Judicial Interpretation of European Union Citizenship – Transformation or Consolidation?
| Date | 01 June 2000 |
| DOI | 10.1177/1023263X0000700203 |
| Author | Helen Toner |
| Published date | 01 June 2000 |
| Subject Matter | Article |
Helen
Toner
*
Judicial Interpretation
of
European Union Citizenship -
Transformation or Consolidation?
The Treaty on European Union created the now famous 'Citizenship
of
the Union'.
Other provisions of what are now Articles 17-22 (previously 8-8e) 1contain
in
more
detail the rights attaching to that citizenship status. The meaning and potential
of
this
new concept has been the subject of much debate, discussion and academic commentary.
It
is not my intention to add to the literature providing a general analysis
of
the concept
of
Citizenship, and exploring the ways in which it
mayor
may not contribute to the
development or legitimacy of the European Union; the intention of this paper is
somewhat more modest.
There has been much criticism expressed by some commentators about the cosmetic
nature of the changes brought about by the addition
of
Citizenship to the EC Treaty.
It
has been suggested, 2for example, that the European Citizen could protest, using the
words
of
Mark Twain, that 'rumours of his or her birth have been greatly exaggerated',
and D'Oliveira suggests 3that 'Citizenship is,
in
other words, nearly exclusively a
symbolic plaything without substantive content'
.4
Some of this criticism was based on
*Doctoral research student, Somerville ColIege, and ColIege Lecturer, Queen's ColIege, Oxford
University. Winner ofthe 1998 Maastricht Journal Prize for students and recent graduates. Thanks to
Jo Shaw, Stephen Weatherill, Grainne de Barca and Gillian More for reading an early draft of this
article, and for helpful comments and advice. This paper is now part of a larger doctoral research
project, and I am pleased to acknowledge the fmancial support of the Arts &Humanities Research
Board for this.
1. I intend to use the new numbering throughout this paper.
2. B. Wilkinson, 'Towards European Citizenship? Nationality, discrimination, and free movement of
workers in the European Union', 1
European
Public
Law (1995), 417 at 437.
3. 'European Citizenship - Pie in the Sky?', in Rosas &Antola, (eds), A
Citizen's
Europe:
in
search
of
a new
order,
(Sage, 1995) at 82.
4. See also Shaw, 'The interpretation of European Union Citizenship', 61 Modem Law Review
(1998),
293 who suggeststhat 'to rely. therefore, upon the Court ofJustice to take an innovatory and dynaniic
role in the development of Articles [17] et seq in the near future perhaps overstates its agenda-setting
capacity at the present time. • .
158 7 MJ 2 (2000)
IHelen Toner
the Treaty provisions themselves before the full implications and meaning
of
Citizenship
had
been
considered by national Courts or by the Court
of
Justice. However, there have
now
been
anumber
of
cases
in
which the interpretation and significance
of
the Articles
(mainly 18)
of
the Treaty have arisen and
been
commented upon,
both
in
national
courts,
and
in
the Court
of
Justice itself.
It
is quite clear that nationals
of
the Member
States
can
say, to use Jacobs' adaptation
of
the famous words
of
Cicero 5
and
St Paul6
'civis
europeus
sum'.
However, when St Paul invokedhis status as a Roman citizen, he
knew that this status would bring himcertainrights and privileges, (including the right
to appeal to the Emperor
in
Rome).
It
is less obvious that this
new
status
of
'civis
europeaus'
is yet a source
of
such significant advantages above and beyond those which
are already contained
in
the Treaty. The Member States and Community institutions
undoubtedly have their
part
to play, and it will be an important one for the future
of
Citizenship,
in
formulating legislative measures to give substance to the rights and status
of
Citizenship. The Citizens also have an important role
in
developing Citizenship
on
their
own
terms -without the Citizens, there wouldbe no Citizenship, and it is doubtful
whether the Citizens
of
Europe can successfully be turned into something that they do
not
wish to be. 7To be truly effective and to engage the loyalty
and
identification
of
the Citizens, the concept must be in step with the reality and aspirations
of
what the
Citizens
of
the Union feel it is to be European and how they want that identity to
develop and evolve
in
the future. However, the role
of
the Court
of
Justice will be no
less significant. The Court is the ultimate authority
on
the interpretation
and
meaning
of
EC law
and
of
the legal meaning and effect
of
the Treaties -
and
its approach to
some issues has
led
to a
high
profile
both
in
and beyond the community
of
academic
and
practising lawyers. No one would deny the contribution that the Court has made
through its case law to the development
of
the unique legal order
of
the EC,
and
to
European integration
in
the context
of
the Community.
AG
Legersuggests that asimilar
role may also be possible
in
the context
of
Citizenship, 8as
'it
is for the Court to
ensure that its full scope is attained.' The Court
of
Justice was one
of
the institutions
which
had
an important impact
in
developing early Citizenship-like rights at the
European level through free movement and equal treatment concepts. 9Now that the
legal status
of
Citizenship has
been
enshrined
in
the Treaty, its contribution -whether
positive or negative - to the meaning
of
Citizenship
and
to the legal order
of
the EU
made by judicial interpretation
of
EU Citizenship generally and Article 18
in
particular,
although certainly
but
one part
of
the overall picture
of
European
Union
Citizenship,
will be an important one for its future and for the future
of
the EU as a whole.
5. In
verrem,
V.lvii.l47.
6. Acts Ch 23 v25, 27-28, Ch 25 v 11-12.
7. For example the Danish referendum, in which the narrow
'no'
vote may have been due to the negative
perception amongst Danish citizens that 'European Citizenship' was something that was, on the one
hand, not beneficial to them, and on the other, perceived as a threat to the Danish Citizenship that they
valued.
8. In his Opinion in Case C-214/94 Boukhalfa v
Germany
[1996] ECR 1-2253.
9. See generally on the development of Citizenship: S. O'Leary, The
Evolving
conceptof
Community
Citizenship:
From
Free
movement
to
Citizenship
of
the
Union,
(Kluwer, 1996).
7MJ 2 (2000) 159
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