Indivisibility as normative lock-in
Sandra Seubert, Goethe University
In their thought-provoking analysis Agustin Menéndez and Espen Olsen formulate serious doubts that EU citizenship, as established in the Maastricht Treaty 1992, can rightfully be called ‘citizenship’, since it is lacking most central elements of what the status ought to be about. Although established with the clear expectation to be further complemented by the member states it continues to oscillate indecisively between ‘proto-citizenship’ and ‘supra-nationality’. Calling this personal legal status ‘citizenship’ may result in devaluing the conception of democratic and social citizenship which has become a regular ideal in European welfare states.
Critically reconstructing shortcomings and raising the question what form a democratic, post-national citizenship status should take is of major importance. I share almost all points of critique and many of the authors’ proposals concerning the future direction we should take: (re)-creating political space and refocusing on the normativity of EU citizenship. Given the ‘political turn’ intended with the introduction of a European citizenship status the authors are concerned about the normative core of citizenship and want it to be preserved from being hollowed out or abused for legitimation policy purposes. This is highly plausible given EU citizenship’s uneasy positioning between economic and political logics. Nevertheless, I have two concerns: Menéndez/Olsen suggest a clash between ‘cosmopolitan openness’ (aiming at eliminating borders) and social justice (protecting borders to ensure effectiveness) which is supposed to push us towards questioning certain integrative steps, in particular the free movement regime. Following up on that, the conclusion leaves it somewhat undecided which of the two suggested alternatives is more attractive: projecting the national concept of citizenship to the European level or considering some new form of post-national membership, characterised by fluidity in which boundaries are developing a different, less exclusive character. To address this indecisiveness, I suggest taking the inherent normativity of EU citizenship seriously and to defend free movement as a normative lock-in-commitment: a commitment to free movement as an equal EU citizenship right.
No step beyond
Although the introduction of EU citizenship was supposed to initiate a political turn to step beyond a predominantly functional, economic integration it did not really succeed in transcending the market paradigm. Menéndez/Olsen rightly criticize that inside, EU citizenship goes along with a denial of substance (in particular for unemployed, non-economically active persons who have only limited access to social citizenship rights). Outside, the EU’s migration policies discriminate on the basis of economic value: they provide ‘red carpet’-access for people with high ‘human capital’ or investment potential and deterrence for others. As a consequence, while the EU substantially contributed to transcending traditional national boundaries, it is at the same time responsible for establishing new ones, i.e. socio-economic boundaries.
Supported by ECJ rulings the European personal status became increasingly shaped by reference to private autonomy rather than political autonomy. According to the authors, the ‘mobility discourse’ revolves primarily around freedom in a negative sense. By breaking the connection between membership and rights in national citizenship it neglects that not all citizens can profit from its liberating potential. Instead of promoting citizenship as full membership in a self-governing polity we witness a marketisation of EU citizenship which contributes to transforming it into a ‘battering ram’ of private property rights and entrepreneurial freedom (p. 105). Whereas post-war citizenship regimes acknowledged the importance of political and welfare communities, EU citizenship contributes to dis-embedding citizenship and creating first- and second-class citizens.
A serious tension
I agree with the general direction of this analysis, but I would reconstruct the normative basis of EU citizenship as conceptually more ambiguous (and therefore in itself also as potential reference for reform). This leads me to different conclusions, in particular regarding the future of free movement.
Conceptually, EU citizenship’s corner stones are the right to mobility and the right to non-discrimination. The relation of these cornerstones is inherently conflictual. Freedom of movement for persons has developed as one of the ‘four freedoms’ – freedom of movement for goods, services, capital, and labour – that form the basis of EU law. Non-discrimination, on the other hand, expresses a right to equal treatment: No EU citizen in any EU Member State shall be put in a position more disadvantaged than that of a national citizen or a third country national. In principle, the right to equal treatment expresses a move beyond the economic rationale: persons can expect to be treated on an equal footing and be integrated in the host society. Despite the apparent analogy of the ‘four freedoms’ it has been perfectly well understood from the beginning that the free movement of persons is a completely different issue to the free movement of goods or capital. People cannot simply be regarded as ‘factors of production’, to be shifted and allocated at will, that is why they can expect to be treated as equals. What is more, their movement has a collective component: freedom of movement for persons, when leading to residence, affects the composition of the social entity that is the reference group of citizenship: the ‘people’. For this reason, the rationale behind the ‘four freedoms’ was never applied all the way down.
Challenging the ‘myth’ (p. 185) of the indivisibility of the ‘four freedoms’ is a delicate business. Currently we witness pressure to restrict freedom of movement for persons in particular from countries that set out to renegotiate their relations with the EU (Switzerland and the UK). But profiting from the free movement of goods and capital without having to accept persons on the basis of non-discrimination would lead to open markets with less legal protection. Critique should therefore target the inequality of actually making use and profiting from free movement rights. Critique should also target the hollowing out of the non-discrimination principle through withholding equal treatment, e.g. by extensively allowing the posting of workers. Without freedom of movement for persons the EU would be nothing but a free trade area. In the current constellation lifting the requirement to accept free movement would be a severe step backwards for a European citizenship regime. Rather free movement ought to be defended as an equal EU citizenship right, i.e. be defended in the sense that, by demanding equal treatment, it follows a different logic than the market dispositive.
It is true that the Treaties as the EU’s formal ‘constitution’, are biased: they hinder the proper balance between the economic and the social in European law. Issues that should be a matter of ordinary legislation (such as a decision of political majorities for one or the other economic policy) are predetermined in the Treaties – a development that Dieter Grimm has criticized as ‘over-constitutionalisation’ (Grimm, 2016). But this expression is somewhat misleading – and in light of current disrespect for rights and freedoms in certain member states even cynical. It conceals the extent to which EU-constitutionalisation is one-sided, extending primarily over the economic dimension. What we really have is a fragmented constitutionalisation. The ‘Maastricht criteria’ privilege currency stability over criteria for social stability, and this bias is reconfirmed in the ‘Stability and Growth pact’ (1997) and also in the measures taken for crisis management like the ‘European Fiscal Pact’ (Piketty et al., 2017).
Towards democratic minimum standards
What is crucial for further developing EU citizenship is defending, rather than questioning free movement as a core citizenship right and relating it to fundamental rights in a comprehensive sense (Kochenov, 2017). This is certainly dependent on background conditions: promoting equivalent living conditions, i.e. a commitment to solidarity between states and citizens on a pan-European scale (only then can the right to move be assumed to also include a right not to move). Revaluating fundamental rights also means complementing the right to equal treatment with democratic minimum standards that can claim validity and enforcement despite the Union’s social, economic, and cultural diversity. So far, the right to equal treatment constitutes a relative status of equality for EU citizens: relative to the level of protection in the respective member state. With regard to substance this status is ambivalent: it guarantees equal treatment in the national domain but allows for unequal levels of protection on a European scale. EU citizenship entitles mobile citizens to voting rights for communal and European, but not national elections. It is obvious that under these conditions EU citizenship is not a full status of political empowerment: for those who move it remains an entitlement to ‘protection’ defined by others, i.e. the national citizens. Without national voting rights the moving EU citizen has only very limited possibilities of co-authoring precisely those laws that substantially underpin her status according to the non-discrimination principle. The logic of horizontal integration with its national framing of access to full social and political rights severely hinders a distinctive identification with a European citizenship status, being anchored in a pan-European political space and related to a European society of shared values and practices.
For democracy to be sustained a ‘democratic minimum’ of normative powers is required, but sustaining democracy is itself dependent on some ‘minimum institutional requirement’, including those basic rights that guarantee the ‘democratic minimum’ in the first place (Eriksen/Fossum, 2018). In the heterogeneous EU context strengthening the connection between EU citizenship and fundamental rights (as laid down in the Charter of Fundamental Rights of the European Union) would be a first step to support this minimum institutional requirement. Since free movement alone is not sufficient to constitute citizenship, and horizontal non-discrimination guarantees only a relative status of equality, establishing a robust vertical link between EU citizens and EU institutions is crucial. Otherwise the current set up can rightly be criticized for reintroducing a connection between citizenship and economic status that the democratic welfare state of the post-war era was supposed to even out. It will continue to be criticised for constituting an ideological frame, which sits uneasily with the normative promise of democratic citizenship inherited from the national context, including a redistributive dimension as the basis of substantial citizenship rights.
By detaching entitlement to rights from privileges of national membership and collective identity, EU citizenship exemplifies the disaggregation of different dimensions of citizenship which have previously been closely related. This might indicate a decline of the traditional, unitary conception of citizenship, but it might also give rise to new modalities of political membership. In this situation deepening and enlarging citizenship rights might not work well together. But while balancing equality and diversity is important in a multi-level polity, setting a core of normative standards at the EU level is crucial to ensure the normative purpose of the Union in a non-economic sense. The protection of diversity, including particular national welfare-arrangements, must not undermine the ‘democratic minimum’ of European citizenship in general.
 As Dagmar Schieck points out, non-discrimination of persons in the host state contrasts with the country-of-origin principle applied to the free movement of products (following ‘Cassis de Dijon’,1979, Case 120/78) and should therefore be interpreted as an important element of decommodification: Especially because persons are not considered as a commodity traded across borders, they enjoy the right to equal treatment in their host state (Schieck 2017, 355-356).
 The EU has already laid down normative essentials which new members have to accept – the problem is that it does not enforce them once the step inside is taken. Apart from Art. 2, TEU which encompasses the Copenhagen Criteria, this is mainly the Charter of Fundamental Rights (which oughtto becomplemented by a Democracy Charter, see Neemitz/Ehm 2019). For tackling the rule-of-law crisis see the EP’s demand for an EU mechanism on democracy, the rule of law and fundamental rights. This should be an annual independent review which assesses, on an equal footing, the compliance of all member states with the values stipulated in Art. 2, TEU. https://www.europarl.europa.eu/legislative-train/theme-area-of-justice-and-fundamental-rights/file-eu-mechanism-on-democracy-the-rule-of-law-and-fundamental-rights.