Justice, together with the legal and administrative decisions of European institutions, have produced a constant flow of new materials that have kept legal and political scholars busy. Quite soon, an entirely new academic sub-field, that of European or EU citizenship, emerged as part of European legal and political studies.
As we developed our own work, facilitated by long conversations in Oslo and many exchanges via email, we became convinced that there were major tensions and gaps in the research agenda of European lawyers and political scientists when it came to ‘European citizenship’. In particular, it seemed to us that the repeated claims to the radical novelty of ‘European citizenship’ led to a glib assumption, namely that the problems posed by ‘European citizenship’ were radically different from those associated with national forms of citizenship.
This ‘sui generis’ character of ‘European citizenship’ seemed to justify some of the peculiar features of that personal status, such as the centrality of the rights of movement (of persons, of goods and last but not least of capital) and the relative low salience of political participation (contrary to the expectations generated in the run up to the Maastricht Treaty).
We were puzzled and definitely uneasy. To us, the ‘ideal’ of ‘European citizenship’ held promise as a means to create political bonds beyond the nation-state. Personal movement was undoubtedly a key means of forging such bonds. But it was an instrument, not the ultimate goal, which should remain the equal right to participate in the definition of the general will. ‘European citizenship’ could indeed ‘rescue’ national citizenships, shaping them in line with the aspiration to turn European states into open and cooperative actors. That may occasionally require limiting the powers of what states could do to their citizens, residents, and visitors. But whether supranational or national, citizenship had to remain firmly anchored to the ideal of democratic self-government, and that may require limiting the capacity of the powerful to escape from the general will.
When the Court of Justice decided Martínez Sala or Ruiz Zambrano, we were sympathetic to the outcome, but were worried by the fact that the decisions were not anchored into an articulate conception of political community and political membership. But how could a court, lacking strong democratic legitimacy, undertake the task of developing a radically new form of citizenship without considering how that impacted upon the conceptions of political membership underpinning national legal systems or, for that matter, developing an alternative supranational conception of European membership? The more we read and the more we discussed, it seemed to us that there was a peculiar combination of path-dependency and ‘unlimited optimism’ (to quote Nino Majone) in the way in which the ECJ proceeded, and a good deal of the literature followed. The result was an unbalanced research agenda, inattentive to the social and economic costs of liberalising not only personal mobility, but also (and mainly) capital movements, in the name of a very specific conception of personal freedom which was sheltered under the label of ‘European citizenship’. All this placed off the radar, so to say, the ways in which ‘European citizenship’ makes some Europeans (and non-Europeans!) more equal than others, heightening socio-economic and cultural differences.
This is why we thought that it was necessary to bring out a new perspective on ‘European citizenship’, and eventually to write a book proposing an alternative research agenda. The many monographs, edited volumes and journal articles on the matter constituted our point of departure. But we also felt (and strongly so) that we had to go beyond the terms of the debate, to reconnect research with problems so far insufficiently considered, but which were painfully visible when contemplating the social realities not only in Athens or Madrid, but also in Copenhagen or Helsinki, once you left the gentrified city centres and walked your way through the peripheries. Therefore, we found it was time to put ideas and realities in contrast.
Setting European citizenship in context
The first and decisive step to take, it seems to us, is to set ‘European citizenship’ in its full context. The alleged radical novelty of ‘European citizenship’ has resulted in the setting aside of legal, political, and cultural history. In particular, the Maastricht Treaty exerts such a strong gravitational pull that 1993 is too frequently regarded as the ‘year zero’ of ‘European citizenship’. In other words, the formal enshrinement of ‘European citizenship’ is taken to have constituted a radical break with the past, rendering unnecessary to consider the legal norms, judicial decisions and social practices that preceded it. That seems to us deeply wrong. Instead, it is required that we engage with the full historical evolution of European law, and consequently, with the pre-1993 norms granting rights and imposing obligations upon individuals.
Five premises seem to us to follow.
- ‘European citizenship’ is but one of the manifestations of a more general European personal status, which can be traced back to the creation of the European Communities, and which was shaped by national and international norms of the 18th, 19th and 20th centuries.
- In the 1960s and early 1970s, the European legislature (with the Council of Ministers at its core) developed the European personal status in the direction of supporting, complementing and expanding national citizenships, just at the time that the latter were being shaped in the semblance of what we call the democratic and social state. This prompts us to distinguish a ‘proto-citizenship’ status with specific features. The existence of this, independently of the assessment that we consider it merits, proves that there could be ways of articulating the European personal status other than the present ‘European citizenship’.
- The monetary and economic crises of the early 1970s resulted in a deep transformation of the European Communities in general, and of the European personal status in particular. Integration had proceeded far enough to render collective decision-making imperative, but not far enough as to render it probable, even feasible. The resulting impasse created the conditions under which the European Commission and the European Court of Justice could transform the normative core of European Community law. As regards the European personal status, capital holders, wearing the clothing of tourists, liberal professionals, or entrepreneurs came to be the paradigmatic holders of European rights. The centre of gravity of the latter shifted to the protection of the right to private property and entrepreneurial freedom as operationalised through the quartet of economic freedoms and the principle of undistorted competition. As a result, ‘proto-citizenship’ started to be replaced by a new manifestation of the European personal status, prefiguring what would come to be referred as ‘European citizenship’.
- The Maastricht Treaty did not so much create the status of ‘European citizenship’ rather it placed a specific label on the manifestation of the European personal status that had emerged in the late 1970s and early 1980s. In other words, the Treaty codified and gave a specific name to a status that had already emerged in European law and practice.
- The ‘symbolic’ pull of the formal creation of the status of ‘European citizenship’ failed to move the European legislature into action. The European Court of Justice engaged in a rather activist case law, which seemed not only to break the link between remunerated work and full access to the rights of the European personal status, but also to turn ‘European citizenship’ into a post-national status by extending it, in a derivative fashion, to the nationals of third countries. Such developments, however, proved to be rather limited. The harsher economic and political climate following the financial, economic, and fiscal crises of the late 2000s and early 2010s resulted in the introduction of stringent limits to the full enjoyment of movement rights, both for EU nationals and for third country nationals, including asylum seekers and refugees.
Clarifying the tensions at the core of European citizenship
Furthermore, it seems to us that there is considerable conceptual confusion at the core of the literature on ‘European citizenship’. This muddle results from the fact that it is assumed that it is possible to assume, once and at the same time, that (1) ‘European citizenship’ is a form of citizenship, on par with national citizenship and that (2) the ‘post-national’ character of ‘European citizenship’ makes it a radically new, and different, form of citizenship. So, it seems, ‘European citizenship’ is a form of citizenship in some respects, but not in others. The contradiction would be avoided by reference to the allegedly different standards applicable to ‘post-national’ forms of citizenship, which, it is assumed, would be ‘normatively equivalent’. The fact of the matter is that such standards remain imprecise at best, completely undefined as a matter of fact.
The first implication this has is that the characterisation of ‘European citizenship’ as citizenship is taken as a given. This is so despite the fact that the centre of gravity of the status is not political rights. Compared to national citizenship, the right to vote in the elections to the European Parliament and in local elections is weak. What rather marks out ‘European citizenship’ is a particular form of freedom of movement, divorced from any kind of political consideration and democratic agency. This implies disconnecting not so much citizenship from nationality, a move which might be judged full of normative promise (as we would do), but divorcing citizenship from (political) membership. The latter cannot but result in serious misunderstandings, and may backfire, opening the way to a return of the most exclusionary aspects of membership. That is what, predictably, has occurred, as reflected in the Dano line of case law, and in the practice of denying continued residence to seasonal workers and drastically curtailing the right to movement to asylum seekers and even refugees, as we document in the book.
The second implication that follows is that the (proclaimed) post-national character of ‘European citizenship’ is not by itself a good reason not to apply to it the normative standards proper and characteristic of the democratic and social state. Freedom of movement is to be regarded as a core civic freedom, and a good deal of the cases solved by the ECJ should be approached as decisions establishing a more humane way of solving problems associated to the cross-border ways in which social and personal relationships evolve. But attention should be paid not only to the way in which freedom of movement relates to other fundamental rights, but also to the extent that it may be instrumentalised to erode the democratic and social state. In particular, how freedom of movement may be turned into the faculty through which capital owners may veto or escape from democratic decisions, allowing a formally legal way of breaching, among others, tax norms (think of the line of cases starting with Marks and Spencer).
Reimaging European citizenship
Historical, conceptual, and normative awareness do not necessarily lead into scepticism towards the crafting of a post-national personal status. For the slightly less than 20 million Europeans resident in a Member State other than that of their nationality, the rights attached to the status of ‘European citizenship’ make a difference. Long-term residents and students get access to social benefits, while couples in which one spouse is from another Member State or from a non-European state can stay together. Moreover, it is thanks to ‘European citizenship’ that third country nationals who are the parents of children holding the nationality of a Member State are ensured a right of abode.
By the same token, and as we already stated, we are very sympathetic towards the proclaimed goals of ‘European citizenship’, namely the enlargement of the bonds of membership and solidarity beyond national borders. The social, political, and cultural plurality of European states (and regions) is to be cherished and preserved, but there are solid reasons why we need institutional structures, decision-making processes, and norms to organise common interests and to provide for common goods. The democratisation and politicisation of such structures requires a sense of transnational solidarity and a common political identity, and ‘European citizenship’ could be it.
And still, the emancipatory potential of ‘European citizenship’ would remain deactivated as long as the status is made into the ‘human face’ of free movement of capital – the fig leaf used to cover the neoliberal turn of European integration – turn into an external constraint that eliminates the political space in which democratic politics can exist. Meaningful change will not result from spectacular but ineffectual initiatives, such as the direct election of the President of the Commission, or the eleventh process of ‘consultation’ engineered from Brussels. What is required is a democratic rupture with the fundamental norms organising public power in Europe. In the book we consider in detail how the ‘overconstitutionalisation’ of ‘sound’ money, economic ‘freedoms’ and ‘free competition’ pre-empts democratic decision-making at the national and supranational levels, but also how the division of labour between supranational decision-making processes results in an in-built bias in favour of decisions favouring market-making and disfavouring market-correction, not least the redistribution of socio-economic resources. In this peculiar European ‘constitution’ of money and property, ‘European citizenship’ is fully instrumentalised and turned into a useful device which cloaks the reality of capitalism unleashed under the cloak of the rhetoric of the democratic and social state. From fig leaf, ‘European citizenship’ has to be retooled into a battering ram of political, social and economic rights.