Research Handbook on European Union Citizenship Law and Policy: Navigating Challenges and Crises

411 Pages·2022·2.352 MB·English

by  Dora Kostakopoulou, Daniel Thym

© The Editors and Contributors Severally 2022
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Contents
List of contributors vii
1 Introduction: challenges and crises of Union citizenship 1
Daniel Thym
PART I THEORETICAL EXPLORATIONS
2 The power of the norm: EU citizenship as constitutional right 13
Anne Wesemann
3 A social-constructivist approach towards the evolution of EU citizenship 32
Martin Steinfeld
4 The evolution of citizens’ rights in light of the EU’s constitutional development 49
Daniel Thym
5 The genesis of European rights 70
Willem Maas
6 EU citizenship: a social empathy perspective 83
Karmelia Yiannakou
7 The relationship between national and EU citizenship: what is it and
what should it be? 100
Martijn van den Brink
PART II CITIZENS’ RIGHTS
8 Citizenship, territory and COVID-19 116
Stephen Coutts
9 The rules on the free movement of workers in the European Union 131
Adela Boitos and Manuel Kellerbauer
10 Free movement or fundamental rights? EU citizenship as a legal
gateway to fundamental rights protection 149
Adrienne Yong
11 EU citizenship and family reunification: the evolving concept of
a European Union territory 165
Hester Kroeze
12 Using EU citizenship to protect academic freedom: an alternative method 184
Tamas Dezso Ziegler
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vi Research handbook on European Union citizenship law and policy
13 Does Member State withdrawal automatically extinguish EU citizenship? 201
Oliver Garner
PART III SOCIAL CITIZENSHIP
14 EU citizenship and the welfare state 225
Francesco Costamagna and Stefano Giubboni
15 Progression and retrogression of the ECJ case law on access to social benefits 249
Ségolène Barbou des Places
16 The limits of judicialising transnational welfare: progression and
retrogression of the ECJ case law on access to social benefits 265
Susanne K. Schmidt
17 The outer limits of transnational solidarity between the EU’s Member
States in a social security setting 282
Jaan Paju
PART IV EU CITIZENSHIP POST-BREXIT: DIFFERENTIATED
CITIZENSHIP REVISITED
18 Differentiated citizenship in the European Economic Area 297
Christian Franklin and Halvard Haukeland Fredriksen
19 ‘Citizenship of the Association’: the examples of Turkey and Switzerland 320
Narin Idriz and Christa Tobler
20 Employment and social rights of labour migrants post-Brexit 343
Herwig Verschueren
21 Irish citizenship law after Brexit: implications for Northern Ireland 364
Clemens M. Rieder
22 Epilogue: on guest houses and institutional reconfigurations 384
Dora Kostakopoulou
Index 392
Contributors
Ségolène Barbou des Places is Professor of Public and European Law at the Sorbonne Law
School, Paris 1 Panthéon-Sorbonne University and Fellow of the Institut Convergences
Migrations.
Adela Boitos is Member of the Legal Service of the European Commission.
Francesco Costamagna is Professor of EU Law at the University of Turin and Fellow at the
Collegio Carlo Alberto.
Stephen Coutts is Lecturer in Law at University College Cork.
Christian Franklin is Professor of Law and Joint Manager of the Research Group for EU/
EEA, Competition and Market Law at the University of Bergen.
Halvard Haukeland Fredriksen is Professor of EU and EEA Law at the University of
Bergen.
Oliver Garner is Maurice Wohl Research Fellow in European Rule of Law at the Bingham
Centre for the Rule of Law, British Institute of International and Comparative Law and Editor
(Rule of Law) of the CEU Democracy Institute Review of Democracy.
Stefano Giubboni is Professor of Labour Law at the University of Perugia.
Narin Idriz is Researcher at TMC Asser Institute, The Hague, and Member of the Human
Rights Committee of the Dutch Advisory Council on International Affairs (AIV).
Manuel Kellerbauer is Legal Adviser at the Legal Service of the European Commission and
lecturer at the universities of Saarbrücken and Würzburg.
Dora Kostakopoulou is Professor of European Union Law, European Integration and Public
Policy at KU Leuven.
Hester Kroeze is PhD Candidate in the field of EU Citizenship and Family Reunification
Rights at the Ghent European Law Institute.
Willem Maas is Jean Monnet Chair and Professor of Political Science, Public & International
Affairs, and Socio-Legal Studies at York University (Canada).
Jaan Paju is Senior Lecturer in Constitutional Law and Associate Professor in European Law
at Stockholm University.
Clemens M. Rieder is Senior Lecturer in EU Law at Queen’s University Belfast (Northern
Ireland) and Executive Committee Member at the Centre for European and Transnational
Studies.
Susanne K. Schmidt is Professor of Political Science at the University of Bremen.
vii
viii Research handbook on European Union citizenship law and policy
Martin Steinfeld is College Lecturer in Law, Director of Studies; Affiliated Lecturer at
Faculty of Law, University of Cambridge.
Daniel Thym is Professor of Public, European and International Law and Director of the
Research Centre Immigration and Asylum Law at the University of Konstanz.
Christa Tobler is Professor of European Law at the Europa Institutes of the Universities of
Basel and Leiden.
Martijn van den Brink is British Academy Postdoctoral Fellow at the University of Oxford.
Herwig Verschueren is Professor of International and European Employment and Social Law
at the University of Antwerp.
Anne Wesemann is Senior Lecturer in Law and Head of Department at The Open University
Law School, UK.
Karmelia Yiannakou LLB, MA Res, PhD is a Registered Advocate and Independent
Researcher focusing on EU citizenship, migration, social justice and human rights in law and
education.
Adrienne Yong is Senior Lecturer in Law at The City Law School, City, University of
London; Co-Director of the Institute for the Study of European Laws (ISEL); and Gender &
Sexuality Research Centre (GSRC) Organising Committee Member.
Tamas Dezso Ziegler is Associate Professor and Head of the Department of International
Relations and European Studies, Faculty of Social Sciences, Eötvös Loránd University,
Budapest.
1. Introduction: challenges and crises of Union
citizenship
Daniel Thym
1. NON-LINEAR UNION CITIZENSHIP
European integration came about in the era of high modernity and incorporated the belief in
the possibility of progress on the basis of humanism, rationalism, science and technology, as
well as economic development.1 Preambular recitals of the European Treaties epitomise that
belief to this date, as do the initial reliance on technocratic institutions, the creation of the
European Atomic Energy Community, and reliance on the law as the primary instrument of
governance. The process of European integration has traditionally embodied the conviction
that economic, social, technological and political progress are possible2 – and the success
of Western Europe during the trente glorieuses of the postwar period seemed to justify the
conception of linear evolution towards a better life. Arguably, the optimistic vision of ‘ever
closer union’3 symbolises the search for constant improvement, where the future will almost
inevitably be better than the past.4
The modernist vision of progress was resurrected, indirectly at least, after the end of the
Cold War by what appeared to be the beginning of an epoch that was aptly described as the
‘end of history’,5 to illustrate the widespread expectation that liberal and democratic constitu-
tionalism in the Western tradition would no longer be contested. The gradual disappearance
of borders, state sovereignty and ideological struggles was an integral part of the positive nar-
rative about globalisation throughout the 1990s. Union citizenship was created in this overall
context by the Treaty of Maastricht.6 Legal rules and court judgments on the new status and
the free movement of persons were interpreted by academic observers to herald the assertion
of novel forms of post- or transnational citizenship.7 It was often assumed at the time that
this process would continue and that legal rules and corresponding court judgments would
1 See generally https://e n .wikipedia. org/ wiki/ High _modernism accessed 26 May 2021.
2 See Articles 2–3 TEU.
3 Recital 1 of the Preamble of the original EEC Treaty of 1957, the present Treaty on the Functioning
of the European Union and the Charter of Fundamental Rights.
4 See also Chalmers, Damian/Trotter, Sarah: Fundamental Rights and Legal Wrongs: The Two
Sides of the Same EU Coin, ELJ 22 (2016), 9, 15–16.
5 Fukuyama, Francis: The End of History and the Last Man (Free Press, 1992).
6 See Article 8–8e Treaty establishing the European Community as amended by the Treaty of
Maastricht (OJ 1992 C 224/36), adopted 7 February 1992, entered into force 1 November 1993.
7 See Soysal, Yasemin: Limits of Citizenship. Migrants and Postnational Membership in Europe
(University of Chicago Press, 1994), 141–51; and Sassen, Saskia: Losing Control? Sovereignty in an Age
of Globalization (Columbia UP, 1996), 88–99.
1
2 Research handbook on European Union citizenship law and policy
continue to expand equal treatment and residence security across borders, thus transforming
prevailing conceptions of citizenship that had existed at the national level.8
For those studying the state of the Union in the 2020s, it can be difficult to grasp the sense
of optimism with which colleagues had earlier approached Union citizenship. Enthusiasm has
given way to widespread disappointment, scepticism and critique of the institutional practices
on free movement and Union citizenship, including court judgments. They are condemned for
advancing the rights of economically successful citizens over those in precarious occupations,
women and marginal social groups.9 The positive narrative of individual rights as an instru-
ment of emancipation is complemented by darker perceptions of governmental control and
subjectification rewarding good behaviour.10 Instead of embracing transnational mobility as
a force for the good, some highlight the tension, if not conflict, with traditional conceptions
of solidarity and democratic belonging.11 It is palpable that the ‘critical turn’12 has reached EU
legal studies and the academic research on Union citizenship.
Legal, political and contextual reasons underlying the critical turn will be discussed
throughout this Handbook. From the perspective of the history of intellectual thought, the
overlap with the decline of the modernist belief in historical teleology, which had informed
the EU’s creation, stands out. Modernism has given way to diverse strands of postmodernist
thought questioning the assumption of steady betterment. Objective rationality was replaced
by critical deconstructivism, and social or legal institutions that had previously been widely
accepted are criticised from a feminist or postcolonial angle.13 The idea of linear progress
towards a better future is dethroned by the theoretical equivalence of dead ends, standstill or
even decline.14 That applies to the internal critique of the evolution of Union citizenship, on
which most academic writing of EU law experts concentrates, as it does to the external decon-
struction of the EU’s self-image as a force for the good in light of the postcolonial rejection of
the distinction between Union citizens and third country nationals enshrined at Treaty level as
a form of neo-colonial ‘apartheid’.15
8 See Kostakopoulou, Dora: The Future Governance of Citizenship (CUP, 2008); Maas, Willem:
Migrant, States and EU Citizenship’s Unfulfilled Promise, Citizenship Studies 12 (2008), 583–96.
9 See O’Brien, Charlotte: Unity in Adversity: EU Citizenship, Social Justice and the Cautionary
Tale of the UK (Bloomsbury/Hart, 2017); Carter, Daniel: Inclusion and Exclusion of Migrant Workers
in the EU, in: Moritz Jesse (ed.), European Societies, Migration, and the Law. The ‘Others’ amongst ‘Us’
(CUP, 2020), 301–20.
10 See Neuvonen, Päivi Johanna: Retrieving the ‘Subject’ of European Integration, ELJ 25 (2019),
6–20; Kochenov, Dimitry: The Citizenship of Personal Circumstances in Europe, in: Daniel Thym
(ed.), Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU
(Bloomsbury/Hart, 2017), 37–56.
11 See Menéndez, Agustín/Olsen, Espen D.H.: Challenging European Citizenship: Ideas and Realities
in Contrast (Palgrave, 2020); Seubert, Sandra: Shifting Boundaries of Membership. The Politicisation of
Free Movement as a Challenge for EU Citizenship, ELJ 26 (2020), 48– 60.
12 See generally Editorial Comments: The Critical Turn in EU Legal Studies, CML Rev. 52 (2015),
881–88; Azoulai, Loïc: Solitude, désoeuvrement et conscience critique. Les ressorts d’une recomposition
des études juridiques européennes, Politiques européennes 2015, 8–86.
13 See generally https://e n .wikipedia. org/ wiki/P ostmodernism accessed 26 May 2021.
14 See Ferguson, James: Decomposing Modernity: History and Hierarchy after Development, in:
James Ferguson (ed.), Global Shadows: Africa in the Neoliberal World Order (Duke UP, 2006), 176–93.
15 See Balibar, Etienne: Nous, citoyens d’Europe: Les Frontières, l’Etat, le people (La Découverte,
2001); see also Thym, Daniel: Deciphering the Role of Migration Law in the Social Construction of
‘Otherness’, in: Jesse (ed.), European Societies (n. 9), 323–55.
Introduction 3
Placing emphasis on non-linear evolutionary paths of Union citizenship aims to draw our
attention to the social, political and intellectual context of contemporary legal debates. Doing
so highlights that – notwithstanding the vision of ‘ever closer union’ – restrictive tendencies,
thematic shifts or changes of direction are conceptually as likely as further expansion. It is
important to realise that the emphasis on non-linearity is not meant as a normative preposition
that supranational citizenship is bound to fail or that institutional practices are necessarily bad.
Rather, it serves as an investigative device to shed light on underlying trends, contextual forces
and normative implications of the law and policy of Union citizenship. The outcome of this
venture is no foregone conclusion. In that respect, deconstruction and reconstruction go hand
in hand. Non-linearity rejects quasi-natural trajectories of perpetual progress in the same way
as the prediction of inevitable decline. The future is not pre-determined but depends – like the
past – on legal and institutional choices that can change over time.
2. CHALLENGES: NORMATIVE OPEN-ENDEDNESS
When the Treaty of Maastricht introduced Union citizenship, the initial reaction was tem-
perate.16 Early reactions criticised the rules for not adding much substance. Citizenship was
perceived as essentially a label attached to free movement and direct elections to the European
Parliament. Commentators highlighted the ‘weakness’17 of the legal framework and castigated
the new status as a misnomer bound to remain an ‘empty gesture’, a sort of ‘cynical public
relations exercise’ on the part of the High Contracting Parties.18 It is well known that the situa-
tion changed from the late 1990s onwards when the Court started interpreting citizens’ rights,19
thus building upon the earlier judicial expansion of the free movement of workers and other
persons which had been interpreted generously by the EU legislature and the Court of Justice
ever since the 1970s.20 Court judgments played a prominent role in the initial euphoria about
Union citizenship as an embryonic form of supra- or transnational citizenship transforming
hitherto prevailing conceptions of state membership.
In one of the first prominent judgments on citizenship, the Court of Justice hinted at the
forward-looking potential when stating that Union citizenship ‘is destined to be the fundamen-
tal status’.21 This prospective dynamism did not come as a surprise. In contrast to the cautious
16 This and the next two sections build on Thym, Daniel: Introduction: The Judicial Deconstruction
of Union Citizenship, in: Thym (ed.), Questioning EU Citizenship (n. 10), 1, 1–8.
17 O’Leary, Síofra: The Evolving Concept of Community Citizenship: From the Free Movement of
Persons to Union Citizenship (Kluwer, 1996), 304–7.
18 See Weiler, Joseph H.H.: European Citizenship and Human Rights, in: Jan Winter/Deirdre Curtin/
Alfred Kellermann/Bruno de Witte (eds), Reforming the Treaty on European Union (T.M.C. Asser,
1996), 57, 68, 73.
19 For an overview, see Kochenov, Dimitry: The Essence of EU Citizenship Emerging from the Last
Ten Years of Academic Debate: Beyond the Cherry Blossoms and the Moon?, ICLQ 62 (2013), 97–136.
20 See Kadelbach, Stefan: Union Citizenship, in: Armin von Bogdandy/Jürgen Bast (eds), Principles
of European Constitutional Law, 2nd edn (Hart, 2009), 443, 445–8.
21 ECJ, C-184/99, Grzelczyk, EU: C: 2001: 458, para 31 (emphasis added), which in French, the
working language of the Court, read ‘a vocation à être’; the English-language version of later judgments
employed ‘is intended to be’; see also Jessurun d’Oliveira, Hans Ulrich: Union Citizenship and Beyond,
in: Nathan Cambien/Dimitry Kochenov/Elise Muir (eds), European Citizenship under Stress: Social
Justice, Brexit and Other Challenges (Brill Nijhoff, 2020), 28, 40–1.
4 Research handbook on European Union citizenship law and policy
observers mentioned previously, others had predicted early on that the new status would not
remain an empty normative shell.22 They expected the citizenship label to have a transforma-
tive impact, as it did for many years. To this day, citizenship judgments constitute one of the
most tantalising lines of the ECJ case law, discussed in numerous academic articles and mon-
ographs. In doing so, commentators often described the evolution in a transformative manner
from (old) ‘market citizenship’ towards (new) ‘real, social or political citizenship’, including
access to social benefits, voting rights and free movement for those other than workers.23 To
do so reflects the vision of ‘ever closer union’ and the idea of linear progress.
Union citizenship lends itself to such progressive narratives. Experts of political theory
emphasise that the notion of ‘citizenship’ has a rich history, throughout which it often served
as a projection sphere for political visions of a good life and a just society. It is the aspirational
openness of the citizenship concept that explains why it has long steered diverse calls for wider
social and political inclusion.24 It served as a normative anchor in debates about the abolition
of serfdom and slavery, the gradual extension of the right to vote and the construction of the
welfare state.25 More recently, women, ethnic minorities and gay men and lesbians have fought
for emancipation by invoking ‘citizenship’.26 That is not to say that there is a uniform concep-
tion of citizenship: its meaning remains theoretically contested and politically disputed.27 Yet,
it is for this reason that rules on citizenship can serve, like human rights, as channels to feed
normative arguments into legal debates.28 The inherent openness of the citizenship concept
supports progressive change by means of dynamic interpretation.
Against this background, Union citizenship shares a general characteristic with the
European Union: they both defy easy definition. Affirmative recourse to constitutional lan-
22 See Shaw, Jo: Citizenship of the Union: Towards a Post-National Membership?, in: European
University Institute (eds), Collected Courses of the Academy of European Law 1995, Volume VI-1
(Kluwer, 1998), 237, 278–96; and Tomuschat, Christian: Staatsbürgerschaft – Unionsbürgerschaft
– Weltbürgerschaft, in: Josef Drexl/Karl Kreuzer/Dieter Scheuing/Ulrich Sieber (eds), Europäische
Demokratie (Nomos, 1999), 73, 75.
23 By way of example, see Kochenov, Dimitry: The Citizenship Paradigm, C.Y.E.L.S. 15
(2012–13), 197–226; Shaw, Jo: Citizenship: Contrasting Dynamics at the Interface of Integration and
Constitutionalism, in: Paul Craig/Gráinne de Búrca (eds), The Evolution of EU Law, 2nd edn (OUP,
2011), 575–609; Spaventa, Eleanor: Seeing the Wood despite the Trees? On the Scope of Union
Citizenship and its Constitutional Effects, CML Rev. 45 (2008), 13–45; Tryfonidou, Alina: Reverse
Discrimination in EC Law (Kluwer, 2009), ch 4.
24 See Dahrendorf, Ralf: Citizenship and Beyond – The Social Dynamics of an Idea, Social Research
41 (1974), 673–701; Sassen, Saskia: Territory, Authority, Rights: From Medieval to Global Assemblages
(Princeton UP, 2006), ch 6.
25 For Europe, see Magnette, Paul: Citizenship: The History of an Idea (ECPR Press, 2005), chs 4,
5; and for the US, see Shklar, Judith N.: American Citizenship: The Quest for Inclusion (Harvard UP,
1991).
26 See Strasser, Sabine: Rethinking Citizenship: Critical Encounters with Feminist, Multicultural
and Transnational Concepts of Citizenship, in: Beatrice Halsaa/Sasha Roseneil/Sevil Sümer (eds),
Remaking Citizenship in Multicultural Europe. Women’s Movements, Gender and Diversity (Palgrave,
2012), 21–41.
27 See Bosniak, Linda: Citizenship Denationalized, Indiana Journal of Global Legal Studies 7
(2000), 447, 450–3; Benhabib, Seyla: Claiming Rights across Borders: International Human Rights and
Democratic Sovereignty, American Political Science Review 103 (2009), 691, 697–9.
28 For academic practice, see Thym, Daniel: Frontiers of EU Citizenship. Three Trajectories and their
Methodological Foundations, in: Dimitry Kochenov (ed.), EU Citizenship and Federalism: The Role of
Rights (CUP, 2017), 705–30.
Introduction 5
guage often hides deeper problems in describing the European Union in quasi-statist terms,
for which, moreover, diverse traditions exist among the Member States.29 Crucially, this is
not an argument against constitutional terminology. To the contrary, we would miss out on
a decisive component of the integration process if we pretended that it is a simple form of
intergovernmental cooperation, a sort of advanced free trade area. The European Union is
much more, even if it remains notoriously difficult to describe the conceptual underpinning of
Union citizenship. The more restrictive turn of recent practices and the ensuing non-linearity
complicate the venture further.30 Against this backdrop, the Handbook introduces readers to
the state of the art of the legal debate.
The authors contributing to this Handbook are predominantly legal academics and share an
intimate knowledge of legal rules and court judgments. Questions of legal interpretation and
the search for systematic coherence are a common thread of the contributions. Yet, the meth-
odology they employ often stretches beyond doctrinal hermeneutics, encompassing various
forms of contextual and theoretical analyses that help explain institutional practices. The
aspirational openness of the citizenship concept renders norms and ideas particularly relevant
for the (re)configuration of Union citizenship.31 A sound legal–doctrinal exegesis is necessary
but benefits from being embedded in broader contextual and theoretical explorations precisely
because citizens’ rights convey normative values and express basic choices of societies, which
can change over time.32
3. THE TRADITION OF ‘INTEGRATION THROUGH LAW’
AND ITS LIMITS
In the European Union, the volatility of the citizenship concept is reinforced by recent weak-
nesses of the traditional method of ‘integration through law’, which influenced the making of
Union citizenship. In the EU, the law has often been employed as an instrument for change.33
The belief in the effectiveness of the legally driven modification of social and economic
29 See Jakab, András: European Constitutional Language (CUP, 2016); Walker, Neil: Postnational
Constitutionalism and the Problem of Translation, in: Joseph H.H. Weiler/Marlene Wind (eds), European
Constitutionalism Beyond the State (CUP, 2003), 27–54.
30 See generally McCrea, Ronan: Forward or Back: The Future of European Integration and the
Impossibility of the Status Quo, ELJ 23 (2017), 66–93; Walker, Neil: The Place of European Law, in:
Grainne de Búrca/J.H.H. Weiler (eds), The Worlds of European Constitutionalism (CUP, 2012), 57–104.
31 On open-endedness and co-creation, see Kostakopoulou, Dora: Ideas, Norms and European
Citizenship: Explaining Institutional Change, ML Rev 68 (2005), 233–67; Komárek, Jan: EU Citizens’
Duties: Preventing Barriers to the Exercise of Citizens’ Rights, in: Sandra Seubert/Oliver Eberl/Frans
van Waarden (eds), Reconsidering EU Citizenship: Contradictions and Constraints (Edward Elgar
Publishing, 2018), 64, 75–8.
32 See generally Cover, Robert: Foreword: Nomos and Narrative, Harvard Law Review 97 (1983), 4,
11–44; and von Bogdandy, Armin: Founding Principles of EU Law: A Theoretical and Doctrinal Sketch,
ELJ 16 (2010), 95, 98–100.
33 See the classic account by Cappelletti, Mauro/Seccombe, Monica/Weiler, Joseph: Integration
through Law: Europe and the American Federal Experience, in: Mauro Cappelletti, Monica Seccombe
and Joseph Weiler (eds), Integration through Law: Europe and the American Federal Experience,
Volume I: Methods, Tools and Institutions. Book 1: A Political, Legal and Technical Overview (de
Gruyter, 1986), 3–68; and the recent, more sceptical assessment by Azoulai, Loïc: ‘Integration through
Law’ and Us, ICON 14 (2016), 449–63.