Ideas, Norms and European Citizenship: Explaining Institutional Change
| Published date | 01 March 2005 |
| Author | Dora Kostakopoulou |
| Date | 01 March 2005 |
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00536.x |
Ideas, Norms and European Citizenship: Explaining
Institutional Change
Dora Kostakopoulou
n
Despite assessments that European Union citizenship, in the Treaty on European
Union, was insu⁄cient to induce real institutional change, institutional change
has occurred. As an institutional designerand agent of change, the ECJmade tac-
tical interventions in the period 1993^2003 which resulted in incremental-trans-
formative institutional change. The ECJ’s phased approach i n-between Treaty
revisions hasstrengthened the constitutional importance of European citizenship
and the market citizenship template has been superseded by an understandingof
European citizenship that privileges citizen status over economic activity.Three
phases may be distinguished in this process: judicial minimalism (1993^97), sig-
nalling intentions (1998^00) and engineering institutional change (2001^03). An
institutional constructivist approach to the judicial institutionalisation of Union
citizenship highlights the roleof ideas, cognitive templates and norms,in explain-
ing the longitudinal process of its institutional development. It also shows that
institutional change is a more complex phenomenon than is generally portrayed.
In searching for conceptual tools that explain European judges’ decisions not only
to bring about qualitative institutional change, but also to ground ‘a change’ in
such a way that future extension is possible, it is argued that a multivariablemodel
entails some promising lines of inquiry into the subject.
The introduction of Union Citizenship by the Treaty on European Union
(1 November 1993) shattered prevailing economic approaches to European inte-
gration
1
and generated debatesconcerning issues of polity formation, such as Eur-
opean democracy and legitimacy, European constitutionalism, the formation of a
European demos and the design of a European public sphere.
2
As such,
n
Law Department,Manchester University.I am grateful to the British Academy, the Thank-o¡ering to
Britain Fund and the AHRB for ¢nancial support.
1 For early accounts,see A. Durand,‘European Citizenship’ (1979) 4 ELRev 3; A.Evans,‘European
Citizenship: A NovelConcept in EEC Law’ (1984) 32(4) AJCL 674; S.Magiera (ed), Das Europa der
Bu
ºrgerin einer Gemeinschaftohne Binnengrenzen(Baden-Baden: Nomos,1990).
2 See J. H. Weiler,‘Does Europe Need a Constitution? Re£ections on Demos,Telosand the German
Maastricht Decision’(1995)1 ELJ219;J. H. Weiler,‘To be a European citize n- Eros and civilization’
(1997) 4 Journal of European Public Policy 495; G. de Burca,‘The Quest for Legitimacy in the Eur-
opean Union’ (1996) 59 MLR 349;D. Curtin, Postnational Democracy:TheEuropeanUnion in searchof
a political philosophy (The Hague: Kluwer,1997); C. Closa,‘The Concept of Citizenship in the
Treaty of European Union’ (1992)29 CMLRev 1137 and ‘SupranationalCiti zenship and Democ-
racy: Normative and Empirical Dimensions’, in M. LaTorre(ed), EuropeanCitizenship: An Institu-
tionalist Challenge (The Hague: Kluwer, 1998); E. Meehan, European Citizenship (London: Sage,
1993);T.Kostakopoulou,‘Towards aTheory of Constructive Citizenship in Europe’ (1996) 4 Jour-
nal of Political Philosophy 337; T. Kostakopoulou,‘European Citizenship and Immigration after
Amsterdam: Silences, Openings, Paradoxes’ (1998) 24 Journal of Ethnic and Migration Studies 639;
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 6 8(2) MLR 233^267
it featured centrally in what has been termed ‘the normative turn’ in European
studies.
3
Certain scholars saw European citizenship as an important, albeit skeletal,
institutional structure on which more £esh had to be grafted.The mere fact that
citizenship had ‘burst’ its statist and national bounds
4
sparked intriguing ques-
tions, such as what citizenship might mean in a supranational context, how it
may a¡ect the developmentof a non-statal form of governance and how citizen-
ship per se might be trans¢gured in analyticaland institutional terms.
5
Construc-
tivist approaches addressed these questions and sought to capture the
transformative potential of European citizenship.
6
This had much to dowith the
fact thatcitizenship was nolonger a single status; instead,it was multiple. As Mee-
han remarked, ‘the identities, rights and obligations associated [. . .] with citize n-
ship are expressed through an increasingly complex con¢guration of common
Community institutions, states, national and transnational voluntary associations,
regions, alliances of regions’.
7
This unprecedented complexity and, generally
speaking, the interaction of nested and interlocking ‘old’ (ie national) and ‘new’
(ie supranational) citizenships held out the promise of transforming the scope
and nature of ‘old’ and ‘new’ citizenships over an extended period of time.
8
However, this perspective failed toconvince. Mostscholars saw European citi-
zenship as a purely decorative and symbolic institution, and a mirror image of
pre-Maastricht ‘market citizenship’.
9
For instance, scholars observed that Union
U. Preuss,‘Two Challenges to European Citizenship’(1996) 44 Political Studies 534; J. Shaw, ‘The
Many Pastsand Futures of Citize nship in the EU’ (1997) 22 ELRev 554;A.Wiener,‘Assessing the
Constructive Potential of Union-Citizensh ip - A Socio -Historical Perspective’(1997) 1 European
Integration On-line Papers, (http://eiop.or.at/eiop/, last visited 18 March 19 98); A. Wiener and
D.V. Sala, ‘Constitution-making and Citizenship Practice - Bridging the Democracy Gap in the
EU?’(1997) 35Journalof Common MarketStudies 595;R. Bellamy and D. Castiglione,‘The commu-
nitarian ghost in the cosmopolitan machine: constitutionalism, democracya ndthe recon¢gura-
tion of politics in the New Europe’in Bellamy and Castiglione (eds), Constitutionalism, Democracy
and Sovereignty: Americanand European Perspectives (Aldershot: Avebury,1996).
3 Weiler (1997), n 2 above.
4 I borrow this metaphor from D. Heater,Whatis Citizenship?(Polity Press: Oxford,1999).
5 See Meehan, n 2 above; E. Meehan,‘PoliticalPluralism and European Citizenship’, in P. Lehning
and A.Weale (eds),Citizenship, Democracyand Justice in the New Europe (London: Routledge,1997);
G. Delanty,‘Models of Citizenship: De¢ning European Identity and Citizenship’ (19 97)1(3) Citi-
zenshipStudies 285; S.O’Leary,European UnionCitizenship: TheOptions for Reform (London: IPPR,
199 6 ).
6 T. Kostakopoulou, ‘Nested ‘‘Old’’ and ‘‘New’’ Citizenships in the European Union: Bringing
Forth the Complexity’ (2000) 5 ColumbiaJournal of European Law 389;T. Kostakopoulou, Citizen -
ship, Identityand Immigration in the EuropeanUnion (Manchester: Manchester University Press 2001);
A.Wiener, Building Institutions:The Developing Practice of EuropeanCitizenship (Oxford:Westview,
1998); J. Shaw,‘The Interpretation of European Union Citizenship’(1998) 61ModernLaw Review;
U.Vogel,‘Emancipatory politics between universalism and di¡erence: Gender perspectives on
European Citizenship’, in P. Lehning and A. Weale (eds), Citizenship, Democracy and Justice in the
NewEurope, (London: Routledge,1998) 142.
7 Meehan, n 2 above,1.
8 A. Evans,‘NationalityLaw and European Integration’ (1991) 16ELRev;Kostakopoulou(2001),n 6
above.
9 M. Everson,‘The Legacyof the Market Citizen’ in J.Shaw and G.More (eds), NewLegal Dynamics
ofEuropeanUnion (Oxford: OxfordUniversity Press,1995);J. d’Oliveira,‘UnionCitizens hip:Pie in
the Sky?’ in A. Rosas and E. Antola (eds), ACitizens’Europe: In Search of a Ne w Order (London:
Sage,1995); P.Lehni ng,‘European Citizenship: a mirage?’i n P. Lehning and A. Weale (eds), Citi-
Ideas, Norms and European Citizenship
234 rThe Modern LawReview Limited 2005
citizenship had added little substantially new to existing Community law, with
the exception of electoral rights at European Parliament and local elections and
the right to diplomatic and consular protection. Others argued that since Eur-
opean citizenship was essentially a mercantile form of citizenship designed to
facilitate economic integration, it would only be relevant to ‘favoured EC
nationals’, that is, to a minority of European citizens who possess the necessary
resources required for intra-EUmobility.
10
Re£ecting the subtle in£uence of the
intergovernmentalist repertoire, certain authors have proceeded to dismiss Union
citizenship as empty rhetoric or a lofty proposal designed to enhance either the
Union’s social legitimacy or the Commission’s promotional agenda. Notwith-
standing their di¡erences, all these perspectives entail a minimalist conception of
European citizenship. Generally speaking, minimalism focuses on a few and
selective characteristics of the whole, thereby bracketing the context out ofwhich
European citizenship emerged and the context that its institutional development
may help create. On the basis of the above assessments, minimalist European citi-
zenship was not enough to induce real i nstitutional change. Despite suc h assess-
ments, h owever, insti tutional change has occur red.
The aim of this paper is twofold. First, I wish to chart, analyse and explain the
process of the institutional development of Union citizenship. In what follows, I
argue that in the period 1993^2003 the European Court of Justice (ECJ) made
tactical interve ntions, which procured incremental - transformative institutional
change. By adopting a phased approach, the ECJ has strengthened the constitu-
tional importance and substance of Europeancitizenship in-betweenTreaty revi-
sions.The judicial institutionalisation of Union citizenship does not only show
that much of the 1990s’ literature on European citizenship incorrectly underesti-
mated its conceptual resources and wide-ranging transformative potential, but it
also has important implications for European integration theory.
11
In this respect,
the second aim of the paper is to show that the study of European citizenship
could be incorporated into and contribute to the general and theoretical concerns
of the studyof European integration by providing the context for an institutional
constructivist perspective.
Constructivism is built on the premise that reality is neither objective nor
given. Rather, it is constructed and produced through discursive politics which,
zenship, Democracy and Justice in the New Europe (London and New York: Routledge,1997) 175;
T. Downes,‘Market Citizenship: Functionalism and Fig-leaves’ in R. Bellamy and A.Warleigh
(eds), Citizenshipand Governancein the European Union (London: Continuum, 2001)93.
10 This is because they aree itheractive economic actors or self-su⁄cienta ndi npossess ionof sickness
insurance under the 1990 residence Directives;Council Directives 90/364 on the right of residence
(OJ L180/26),90/365 on the right of reside nce for employees and self-employed persons who have
ceased their occupational activity (OJ L 180/28); and 90/366 on the right of residence for stude nts
(OJ L180/28).The latter was replaced by Directive93/96 (OJ L317/59). The recent European Parlia-
ment and European Council Directiveof 29 April 2004 on the right of citizens of the Union and
their Family Members tomove and reside freely within the territory of the Member States(2004/
38/EC), which repeals the above mentioned Directives, introduces three separate categories of
residence rights and establishes an unquali¢ed right of permanent residence after ¢ve years of
continuous legal residence in the host Member State; OJ 20 04 L 158/77(30 April 2004).
11 For a discussion about the emergence of European citizenship norms, see Meehan, n 2 above;
Wiener,n 2 above and Kostakopoulou,n 2 above.
Dora Kostakopoulou
235rThe Modern LawReview Limited 2005
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