European Citizenship and EU Immigration: A Demoi‐cratic Bridge between the Third Country Nationals' Right to Belong and the Member States' Power to Exclude

European citizenship entails, for EU nationals, a right to belong across borders. This article questions the implications of this latter right for the status of third country nationals in the EU. It contributes to address a gap between the literature on European citizenship and the literature on the admission and civic integration of third country nationals. The article begins by tracing a disconnect in the rules and narratives on admission and naturalisation of third country nationals in the EU. This is a disconnect between logics of individual rights protection, which European citizenship infiltrates, and logics of state sovereignty and governmental discretion, which otherwise dominate relevant rules and narratives. The article relies on the political science literature on mutual recognition and demoicracy to reinterpret European citizenship's norm of belonging across borders so as to reconcile the disconnect. Ultimately, the theoretical bridge that the article draws between citizenship narratives and immigration narratives offers a novel perspective on the tension between liberal values and integration discourses in Europe. It also sets out a possible frame to begin rethinking rules of engagement and cooperation in the context of the EU common immigration policy.     

Free Movement of Persons and European Solidarity1

Abstract: This article explores the tension between freedom of movement within the EC/EU and the principle of social solidarity, a tension which has increased in step with the progressive enlargement over the years of the circle of potential beneficiaries of the right to cross‐border access to the social and welfare benefits guaranteed by the social protection systems of the Member States. The article aims to re‐construct the system of Community rules regarding the free movement of persons within the EU from the point of view of the justifying criteria for the cross‐border access to national welfare systems of the different categories of ‘migrants’. The focus of the article is on the different degrees and models of solidarity which, at least at the present stage of the European integration process, justify correspondingly graduated and differentiated forms of cross‐border access to Member States' social and welfare benefits for the various categories of persons who move about within the EU.     

The Rule of Reason in European Citizenship

Abstract:  This article reviews the European Court of Justice's case-law on European citizenship in the light of aspects of the rights theories of Ronald Dworkin and Robert Alexy. More specifically, the free movement right in Article 18(1) EC is conceptualised as a Dworkinian principle and as a prima-facie right or 'optimisation precept' in Alexy's sense. Against this backdrop the article argues that Article 18(1) can best be interpreted by drawing an analogy with the economic free movement provisions. The central argument is that the rule of reason also applies to European citizenship, or that there is a rule of reason in European citizenship. The analogy encompasses both the definition of the scope of Article 18(1) and its limitations. With regard to the latter, it is contended that there is no conceptual distinction between the 'limitations' and 'conditions' referred to in that provision. Particular emphasis is placed on the recent case-law concerning the question of access to welfare benefits. In this regard it is suggested that the notion of a 'structural link' constitutes both a threshold criterion to trigger the prima-facie right in Article 18(1) as well as a benchmark for assessing the degree of solidarity owed to the migrant citizen. The rule of reason approach leads to the stipulation of a thin, juridical conception of European citizenship that does not rely in any way on thick, essentialist properties.     

Rules for Rights: European Law,Health Care and Social Citizenship

Social citizenship is about equality. The obvious problem for European social citizenship in a very diverse Union is that Member States will not be able or willing to bear the cost of establishing equal rights to health care and similar aspects of social citizenship. Health care is a particularly good case of this tension between EU citizenship and Member State diversity. The European Court of Justice (ECJ) strengthened the right to health care in other Member States, but this cannot create an equal right to health care when Member States are so different. In its efforts to balance a European right, the Court has formulated ‘rules for rights’—not so much European social citizenship rights, as a set of legal principles by which it judges the decisions of the Member States.     

The Constitutional Relevance of Citizenship and Free Movement in an Enlarged Union

Abstract The concept of citizenship is analysed on three seemingly contradictory levels: its integration by the recent case law of the European Court of Justice into the existing free movement acquis, its restriction in the accession treaties with new Member States concerning free movement of workers, and its redefinition by new Member States themselves. The result is a somewhat blurred picture: While the European Court of Justices uses citizenship to fill gaps left by primary and secondary law mostly with regard to non‐discrimination, the accession treaties have allowed a ‘re‐nationalisation’ of free movement, against the promises of equality inherent in the citizenship concept, which also includes nationals from new Member countries. The concept of citizenship itself in new Member countries, as the examples of Latvia and Estonia on the one hand, and Hungary on the other demonstrate, is very much related to the (somewhat sad) lessons of the past and therefore highly politicised; it has not been shaped with regard to free movement in the EU. The author suggests a gradual ‘communitarisation’ of citizenship itself even though the EU seems to miss competence in this area, for example, by paying greater attention to residence as basis for Community rights.     

‘Caminante,no hay camino,se hace camino al andar’1: EU Citizenship,Direct Democracy and Treaty Ratification

Abstract: This article argues that obligatory, simultaneous, and simple Treaty ratification by referenda is the next step in the consolidation of the political core of European citizenship. In the first part, general remarks about the special nature of EU citizenship highlight the relevance of referenda on EU Treaties for EU citizenship. In the second part, the normative and empirical case in favour of direct democracy is put forward. It is followed by the assessment of direct democracy in European integration as we have known it so far. The practice is irreversible and gaining in momentum. But it is in need of substantial reform due to procedural dysfunctions and discriminatory consequences for the citizens. Section V relates this result to a legal analysis of EU citizenship. The suppression of the discriminatory consequences of the Treaty ratification procedure is necessary from a legal point of view, but it cannot be expected from the ‘judicial incrementalism’ that has characterised the development of EU citizenship regarding free movement and residence. In section VI , the conclusions of the previous sections are drawn into the final proposal of obligatory, simultaneous and simple Treaty reform by referenda in all Member States. At the end, five counter‐arguments to the proposal are discussed.     

What Does Free Movement Mean in Theory and Practice in an Enlarged EU?

Abstract The purpose of this article is to review the main challenges to the principle of free movement of persons in theory and practice in an enlarged European Union. The right to move freely represents one of the fundamental freedoms of the internal market as well as an essential political element of the package of rights linked to the very status of EU citizenship. The scope ratione personae and the current state of the principle of free movement of persons is assessed by looking at the most recent case law of the Court of Justice and the recently adopted Directive on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States. But what are the hidden and visible obstacles to free movement of persons in Europe? How can these barriers be overcome to make free movement and residence rights more inclusive? This article addresses these issues along with the following questions: Who are the beneficiaries of the free movement of persons in an enlarged Europe? What is the impact of the recent legal developments in the freedom of movement dimension, such as the European Court of Justice case law and the new Directive? And to what extent are pro‐security policies such as the Schengen Information System II and an enhanced interoperability between European databases fully compatible with the freedom of movement paradigm?     

Retrieving the ‘subject’ of European integration

In this article, a critical reinterpretation of citizens as subjects of European integration moves the focus of EU law from EU citizens' subjection to their subjectification. This analysis draws on post‐structural social theory in arguing that the law is instrumental to securing the material conditions for transnational political subjectification because it regulates both EU citizens' access to transnational social relations and the perception of difference between them. However, the law also reinforces constraints on the process of transnational subjectification. Systematic obstacles, which must be taken into account, are not limited to economic status, but include other variables like gender or age. It will be argued on this basis that EU law needs to develop a more coherent politics of subjectivity. Towards this goal, the law must carefully attend to what is (and is not) depoliticising in EU citizenship rights.     

EU Citizenship and Political Identity: The Demos and Telos Problems

Citizenship is the cornerstone of a democratic polity. It has three dimensions: legal, civic and affiliative. Citizens constitute the polity's demos, which often coincides with a nation. European Union (EU) citizenship was introduced to enhance ‘European identity’ (Europeans’ sense of belonging to their political community). Yet such citizenship faces at least two problems. First: Is there a European demos? If so, what is the status of peoples (nations, demoi) in the Member States? The original European project aimed at ‘an ever closer union among the peoples of Europe.’ Second: Citizens are members of a political community; to what kind of polity do EU citizens belong? Does the EU substitute Member States, assume them or coexist alongside them? After an analytical exposition of the demos and telos problems, I will argue for a normative self‐understanding of the EU polity and citizenship, neither in national nor in federal but in analogical terms.     

The Aporia of EU Citizenship

EU citizenship finds itself in but a deadlock. Certainly no longer being just a symbol of European integration but still far away from a meaningful status of its holders, Union citizenship fails to find its place in the legal landscape of the EU. Having sketched out the current state of EU citizenship and some of its outstanding problems, this article suggests to analyse Union citizenship anew and free from the constraints of legal methodology. In order to do that, this piece employs the works of Jacques Derrida and, on the background of his views on Europe, deconstructs EU citizenship unravelling its aporia.

     

Civil Protection Cooperation in EU Law: Is There Room for Solidarity to Wriggle Past?

This article provides insight into the under‐researched area of civil protection cooperation and disaster response capacity in EU law. It discusses how the mechanisms set up by the EU have assisted Member States in supporting one another when faced with natural or man‐made disasters, including those perpetrated by terrorists. In particular, the article provides a critique of the Article 222 of the Treaty on the Functioning of the European Union (TFEU) clause, which has introduced the principle of solidarity within the EU's security strategy. The author explores the broadened notion of ‘threat’ in Europe and assesses the significance of the Solidarity Clause vis‐à‐vis the level of commitment required by Member States for its coherent implementation. The article then contrasts Article 222 TFEU with the mutual defence clause of Article 42 (7) Treaty on European Union (TEU), and finally points into certain ‘grey areas’ that may have a diminution effect upon the political message concerning the EU as a community based on solidarity.     

Political Reluctance and Judicial Activism in the Area of Free Movement of Persons: The Court as the Motor of EU–Turkey Relations?

Progress in the EU–Turkey accession negotiations has been slow in recent years, with the free movement of persons constituting one of the most controversial issues. The political reluctance and public opposition towards opening up free movement rights to Turkish nationals have led to a deadlock in this area since the early 1980s. In the face of a reluctant legislator, the Court has taken an activist stance. In a number of recent cases, it has interpreted the rights of Turkish migrants extensively, allowing for a transformation of status from family member/student to worker and applying the standstill clauses to conditions of admission. This article explores the role of the Court in pushing forward the free movement agenda. It discusses the implications of the Court's rulings for the free movement of persons between the EU and Turkey, and for the division of tasks between the Court and the legislator.     

EU citizens: Challenging the notion of German National Political Community, 1990–2005

This article assesses the extent to which Germany's adaptation of European Union legal norms through altering the criteria for access to territory and rights has challenged the judicial and conceptual boundaries of its notion of national political community. It compares the policies that directly affected EU citizens’ and other immigrant groups’ access to German territory, citizenship and social integration programs. It may be seen that, in enjoying a unique and privileged position between Germans and the other foreigners, this group not only challenges and undermines the justification for this very distinction, but also transforms the concept of ‘otherness’.     

欧盟法中的商标权权利穷竭原则

欧盟的货物自由流动原则与商标权的地域保护存在内在冲突。为了解决冲突 ,欧洲法院通过诸多判例在欧共体条约第 30条和欧共体商标指令第 7条法律框架下导入、发展、完善了商标权权利穷竭原则。欧洲法院在货物自由流动原则和权利穷竭原则下分别开设了两个例外 ,对原则和例外的解释旨在寻求商标所有权人合法权益与欧共体共同市场内的自由流动这一基本利益的平衡。贯穿在法院判决思路中的是对商标的完整性与主要功能的呵护和对欧洲一体化的极力推进。     

A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration

The development of European integration from an economic to a political community has become manifest not just in the continuous addition of non‐economic policy areas to the treaties. The introduction of Union citizenship (and its controversial subsequent development in the European Court of Justice's jurisprudence) has also triggered a paradigm shift in one of the community's core areas, the concept of negative integration hitherto intrinsically linked to the internal market. Thus, neither the individual's quality as a market actor nor his/her involvement in a transnational economic activity is a condition for enjoyment of the market freedoms' core guarantees, these being a right of residence and a far‐reaching claim to national treatment in other Member States, as well as a prohibition on restrictions to the free movement of persons. A new fundamental freedom beyond market integration (‘Grundfreiheit ohne Markt’) has emerged. This process, whose consequences for the welfare systems of the wealthier Member States have been fiercely discussed for some time, however, also threatens to curtail severely the regulatory autonomy at the national level.     

The Self-Referential European Polity, its Legal Context and Systemic Differentiation: Theoretical Reflections on the Emergence of the EU's Political and Legal Autopoiesis

Abstract:  This article starts by summarising major theoretical debates regarding European polity and governance. It highlights the role of statehood in those debates and suggests moving beyond the constraints of institutionalist and constructivist perspectives by adopting specific notions from the theory of autopoietic social systems. The following part describes the EU political system as self-referential, functionally differentiated from the system of European law, and internally differentiated between European institutions and Member State governments. Although the Union transgresses its nation-state segmentation, the notions of statehood and democratic legitimacy continue to inform legal and political semantics of the EU and specific responses to the Union's systemic tensions, such as the policy of differentiated integration legislated by the flexibility clauses. The democratic deficit of instrumental legitimation justified by outcomes, the most recent example of which is the Lisbon Treaty, subsequently reveals the level of EU functional differentiation and the impossibility of fostering the ultimate construction of a normatively integrated and culturally united European polity. It shows a much more profound social dynamics of differentiation at the level of emerging European society—dynamics which do not adopt the concept of the European polity as an encompassing metaphor of this society, but makes it part of self-referential and self-limiting semantics of the functionally differentiated European political system.     

Granting the Right to Vote for the European Parliament to Resident Third‐Country Nationals: Civic Citizenship Revisited

The EU grants rights to third‐country nationals (TCNs) and strives to approximate their rights to those of Union citizens. Up to now, the approximation has extended to social and economic matters. This article investigates whether political rights, notably voting rights for the European Parliament (EP), should also be approximated. To this end, the analysis applies Dahl's democratic principles of ‘coercion’ and ‘all affected interests’ as well as Bauböck's principle of ‘stakeholding’ to the position of TCNs in the EU. Against that background, it explores the relevance of arguments for and against granting TCNs the right to vote in European elections and submits that voting rights should be granted to long‐term resident TCNs. The author then proposes including TCN voting rights in the legal framework for EP elections and concludes by suggesting the use of the concept of civic citizenship to express political approximation of TCNs to EU citizens.     

Forward or Back: The Future of European Integration and the Impossibility of the Status Quo

This article considers how the legal and political order of the EU can cope if the ‘Ever Closer Union’ envisaged by the Treaties ceases to be inevitable. In particular, it focuses on what are the likely consequences if previously successful integration mechanisms such as integration through law (including adventurous pro‐integration interpretation by the Court of Justice of the European Union (CJEU)) and functional integration can no longer successfully push forward the integration process. It considers whether it is possible for the Union to ‘stand still’, that is, to maintain the current level of integration without either moving forward to more intensive integration or engaging in costly and disruptive disintegration. In order to substantiate this claim, the article looks at three areas, the law of citizenship, the Eurozone and the legislative structures of the Union, showing in each case that the neither the current degree of integration nor methods used in recent times to move the integration process forward provide a long term basis for policy.     

Should Europe disturb historians? On the importance of methodology and interdisciplinarity

Does the emergence of the European Union (EU) disrupt the frames of reference of the contemporary history of Europe to such an extent that historians distrust it? It would seem that methodological Euroscepticism exists. European integration arouses scepticism among some in the community of historians of contemporary Europe, since the conceptual underpinnings of that history cannot in themselves account for European integration. This billet expresses, more than a word of caution, a call for enhanced dialogue on the EU as an object of study among the different strands of historical studies and different disciplines. On the one hand, some of the analyses provided by historical studies on contemporary Europe constitute a fertile source for the study and understanding of European integration, notably in the field of history. Using them can stimulate the development in the European studies field of new concepts, new representations and new hypotheses for grasping the EU as a reality and a comparatively new object of academic interest. On the other hand, the critical study of the EU conducted in the specific field of the history of the EU questions and sheds a new light on the analytical categories of contemporary European history. In this regard, the fruitful interaction between history, political geography, law and political science can enrich contemporary European history. Interdisciplinary studies on European integration notably enable us to decentre notions of sovereignty, territory and democracy, which have classically taken the nation state as their reference in broad explanatory narratives of contemporary European history. Research mutualisation would offer all the potential interpretative and analytical benefits of the conceptual and methodological rethink of our various disciplines and of European integration as an object of study.     

Citizenship of the European Union—A Legal Analysis

Abstract:  The aim of this article is to present a legal analysis of the concept of citizenship of the EU. This concept was considered by some to be embryonic in the original Community Treaties, but was first expressly incorporated into the Treaties by the Treaty on European Union, signed at Maastricht on 7 February 1992. In the case-law of the European Court of Justice, which has given citizenship a content going beyond the express Treaty provisions, the concept is closely related to other basic concepts, including free movement of persons, the prohibition of discrimination on grounds of nationality and the protection of fundamental rights. This article seeks to review the case-law, to disentangle citizenship from other related concepts, and to determine what added value citizenship has brought to the Treaties and what the potential and the proper limits of the concept might be.