Jean Monnet Center at NYU School of Law

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Citizenship and Authority in the TEU

There is a story about the genesis of Article 8 according to which the issue of citizenship was far from the mind of the drafters of the TEU until the very last minute when one Prime Minister (Felipe Gonzalez according to this legend), unhappy with the non-EMU parts of the Treaty, and conscious of the brewing legitimacy crisis, suggested that something be done about citizenship. A skeptical IGC quickly cobbled the Citizenship "Chapter" in response.

Maybe the story is untrue, but it could be, to judge from the content of Article 8.

The treatment of European Citizenship both in the TEU itself and, subsequently, by the Institutions and the Member States of the Union, is an embarrassment. The seriousness of this notion -- after all the cornerstone of our democratic polities -- and its fundamental importance to the self-understanding and legitimacy of the Union are only matched by its trivialization at the hands of the powers-that-be. It is no surprise that, so far as we can tell, the introduction of Citizenship by the TEU, a development characterized by the Commission as "... porteuse de potentialités" has had negligible if any impact on its subject, the citizens of the Union. And if any notice were taken by the citizenry of the actual impoverished content of the single-articled citizenship "Chapter" in the TEU, the reaction would be, or at least deserve to be, contempt: For those who drafted it, those who approved it and for the Union which can come up with so little to give to, and ask of, its citizens.

The benign view would, then, regard the Maastricht concept of Citizenship as the result of muddled and hasty drafting. Alternatively I invite you to consider the hypothesis which no State or Union official may openly espouse, that the Citizenship clause in the TEU is little more than a cynical exercise in public relations on the part of the High Contracting Parties noteworthy by what it does not do than what it does and which probably has backfired even as an exercise in public relations.

To judge from the prominence it receives at the beginning of each of the Reports submitted to the Groupe de Reflexion by Commission, Council and Parliament and from the rhetoric employed in its discussion it could appear that a lesson has been learnt and that citizenship is about to be tackled seriously. That would be an erroneous judgment.

In explaining the trivialization of the concept, I propose to proceed from the light to the heavy. This entails reversing the normal order of things and beginning with the record of implementation of the Maastricht Citizenship Chapter and only then turn to an analysis of the actual content given citizenship in that Chapter. For this audience a recapitulation of Article 8 seems unnecessary.

The Implementation of the Citizenship Clause

What is the record of implementation of Article 8?

8a The right to move and reside freely has not been accomplished because of difficulties in removing frontier controls and because of a failure to draft or implement fully the myriad of Directives in this area. 8b The right to vote in EP elections in other Member States. The law has been changed but its exercise, especially in those countries in which there is a high absolute number of non national European Citizen Residents (such as Belgium, Germany, France and Britain was negligible (less then 6%). As to voting in local elections, whereas the European framework legislation is in place implementation in the Member States is not complete. 8c The Right to Diplomatic Protection. The Council Report states that the Guidelines are still incomplete. 8d The right to Petition the European Parliament exists but it existed prior to Maastricht. The right to Apply to the Ombudsman has not been realized because there is no Ombudsman owing to "procedural" problems within the European Parliament. The Council does not miss the opportunity to express its regret "On ne peut que regretter ce retard"[3] an exquisite example, if ever there was one, of the kettle calling the pot black. The European Parliament, at the forefront of demanding more and more rights for the individual (and itself) is conveniently silent on this issue.[4]

In conclusion, then, not one of the sub-clauses of Article 8 concerning European Citizenship has been implemented fully since the coming into force of the TEU.

The Attributes of Citizenship

This conclusion might give the impression that the principal problem with the way Citizenship has been dealt with concerns implementation. And that should IGC 96 resolve those problems, meaningful European citizenship would come into being. That impression, too, would be erroneous.

Given the constraints of space I shall allude only briefly to the most telling evidence.

Consider first Article 8 itself.

(1) Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union.

Although the Citizenship Chapter and its Article 8 are part of the Community Pillar, the citizenship established is, supposedly, Union citizenship. It would be strange if Community nationals would be citizens of the Community but not of the Union. After all, it was the move from Community to Union which was to mark the TEU. But the prevailing view among Member States at least, is that the Union, as such, has no legal personality. How can one be a citizen of an entity which has no legal personality? This might be seem a quibble with no consequences. Consider, however, the following.

Article 8 continues:

2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.

In a system based on the Rule of Law rights and duties are, for the most part, backed by judicial enforcement. The High Contracting Parties of the TEU, however, excluded as far as they could the jurisdiction of the Court from the Pillars 2 and, significantly, Pillar 3. On one view this means that no rights and duties are imposed on individuals outside the Community Pillar or, that whatever rights and duties were created, would not, in the intention of the States, be enforceable.

The impression of at least a measure of cynicism in this respect is suggested by the following. Article 8d provides a couple of the rights to be enjoyed by Union citizens.

Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 138d. Every citizen of the Union may apply to the Ombudsman established in accordance with Article 138e.

We already noted that the right of petition pre-dated the TEU. So it was just a matter of reassigning a name. But when we turn to the text of Articles 138d and 138e, we find that in the first place, the rights, even of petition and a complaint against maladministration, are restricted to matters

which comes within the Community's fields of activity

as if the citizen cannot be directly harmed by maladministration of, say, some aspects covered in Pillar 3, and, in the second place, that one could hardly qualify these two rights as specific citizens' right for, after all, appropriately, they belong not only to citizens, but, in the language of the provision itself, to

any natural or legal person residing or having its registered office in a Member State of the Community.

It is not that fundamental human rights, even basic political rights, cannot be part of the legal patrimony enjoyed by citizens in their capacity as human beings, but why then spell them out here as if they introduce something new or something peculiar to citizenship, when it transpires that part of their attractiveness is the fact that they are considered universal. One cannot escape the feeling that the drafters were desperately looking for some relatively easy, and non-consequential "ballast" for the ill defined and ill thought citizenship Chapter.

There is nothing easy or non consequential in another citizenship right -- the right to move freely within the Union. Article 8a provides in its first part that

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States

This would be significant in that it could reflect and constitute a sense of that much vaunted beloningness which is so prominent in current official thinking. But, apparently, the High Contracting Parties appreciated this consequentialness and thus we find the notorious sequel:

subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

The Treaty, at the time, limited that right to individuals not in their capacity as human being, let alone citizens, but in their capacity as factors of production, part of the four fundamental economic freedoms, important, but hardly the stuff of citizenship. We have already noted the terse and scathing judgment of the Commission as to the measures which were to give effect to this provision.

Much emphasis is placed, in both Commission and Council Reports on the evolutive nature of the concept as indicated in Article 8e. But here too one cannot avoid the uneasy feeling of a mealy mouthed commitment. Any such extension will require unanimity -- increasingly difficult in a Community of fifteen, the European Parliament -- on a matter of citizenship, note -- will only be consulted, and to cap it, the decision -- a mere recommendation -- will require constitutional ratification by the Member States. The prospects for deepening the notion of European citizenship could not be all that high.

The reason I favour the hypothesis of a cynical public relations exercise in construing the notion of Citizenship which the TEU supposedly established is that the alternative is even a worse hypothesis -- an unbelievably impoverished view of the very meaning of citizenship and its principal components. Can one credit that the hodgepodge of relatively trivial civic artifacts in Article 8 was believed by any serious official or statesman or stateswoman to capture what European citizenship should be about? A citizenship composed of -- the right to complain to an ombudsman or petition the relatively impotent European Parliament (provided the complaint concerns a matter "... which affects him, her or it directly") and with no guarantee of outcome; the right to consular help in foreign countries in which your own Member State has no representation as if reciprocal arrangements are not already in place as any seasoned traveler will know; and the right of non-residents to vote for the European Parliament or local authorities? Does not Article 8 look awfully like one of those Carnets of "free attractions" some tourist authorities distribute to visitors to make them feel welcome and which you accept in the knowledge that the coupons are free because the attractions are not attractive? Article 8a-8d are all important in their own little way but so marginal and remote from the core of citizenship. The only significant measure, free movement and the right to residence, a measure which could connote a double sense of belonging, turned out to be a chimera. And the promise of future developments, contingent on such procedural difficulties as to make it illusory.

One has to believe that the High Contracting Parties understood the fundamental nature of citizenship in redefining the nature of the Union -- and it is this understanding, rather than misunderstanding which lead them to the desultory Article 8.

But why, then, open Pandora's box at all?

It is the current Commission's input to the Reflection Group which gives us, inadvertently perhaps, the interpretative key. In the eyes of the Commission the two key values which make Union Citizenship most worthy and, thus, worth developing to the full are: a. that citizenship reinforces and renders more tangible the individual's sentiment of belonging to the Union; and b. that citizenship confers on the individual citizen rights which tie him to the Union.[5] Something was going amiss in the public relations of the Union. Maybe citizenship would be an answer?

That the citizen belongs to the Union is, perhaps, a sentiment important to instill. But even accepting the dubious assumption of the desirability of grafting a national type citizenship ethos on to the Community, surely, even more important is to render tangible, through the concept of citizenship and its manifestations, that it is the Union that belongs to the citizen? But you will look in vain to Article 8 for meaningful instruments to render tangible or instill ownership over rather than belonging to. Likewise, rights are surely important, but in the classic discourse of citizenship surely duties, the things the polity asks of its members, are as critical as that which it gives them. The demands of loyalty (not blind, to be sure), of service even, yes, of sacrifice, are as fixed a hallmark of citizenship as are rights. But, although, Article 8 mentions duties these remain mysterious and none are listed. And whereas the Council, to an even greater degree the Commission and especially, Parliament, are lavish in their clamour for more and more rights, the language of duty and service let alone loyalty are muted at best -- Parliament does suggest some European Peace Corps equivalent -- and for the most part absent altogether.

What, then, is the culture, what is the ethos which underlie phrases such as this: [L]'instauration du concept de citoyenneté ... vise à approfondir et rendere plus tangible le sentiment d'appartenance du citoyen européen à l'Union européenne, en lui conférant des droits qui lui soient liés (Commission) or `Rapprocher l'Europe du citoyen' est aparu nécessaire, au fil des années et particuliérement lors du récent débat public sur la ratification du TUE, pour renforcer l'adhésion des citoyens à la construction européenne (Council) and others like them? What is the culture and ethos which explain a concept of citizenship which, for example, speaks of duties but lists none?

At best it represents a failure of the imagination. An inability to think of citizenship in any terms other than those resulting from the culture of the State and the Nation. And thus we are treated to a dispiriting kind of Euro NewSpeak: Vehement denials by all and sundry of the Statal or nation-building character of the Union whilst, at the same time, appealing to Statal and/or national understandings of citizenship and expecting it to provide emotional and psychological attachments -- beloningness -- which are typical of those very constructs which are denied.

There is a worse, even more dispiriting interpretation to the Citizenship discourse in Maastricht and in the run up to IGC 96. What is the political culture which underlies the discourse of beloningness so much sought after. Is it the discourse of civic responsibility and consequent political attachment at all? Or is it not closer to a market culture and the ethos of consumerism? Is it an unacceptable caricature to think of this discourse as giving expression to an ethos according to which the Union has become a product for which the managers, alarmed by customer dissatisfaction, are engaged in brand development. Citizenship and the Arights" associated with it are meant to give the product a new image (since it adds very little in substance) and make the product ever more attractive to its consumers, to reestablish their attachment to their favourite brand. Mine is not an anti-market view, the importance of which to European prosperity is acknowledged. But it is a view which is concerned with the degradation of the political process, of image trumping substance, of deliberative governance being replaced by a commodification of the political process, of consumer replacing the citizen, of a Saatchi & Saatchi or Forza Europa Europe.

What, then, should or could be done?

I shall make some suggestions about citizenship empowerment at the end of this paper.

[3] Rapport sur le Fonctionnement du Traite sur l'Union Euroopeenne SN 1821/95 para 10.

[4] See Martin Report PE 211.919/A rev 1. Cf. Opinion of the Committee on Petitions on the functioning of the TEU in the light of the 1996 IGC PE 211.856/fin. which cannot hide its skepticism concerning the very institution of the Ombudsman. This might be simply a symptom of turf wars.

[5] RCGF Avant Propos, page 6 and para. 18.

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