EU citizenship and (fundamental) rights: Empirical,normative, and conceptual problems

There is a close connection between EU citizenship and rights, both in the law and literature. This article claims that EU lawyers' understanding of EU citizenship and rights suffers from empirical, normative, and conceptual shortcomings. I will point out that there has been insufficient awareness for the boundedness of EU citizenship, the political structure of the EU and the constraints this (realistically) imposes on the ‘meaningfulness’ of EU citizenship. EU citizenship must not be understood as requiring an elaborate set of equal rights for all Union citizens throuzghout the EU, but valued for its ability to allow its status holders to enjoy (almost) full membership in the Member States of which they do not possess nationality.     

The citizen‐makers: Ethical dilemmas in immigrant integration

The topic of citizen‐making—turning migrants into citizens—is one of the most politically contested policy areas in Europe. Access to European citizenship is governed by national law with almost no EU regulation. The Article brings to the fore normative concerns associated with citizen‐making policies in Europe (Section 2). It examines ethical dilemmas involved in the process of creating new citizens (Section 3) and promotes the adoption of a European legal framework on access to citizenship (Section 4). The overall claim is that every newcomer will be required to demonstrate, as a prerequisite for citizenship, attachments to the constitution of the specific Member State, yet the test will be functional, flexible and non‐exclusive. As the topic of EU citizenship law is currently at the centre of the European agenda, this article has both theoretical significance and policy implications.     

A Duty‐Free Europe? What's Wrong with Kochenov's Account of EU Citizenship Rights

This article disputes the recent argument of Dimitry Kochenov advocating an ‘EU Citizenship without Duties’. His thesis rests on an untenable form of philosophical anarchism that overlooks the role played by our political obligations to state structures in securing rights. At best, his argument suggests a ‘thin’ form of EU citizenship that allows European citizens to choose which of the Member States they wish to become morally obliged to. A ‘thicker’ form of EU level citizenship could only arise by creating civic obligations at the EU level, the position he rejects. To the extent certain Court of Justice judgments in this area reflect parallel reasoning to Kochenov's, they too suffer from a similar failure to appreciate the role of civic duties to particular Member States (or, eventually, the EU) in creating and securing the status of citizens as equal rights bearers.     

Sincere Cooperation,Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland's Future in the European Union?

The position of an independent Scotland within the European Union (EU) has recently been a subject of considerable debate. The European Commission has argued that any newly independent state formed from the territory of an existing Member State would require an Accession Treaty. This article critiques that official position and distinguishes between a set of claims that could be made on behalf of an independent Scottish state, and a set of claims that could be made on behalf of the citizens of an independent Scottish state vis‐à‐vis the EU. It argues that the general principles of the EU Treaties ought to govern how Scotland is treated, and that a new Accession Treaty is not necessary. Furthermore, notwithstanding the jurisprudence of the European Court of Justice (ECJ) in the area of EU citizenship, we conclude that EU citizenship itself is not sufficient to guarantee or generate membership of the EU.     

‘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.     

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.

     

Union Citizenship—Metaphor or Source of Rights?

After nearly ten years of introducing Union Citizenship as a concept into Community law it seems time to draw a preliminary evaluation of its importance in reshaping the legal and social positions of citizens living in the EU, more precisely in its Member States. The balance sheet is however mixed: On the one hand, the prevalent position in legal doctrine seems to be that Union citizenship is merely a derived condition of nationality, while on the other side certain fundamental rights are based on criteria other than citizenship/nationality alone. The European Charter on Fundamental Rights will not overcome this dilemma. This can be shown in conflictual areas which are in the centre of discusion in the paper, namely the (limited!) use of the concept of citizenship to extend existing free movement rights in the new case law of the Court of Justice, the resistance towards granting 'quasi-citizenship' rights to third country nationals lawfully resident in the Union for a longer period of time, and the yet unsolved problem of imposing 'implied duties' based on a doctrine of ' abus de droit ' upon citizens paralleling the rights granted to them. As a conclusion the author is of the opinion that the question asked for in the title can be answered in the positive only to a limited extent. Citizenship appears to be a sleeping fairy princess still be be kissed awake by the direct effect of Community law.     

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.     

Who are Chinese Citizens? A Legislative Language Inquiry

By exploring the meaning construction of Chinese citizenship stipulated in Chinese legislation and its interaction with social identities and human nature in the Chinese society, the present study investigates the nature and evolution of the conception of Chinese citizens through three selected cases from Chinese legislations, which illuminate that Chinese citizens are essentially persons with independent personalities defined by the rights and obligations stipulated in legislation. This conception is further strengthened by the entitlement to private properties and equality before law. This conception of Chinese citizenship is concrete and meaningful in the sense that it is underpinned with reference to social identities as person, people and personality in Chinese legislations. The reference of the conception to human being constitutes the essence of Chinese legislation. The meaning construction of Chinese citizenship is indeed a dynamic process engineered in the social and cultural process. The findings on the evolution of the construction of Chinese citizenship in Chinese legislation suggest that the formation of legal identity through legislation varies greatly in different countries. Nevertheless, the realization of the conception of citizenship will necessarily be backed up by social identities as person, people and personality, which will be further strengthened and expanded by the legitimating of private properties and equality before law. Citizenship is achieved by social participants through mediation engineered within the social and cultural process.     

The reasonable citizen: A model for bridging ethics and politics in the EU

The ethical-political model of the EU needs normative rethinking after the pandemic. Using Dworkin's ‘thesis of continuity’ between ethics and politics, I argue that a strong model of the citizen, called on to exercise duties and civic virtues, is badly needed by the EU. The legitimacy of EU political institutions is not enough, if we want to promote the participation of citizens to their functioning. The basic point is that of arguing in favour of the model of ‘the reasonable citizen’, aimed to overcome the dominant liberal model of ‘citizenship as rights’. This is shown by the ‘European Social Model’, but its weaknesses need to be supplemented by a republican conception. In order for the reasonable citizen not to be just an abstract ideal, some measure of operationalisation is proposed through ‘progressively increasing constellations of common identities’; these rely on and respect the multiple demoi of the EU.     

Another type of ‘Other’ in EU Law? AB (2) MVC v Home Office and Rahman v Secretary of State for the Home Office

EU citizenship law has to date paid little attention to the extended family members of Union citizens, a group mentioned just once in Citizenship Directive 2004/38. This note suggests that the current EU legal framework gives too much discretion to the member states, providing scope for the rights of EU migrant workers to be breached with impunity. It also questions whether the new mechanisms for addressing misapplication of EU law are robust enough to hold national authorities to account for their treatment of other family members.     

All Citizens are Created Equal,but Some are More Equal Than Others

Nationality is the legal bond between a person and a state that connotes full and equal membership of the political community. Yet, in the practice of states, not everyone who is admitted as a national enjoys the full package of rights attached, nor the same security of status. The phenomenon of inequality among citizens is particularly apparent when examining the question of how protected the legal bond itself is: citizenship by birth is more secure than citizenship acquired otherwise—such as by naturalisation—and mono citizens are less prone to withdrawal of nationality than persons with dual or multiple nationality. As nationality revocation gains new attention from states as a tool to counter terrorism, prompting much political, public and academic debate, the reality that this measure often applies only to particular sub-groups of citizens demands closer scrutiny. This article explores how law and practice on citizenship deprivation is to be evaluated against contemporary standards of international law. While states justify unequal application of citizenship deprivation measures by invoking the duty to avoid statelessness, this article shows that the application of other international standards such as non-discrimination and the prohibition of arbitrary deprivation of nationality calls into question the legitimacy of citizenship stripping as a security instrument. Finally, the article reflects on the broader implications of the current trend towards greater inequality of citizenship status as a reaction to the perceived threat that terrorism poses to the integrity of the state, discussing how the creation of different classes of citizen is in fact likely to have a deeper and more lasting impact on the foundations of liberal democracies.

     

EU Citizenship and Religious Liberty in an Enlarged Europe

This article intends to contribute to the theoretical debate on how EU citizenship could be regarded as a bundle of common European individual rights (and, to a lesser extent, obligations) and part of a democratic polity in which every citizen counts equally irrespectively of his/her religious belonging and faith. The EU perceives itself as a community based on shared values. Since there is no European people, nor a European polity, common values play a core role in European polity building. The question, however, is whether common values can be experienced by the EU citizens in daily life and to what extent there are common values in the EU Member States. These issues are explored using the non‐discrimination principle on grounds of religion, as a litmus‐test for the existence of common values within Europe.     

How can one be European? Reflections on the Pillars of European Civic Identity

Abstract:  The citizenship of the EU is not only a set of rights, but also of civic behaviours and representations. In this article, I analyse these moral and sociological foundations of EU citizenship, stressing the limits of classic interpretations in terms of 'identification to' or 'support for' the EU. Instead, I suggest reading the evolution of EU citizenship as a process of political recognition. Such an analytical framework, inspired by recent works of Axel Honneth and Paul Ricoeur, leads one to understand this process as a threefold evolution: critical assessment of one's own national identity; transformation of the perception of other nationalities; and identification to the EU. Such a reading also compels us to pay attention to the limits of these processes: mutual recognition is an unending process which does not exclude the persistence of nationalistic reactions, hegemonic temptation and the revival of xenophobic attitudes vis-à-vis other Member States and third countries. I conclude that any project to render EU identity thicker needs to take care of the risk of jeopardising the fragile acquis.     

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.     

A two‐tier conception of European Union peoplehood: A realist study of European citizens’ bonds of collectivity

The European Union (EU) struggles to legitimate its rule. This realist study develops a conception of peoplehood in the EU polity, because, in contemporary Europe, ‘the people’ remains the sole source of political legitimacy. From a realist perspective, a conception of peoplehood should yield a coherent story why EU citizens should accept, or at least acquiesce, to EU rule. This study explores the possibility of a pluralistic conception being either multi‐layered, multi‐faceted or both. Taking a practice‐dependent approach, I first analyse the institutional systems that structure relationships between EU citizens. I secondly propose conceptions of EU citizens’ bonds of collectivity. Thirdly, I develop a novel two‐tier conception of EU peoplehood in which individuals remain bound together as national peoples, while these peoples are in turn united by commercial and liberal bonds. I submit that this conception can lay the foundation for a convincing story to legitimate EU rule.     

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.     

Citizenship,Belonging and Attachment in the ‘War on Terror’

The ‘war on terror’ has had an enormous impact on citizens’ legal rights and legal status. Using data from interviews with British Pakistani Kashmiri Muslims, this paper explores how the change to citizens’ legal rights and legal status in the ‘war on terror’, the legal dimension of citizenship, has impacted the psychological dimension of citizenship. Through denoting legal rights, equality and status the study revealed the powerful role of the state and the police in shaping citizens’ perceptions of the legal dimension of citizenship. The paper explores how changes to participants’ perceptions of their legal status and legal rights are instrumental in shaping the psychological dimension of citizenship—participants’ sense of loyalty, belonging and attachment to their British identity and their Islamic identity.     

EU Citizenship without Duties

Many believe that duties should be at the essence of citizenship. This paper dismisses this view, using EU law as the main context of analysis, by making five interrelated claims. (1) There are no empirically observable duties of EU citizenship; (2) such duties would lack any legal‐theoretical foundation, if the contrary were true; (3) legal‐theoretical foundations of the duties of citizenship are lacking also at the Member State level; (4) EU law plays an important role in undermining the ability of the Member States where residual duties remain to enforce them; (5) this development is part of a greater EU input into the strengthening of democracy, the rule of law and human rights in the Member States and reflects a general trend of de‐dutification of citizenship around the democratic world. If these conclusions are correct, it is time to stop categorising EU citizenship duties among the desiderata of EU law.     

“Impossible Families”: Mixed‐Citizenship Status Couples and the Law

This article explores the complex and contradictory relationship between citizenship in the law and the immigrant reality of mixed‐citizenship family life through in‐depth interviews with individuals in mixed‐citizenship marriages. An examination of mixed‐citizenship marriage exposes the inadequacies of approaching citizenship as an individual‐centered concept. The data indicate that, though both immigration and citizenship laws focus on the individual, the repercussions of those laws have family‐level effects. Because of their spouses' immigrant status, many citizens are obliged by the law to live the immigrant experience in their own country or to become immigrants themselves.