European Union citizenship as an experimental institution
At Communicating European Citizenship, United Kingdom.
22 Mar 2010.
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Scholarship on the role of the European Court of Justice in shaping the polycentric European governance and the law and politics of ‘sovereign’ national authorities contains plenty of discords. Yet its role as a driving force of European integration is probably beyond dispute. Not just jurists but also political scientists have acknowledged its authoritative reasoning on matters of integration and principle, notwithstanding the existence of concerns about growing judicial power and the perennial disagreement over whether judicial processes are less legitimate than democratic ones. Certainly, if the meaning of the latter is confined to majoritarian processes, then the assumption of a quasi-legislative role by courts, that is, their ability to bypass political and legislative processes appears to be problematic. But since democratic systems are built upon both majoritarian electoral processes and reflective values and rights which place constraints on governments’ powers, the judicial protection and advancement of these values and rights are normatively and empirically justified. Courts normally function as ‘fora of principle’ (Dworkin 1996) and are seen to be reliable agents for securing equitable settlements within and above the nation-state. Seen from the perspective of achieving rights-enhancing and fairer settlements, ensuring non-discrimination and promoting human welfare, the role of the courts, be they national constitutional courts or the ECJ, is commendable. Seen from the (narrower) perspective of the actually existing world of majoritarian democracy, which entails the promotion of ‘the right’ and ‘the good’ through the exercise of governmental power, any institution which might call into question the ‘undisputed’ sovereign authority of the state, is bound to be seen as having an adverse effect on democratic decision-making. To some extent, this debate exemplifies contrasting conceptions of democracy held by political and legal scholars. But the debate could also be seen to reflect a different emphasis on how far and in what ways governance should be responsive to the governed, pro-actively address their needs and promote their welfare. In this paper, I address this question by comparing and contrasting two dimensions of the same institution; namely, the judicialised material scope and the non-judicialised personal scope of European Union citizenship. The latter institution was established by the Treaty on European Union in 1993 and its material scope has developed significantly owing to the European Court of Justice’s interventions which have brought about incremental and transformative institutional change. To an extent, the content of European citizenship could be seen as a reflection of ‘governing with judges’ (Stone Sweet, 2000). The fifth report on European Union citizenship (Articles 17-22 EC), which was published on 15 February 2008, charts the steps that have been taken towards making European Union citizenship a reality and the obstacles which may hinder the full implementation of specific provisions. Notably, the period covered by the Commission’s report (1 May 2004 - 30 June 2007) was a one of deep institutional change owing to the European Court of Justice’s interventions and the entry into force of Directive 2004/38 (the so called ‘Citizenship Directive’) on 1 May 2006. But the personal scope of Union citizenship and the exclusion of long-term resident third country nationals remain areas of ‘governing without judges’. In the subsequent discussion, I reflect on the consequences of the Member States’ (relative?) autonomy for the rights of citizens and residents, substantive commitments to non-discrimination and equal treatment and the vision of a diverse and inclusive European polity. I argue that the political consequences are too important to be left to national governments alone.
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