April 1, 2013

Doubting the Essence of European Citizenship

This post is co-authored by network members Fernanda Nicola (American University, Washington College of Law) and Francesca Strumia (University of Torino & Cleary Gottlieb Steen & Hamilton/Milan).  

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On Monday, March 25, 2013 the Washington College of Law, American University, as part of the school Founders’ Event, hosted a workshop entitled Doubting the Essence of EU Citizenship. The panel of five renowned speakers, including four network members, brought several intellectual tools to the table, from jurisprudence to legal and European integration theory, to investigate the essence of European citizenship. The contributions yielded a multi-perspective dialogue on the prospects of supranational citizenship. We distill in the following a few thoughts from that dialogue, in the attempt to offer a brief panorama of the points of view expressed by the panel.

Professor Fernanda Nicola, who chaired the event, introduced the first speaker: Professor Dimitry Kochenov, from the University of Groningen. Central to Dimitry’s talk was the dochotomy between “Market reasoning versus Citizenship reasoning” in the jurisprudence of the Court of Justice of the European Union (CJEU). According to the presenter, the court has moved beyond mere market integration and, in its recent decision, it stands for what EU citizenship is all about.

How does citizenship shape the Union? Dimitry’s starting assumption is that the EU is not only about market integration, even though one of the main promises of the Union is to generate prosperity and progress for all. If the market according to Dimitry is the main tool to move us toward those goals and promises, this is also an idea that gains momentum after World War Two. The second question is whether market integration is the only tool we have to speak about citizenship? Market integration came to be viewed as the only tool because, in the mind of many, the Union is about economic integration. In the same vein, initially, the Court told us that citizenship law is not supposed to expand the scope of EU law. And such interpretation would be possible if the market tool was working by itself, but as Dimitry asserts “it doesn’t… it is failing us. So if the Market is failing us, what are the alternatives?” The notion of EU citizenship should be based on the idea that the Union is not about market intergration only. For instance, the principle of conferral in the EU treaty doesn’t refer to the market, all the provisions on citizenship are not connected to the market. Therefore, citizenship can be seen as a tool that the drafters wanted for the Union as an end.

Because EU citizenship is grounded neither squarely within the market, nor within a solid political essence, the recent CJEU decisions are puzzling because they give us mixed signals. On the one hand, the Court is not acting in a sufficiently coherent way in applying and interpreting citizenship law. On the other, the Market reasoning is tainting the interpretation of citizenship, market contamination. As Dimitry puts it “Thank God” that the court actually realized that citizenship can be used as a separate activator of EU law and tool of integration? Suddenly the Court stopped utilizing the internal market logic in the newer cases. From Rottman onwards we observe an important jurisprudential shift. Today as a result of recent case law we have two competing approaches to EU law: Citizenship versus Market. In McCarthy and Dereci, the Court tries both approaches and ends in following a market biased approach, but still, the Court is looking at these two different views with caution. For instance, in applying the Proportionality principle the court is careful in balancing citizenship vs. something else and it doesn’t use proportionality as much anymore. The Court is moving away from market reasoning and a strict proportionality analysis when citizenship is employed, even though it leaves open the door for those past market approaches. To conclude Dimitry is seeking for a new paradigm in EU integration that is based on a purposeful view as the individual as a citizen, notwithstanding what the market paradigm has to say about that specific situation.

Our second panelist, Dr. Francesca Strumia looked at the problem of the boundaries of citizenship. One cannot—she argued—effectively strengthen the content of European citizenship, and thus the essence of the rights of citizenship, without understanding the scope of the container. The issue of boundaries is central to the recent judgments of the European Court of Justice, albeit kept in an undertone. In Zambrano, as in McCarthy, and Dereci, the Court is indeed faced with the task of assessing the status of individuals at the margin of European citizenship. Francesca suggested that reasoning on the genuine enjoyment of the substance of EU citizenship without clearly acknowledging the problem of the boundaries of citizenship is a dangerous course. Citizenship cannot be robust if it does not rely on a well-defined concept of belonging. Reinforcing the scope of European citizenship, without opening up its boundaries beyond nationality of the member states, has an exclusionary side effect. It entrenches the condition of under-protection of third-country nationals. Third-country nationals with no connection to an EU citizen remain extraneous to the combined discourse of family and fundamental rights, which the Court is reading in between the lines of supranational citizenship.

Our third panelist, Professor Catherine McCauliff dove deeper into the jurisprudence of European citizenship to evince the perspective of the Advocate Generals. Advocate Generals are often more daring than the court. Their opinions provide narratives which do not always surface in the judgments, and important hints at the direction of the law. In the context of the Court's recent turn to the concept of the genuine enjoyment of the substance of the rights of European citizenship, Advocate Generals’ opinions offer important indications for further reflection. They elaborate on the legal tools which may offer effective protection of the substance of European citizenship. Among these tools are the prevention of situations of reverse discrimination and the linkage between citizenship and fundamental rights. In particolar, in her presentation Cathy stressed the difference by focusing on the AG Sharpston’s opinion in Zambrano, who highlighted inconsistencies in citizenship caselaw and showed convincingly that if the Zambrano children don’t have a right to residency in Belgium they will not have a real EU citizenship protections. By following her opinion, the court in paragraph forty-two of the Zambrano decision introduced a new jurisdictional test. The result made that instead of travel based on free movement, the severity of a Member State’s interference with EU citizenship should be weighed. In contrast, in McCarthy, AG Kokott focused on the substance of citizenship by talking about limited competence of court and the scope of current citizenship law. Shirley McCarthy is not deprived by Art. 21 TFEU, which is directly effective but it is subject to secondary legislation that can narrow it and tie it down. It becomes clear in her opinion that if she had a strong precedent she wouldn’t mind granting the right to reside, but she is wary to trample on the member state’s opinion if they have taken one. What Cathy shows is how the AGs have contributed to the ongoing development in the court, especially with their competing, or even conflicting, interpretations of EU law.

Our last speaker, Professor Alexander Somek from the University of Iowa College of Law and a LAPA Fellow at Princeton, stood up in stark contrast with his co-panelist discussing citizenship as an institution of EU law by looking at the CJEU decision and the AGs opinions with the expectation that they are precedent “ divined” by the court in the best Weberian tradition. Such approch is embedded in the expectation that by looking at the CJEU we will find something that wasn’t there yet. This type of EU scholarship engages in symbolic exploitation to find new intellectual principles which calls for a new evaluation of EU scholarship. This oftern leads to the evolution of new EU law, as if it had agency and EU integration is per se a good thing. EU law is a subject, a principle in which the ECJ is an agent, with a reserved army of AGs to help the justices make progress. European integration as perceived by Luxembourg becomes the predominant discourse whereas there is a marginal discourse that is taking place in the German Federal constitutional court. This goes as follows: EU integration is a threat to undermine their capacity as active citizens to influence their opinions at home. If one juxtaposes these two discourses by using legal philosophy we can use Marx’s critique or rights to detect a discotomy between the bourgeois and citoyen. If on the one hand the bourgeoisie is committed to certain rights against the state that are in our favor, right to live together with our loved ones, these are the issues we see in EU citizenship cases. On the other hand, the discourse of the citizenry (at least in Germany) perceives the national citizenship threatened by EU citizenship. We can detect the alienation in the EU citizenship scenario–citoyen in home country, bourgeois in the EU sphere. In the EU we are collectively self-determining what we yield to someone else, because the narrative tells us it is good for you. In this way we are loosing control of the expertise as lawyers or politicians and we see increasing detachment of EU citizens committed to a collective bourgeois project.

Last but not least, Professor Takis Tridimas, who acted as commentator, was left with the challenging task of extrapolating the essence of the panelists’ contributions and weaving it into a common narrative. He mastered the job by leading the audience through the folds of European judge-made law. He highlighted how, in interpreting the ECJ's holdings on European citizenship, one should be aware that the Court has no grand plan. It is more the accidents of contingent litigation, and of the political process, which influence judicial outcomes. Yet this does not diminish the influence of such outcomes. The day after the ECJ handed down its Zambrano judgment, as Takis noted, lawyers were lining up in London to file amendments to their statements of claims in asylum cases. Further, the courts in Europe are a fundamental channel of propagation of E.U. based rights. It is to the courts indeed, in primis the local ones, which citizens turn to, in order to enforce such rights even against their states. States have lost, through mechanisms of this sort, their monopoly on the recognition of rights. Finally—Takis observed—while the absence of certiorari mechanisms leaves the ECJ apparently unarmed in front of a multitude of requests for preliminary references, the court may still control, to some extent, its jurisprudence, by adjusting the degree of specificity it applies in handling such references. The Court is not free, in other words, to set and pursue a citizenship project. It retains, however, the power to read citizenship and fundamental rights in between the lines of borderline cases, and to broadly interpret relevant treaty provisions. This way it enlarges the sphere of European citizenship, and nurtures the substance of its rights.

Among the question in the audience, Professor James Dinnage asked whether, from Chen onward, the citizenship cases are often the marginal cases with strange factual circumstances that allow the court to move further than a normal case. These marginal cases give the ECJ the ability to move into reevaluating citizenship for which a market understanding does not work anymore although it was only way to see this issue Professor Michelle Egan asked whether we somehow forgot to mention throughout the panel how identity ties to citizenship, whether national or European. An important point was raised by a WCL student who questioned how, although EU citizenship is one of the most intimately personal rights the EU grants, especially under the expansive perspective there is still a lack of political voice attached to the issue of EU citizenship. Is this due to the limitation placed by an absence of cross-border political parties, therefore how can the CJEU jurisprudence influence or not be influenced by the public opinion?

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