Equal Citizenship and Its Limits in EU Law

We The Burden?

Päivi Johanna Neuvonen

• Publisher: Hart Publishing
• Year: 2016
• Print ISBN: 9781509924493
• eBook ISBN: 9781782258162
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The research monograph Equal Citizenship and Its Limits in EU Law: We the Burden? is a critical study of the scope of EU citizenship as an 'equal status' of all Member State nationals. The book re-conceptualises the relationship between the status of EU citizenship and EU citizens' fundamental right to equal treatment by asking what indicates the presence of agency in EU law. A thorough analysis of the case-law is used to support the argument that the present view of active citizenship in EU law fails to explain how EU citizens should be treated in relation to one another and what counts as 'related' for the purposes of equal treatment in a transnational context. In addressing these questions, the book responds to the increasing need to find a more substantive theory of justice for the European Union. The book suggests that a more balanced view of agency in the case of EU citizens can be based on the inherent connection between citizens' agency and their subjectivity. This analysis provides an integrated philosophical account of transnational equality by showing that a new source of 'meaningful relationships' for the purposes of equal treatment arises from recognizing and treating EU citizens as full subjects of EU law and European integration. The book makes a significant contribution to the existing scholarship on EU law, first, by demonstrating that the undefined nature of EU citizenship is fundamentally a question about transnational justice and not just about individual rights and, secondly, by introducing a framework within which the current normative indeterminacy of EU citizenship can be overcome.

Part I

EU Citizenship and the Equality Problem

1

The Evolution of Equality in EU Law: From Nationality Discrimination Towards Equal Citizenship

1.1INTRODUCTION

THE EU PRINCIPLE of equality is a dynamic legal concept with multiple different roles in the process of European integration. This chapter follows the evolution of equal treatment irrespective of nationality in regard to private individuals from the early years of European integration through the creation of EU citizenship until the adoption of the EU Charter of Fundamental Rights¹ as a source of primary EU law and the possible future accession of the Union to the European Convention on Human Rights. A chronological perspective on these legal developments depicts how the interpretation of the EU principle of equality has shifted from non-discrimination on the grounds of nationality towards equal treatment between EU citizens. But it also reveals that a new ‘equality problem’ has emerged in EU law along with these developments. The core of this problem is that, although the status of EU citizenship now plays a central role in defining the personal scope of the EU principle of equality, it is not yet clear what the idea of equal citizenship means for the substance of EU citizens’ right to non-discrimination and equal treatment. This normative indeterminacy over EU citizenship as an equal status forms the starting point for the doctrinal and theoretical critique of EU citizenship in the subsequent chapters.

1.2THE MULTIPLE FACE OF EQUAL TREATMENT IRRESPECTIVE OF NATIONALITY IN REGARD TO PRIVATE INDIVIDUALS

1.2.1An Economic Right Under Article 45 TFEU

Equal treatment irrespective of nationality between workers of the Member States has been justified as a means of first completing the common market and, then, the internal market. This requirement was included in Article 48 of the original Treaty of Rome (1957) and it has maintained its central role in the EU Treaties ever since.² Article 45(1) TFEU now secures the freedom of movement of workers within the European Union. This guarantee is completed by Article 45(2) TFEU which provides that ‘[s]uch freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member State as regards employment, remuneration and other conditions of work and employment’.³ The Court of Justice has given this provision a wide effect as one of the four fundamental economic freedoms by interpreting the concept of a ‘Union worker’ broadly and autonomously.⁴ It is nevertheless clear that the scope of the prohibition of nationality discrimination would remain limited if it was only triggered in the context of economic activity, such as ‘employment, remuneration and other conditions of work and employment’. This book wants to better understand EU citizenship as an equal status. Its main focus therefore lies in those EU citizens who do not qualify as ‘Union workers’ but who have recourse to the right to non-discrimination and equal treatment on the basis of their status as EU citizens. However, EU citizens’ non-economic right to equal treatment is of much later origin than the right now included in Article 45(2) TFEU and, thus, can only be understood against the Union worker’s more comprehensive right to non-discrimination and equal treatment irrespective of nationality.⁵

1.2.2A Citizenship Right Under Article 18 TFEU

The original Treaty of Rome (1957) also included a prohibition of nationality discrimination with a more general scope of application.⁶ Its content is now included in Article 18 TFEU which holds that ‘within the scope of the Treaties, and without prejudice to any special provision contained therein, any discrimination on grounds of nationality shall be prohibited’.⁷ The jurisdictional threshold for the application of the general prohibition of nationality discrimination is thus based on the scope of application of the EU Treaties themselves.⁸ In practice, its potential scope of application in regard to private individuals was considerably expanded when the Maastricht Treaty (1992) introduced the concept of EU citizenship.⁹ The status of EU citizenship is now defined by Article 20 TFEU, which states that ‘Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties’ and that these rights should inter alia include ‘the right to move and reside freely within the territory of the Member States—in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder’.¹⁰ EU citizens’ right to free movement and residence can now be found in Article 21 TFEU which holds that ‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’.¹¹

Along with the creation of a non-economic right to free movement and residence, EU citizenship made possible a new interpretation of Article 18 TFEU as a citizenship right of at least some of the economically inactive citizens of the Union. But the potential of EU citizenship to transform the prohibition of nationality discrimination into something new depends on the definition of the actual scope of Article 18 TFEU, which turned out to be an elusive task in the case of economically inactive EU citizens.¹² This can be clarified by considering the who, why and how questions:

—The personal scope of Article 18 TFEU defines who can be protected against discrimination.

—The jurisdictional dimension of material scope answers the question of why anybody is protected under Article 18 TFEU.

—The substantive dimension of material scope defines how those people are protected who fall into the jurisdictional scope of Article 18 TFEU.

The status of EU citizenship has affected the answer to all three questions. At the same time, however, the way in which the scope of Article 18 TFEU is defined has significant implications for the scope of EU citizenship as an equal status.

EU citizenship as a criterion for the personal scope of Article 18 TFEU now lays the foundation for how the difference between prohibited nationality discrimination and legitimate differential treatment is defined in regard to economically inactive individuals under EU law (the who question). However, the limited jurisdictional scope of Article 18 TFEU means that there are instances in which differential treatment between EU citizens is implicitly classified as legitimate because there is no sufficient ‘connecting factor’ with EU law for the right to non-discrimination and equal treatment to apply to that specific situation (the why question). Moreover, a set of substantive limitations on EU citizens’ right to equal treatment emerge from the objective justification test and they define more explicitly where the difference between discrimination and legitimate differential treatment lies in the case of EU citizens (the how question). These qualifications on EU citizens’ right will be discussed in more detail in Section 1.3. However, in so far as the limited scope of Article 18 TFEU limits EU citizens’ access to equal treatment, it is important to consider what other forms the non-economic prohibition of nationality discrimination can take in EU law.

Opinions differ on whether Article 18 TFEU should apply independently or whether it can only be invoked in the context of the four economic freedoms and EU citizens’ right to free movement and residence under Article 21 TFEU. One argument in favour of a more independent application of Article 18 TFEU is that its mere status as a primary Treaty right can move it ‘onto a different and normatively higher plane, perhaps best described as a constitutional one’.¹³ This argument can be supported by the fact that the Court often refers to nationality discrimination as a specific expression of the general principle of equality in EU law.¹⁴ The independence of Article 18 TFEU therefore also depends on how the prohibition of nationality discrimination relates to fundamental rights as general principles of EU law. This is also where EU citizenship can have a central role as a normative justification for a more independent and rights-based interpretation of Article 18 TFEU.¹⁵ Namely, the Court has recently confirmed that there are certain situations in which the scope of EU law is activated when an EU citizen is at risk of being deprived of the ‘genuine enjoyment of the substance of the rights’ conferred by virtue of EU citizenship under Article 20 TFEU.¹⁶

In the well-known Konstantinidis case, Advocate General Jacobs attempted in his Opinion to extend the jurisdiction of the Court and the scope of Community law by establishing a connection between European citizenship and fundamental rights.¹⁷ The Court did not adopt this approach in Konstantinidis, but the status of EU fundamental rights has been considerably strengthened since then. Whether equal treatment irrespective of nationality has the potential to become an independent constitutional right is therefore closely connected to the degree to which EU citizens’ right to non-discrimination and equal treatment can be characterised as a fundamental right, or even a human right, under EU law.

1.2.3A Fundamental Right Under the EU Charter

The EU Charter of Fundamental Rights became part of EU primary law with the entry into force of the Lisbon Treaty,¹⁸ and its Article 21(2) reiterates the wording of Article 18 TFEU by stating that ‘[w]ithin the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited’. Article 21 of the Charter has been criticised for failing to expand the commitment to prohibiting nationality discrimination beyond the existing Treaty provisions. The double-regulation both in the Treaty and in the Charter can nevertheless be seen as an important emphasis on the prohibition of nationality discrimination as a fundamental right. Otherwise, it would not be necessary to repeat the exact wording of Article 18 TFEU in the EU Charter of Fundamental Rights. Besides the provisions of the EU Charter of Fundamental Rights, the right to non-discrimination and equal treatment can also gain the status of a fundamental right as one of the general principles of EU law. The crucial question is just whether the general principle of equality and non-discrimination is one of those general principles of EU law which are simultaneously fundamental rights. In the light of Article 21 of the EU Charter, the positive answer to this question seems convincing.

The Court of Justice has traditionally held that it has competence to examine the compatibility of national rules with fundamental rights as general principles in all those cases in which national rules fall into the scope of EU law.¹⁹ The Fransson judgment seemed to confirm that this is still the case, irrespective of the wording of Article 51(1) of the Charter, which states that the Charter applies to the Member States ‘only when they are implementing Union law’.²⁰ But the Court’s approach to the scope of EU fundamental rights has been cauti...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• Table of Cases
• Introduction
• Part I: EU Citizenship and the Equality Problem
• Part II: EU Citizenship as a Source of Subjectivity
• Conclusions
• Bibliography
• Index
• Copyright Page