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Which Citizenship? Whose Europe?—The Many Paradoxes of European Citizenship

Published online by Cambridge University Press:  06 March 2019

Agustín José Menéndez

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If you want to go in pilgrimage to the place where your constitution was born, you should go to the mountains were the resistance fighters were killed, to the prisons where they were jailed, to the fields where they were hanged. Wherever an Italian died trying to win back the freedom and dignity of our nation, there you should go, young Italians, because it was there that your constitution was born.

– Piero Calamandrei1

Type
Special Issue EU Citizenship: Twenty Years On
Information
German Law Journal , Volume 15 , Issue 5: Special Issue EU Citizenship: Twenty Years On , 01 August 2014 , pp. 907 - 933
Copyright
Copyright © 2014 by German Law Journal GbR 

References

1 Piero Calamandrei, The “Constitution” Speech (Jan. 26, 1955). Se voi volete andare in pellegrinaggio nel luogo dove è nata la nostra Costituzione, andate nelle montagne dove caddero i partigiani, nelle carceri dove furono imprigionati, nei campi dove furono impiccati. Dovunque è morto un Italiano per riscattare la libertà e la dignità della nazione, andate là, o giovani, col pensiero, perché là è nata la nostra costituzione.Google Scholar

2 The yardstick by reference to which I pass normative judgment is that of the Social and Democratic Rechtsstaat. The term is, quite obviously, of German origin. Neil MacCormick proposed to translate it as Law-State. But in this article, I will stick to German term, only giving it an English twist, so that I will speak of Rechtsstaats and not of Rechtsstaaten. Google Scholar

3 The tragic character of “European citizenship” has become more obvious in the last years. European institutions (crucially, the European Central Bank, the Eurozone Summit and the Commissioner of Economic and Monetary Affairs) have mandated austerity policies that have deprived many Europeans, very especially those Europeans resident in countries suffering acute fiscal crises, of most of the rights that make up the status of citizenship. To the point that some Europeans are close to becoming de facto stateless. This is clearly the case of Greek citizens, and to a large extent, of Italian and Spanish citizens. The present understanding of European citizenship does not hold much promise as a means to fight such policies.Google Scholar

4 Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein, CJEU Case C-120/78, 1979 E.C.R. 649.Google Scholar

5 And potentially, perhaps, of all legal institutions; while it may take us quite some time to think about the normative ideal that is relevant when it comes to, say, emphyteusis or usucaption, we could work that out—and rather quickly—given a set of “problematiques” and given sufficient time.Google Scholar

6 See Manuel García Pelayo, Derecho Constitucional Comparado (1984); Manuel García Pelayo, Las Transformaciones del Estado Contemporáneo (1977).Google Scholar

7 In which ideas have played a major role. Such ideas, however, were rarely produced by scholars as we have come to understand them—at least not by professional scholars—and clearly not by legal scholars.Google Scholar

8 According to the Weimar Constitution, Germany was a Social Rechsstaat. It included provisions such as article 145, which made education compulsory up to eighteen years of age; article 153, that mandated private property to also serve the common good; article 161, that foresaw the creation of a comprehensive scheme of insurance, covering among other risks disability to work, motherhood, the consequences of old age, weaknesses and vicissitudes of life; and article 163, which established that every national should have the chance to “employ her intellectual and physical powers in such a manner as the welfare of all demands.” If handicaps prevented that, some basic income should be available.Google Scholar

9 Article 1 of the 1931 Spanish Constitution defined Spain as a “democratic republic of workers of all classes”. Article 44 established that the whole wealth of the nation, independently of who may be its proprietor, should be placed at the service of the collective welfare.Google Scholar

10 On the postwar consensus, the key reference is now Tony Judt, Postwar (2005). On ordoliberalism, the most acute and nuanced analysis in English is in my opinion to be found in Maurice Glassman, Unnecessary Suffering. Managing Market Utopia (1996).Google Scholar

11 Very especially and very intensely, the constitutions of the countries that had to rebuild themselves after years of devastating fascist dictatorships. For example Italy, Germany, and France had to rebuild in the second half of the forties, Greece, Portugal, and Spain in the seventies, and later, Eastern European countries.Google Scholar

12 See Preamble, , 1946 Const. (Fr.); Art. 11 Costituzione [Cost.] (It.); Grundgesetz für die Bundesrepublik Deutschland [GG - Basic Law], May 23, 1949, BGBl. I, art. 24.1–.2 (Ger.); Opinion of the Luxembourgeois Council of State (April 9, 1952), available at http://www.cvce.eu/obj/avis_du_conseil_d_etat_sur_le_projet_de_loi_portant_approbation_du_traite_instituant_la_ceca_9_avril_1952-fr-7b079966-2de6-4f4d-a566-049abaf07037.html; Grondwet voor het Koninkrijk der Nederlanden art. 63, 67 (1815) (amended 1953) (Neth.); Constitution du Grand-Duche de Luxembourg art. 49bis (amended 1956) (Lux.).Google Scholar

13 See Plender, Richard, An Incipient Form of European Citizenship, in European Law and the Individual 39-53 (Francis Jacobs ed., 1976).Google Scholar

14 On the complexities of constitutionalization of European law, and the different forms of constitutionalization, I refer to John Erik Fossum & Agustín José Menéndez, The Constitution's Gift (2011).Google Scholar

15 Contrary to the case with most national identities during the processes of nation-making, it would be very hard to tie a national identity by constructing it.Google Scholar

16 The normative ideal of national citizenship-of a citizenship anchored to pre-political appurtenance to the nation-in brief, of a citizenship based on blood was extremely influential for many decades in Europe. This was especially true during the tragic interwar years after the collapse of the old empires, especially the Austro-Hungarian Empire which had many normative shortcomings (not in the least it being an empire), but not the shortcoming of associating the status of citizen with that of national. It is not surprising that the national ideal of citizenship persisted for decades in the political imagination after the constitutional self-definition of European states implied abandoning the ideal of national citizenship. Consequently, social opinion and specific legal rules have lagged behind. In some countries, the realization of the normative ideal of citizenship coming hand in hand with the move from autarchic nation-state to Member State of the European Union has been slower than in others (Germany for a long time being the clear outlier in this regard). See Simon Green, Citizenship Policy in Germany: The Case of Ethnicity over Residence, in Towards a European Nationality: Citizenship, Immigration and Nationality Law in the EU 26–29 (Randall Hansen & Patrick Weil eds., 2001).Google Scholar

17 Nobody has put this better recently than Barbara Spinelli. See Barbara Spinelli, L'Europa di cui abbiamo bisogno (2013), http://download.repubblica.it/pdf/2013/repidee/barbara_spinelli.pdf.Google Scholar

18 In a previous work co-authored with John Erik Fossum, I have claimed that this peculiar path can be described as a synthetic constitutional path. See Fossum & Menéndez, supra note 14.Google Scholar

19 Treaty Constituting the European Coal and Steel Community, Apr. 18, 1951, 261 U.N.T.S. 140.Google Scholar

20 Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11.Google Scholar

21 Treaty Establishing a Single Council and a Single Commission of the European Communities, Apr. 8, 1965, 967 J.O. 152/1.Google Scholar

22 See John Erik Fossum & Agustín José Menéndez, The Constitution's Gift, 11 European L.J. 380 (2005).Google Scholar

23 Proven by the present crises. See Fossum & Menéndez, supra note 14; Menéndez, supra note Error! Bookmark not defined. Google Scholar

24 The very success of integration may have rendered it inconvenient, undesirable, and impractical to constrain integration to purely economic policies. To put it in the language of functionalism and neo-functionalism, which were consistently popular in the first decades of integration, spillovers had reached the “political” stage and it made sense to mark the shift from an integration path through economic policies to an integration path with an overt, clear, and explicit political nature. The need to shift from the implicit to the explicit political character and means of integration became urgent due to developments external to the European Union. The collapse of the Bretton Woods system implied that the public good “monetary stability” was no longer ensured at the global (essentially Western, transatlantic) level. Monetary stability, at least between the Member States of the then European Communities, was essential to avoid undermining what had already been achieved in the process of European integration, and the supranational level should be capable of providing such collective good. The collapse entailed transferring powers from the Member States to the Communities, creating new institutions, and developing new policies. The overt political nature of these policies could be hardly questioned given the massive potential distributive and redistributive effects of such policies. On the resulting riddles, see Christian Joerges, Europe's Economic Constitution in Crisis and the Emergence of a New Constitutional Constellation, in Europe in Crises or Europe as the Crises 279 (John Erik Fossum & Agustín José Menéndez eds., 2014).Google Scholar

25 Or better, perspectives, because the category of transnational citizen reveals itself to be a plural and complex one the moment in which we consider socio-economic cleavages and so on.Google Scholar

26 Any analysis of property rights should consider the perspective of those holding property, including those who hold massive amounts of property. But it would be hard to deny that it should also include the perspective of those who do not make much use of their rights to property, beyond perhaps owning a limited number of personal goods or their own homes, and quite clearly also of those who lack any property, or who may claim to be disposed by the very institution of private property (to refer to an obvious example, of the Native Americans who suffered the understanding of private property that John Locke famously supported—to a large extent rationalized—in the Second Essay on Government). See Barbara Arneil, John Locke and America: The Defence of English Colonialism (1996).Google Scholar

27 See Rudy Grzelczyk v. Centre public d'aide sociale Ottignies-Louvain-la-Neuve, CJEU Case C-184/99, 2001 E.C.R. I-06193.Google Scholar

28 See Gerardo Ruiz Zambrano v. Office national de l'emploi, CJEU Case C-34/09, 2011 E.C.R. I-1177.Google Scholar

29 See Martínez Sala v. Freistaat Bayern, CJEU Case C-85/96, 1998 E.C.R. I-2691.Google Scholar

30 See Gauchet, Marcel, La Démocratie D‘une Crise À l‘Autre 42 (2007); see infra Part D (contesting that the case law on citizenship has to be assessed in its proper constitutional context: a context made up of the wider development of the European yardstick of constitutionality and of the contribution that the case law on citizenship has made to it).Google Scholar

31 Servet Kamberaj v. Istituto per l'Edilizia sociale della Provincia autonoma di Bolzano (IPES), CJEU Case C-571/10, (April 24, 2012), http://curia.europa.eu/.Google Scholar

32 See Government of the French Community and Walloon Government v. Flemish Government, CJEU Case C-212/06, 2008 E.C.R. I-1683.Google Scholar

33 See Stuckler, David & Basu, Sanjay, The Body Economic: Why Austerity Kills (2013) (describing these restrictions as literally deadly).Google Scholar

34 See generally Somek, Alexander, Individualism (2008); Alexander Somek, Engineering Equality (2011).Google Scholar

35 See Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon), CJEU Case C-120/78, 1979 E.C.R. I-649.Google Scholar

36 See Council Directive 88/361/EEC of 24 June 1988 for the Implementation of Article 67 of the Treaty, 1988 O.J. (L 178) 5 (EC).Google Scholar

37 See Agustín José Menéndez, A Proportionate Constitution? Economic Freedom, Substantive Constitutional Choices and Dérapages in European Union Law, in Fear, Reluctance and Hope: The Democratic Consequences of the Case Law of the Court of Justice 167 (Flavia Carbonell et al. eds., 2011) (providing a detailed reconstruction).Google Scholar

38 Observance of proportionality guarantees the formal correctness of the decision but cannot ensure the substantive correctness of the decision. The correctness of a decision cannot but depend on the substantive justifiability of the substantive choices with which the formal argumentative syntax of proportionality is “filled in.” Indeed, far from being a legitimizing principle, proportionality must be understood as a critical analytical tool with which we can reveal the substantive choices made by a court and assess whether they are properly grounded on previous legal authoritative decisions, on good substantive reasons put forward by a court, or on the contrary, are largely unjustified.Google Scholar

39 But see Futura Participations and Singer v. Administration des Contributions, CJEU Case C-250/95, 1997 E.C.R. I-2471, paras. 31, 33.Google Scholar

40 Cf. Council Directive 2011/16/EU of 15 February 2011 on Administrative Cooperation in the Field of Taxation and Repealing Directive 77/799/EEC, 2011 O.J. (L 64); Proposal for a Council Directive Ending Directive 2011/16/EU as Regards Mandatory Automatic Exchange of Information in the Field of Taxation, COM (2013) 348 final (June 12, 2013).Google Scholar

41 Cf. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community arts. 8, 8a, Dec. 13, 2007, 2007 O.J. (C 306).Google Scholar

42 See Goodin, Robert E., Bruce Headey & Ruud Muffels, The Real Worlds of Welfare Capitalism (1999) (restating that this does not mean that overall a well-funded and generous welfare system may not increase the overall wealth of a society; there is wide and ample proof of that being the case).Google Scholar

43 Comm'n v. Portugal (Golden Shares), CJEU Case C-367/98, 2002 E.C.R. I-4731.Google Scholar

44 Parliament, Germany v. & Council (Tobacco Advertising), CJEU Case C-376/98, 2000 E.C.R. I-8419.Google Scholar

45 Int'l Transport Workers' Federation & Finnish Seamen's Union v. Viking Line ABP & OÜ Viking Line Eesti, CJEU Case C-438/05, 2007 E.C.R. I-10779.Google Scholar

46 Laval un Partneri Ltd. v. Svenska Byggnadsarbetareförbundet, CJEU Case C-341/05, 2007 E.C.R. I-11767; See Rechtsanwalt Rüffert v. Land Niedersachsen, CJEU Case C-346/06, 2008 E.C.R. I-01989; Somek, supra note 34 (providing the most persuasive theoretical account of European integration in recent years and beginning to connect the dots in this regard).Google Scholar

47 See Menéndez, supra note 3.Google Scholar

48 See Konstantinidis v. Stadt Altensteig, CJEU Case C-168/91, 1993 E.C.R. I-1191, para. 46; Centro Europa v. Ministero delle Comunicazioni e Autorità per le Garanzie Nelle Comunicazioni, CJEU Case C-380/05, 2008 E.C.R. I-349, para. 16 (showing how the phrase has proven rather popular with another Advocate General—AG Maduro); Petersen v. Landesgeschäftsstelle des Arbeitsmarktservice Niederösterreich, CJEU Case C-228/07, 2008 E.C.R. I-6989, para. 16 (using the same language—AG Ruiz-Jarabo Colomer); Ruiz Zambrano v. Office National de l'Emploi, CJEU Case C-34/09, E.C.R. I-01177, para. 83 (using the same language—AG Sharpston).Google Scholar

49 See Passos Interrompido por “Grândola Vila Morena,” EsquerdaNet (Feb. 15, 2013), https://www.youtube.com/watch?v=M53-cxC8B1E (showing perhaps the most well-known instance, which happened at a session of the Portuguese Parliament when Prime Minister Coelho was interrupted by people in the audience singing the “Grandola Villa Morena”).Google Scholar

50 See Tribunal Constitucional [Portuguese Constitutional Court] Dec. 19, 2013, Ruling 862/13, available at http://www.tribunalconstitucional.pt/tc/acordaos/20130862.html; Portuguese Constitutional Court, Sept. 20, 2013, Ruling 602/13, available at http://www.tribunalconstitucional.pt/tc/acordaos/20130602.html; Tribunal Constitucional [Portuguese Constitutional Court] Apr. 5, 2013, Ruling 187/2013, available at http://www.tribunalconstitucional.pt/tc/acordaos/20130187.html.Google Scholar

51 Fischer-Lescano, Andreas, Human Rights in Times of Austerity Policy: The EU Institutions and the Conclusion of Memoranda of Understanding (2014), available at http://www.etuc.org/sites/www.etuc.org/files/press-release/files/legal_opinion_human_rights_in_times_of_austerity_policy_final.pdf.Google Scholar