COMMENT
What Should European Citizenship Be?
Martijn van den Brink, University of Oxford
Until a few years ago, EU citizenship was mostly discussed and appraised in positive terms. In their book, Challenging European Citizenship: Ideas and Realities in Contrast, Menéndez and Olsen call into question many of the assumptions and ideas underpinning the early debate. The book is ‘the result of a shared uneasiness’ (p. 1) about EU citizenship, especially its social and democratic character—or rather, lack of it—which they see in the way it has undermined the collective goods promoted and protected by the national, social and democratic, state, and in the growing gap between well-off and poor EU citizens. But the book is equally the result of the authors’ shared unease with the way EU citizenship has been studied. They rightly note that ‘much previous research on EU citizenship has been steeped in either a legal logic of minute jurisprudential detail or in normative theories rather aloof of political realities’ (p. 11). Weaving together the authors’ earlier research on the subject, the book manages to offer a highly interdisciplinary as well as contextual perspective of EU citizenship. As I will explain, however, the threads holding together their arguments are partly misaligned; the book does not provide a coherent argument of what EU citizenship shouldbe.
EU citizenship in context
The book does what more research on EU citizenship should be doing, which is to place EU citizenship in its proper legal and political context. It does so in at least three different ways. First, Menéndez and Olsen rightly warn against taking the formal creation of European citizenship as the ‘zero hour’ (p. 167). Placing European citizenship in its legal-historical context, they show that the content of EU citizenship has been determined as much by developments in EU free movement law before its introduction in 1993 as by legal developments since then. Secondly, the book realises that EU citizenship is only one of several personal statuses offered by EU law. Rather than studying EU citizenship in isolation, the book shows how different statuses are intertwined so that they must be evaluated in relation to each other. It shows, for example, how the boundaries of inclusion and exclusion that apply to EU citizens affect third-country nationals, such as permanent residents or refugees (pp. 115-120).
Third, and most interestingly, Menéndez and Olsen situate EU citizenship and free movement law in the broader socio-political context of ‘post-war European integration and institution building’ (p. 11). In the golden age of social democracy, the 1950s and 1960s, the European personal status was broadly complementary to national citizenship (pp. 58-60). However, at the same time as the social welfare state fell into decline, this complementarity was eroded. From the 1970s onwards, the liberalisation of EU free movement law meant that the European personal status turned from one ‘protecting the weakest parties engaging in cross-border activity’ into one ‘that became increasingly shaped by reference to private autonomy, and in particular, private property and entrepreneurial freedom’ (pp. 70-71)—thereby further eroding the already crumbling social-democratic foundations of the post-war European order. EU citizenship has done little good in this regard. It has placed negative freedom at the core of free movement law, privileging private property rights over collective social rights (pp. 105-107).
How damaging to social democracy is the EU?
The analysis is compelling in part, but as rich as the book is, it also offers a decidedly one-sided perspective on European integration. It attributes too much of the decline of the social and democratic state to European law and politics.
Menéndez and Olsen claim that ‘as a result of the [monetary and economic] crises, and of the failure to orchestrate a coordinated policy response to them, the post-war consensus on the Democratic and Social state weakened and cracked’ (p. 63). There is no doubt that the EU struggled in the 1970s to find coordinated responses to shared political problems, but it seems unfair to put the blame for the crumbling post-war social-democratic consensus so squarely on the EU’s shoulders. Menéndez and Olsen claim that by the early 1970s, ‘European integration had gone far enough to establish limits on what Member States could decide acting on their own’, but they do not specify how severe these limits were. At the time, the liberalisation of internal market law was still in its infancy and a common economic and monetary policy still a distant idea. Surely national politicians bear at least an equal share of the blame.
In the decades since, the limits imposed by EU law on national law have intensified, but not even the corroding impact of EU citizenship law on the social and democratic state has been as serious as the book suggests. Yes, there is evidence that some CJEU judgments have adversely affected the provision of specific social benefits, namely those whose enjoyment was not subject to any conditions (Schmidt and Schenk, 2018). This supports the claim that EU citizenship can erode the social and democratic state in problematic ways (p. 109). But for the most part, predictions that EU citizenship law would harm national social welfare have proven premature and exaggerated (Sindbjerg Martinsen and Pons Rotger, 2017). Access to social assistance has for the most part remained subject to conditions of prior employment or residence. Moreover, case law exceeding these conditions was often interpreted by national decision-makers in a way that the adverse effects on national social welfare were contained (Schmidt, 2018). On this point, the book overstates the impact of EU law on the domestic social state and understates the role of national decision-makers in mediating its consequences.
A final example of a claim lacking nuance is that the EU’s political procedures are ‘tilted in favour of private property and entrepreneurial freedom’ (p. 130). If they are, how could we make sense of the extensive anti-discrimination framework developed by the legislature? EU discrimination law has its origins in the internal market but is meant precisely to protect vulnerable groups from entrepreneurial freedom. Very often, moreover, EU law allows Member States to offer more protection to social groups than the EU minimum. Take the hobbyhorse of the neoliberal critique of EU free movement law: the judgment in Laval. The CJEU held that legislative provisions allowing for the application of employment conditions that are more favourable to national workers had to be disapplied to facilitate free movement of services. In so ruling, it tilted EU law in favour of private economic interests. However, we must not ignore the fact that the legislative act sought to protect national workers from entrepreneurial freedom. The CJEU can show a more entrepreneurial spirit than the legislature (see also Alemo Herron)—things are certainly not perfect—but many legislative acts are much less tilted in favour of private economic interests than Menéndez and Olsen acknowledge.
What should EU citizenship be?
There is much about the general thrust of the book’s argument that I agree with, such as the need to ensure that EU law is complementary to social-democratic citizenship and the need to guarantee the democratic legitimacy of EU law. Yet, unfortunately, these principles are not developed into a consistent normative vision of EU citizenship. Inconsistencies in the argument are a result of methodological choices made.
The book is clearly interdisciplinary in its outlook and avoids what the authors call the ‘legal logic of minute jurisprudential detail’ that we find in much EU citizenship literature. Yet, in one respect, its approach is strikingly like much legal scholarship: it is highly conceptual. Much legal scholarship tends to disguise normative preference under the cloak of conceptual analysis, to derive normative principles from their conceptualisation of EU citizenship (van den Brink, 2019). The book does so too. It may not offer a fully-fledged moral theory of EU citizenship, but it derives moral principles for guiding EU institutions from its conception of citizenship. Conceptual analysis is clearly prior to normative analysis, not just in the order of chapters, but in how the overall argument is developed and structured. Menéndez and Olsen conceptualise citizenship as full and equal membership in a polity (pp. 22-23). Moreover, because it is ‘citizenship proper of the Democratic and Social state … that most, if not all constitutions of the Member States of the European Union are said to realise … [they] regard Democratic and Social citizenship as a fundamental baseline when determining the nature of European citizenship’ (p. 31). And because they reach the conclusion that European citizenship is no form of democratic and social citizenship, they claim that it ‘is no citizenship status’ (p. 176).
This is an incredibly thick conception. If it is taken as the yardstick for judging what personal statuses can be called citizenship, many ‘citizenships’ in this world do not deserve to be called this way—in many countries citizenship merely provides membership of an undemocratic polity. By their standard, it would also be a misnomer to refer to ‘citizenship’ in early federal polities as citizenship. EU citizenship bears striking resemblance to citizenship in (early) federations, including that in the US. These often showed the same kind of inequalities and fragmentations as EU citizenship currently exhibits (Schönberger, 2007). If these inequalities are reason enough for Menéndez and Olsen to argue that EU citizenship is no citizenship status, then by the same logic they must think that ‘citizenship’ in early federations was no citizenship.
They may be object that this misconstrues their argument. Perhaps they merely want to argue that citizenship in contemporary polities should entail a right to be part of a social democratic society, or, more modestly, that EU citizenship should respect the principles of social democratic citizenship that the Member States aspire to. I would agree, but these would be moral claims of how political communities must be organised, not conceptual claims of what citizenship is. These would offer a moral framework for guiding what the institution of EU citizenship should be, not a conceptual one that identifies what it is at present. It may well be that EU citizenship is currently insufficiently social and democratic morally speaking, but I doubt that much is gained by concluding that it is therefore no citizenship at all conceptually speaking.
It is not always clear to me to what extent Menéndez and Olsen are interested in offering moral principles, but their conceptual argument has strong normative undercurrents. For a proper evaluation of European citizenship, however, these undercurrents should have been on the surface: moral reasoning should have influenced their conceptual work not the other way around. Not only because the choice to evaluate European citizenship against the baseline of democratic and social citizenship is a moral, not a conceptual one. More importantly, the proper content of a social-democratic conception of European citizenship can only be determined through moral principles. This is because there is no single social-democratic conception of citizenship; it can be fleshed out in different ways, and each person’s preferred conception is informed by their preferred moral principles. Without such principles, therefore, the conception remains an empty vessel that cannot provide clear yardsticks for guiding European citizenship. The book bears witness to this: European citizenship is evaluated against two different conceptions of social-democratic citizenship at different moments.
According to the first conception, Member States remain the most important setting for the exercise of social democratic citizenship. They have the institutional capacity to uphold the collective goods that are needed for the realisation of social democracy. The EU can contribute thereto by ensuring that EU citizens that participate in the facilitation of these collective goods are entitled to their enjoyment, but it should take care not to undermine domestic institutions that allow for the exercise of social democratic citizenship. This first conception is one that clearly appeals to Menéndez and Olsen, especially when they explain that in the early decades of European integration, the European personal status was not a rival to but complementing national citizenship (pp. 58-63). It also shows in their criticism of the liberalisation of the internal market, which, they claim, weakened citizenship of the democratic and social state (pp. 70-72).
According to the second conception, EU citizenship must be equivalent to citizenship in the social democratic state. Although Menéndez and Olsen argue that it is ‘normatively problematic’ to treat European citizenship as equivalent to national citizenship (p. 178), their argument seems premised on an assumption of equivalence at times, in particular when they criticise EU citizenship for not being guided by the same organising principle as national citizenship—the principle of equality. In their view, the fact that legislation and CJEU case law does not guarantee an unconditional right to residence and access to social assistance in the host state ‘constitutes a blatant denial … of the normative promise of European citizenship’ (p. 113). The divide between economically active and inactive citizens is a divide between first- and second-class EU citizens, incompatible with democratic and social citizenship (p. 160).
An inconsistent vision
The problem is that the second conception can be very much at odds with the first: European citizenship can become a rival to national citizenship if access to social rights is made unconditional for all EU citizens. To ensure that national institutions remain capable of maintaining the collective goods necessary for the protection of social democratic citizenship, some distinction between economically active and inactive citizens may well be necessary.
Because the book defends both conceptions at once, it offers an inconsistent vision of European citizenship. The book argues against open borders on the ground that openness and solidarity can be in tension (p. 106) yet takes the view that EU citizens should have equal and unconditional access to social assistance in their country of residence (p. 160). It warns of EU citizenship’s corrosive impact on the social and democratic state (p. 109) yet opposes the application of conditions designed precisely to prevent such corrosive effects (p. 113). It warns against theorising European citizenship in a way that overlooks the importance of political community, which liberates it from national citizenship (p. 157) yet claims that the potential of European citizenship can only be tapped by separating it from national citizenship (p. 181). In short, the book argues for both the first and the second conception, suggesting that European citizenship should be both complementing and rivalling national citizenship.
So what should EU citizenship be? A status closely wedded to national citizenship, which can be conditioned to be complementary to the social democratic state? Or a status more detached from national citizenship, which guarantees full equality for all citizens, but which can develop into a possible rival of the social democratic state? I have previously defended the former (van den Brink, 2020), but there may be reasons for favouring the latter. But these must be moral, not conceptual reasons, for these are moral questions that cannot be answered through conceptual analysis, not even through a conception as specific as a social democratic one.