1 Why This Book
This book is the result of a shared uneasiness.
Both authors are conscious of the extent to which rights granted by European Union law have made life easier for many Europeans and far from few non-Europeans. For the slightly less than 20 million Europeans resident in a Member State other than that of their nationality (Eurostat 2015, 2019) it is not banal that the status of European citizen grants long-term residents and students access to social benefits (Martinez Sala, Court of Justice 1998; Grzelczyk , Court of Justice 2001), allows couples in which one spouse is from another Member State or from a non-European state to stay together (Zhu, Court of Justice 2004), or entails a right to abode for third country nationals who are the parents of children holding the nationality of a Member State ( Ruiz Zambrano , Court of Justice 2011). By the same token, we are very sympathetic towards the proclaimed goals of European citizenship, namely the enlargement of the bonds of membership and solidarity beyond national borders (European Commission 1993). 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.
As time has passed, however, we have become increasingly doubtful about the direction in which the European Union is moving, and in particular, of the role that European citizenship is actually playing in the configuration of social, political and economic relations in Europe. The more we have researched, the more we have been exposed to evidence that reveals the tensions between the proclaimed goals and the actual implications of European citizenship. To the point that it is worth questioning not only what the actual significance of European citizenship is, but also whether European citizenship is actually a citizenship status, or instead something else. Consider the following three patterns.
First, European citizenship is rightly said to have rendered European and national law more human by means of protecting the rights of free movement and of abode of the nationals of the Member States of the European Union (Kostakopoulou 2018; Costello 2015; Favell 2008; Favell and Recchi 2009). However, the very same body of norms which have made life easier for individuals with economic and social bonds spanning across borders have strengthened the hand of the most affluent in European societies. The fact of the matter is that the substantive core of European citizenship is defined by reference to the so-called “four economic freedoms” at the core of the Single European Market. Such freedoms are not only rhetorically claimed to be indivisible, but are regarded in the institutional practice of European institutions to be so. This creates the conditions under which European citizenship can be turned into the human face of the right of property owners (especially of owners of financial capital) to contest the validity of regulatory and redistributive national policies and regulations by standing on their right to move, which includes the right to move their capital across borders (even to third countries), or threaten to do so (thus reinforcing the structural power of capital, Offe 1984: 244). A dynamics is thus unleashed which results in the undermining of the collective goods and the individual and collective rights at the basis of the social contract in the name of a “borderless” Europe (Scharpf 2010). The price of rendering European law and EU Member States more human is to make it, if not less social, at least less egalitarian (Menéndez 2009).
Secondly, the very same norms that have contributed to the abolition of internal physical borders have fostered not only the strengthening of external borders, but also the emergence of new social and economic boundaries . It is symptomatic that the European Union has started attuning the rights of third country nationals to their “economic potential”: the immigration of “highly qualified” workers is facilitated (European Union 2009), while seasonal workers are almost forced to become illegals if they want to get jobs (European Union 2014; Medland 2017); moreover, proposals are being discussed to restrain the right to free movement of asylum seekers and refugees within the Union (European Commission 2016; Menéndez 2016). Similarly, the right to personal freedom of movement is now denied to Europeans who are “economically non-active”, that is, to those who lack the resources to sustain themselves (European Court of Justice 2014; O’Brien 2016, 2017). If the case law of the Court of Justice, especially in the 1990s and the early 2000s, seemed to point to the granting of rights to all Europeans, independently of their economic situation, the new line of interpretation preferred by the Luxembourg judges points in the opposite direction (rulings in Dano, European Court of Justice 2014 and Alimanovic, European Court of Justice 2015). For all these reasons, even the humanising effect of European citizenship seems not only to be unequally distributed, but to be rapidly fading away. We are fast reaching the point at which for some to enjoy the privilege of a life across borders, the freedom to move of the many is to be restricted if not fully denied.
Thirdly, the long and protracted financial, economic, fiscal and political crises that have hit the European Union since 2007 have provided evidence of the extent to which European citizenship remains a purely formal status, a status which has not been appropriated by citizens through their political activity. When push came to shove, Europeans found more alluring and more effective to invoke national (when not regional) rather than supranational identities.1 No ethos of European citizenship seems to be in the process of being developed (Colliot Thélène 2016). Rather the opposite seems to be true: national identities are back with a vengeance (Trenz et al. 2015; Fitzgibbon et al. 2017).
This contrast between expectations and realisations, between potentialities and realities, seem to us to require a change in the perspective from which European citizenship is analysed. This is what this book aims at offering to the reader.
Firstly, we will pose again, and answer anew, some of the most fundamental questions about European citizenship in particular, and about citizenship in general. Instead of assuming that European citizenship is indeed a citizenship status because it is labelled so, we will take a step back and consider what citizenship is, and what form it takes in the Democratic and Social state. This will allow us to have clear standards when analysing and reconstructing the practice of European citizenship.
Secondly, instead of limiting the time scope of our research to the period following the formal creation of the legal category of European citizenship, we will widen our study to consider how European citizenship emerged from a previous practice of recognition of rights and obligations across borders, in particular through the personal status implicit in the founding Treaties of the Communities, successively modelled by secondary legislation and jurisprudence. In other words, we will consider “formal” European citizenship as one, but only one, variant of the European personal status.
Thirdly, we will reconstruct the present practice of European citizenship considering not only the developments of the s...