Law Essay: Legal Framework of European Union Citizenship
How has the legal framework of European Union citizenship been constructedTo what extent has this translated into a substantive practice of European citizenship?
The construction of the legal framework for European Union citizenship started with the Treaty of Maastricht in 1992 and has grown into its present form under the fractious Treaty of Lisbon which came into force on 1st December 2009 after an Irish referendum and excruciating Czech uncertainty. These provisions have been the product of years of work. The Lisbon Treaty, the Charter of Fundamental Rights, the Citizenship Directive and the case law so far constitute the remainder of what is a complex and dynamic legal framework.
In spite of the fact that the concept of the European Union citizenship has entered into common knowledge with even a flag, an anthem and a EU passport (Lenaerts & Van Nuffel: 2005) and is indisputably a key part of the European Union, it attracts criticism for being “toothless” (Jacqueson: 2002 p. 263) and departing from the original pure notions of citizenship as envisaged by the Adonnino Committee of 1985 (Lenaerts & Van Nuffel: 2005, Kent: 2008). In the second part of this paper, it will be argued to what extent the legal framework of the European Union citizenship has translated into substantive practice and to what extent the concept is merely symbolic. This will be accomplished by an analysis of the relevant case law and interpretation of the factual findings of the European Commission as well as academic opinions.
It was not until 1975 and the Tindeman’s Report, instigated by the Paris Summit of December 1974, that the term European Citizenship was used for the first time (Chalmers: 2010). The aim of the report prepared by the Belgian Prime Minister was to indicate how the term “European Union” might be interpreted (European Navigator online: 2011). In the report there was a chapter devoted solely to “A Citizen of Europe” (Tindeman: 1975). It dealt with giving the nationals of the member states civil, political and social rights. The 1970s and 1980s witnessed numerous yet fruitless attempts of the European Commission and the European Parliament to implement these notions (Chalmers: 2010). In September 1990, the Spanish government initiated a proposal called “The Road to European Citizenship” (Lenaerts & Van Nuffel: 2005, Kent: 2008). It expressly called for European Union Citizenship to be established (Chalmers: 2010). The Parliament, the Commission and many Member States supported the proposal and as a result, Part 2 of the TEU dealt with the notion of Union citizenship (Chalmers: 2010).
Part Two of the TEU, in particular Articles 17-22, constitutes the substantial part of the early legal framework of the citizenship of the European Union. Article 17 extended the rights of citizenship to “every person holding a nationality of a Member State shall be a citizen of the Union” (Art 17(1)). Crucially, Union citizenship is “not to replace the national citizenship” (ibid). Thus it is frequently asserted that citizenship created by this provision is supplementary or complementary to that of citizenship of Member State (Birkinshaw: 2010, Lenaerts & Van Nuffel: 2005, Kent: 2008). It is also derivative, which means that a person is citizen of the Union only when he or she is a citizen of a member state (see Case C-369/90 Mitchelitti  ECRI)
TEU provides for certain identifiable rights such as the right to move freely and reside within the territory of a Member State for the citizens of European Union and their families, if they are engaged in internal market economic activity or financially self-sufficient (Article 18(1). furthermore, under article 19(1), citizens have a right to vote and stand for municipal elections in the host Member State. They also have passive and active voting rights in host Member State for elections to the European Parliament (Article 19(2) TEU). Article 20 offers diplomatic and consular protection. Article 21 enshrines a right to petition the European Parliament and a right to complain to the European Ombudsman. The Council of the European Union may strengthen or add to the citizenship rights already specified in the Treaty, however it may not detract from them (Article 22 TEU). Another level in the construction of the citizenship’s legal framework is The Treaty of Lisbon. It brought about advances to the notion of European Union citizenship such as European Citizens’ Initiative (Articles 11 TEU and 24 TFEU) and Provisions on Democratic Principle (Title II TEU). Moreover, the Charter of Fundamental Rights contains in is legally binding under Lisbon although the UK has an opt-out.
The final step in the making of the framework of the European Union citizenship was Directive 2004/48 on the Right of Citizens of the Unionand their Family Members to Move and Reside Freely within the Territory of the Member States. The aim of the Directive was, inter alia, to promote moving and residing freely within the European Union and to reduce administrative formalities to minimum (Horsepool: 2006) A period of three months has been allowed for citizens to reside in a Member State with merely having an ID or passport. The limitations to this Directive are having sufficient resources or being workers or self-employed so not becoming a burden on the State due to the benefits claimed (Horsepool: 2006). Furthermore, after 5 years residence in a Member State, a citizen would receive a permanent right of residence (Horsepool: 2006). This particular provision does not impose any conditions (ibid).
The provisions listed above as the legal framework of Union citizenship constitute an invaluable step towards a more complete belonging of people to the European Union. The idea of universal citizenship, although it has been developing in the course of the last forty years, is still an incomplete one. It is an unfinished and unpolished product. Looking closely at the provisions listed above, the inevitable question arises: is the Union citizenship substantive or merely symbolicTo what extent has the framework of citizenship translated into a substantive practiceQuintessentially, is European citizenship what would be generally understood as citizenship?
Some harsh comments have been made about the concept over the years. It was argued that the concept is “toothless” (Jacqueson: 2002 p. 263). In fact, some went even further to say that it is not citizenship at all: “Citizens are individuals who decide upon citizen’s rights, and so citizens have the power to define their content and scope” (p. 205 Birkenshaw: 2010). It is difficult to see how this definition applies to Union citizenship since the citizens of the European Union have very limited powers (Birkenshaw: 2010). Accusations are made of it being a passive kind of citizenship which does not encourage or allow for participation of citizens in the community and lacks a sense of membership (Craig: 2003 p. 760 and see Konstadinides: 2010).
There are also practical problems with implementation of some of the provisions in certain Member States. Such problems reduce the extent to which the theoretical framework translates into substantive citizenship. One of the difficulties is with Article 19 of TEU, the right to vote: “different constitutional provisions in certain Member States and hence derogations are permitted”. (p. 759 Craig: 2003)
Perhaps most prominently, criticism has attached to the restrictions on residence right and discrimination against resident third country nationals (Craig: 2003). Article 18 TEU deals with rights of free movement and residence. This right is subject to “limitations and conditions laid down in the Treaty and by the measures adopted to give it effect” (Art. 18(1)). Curiously, these were not the first provisions regarding free movement and residence enacted (Craig: 2003). Three Directives were adopted in 1990 (90/365, 90/366, 90/364) which required Member States to grant rights of residence (work permits) to specific groups of people other than workers and their families subject to those people with resources not to claim social security benefits and had health insurance (Craig: 2003). Despite the fact that the right of residence no longer requires economical activity, financial self-sufficiency is still essential (Craig: 2003). The difficulty with this condition is that it means the right of free movement is significantly restricted as Chalmers memorably observed: “The European Union citizenship is a citizenship for all Europeans who are not poor or sick” (Chalmers: 2010 p. 449).
The ECJ has also played a vital part in developing substantive practice. In the Case C-85/96 Martinez Sala v. Freistaat Bayern  ECR I-2691 social and financial inequality among citizens were addressed and laid to rest criticisms that TEU citizenship were merely “symbolic”. The effect of this ruling was that any Union citizen lawfully resident in a Host State can rely on the principle of non-discrimination (Lenaerts & Van Nuffel: 2005). The problem was further addressed in the Case C-184/99 Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve  ECR I-6193. In this case Grzelczyk was held to be allowed welfare benefits in accordance with the notion that those in the same situation should enjoy the same treatment (Hofmann: 2010 p.6), The difficulty remains in the restrictive application of art 18(1) dealing with the right of residence and the interaction with equal treatment (Jacqueson: 2002).
Further developments in the doctrine of citizenship and the difficulties of application of Art 18 were created in the case of C -413/99 Baumbast, R v Secretary of State for the Home Department (2002). This case held that Article 18(1) is directly effective subject to the principle of proportionality. As a result a migrant worker who was a Union citizen could renew his residence permits in the UK. Further innovative case law came in Case C-200/01 Zhu and Chen where it is clear that a mother’s rights may derive from a child who needs to be cared for and the UK’s refusal of residence rights was overturned (Horsepool: 2006). Conversely, it is also argued that European Union citizenship is constrained to the consequences of free movement of people (Konstadinides: 2010).
Additionally, to lend credibility to the view that the legal framework has not translated into substantive practice of Union citizenship, there are a number of complaints made by the Union citizens who have sought to enforce their rights (Turner: 1999). These problems have been revealed following studies of the Commission, Council and the Parliament (ibid). The results showed a number of difficulties which included:
“obtaining residence permits because of unnecessary and unlawful administrative practices in the Member States; administrative practices in some member states whereby passports are held while residence-permit applications are processed; policies of stamping of passports on entry (the stamp thus serving as a residence permit and no separate permit being issued); rejection of visa applications without justification; unjustified expulsions or expulsions for minor offences; failure to recognise professional qualifications; unjustified discrimination on the grounds of nationality when applying for certain jobs; and difficulties in the registration of foreign cars and motorcycles for personal use.“ (Turner: 1999 p. 3)
To address the difficulties, the Commission responded by creating a list of aims (Turner: 1999 p. 3). These included minimizing undue delays in the administration of residence-permit applications, corrected application of free movement rules in expulsions and other measures aimed at EU citizens and protecting the rights of groups such as “third-country nationals who are family members of EU citizens” (ibid).
In addition to the above listed practical and legal aspects, Union citizenship has been criticised for reasons such as “the symbolism of super-statehood inherent in the notion of EU Citizenship” (Craig: 2003 p. 760), the “Literal interpretation of the citizenship provision inserted by the Maastricht Treaty reveals symbolic nature of the concept” (p.260 Jacqueson: 2010) and furthermore, “If the Community is to gain the respect and support of its citizens, European citizenship must be seen to amount to more than a few extra voting rights and an easier ride from the immigration authorities of the Member States” (Vincenzi: 1995 p. 274-275,) To move away from the dangerous zone of EU citizenship being considered bringing nothing new and symbolic, perhaps, an overall institutional and political reform in EU needed for meaningful citizenship (Craig: 2003). According to Turner (1999) what would make the notion of European citizenship translate into more substantive practice would be “the existence of an effective body of EC legislation giving effect to the citizenship provisions in the EC Treaty.“(1999: p. 3). Nevertheless, Turner is hopeful that with time, the obstacles on the way of reality of European citizenship will be overcome and: “The concept of EU citizenship will then be transformed from myth into reality” (p.3). As much as it is easy to criticize the notion in the light of the factual findings, perhaps Turner’s positive outlook should be embraced. What must be acknowledged is that the architects attempted to “rethink and transform citizenship” in order to create something new and better for the people of the European Union (Kostakopoulou, p. 38).
When on 16 April 2004, in an interview with Jacques F. Poos, former Luxembourg Foreign Minister, he was asked whether he regarded the European citizenship as a great success, he answered: “It is a success formally speaking” and although at the time he referred to not making use of voting rights due to lack of information and politics, his statement was very true about the notion of European citizenship altogether (www.ena.lu). European Union Citizenship is a new and dynamic concept. The plethora of complex case law and negative academic opinions together with opinions of the citizens conferred to the European Commission show that although the legal framework of the European citizenship is “formally speaking a success”, it has not translated into substantive practice yet to any great extent at all. However, some credit must be given as Union citizenship is likely to, in time, turn into a fully effective legal instrument, grow teeth and shed its old “toothless” image.
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