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One of the strengths of the European Union has been its capacity to draw upon what Ignatieff calls the `enormous moral prestige of markets'. [145] Generally speaking, it has been the `market aspect' of the EU (i.e. its claim to create a `rational' economic space within the continent of Europe) which is regarded as legitimate, whereas the bureaucratic and regulatory aspects (i.e. some of the means for achieving this end, and for ensuring that it is effectively policed in a transnational context which involves the interaction of a plurality of legal orders) lack the same degree of authenticity and the same claim to being worthwhile and deserving of citizen (or Member State) loyalty. Problems generally only begin to arise when markets respond in a way which is unacceptable to certain sectors of a national political elite (e.g. the fall in consumer demand for beef throughout the EU in the wake of the BSE crisis in the United Kingdom), but significantly it is bureaucratic intermeddling in so-called `natural' market forces which tends to be blamed for such `failures' at the level of popular politics, not the markets themselves.
Reviewing the role of the market aspect of the EU, and its importance in both practical and symbolic terms, highlights the need to view citizenship in the context not only of the wider sociological and political literature about rights, identity and political participation, but also in the light of how EU integration processes themselves are understood: is a conception of citizenship viewed as an abberation in a market-based system or is it to be seen as a logical consequence of established political and socio-economic developments? As Streeck comments,
`A free European market, if that is all it is to be, does not "require" a "Europe of the citizen"; in fact, citizenship makes markets less "free".'[146]
What, furthermore, is the relationship between EU citizenship and national autonomy? This section will also look more closely at the linkages between citizenship as one expression of the telos of integration, the difficulties of envisaging a notion of demos which does justice to both the autonomy of the Member States, both in a socio-psychological sense and as established international actors, and the genuine need for a legitimate, democratic and accountable EU polity. [147]
It is easiest to understand the development of a conception of citizenship if one applies the logic of neo-functionalism to the integration process. In contrast, an intergovernmentalist account would be expected to find EU citizenship to be either an aberration, or an example of pure symbolic gesture politics which does not actually strike at the heart of national sovereignty.[148] In particular, an intergovernmentalist account might point to the fact that by linking EU citizenship to nationality of the Member States, the Treaties have deliberately eschewed the creation of a truly sovereign and self-defining figure of the EU citizen. In effect, therefore, the EU citizen is not a supranational institution, but a mere outgrowth of the existing nationalities and citizenship statuses of the Member States. Neo-functionalism would take a more positive view.
A neat summary of neo-functionalism and spillover is provided by McCormick.[149] The theory of neo-functionalism argues
`that certain prerequisites are needed before integration can proceed, including changes in mass attitudes that pull people away from nationalism and toward co-operation, a desire by elites to promote integration for pragmatic rather than altruistic reasons, and the delegation of real power to a new supranational authority. Once these changes have occurred there will be an expansion of integration caused by spillover, described by Joseph Nye as a phenomenon in which "imbalances created by the functional interdependence or inherent linkages of tasks can press political actors to redefine their common tasks."[150] In other words, joint action in one area will create new needs, tensions, and problems that will increase the pressure to take joint action in another....'
Meehan ,[151] whose work makes extensive use of political and sociological accounts of citizenship in historical perspective, and, as evidence of the way in which the EC/EU has been moving, of the case law of the Court of Justice, takes a broadly neo-functionalist approach. In a sense, Meehan offers a parallel and theorised account to the work of lawyers who pointed out at an early stage some of the `spillover' consequences of the development and operation of the rules on the free movement of persons.[152] The link between this conceptualisation of the process of integration and the way in which lawyers have understood the development of a legal status of European citizenship is clearly stated by Evans:[153]
`To the extent that national sovereignty is limited, the status of individuals in relation to member states and their national institutions may be governed by Community law. Consequently, it is the scope of Community law that is decisive for the realization of European Citizenship, and in fact, its realization is apparently regarded as dependent on extension of the basic principles of freedom of movement and equality of treatment enshrined in the Treaty.'
By combining the evolution of the free movement rules with the development of an individual rights conception in EC law, it is not difficult to reach the conclusion, as do Pollard and Ross that
`The people of Europe are now no longer considered simply as a factor of economic production and, as the Community has diversified its role and activities, Community law has conferred upon these people some of the features of citizenship of a nation state.'[154]
This highly supranationalist legal conception of individual status under EC law has been supplemented from other sources within the EC/EU institutions themselves. For example, there have been extensive statements and declarations from the Commission and the Parliament about the role of a `People's Europe' and the empowerment of citizens as one means of assuring the policy legitimacy of the EC/EU. [155] The strongest approbation of the Member States came in the charging of the Addonino Committee, after the Fontainebleau European Council, with coming up with concrete suggestions to implement a People's Europe and thereby to enhance `European identity', [156] although ever since the 1974 Paris Summit the question of giving citizens of Member States special rights as members of the Community had been sporadically on the agenda.[157] Although, certainly in the pre-Maastricht era and perhaps even now, the use of terms such as `citizen' and `identity' was very much suggestive with relatively little in terms of policy substance,[158] these terms were at least helpful in that they implied in recognised `Common Market parlance'[159] that the EC/EU polity lacked (lacks?) something very necessary, namely adequate participation by those affected by it.
Of course, as is well known, neo-functionalist analysis lost ground in the 1960s and the 1970s to intergovernmentalist accounts of the EC/EU which stressed the role of the Member States and the bargains between them at the expense of `supranationalist' elements of the integration process in which the institutions played a central role. Equally, the partial revitalization of neo-functionalist analysis in view of the 1980s moves towards the completion of the internal market has become an established part of accounts of the history of European integration. [160] Yet even against that background, as Meehan put it (writing in 1993), little attention has been paid in political science (or international relations) scholarship to the development of a phenomenon of citizenship, perhaps because
`it is rare for writers to move from conceding that governments, acting in concert, have caused new things to exist, to exploring the alternative meanings their actions might bring about in how we all understand our world. And, if they do, they generally restrict themselves to immediate outcomes instead of the longer-term dynamics of consequences that governments might not have intended to cause.'[161]
The key to Meehan's argument is that EU social policy has not been immune to spillovers, even in areas where the national governments might appear to have wanted to retain sovereignty. [162] Evidence of changes to the status of individuals can be found throughout the field of EU social policy, for example, through the creation of common definitions at the EU level of concepts, such as `who is a worker?'.[163] A strength of Meehan's analysis is that it seeks to knit together the proliferation of contradictions which emerges when one compares the relative `legal' and `political' development of the EC/EU over the period of some forty years.[164] One particular contradiction to which Meehan attaches great significance is that between the perception of national governments that EU social policy is more about `economic objectives and legitimation purposes',[165] and the approach of the Court which has often been to grant substantive rights on the basis of an expansive interpretation of particular provisions of the Treaties and of secondary legislation. Of course, it would be wrong to take an uncritical stance on the role of the Court in the development of the EC/EU and of a concept of citizenship. [166] As Bellamy has pointed out, in the context of a critique of approaches to constitutionalization which rely heavily on rights-based techniques, the granting of rights through judicial action in EU often occurs within the context of `benign neglect' [167] of the politicized role of the Court rather than as a result of genuine citizen action or pressure for change. Such a passive conception of citizenship can add little if anything to difficult questions about the legitimation of authority within the EU. The operation of the Court subject to the tacit consent of a political or cultural elite alone will eventually encounter broader and deeper challenges - as has arguably occurred in the post-Maastricht phase of judicial development.[168]
In fact, Meehan's argument goes well beyond an extrapolation from rights presented to a `passive' public by the Court of Justice. Her approach attaches considerable importance to the development of some type of European `civil society' in which interest groups need to take an active role in developments.[169] It is also an account which draws heavily on social citizenship theories, expounded by Marshall and others. Out of these processes can come a new type of citizenship, which is neither national nor cosmopolitan, but based on the multiple social, economic and legal identities expressed by those living their lives in some type of relationship with the EU: not only as workers, but also as women, as young people, as the unemployed, as the disabled, etc.. It is an account which is greatly strengthened also if one accepts the veracity of the approach to the formation of identity at different levels and in different forms suggested by Breton.[170]
Clearly, the history of European citizenship within European integration processes did not begin with the introduction of the new provisions on citizenship by the Treaty on European Union. However, the proliferation of attention paid to citizenship since that time highlights the importance of those consolidating provisions. In particular attention has extended beyond lawyers, those who have taken a broadly `federal' view of the evolution of the EC/EU, and EU institutions, to include those with broader interests in EU policy-making. [171] Holland describes the establishment of the legal identity of Union citizenship in the Maastricht Treaty as
`a significant supranational advance for the Community: the conditions and terms of citizenship may have been constrained and limited in scope, but an important federal precedent was established'. [172]
Citizenship in the Maastricht Treaty has been described as an important symbolic step, postulating
`the existence of a common popular sovereignty to complement - or rival - the common sovereignty of the states. In so far as a political citizenship may be beyond the control of government, its assertion in the European Community has the potential to be a contentious or even a subversive force.' [173]
Similar language comes from d'Oliveira:[174]
`the creation, albeit in an as yet very rudimentary form, of a concept of citizenship which is related to a community of States, marks a significant departure from the traditional link between nationality and citizenship in the nation-state. It represents a loosening of the metaphysical ties between persons and a State, and forms a symptom of cosmopolitization of citizenship.'
Yet at the same time, in terms of practical accretion of legal rights it is viewed as a `modest step in the history of European integration',[175] incorporating a set of provisions which were not particularly controversial in the Maastricht negotiations because they were `not over-ambitious when viewed against developments already underway in this field before the IGC was launched.'[176] The most controversial aspects, concerned with internal and external borders and security and immigration issues were consciously separated off from the `Community Pillar', and placed in Title VI on Co-operation in Justice and Home Affairs (the `Third Pillar'). On the other hand, whatever the limitations of the provisions, the inclusion of the provisions could be seen as an interesting example of Member States feeding (relatively) new ideas into the policy-making and, in this case, the constitution-forming, process.[177] Overall, it is the developmental potential which is judged the most vital, from the perspective of understanding processes of European integration. According to Lodge
`It is inconceivable that this embryonic conception of Union citizenship will not be progressively expanded during the next two decades'.[178]
Similarly, d'Oliveira has described citizenship in the European Market as so far a `futures market'.[179] Indeed, not all writers about the EU would necessarily concentrate so strongly on the grand history-making gestures such as the creation of Articles 8-8E EC in relation to the evolution of citizenship, and might well be more interested in the gradual accretion of policy competences and the step-by-step policy-making work of the Court and the other institutions in the fields of social policy, free movement of persons, education and vocational training, and cultural policy as expressions of European citizenship and associated rights. Such an approach - operating a different levels - has a parallel in the blend of macro and micro perspectives upon citizenship rights suggested by Held:
`Any current assessment of citizenship must be made on the basis of liberties and rights which are tangible, capable of being enjoyed, in both the state and civil society. If it is not given concrete and practical content, liberty as an abstract principle can scarcely be said to have any very profound consequences for everyday life.'[180]
Locating such approaches to citizenship within the framework of writing about European integration processes would lead almost inevitably to the study of works under the broad umbrellas of institutionalism, [181] especially new institutionalism[182] or historical institutionalism ,[183] or of so-called governance [184] or multi-level governance theories would be likely to concentrate on citizenship as a policy issue as much as a constitutional novelty. This does not necessarily mean that citizenship has to be voided of its political or ideological content or meaning. It simply means that the set of intellectual tools being applied will lead first and foremost to questions about policy-making, particularly policy-making understood in historical context, rather than constitution-building in a grand and normative sense. Two preliminary comments can usefully be made about the usage of the term `policy'. First, it is important to remember the bi-dimensional nature of policy. As Wildavsky states:
`Policy is a process as well as a product. It is used to refer to a process of decision-making and also to the product of that process'.[185]
As will be clear from this account of citizenship, both dimensions of `policy' in that sense are fed into the analysis. The second point concerns the intentional use of `policy' as a device to offer a contrast with determinations which are `constitutional' in character, particularly in relation to the nature and scope of policy-making, and the types of institutional inputs which are provided for.
A historical institutionalist account by Pierson which focuses specifically on social policy can be used as an example of approaches to EU integration which highlight policy and policy-making. The account is
`historical because it recognizes that political development must be understood as a process that unfolds over time. It is institutionalist because it stresses that many of the contemporary implications of these temporal processes are embedded in institutions - whether these be formal rules, policy structures, or norms.'[186]
In developing his critique of traditional neofunctionalist or intergovernmentalist accounts of European integration, Pierson stresses, amongst other factors, the partial autonomy of the EU institutions (especially the Court and the Commission) and the types of inputs which they can make, the discounting of long term consequences of policy decisions by actors, and the occurrence of unanticipated consequences of those decisions. He does not deny the centrality of the Member States to policy development in the EU, but insists that they act in a context which they do not fully control - even collectively. He goes on:
`Arguments about intergovernmental bargaining exaggerate the extent of member state power. In their focus on grand intergovernmental bargains, they fail to capture the gradually unfolding implications of a complex and ambitious agenda of shared decision making. Although the member states remain extremely powerful, tracing the process of integration over time suggests that their influence is increasingly circumscribed. The path to European integration has embedded member states in a dense institutional environment that cannot be understood in the language of interstate bargaining.'[187]
Pierson in turn rejects the premises of neo-functionalism for ascribing too much autonomy to the EU institutions. Moreover, historical institutionalism - like other forms of institutionalist analysis - provides, in contrast to both intergovernmentalism and neo-functionalism, more than a causal account of how things happened on the basis of observable phenomena, but more detailed insights into the policy preference formations of the actors involved. It also acknowledges that the search by these actors is more likely to be for `satisfactory' rather than for `optimal' policy outcomes,[188] and that there are strict limitations on policy innovation resulting from so-called `path dependency' in which `action at any given time is framed by the legacy of past problems and past solutions'.[189] Writing within the discipline of social history, but from an institutionalist perspective, Tilly [190] amplifies this point. He argues that social historians are investigating
`more seriously than before the political processes that intervene between the routine formation of social relations and interests, on the one hand, and the public articulation of identities and programs, on the other.... From that reconsideration has emerged an increasingly relational, cultural, historical and contingent conception of public identities, including the identity of citizenship'
He goes on:
`The emerging view is relational in the sense that it locates identities in the connections among individuals and groups rather than in the minds of partiuclar persons or of whole populations.... cultural in insisting that social identities rest on shared understandings and their representations. It is historical in calling attention to the path-dependent accretion of memories, understandings and means of action within particular identities. The emerging view, finally, is contingent in that it regards each assertion of identity as a strategic interaction liable to failure or misfiring rather than as a straightforward expression of an actor's attributes. Thus scholars have come to think of citizenship as a set of mutual, contested claims between agents of states and members of socially-constructed categories: genders, races, nationalities and others.[191]
On those understandings of patterns of policy development, which may in fact reflect broader normative processes involving the evolution of identities or relationships, it is not entirely surprising that the Member States should initially choose to constitutionalize in formal terms only existing citizenship rights found in a dispersed manner in existing Treaty provisions, secondary legislation and Court case law in a manner which is strictly limited by existing rules and norms, and which offers few policy innovations apart from the creation of new electoral rights and a number of rights to diplomatic protection. That does not, however, mean that the day-to-day accretion of additional rights will necessarily stop, just because the Member States have made such a historic decision in relation to constitutionalization.[192] Cram has persuasively argued that day-to-day policy changes have a decisive impact upon the overall direct of the integration process, as much as great history-making decisions.[193] All of this means, however, that not too great hopes need to be invested in further grand changes to these provisions in the context of the Intergovernmental Conference on the revision of the Treaty of Maastricht which began in March 1996 and which was eagerly anticipated in many quarters. Much more serious, on the other hand, might be a complete stagnation of the policy-making and legislative processes, similar to that which occurred between the `empty chair' crisis in the mid-1960s and the relaunch of the Community project with the single market programme in the mid-1980s.
It would be useful in concluding this section to try to tie together the two main strands of thinking in the two central parts of this paper. The first point has been to engage in an analysis of citizenship (in the broad political and sociological senses of the term) through the lens of a dualism of identity and rights, and to do so in a way which takes as its ideal type an active conception of social citizenship based on a politically defined community. What we have seen is a level of indeterminacy and uncertainty about the causal relationship between citizenship as an institution and the existence of stable, identified and cohesive communities. Is it citizenship which constitutes communities, or the reverse? There seems no conclusive position on this question. A compromise position might be to suggest a virtuous circle of reciprocal reinforcement between such communities and a conception of democratic citizenship incorporating both a sense of membership and a body of substantial rights (including political and socio-economic rights). This has the advantage of including both a `top-down' perspective of citizenship as a set of constitutionally given rights, and a `bottom-up' perspective which acknowledges citizenship as one practical response to citizens' claims.[194]
Here the body of thinking on European Union integration processes proves a useful addition, in particular the strand of thought broadly identified as oriented towards `institutions' and `governance'. It offers a means for explaining and understanding the existence of such a mutually reinforcing virtuous circle whereby the institution of citizenship reinforces the sense of community, and other policy instruments which feed into strengthening the community (e.g. policy on education and training for migrant workers and their families) help in turn to make the existence of a form of membership more meaningful for any given community (i.e. the body of persons subject to EC law, or the nationals of the Member States - however one chooses to define EU citizenship). Breton's analysis of identification offers a similar perspective on how identity formation at various levels may work through the agency of the activities of a transnational polity.[195] The conclusion of the analysis therefore, is that citizenship of the European Union - as a historically, geographically and culturally contingent institution, but one perhaps capable of offering a new postnational model for citizenship - can only be fully understood by reference to both the broader theory of citizenship, and situation-specific ideas about European integration which stress the dynamic, open-ended nature of that process. It is the latter alone which allow us to see citizenship not only as a symbolic flag waved from time to time by actors such as the Commission, the European Parliament and even the Member States, but also as one facet of the day-to-day policy-making activities of all those institutions. This means that the completion of a balance sheet of citizenship rights drawn not only from Treaty provisions, but also from diverse `hard' and `soft' law instruments in the various fields of EU policy (including the Second and Third Pillars, as appropriate), is not just an exercise in codification or consolidation, but also a recognition of citizenship as an integral part of the EU polity understood as a dynamic governance structure. This includes understanding the political participation rights of individuals (and social groups) in EU policy-making - so far as they exist - as an aspect of the construction of citizenship in an active sense. What is more, we are encouraged by such theories to disaggregate the different elements of the policy package (free movement rules, social policy, education and vocational training policy, cultural policy, etc.) - a task with which Section IV is partially engaged.
This analysis may seem to some excessively idealistic or utopian, both in terms of the presumed benefits to be derived from European integration, and because of its overall postulation of the nature of the integration project as fundamentally democratic, broadly inclusive rather than exclusive or exclusionary, coherent in terms of a sense of `purpose', and likely to be a cohesive rather than a destructive force. Some of the `darker' sides of the integration project will be touched upon in Section IV, so far as concerns the suggestion that the EU constitutes a `Fortress Europe' vis-‡-vis the outside world, and fails to take seriously its responsibilities to racial or cultural minorities already living and working within its borders. However, the idea of a `virtuous' circle in the interaction of identity and citizenship (and the dangers of its opposite) is not new. Leca has pointed out that with the breakdown of old postwar political and societal consensus in Europe, European democracies have entered a period of crisis:
`The virtuous circle of the artificialism-naturalism combination by which nationality supported citizenship has therefore been transformed, if not into a vicious circle then at least into a double dilemma'. [196]
This double dilemma comprises the need to reinforce democratic traditions by including new waves of immigrants into national citizenship, at a time when internal solidarity is at its weakest. This paper suggests a new way of tapping into a virtuous circle by harnessing the positive and dynamic elements of a transnational integration process, where many of the external and observable outputs take the form of various phenomena such as the judgments of the Court of Justice, or the hard or soft law-making of the institutions, as well as the formal treaty-making processes engaged in from time to time by the Member States. But the analysis in this paper also takes seriously the concerns expressed by de Lange, who calls for a form of EU citizenship based on citizenship, rather than the `rule of law' or the Rechtstaat in a formalist sense. [197] For too long, the idea of a `Community of law' has offered a straightforward and rather unchallenging basis for legitimating the activities of the EC/EU.[198] De Lange comments critically upon an approach which accepts the rules on free movement as the unproblematic basis for citizenship:
`the suggestion that citizenship is a homogenous, non-contested concept is in fact part of an EC rule-of-law ideology: as long as we talk about citizenship, we won't have to talk about democracy.'[199]
On the contrary, as the rest of this section will show, in a review of some of the different ways in which commentators on EU citizenship have understood it as a function of a broad search for meaningful political and socio-economic formations in `Europe' as a whole, simplistic references to law, democracy or constitutional structure are insufficient. It seems widely accepted that these questions of identity must be defined interactively: from within and from without.[200] Overall, it is clear that there are a great variety of different understandings of what might be `Europe' - some positive, some negative - and that these obviously have a direct bearing upon understandings of citizenship.
If one acknowledges the strength of various forms of state-based or political and so-called `cultural' nationalisms[201] in Europe, what then might be the basis for a form of European `citizenship' if it is not a sense of European `nationalism' that is clearly wholly inappropriate, unattainable and certainly undesirable? It is important to interject at this point that the counterpoint between national identity and European integration has not been constant in the various Member States. As Laffan has shown, [202] for some Member States, the strengthening of national identity and European integration have gone hand in hand (e.g. France), in other states the investment in the integration project has been a means of dealing with national identity (e.g. Italy, Germany), but in others the relationship between the two has to be seen as something close to a zero-sum game in which national identity and European integration are effectively on irreconcilable collision courses (e.g. Denmark, UK). In looking for the `glue' which might hold together a concept of `European identity' (which seems all the more improbable in view of those distinctions), let us begin with the views of a writer such as Smith, who sees national identity as both a global and a pervasive phenomenon .[203] He looks for an alternative basis to national identity as a bonding element within the West European integration project in some sort of `pan-European sentiment' at the cultural level. For him, the `heritage of Roman law, Judeo-Christian ethics, Renaissance humanism and individualism, Enlightenment rationalism and science, artistic classicism and romanticism, and, above all, traditions of civil rights and democracy'[204] all have a role to play. His argument in relation to European citizenship is the search for something `beyond' national identity.
In some work there has been an alternative, more micro, focus to the search for a `European' identity. Some work has concentrated on the self-perception of elite groups with a particular attachment to European integration (postgraduates at the European University Institute,[205] or those working for the Commission on relevant cultural policies, where their perceptions of identity can be linked directly to the types of policies which they formulate and seek to promote as bureaucrats). [206] Other work has made use of wide-ranging Eurobarometer polls to identify some suggestion of `European identity' emerging not from cultural homogeneity, but from an acceptance of a commonality of fate in relation to the construction of the EU.[207] Overall, however, the evidence is not conclusive either way.[208]
The idea that it is constructive to search for `European' identity in this way does not find support from all quarters. Delanty, [209] for example, would regard `European identity' not only as an `invention', but also as dangerously culturally essentialist. It also becomes a political projection of a cultural idea of Europe which never existed, except as a response to real or imagined threats of fragmentation. Consequently, Delanty's argument - when it turns to the question of citizenship - is for identity to be defined not through some spuriously universalist culture, or by reference to narrow or increasingly irrelevant considerations such as nationality,[210] but through `law', which becomes the basis of citizenship.[211] He concludes[212]
`Citizenship should be the ultimate basis of legitimation for institution-building, not ambiguous cultural identities. It is important that it be linked to participation in the new political institutions that are being created.'
Delanty does not say what he means by `law' in this context. It seems unlikely to be a notion of law in the formalistic rule-of-law sense criticised as the basis of EU legitimacy by de Lange, amongst others. It is more likely to be the existence of some form of meaningful normative constitutional construction based on tangible and progressive values yielding substantive equality of treatment for all individuals, which might in the future command the loyalty of those who are subject to it. It is consistent with the argument in this paper about the reciprocal reinforcement of ideas of community and the practice of citizenship. A number of commentators have put forward arguments which are broadly with these observations, including in particular Weiler and Preu?, although it is possible to point to ways in which the analysis could be taken substantially further.
The starting point for Weiler's analysis is the attempt to review what he calls fin-de-siËcle (i.e. post-Maastricht) Europe. Public support for what the politicians `achieved' at the intergovernmental conferences ending in 1991 has been extremely suspect, and belief in what he calls the European Community's foundational ideals from the immediate postwar era of peace, prosperity and supranationality, which were cast as a counter to (destructive, statist) nationalism, have lost their way in the rhetoric and text of the Treaty of Maastricht. [213] The crisis in the sense of the telos of European integration worsened considerably, in his view, as a result of the trenchant decision of the German Federal Constitutional Court on the compatibility of the Treaty of Maastricht with the German constitution.[214] Although ultimately setting no barrier to German ratification of the Treaty and to German involvement in `Europe' as presently constituted, the conceptualisation of state, nation and people given by the Court in that case does represent a serious challenge to what could be termed `European constitutionalism'. The thesis presented by the Court - greatly simplified - was that there is no European people or demos and, therefore, because citizenship and nationality are conflated in the German (national) model with a notion of people/Volk and lineage, there can be no democracy at the European level. Legitimacy is lent to the European Union only through democratic institutions at national level. The European Parliament is irrelevant to these considerations, because the electorate do not vote at that level as a people. Since Weiler would share the view that there can be no demos in the ethno-cultural sense at the European level, [215] the search is on for a foundation for European Union or a `coming together' in
`shared values, a shared understanding of rights and societal duties and shared rational, intellectual culture which transcend organic-national differences.'[216]
He suggests, as one possible solution, a notion of supranationalism, summarised as follows:
`We see .... that in the curtailment of the totalistic claim of the Nation-State and the reduction of nationality as the principle (sic) referent for human intercourse, the Community ideal of supranationalism is evocative of, and resonates with, Enlightenment ideas, with the privileging of the individual, with a different aspect of liberalism which has as its progeny today in liberal notions of human rights. In this respect the Community ideal is heir to Enlightenment liberalism. Supranationalism assumes a new, additional meaning which refers not to the relations among nations but to the ability of the individual to rise above his or her national closet.'[217]
On that analysis, therefore, EU citizenship must have a vital role to play. This form of citizenship would not be a `statal' concept bringing the baggage of nationality and forms of organic, cultural nationalism, but a civic, rational construct, offering a sense of `belonging' or being `at home' through the
`the rationality of civic and political commitment [which] can have at least as much normative legitimation and at least to some a high degree of psychological attachment.'[218]
This sense of demos would not, however, make a claim to exclusivity over the individual, but perhaps operate in a structure of concentric circles encompassing other (national, regional, religious) identities.[219] In concluding his argument, Weiler also recognises that one of the greatest challenges to such a construct is that of double (or conflicting loyalties), a point on which, it should be noted, the current conception of EU citizenship - with its emphasis on rights and not duties - offers so far little if any helpful guidance.
A very similar view of EU citizenship as a progressive vehicle for development of the EU is expressed by Preu?: [220]
`European citizenship does not mean membership in a European nation, nor does it convey any kind of national identity of `Europeanness'. Much less, of course, does it signify the legal status of nationality in a European state. Rather, by creating the opportunity for the citizens of the Member States of the European Union to engage in manifold economic, social, cultural, scholarly, and even political activities irrespective of the traditional territorial boundaries of the European nation-states, European citizenship helps to abolish the hierarchy between the different loyalties .... and to allow the individuals a multiplicity of associative relations without binding them to a specific nationality. In this sense, European citizenship is more an amplified bundle of options within a physically broadened and functionally more differentiated space than a definitive legal status.'
However, there is only so far such an analysis can be taken, because of the absence of a defined and accepted concept of democracy within the framework outlined above. Without that `the concept of European citizenship is hardly more than a challenging idea.'[221] In his restatement of the urgency of the search for democratic institutions and practices, the approach taken by Preu? can be seen as close to that of de Lange.[222]
Finally, although neither are worked through in the same detail in terms of the texts and contexts of the Treaty of Maastricht as the work of Weiler, Preu? or de Lange, it is important also to cite the examples of Habermas and Tassin who have both suggested alternatives to conceptions of national identity as the `glue' to hold together a complex polity such as the EU. Habermas, as we have seen,[223] works from an argument about the terminal decline of the nation state to formulate a conception of `constitutional patriotism', emerging from what he terms a model of deliberative democracy[224] which in turn draws on his own work on theories of communication and communicative reasoning.[225] He assumes
`a networking of different communication flows which .... should be organized in such a way that they can be supposed to bind the public administration to more or less rational premises and in this way to enforce social and ecological discipline on the economic system without impinging on its intrinsic logic. This provides a model of a deliberative democracy that no longer hinges on the assumption of macro-subjects like the `people' or `the' community but on anonymously interlinked discourses or flows of communication.'[226]
The final plank in the strategy is provided by an interplay between `institutionalized processes of opinion and will formation' and `informal networks of public communication'. On this basis, citizenship will mean
`more than an aggregation of pre-political individual interests and the passive enjoyment of rights bestowed upon the individual by the paternalistic authority of the state.'[227]
In very similar vein, Tassin calls for a European idea of a `public space of fellow-citizenship' which can give meaning to a non-national political community.[228]
Recent writings have considered whether that `public space' could be constituted through a renewal of the notion of social contractarianism, specifically applied to reinterpret the idea of a Treaty between the Member States into an agreement `among the nationals of those States .... that they will in the areas covered by the Treaty regard themselves as associating as citizens in this civic society.'[229] This fits closely to the definition of EU citizenship suggested by Everson as concerning, at this stage of its development, rights of participation in `the institutionalisation of a nascent form of European civil society'. [230] Closa would wish any `European' social contract to go beyond the essentially abstract level of commitment outlined by Weiler (already, in his view, implicit in the acceptance of EC law which has effects on individuals) and to highlight the specific goal of protecting individuals through the creation and reinforcement of legal statuses[231]
`against challenges that the EU legal order poses to values incorporated in national concepts of citizenship and contract, such as solidarity, cohesion and redistribution.'
So far, however, Closa is sceptical of the possibilities offered by EC law, since any social contract capable of construction at the heart of EU citizenship must, at the present time at least, be strongly liberal in nature, owing the dominance of the market foundation and leitmotiv in the EU legal order. That doubt could be fed back into the arguments put forward by Weiler, Preu? and Habermas, as one part of a critical reflection upon the processes whereby `participation' actually occurs. Within this space the critical reflections of feminist scholarship upon so-called `equal' chances of access or participation suggest that conventional understandings of democracy may not on their own be sufficient to bring these new political communities to fruition.
Despite differences in approach and depth of analysis, it will be seen that all the writers surveyed here agree, although with a variety of different conclusions to be drawn from this, that European citizenship should (or perhaps could) lead to a radical decoupling of concepts of state, nation, national identity and nationality. All would appear, likewise, to be en route to suggesting or describing a form of postnational membership which is radically different to a (nation)-statist concept of citizenship. There is also consensus about the importance of an active concept of EU citizenship, in order to approach something like democratic practice and the evolution of a civil society in which `European' parties and political processes, and `European' media are of greater significance than at present, although it could be suggested that there are elements of a new democracy which these arguments do not specifically consider such as speech rights or access rights within the `public spaces'. Concepts like constitutional patriotism or `public spaces', within which citizenship can be negotiated, highlight the discursive or relational linkages of identity and rights in a circular and self-reinforcing process in which the active elements of citizenship are strengthened. They are undoubtedly concepts with potential, if as yet unrealised, to combine the passive and active elements of the citizenship figure. But if that potential is to be realised, inclusive notions of participation and access will be essential to allow `equal' chances to all those wishing to `speak' within the public space and to be involved in the formulation of the structures of citizenship and government.
Indeed the arguments are limited, to the extent that they operate only - or principally - at the conceptual and normative levels. Thus, if the central contention of this paper is to assert that these types of ideas are extremely important to the future development of the EU polity, having developed an argument which makes use of the dual context of current dilemmas in both citizenship theory and integration theory, it must be recognised that the argument is incomplete until the evidence has been properly considered. This is the evidence which might feed into (or lead away from) the possibilities of mutual reinforcement between the `community' of the polity and the citizens as individually constituted through the practices and rights of citizenship. From the balance-sheet which follows it will be seen that citizenship in the EU is to be understood not only as a normative political concept in the constitutional realm, but also as an element of the EU's day-to-day work as a polity with more or less defined policy-making responsibilities.[232] Likewise it becomes possible to evaluate seriously the strengths and weaknesses of citizenship rights as conferred under the EU legal order. From that balance-sheet we may ultimately draw conclusions about the direction taken by citizenship in the EU: towards postnational membership?
[145] Ignatieff, op. cit. supra n.126 at p71.
[146] `From Market Making to State Building? Reflections on the Political Economy of European Social Policy,' in Leibfried and Pierson (eds.), European Social Policy. Between Fragmentation and Integration, Washington, D.C.: The Brookings Institution, 1995 at p413.
[147] To borrow terminology developed in detail by Weiler: `Does Europe Need a Constitution? Reflections on Demos, Telos and the German Maastricht Decision', (1995) 1 ELJ 219.
[148] A proposition derived from the `classic' intergovernmentalist accounts of Moravscik, `Negotiating the Single European Act: National Interests and Conventional Statecraft in the European Community', (1991) 45 International Organization 19; and ibid, `Preferences and Power in the European Community: A Liberal Intergovernmentalist Approach', (1993) 31 JCMS 473.
[149] The European Union. Policies and Politics, Boulder, Col,: Westview Press, 1996 at p16; see also George, Politics and Policy in the European Community, Oxford: Oxford University Press, 1996, 3rd edn., pp35-56, 275-283.
[150] Nye, `Comparing Common Markets: A Revised Neofunctionalist Model', in Lindberg and Scheingold, Regional Integration: Theory and Research, Cambridge, MA.: Harvard University Press, 1971, p200.
[151] See Meehan, Citizenship and the European Community, London: Sage, 1993 (`Meehan (1)'); for summaries of her views see also `European Citizenship and Social Policies', in Vogel and Moran, op. cit. supra n.38 (`Meehan (2)'), and `Citizenship and the European Community', (1993) 64 Political Quarterly 172 (`Meehan (3)').
[152] See the works cited supra n.26; Ress, `Free Movement of persons, services and capital', in Commission of the European Communities (ed.), Thirty years of Community law, Luxembourg: OOPEC, 1981, at p302 has a section entitled `Are we on the way towards creating European citizenship?'.
[153] Op. cit. supra n.26 at p683.
[154] Pollard and Ross, European Community Law. Text and Materials, London: Butterworths, 1994, p592. See also Mancini, `The Making of a Constitution for Europe', in Keohane and Hoffmann (eds.), The New European Community. Decisionmaking and Institutional Change, Boulder, etc.: Westview, 1991.
[155] E.g. Commission Reply to Written Question 779/79 (OJ 1980 C105/5); European Parliament Resolution of November 1977 (OJ 1977 C299/25). See generally Obradovic, op. cit. supra n.103.
[156] See the first report of the Adonnino Committee, Bull. EC Supp. 7/85; second report A People's Europe, Bull. EC Supp. 2/88.
[157] Bull. EC 12-1974, para. 111.
[158] On EU cultural policy and EU citizenship see infra at n.424 et seq.
[159] d'Oliveira, op. cit. supra n.27 at p126.
[160] For more details see Wincott, `Political Theory, Law and European Union', in Shaw and More, op. cit. supra n.31.
[161] Meehan (3), op. cit. supra n.151 at p173.
[162] See also Leibfried and Pierson, `Social Policy', in Wallace and Wallace (eds.), Policy-Making in the European Union, Oxford: Oxford University Press, 1996 (3rd edn.), at p186. They argue that `the emergence of a multi-tiered structure [in the sphere of social policy], however, is less the result of welfare-state-building ambitions of Eurocrats than a result of the spillovers from the single-market initiative.'
[163] E.g. in Case 66/85 Lawrie Blum v. Land Baden-W¸rttemburg [1986] ECR 2121; Case 53/81 Levin v. Staatssecrtaris van Justitie [1982] ECR 1035.
[164] Weiler, `The Community System: The Dual Character of Supranationalism', (1981) 1 YEL 267; ibid, `The Transformation of Europe', (1991) 100 Yale LJ 2405.
[165] Meehan (2), op. cit. supra n.151 at p125.
[166] See the neo-functionalist account of the Court suggested by Burley and Mattli, `Europe Before the Court: A Political Theory of Legal Integration', (1993) 47 International Organization 41 who argue (at p44) that `law functions as a mask for politics', allowing many political outcomes to be debated and resolved with a `language and logic of law'. For a discussion of this position see Shaw, `Introduction', in Shaw and More, op. cit. supra n.31. Wincott (`The Court of Justice and the European policy process', in Richardson (ed.), European Union. Power and Policymaking, London/New York: Routledge, 1996 at p171) comments that Burley and Mattli `seem to attribute an overweening influence to the Court' and that their account `does not emphasise the relational or negotiated character of the development of the European constitution sufficiently'.
[167] Bellamy, op. cit. supra n.29 at p173.
[168] See for example Shaw, `European Legal Studies in Crisis? Towards a New Dynamic', (1996) 16 OJLS 231.
[169] See also the similar definition of citizenship as rights of participation in a future European civil society employed by Everson, op. cit. supra n.144.
[170] Discussed supra at n.96 et seq.
[171] A good example of how interest has mushroomed comes from one of the standard works on policy-making, now in its third edition (Wallace and Wallace (eds.), Policy-Making in the European Union, Oxford: Oxford University Press, 1996). The third edition contains multiple references to citizens and citizenship, woven into discussion of social policy, the Justice and Home Affairs pillars, and general discussion of policy-making and policy legitimacy. The index to the second edition (Wallace, Wallace and Webb (eds.), Policy-Making in the European Community, Chichester, etc.: Wiley, 1983) contained no specific references to citizens or citizenship, there is no chapter devoted to social policy developments, and the texts of the chapters concern themselves very largely with the interactions of governments and European Community institutions in the policy-making process, with some coverage of the role of interest groups.
[172] Holland, European Community Integration, London: Pinter, 1993, at p154.
[173] Duff, `The Main Reforms', in Duff, Pinder and Pryce (eds.), Maastricht and Beyond. Building the European Union, London: Routledge, 1994 at p29.
[174] D'Oliveira, op. cit. supra n.27 at p147.
[175] Duff, op. cit. supra n.173 at p29.
[176] Anderson, de Boer, and Miller, `European Citizenship and Cooperation in Justice and Home Affairs', in Duff, Pinder and Pryce, op. cit. supra n.173 at p109.
[177] Wallace, `The Institutions of the EU: Experience and Experiments', in Wallace and Wallace, op. cit. supra n.162 at p60.
[178] `Towards a Political Union', in Lodge (ed.), The European Community and the Challenge of the Future, London: Pinter, 1993 (2nd edn.), p380.
[179] D'Oliveira, op. cit. supra n.27 at p147.
[180] Held, op. cit. supra. n.34 at p22; emphasis in the original. I am grateful to Antje Wiener for suggesting this amplification.
[181] For a brief general review, written from the perspective of the relevance of these theories for lawyers, see Armstrong, `Regulating the free movement of goods: institutions and institutional change', in Shaw and More, op. cit. supra n.31 at pp165-173; for a more extended treatment of new institutionalism and the potential for applying the insights it offers into the integration process to the specific issue of law and legal studies see Armstrong, `New Institutionalism and EU Legal Studies', in Craig and Harlow (eds.), Law-Making in the European Union, Dublin: Sweet and Maxwell/Round Hall Press, 1997 forthcoming.
[182] Bulmer, `The Governance of the European Union: A New Institutionalist Approach', (1994) 13 Journal of Public Policy 351.
[183] Pierson, `The Path to European Integration. A Historical Institutionalist Analysis', (1996) 29 Comparative Political Studies 123.
[184] Marks, Scharpf, Schmitter and Streeck, Governance in the European Union, London, etc.: Sage, 1996; Jachtenfuchs, `Theoretical Perspectives on European Governance', (1995) 1 European Law Journal 115; Kohler-Koch, `Catching up with change: the transformation of governance in the European Union', (1996) 3 Journal of European Public Policy 359.
[185] Speaking Truth to Power: The Art and Craft of Policy Analysis, Boston: Little Brown, 1979, p387.
[186] Pierson, op. cit. supra n.183 at p126. Emphases in the original.
[187] Pierson, op. cit. supra n.183 at pp158-159.
[188] Armstrong, op. cit. supra n.181 at p170.
[189] Armstrong, op. cit. supra n.181 at p169.
[190] The quotations which follow are drawn from `Citizenship, Identity and Social History', in Tilly (ed.), Citizenship, Identity and Social History, Supplement 3, International Review of Social History, Cambridge: Cambridge University Press, 1996 at pp4-6. See the similar approach taken by Brubaker to the studies of nationalism as a dynamic and relational category, in which the `nation' is not a substantial entity but a `practical category, institutionalized form, and contingent event': Nationalism Reframed. Nationhood and the national question in the New Europe, Cambridge: Cambridge University Press, 1996, at pp7-8.
[191] It is not difficult to extrapolate from the state-based analysis propounded by Tilly to the transnational context.
[192] A useful continuing line of analysis in the institutionalist tradition is suggested by Wiener, op. cit. supra n.32 who argues for the disentanglement of the package of what she calls citizenship policy in order to ascertain what `ideas' lie beneath it. In her view, it is the creation of a European identity which lies behind policies such as those on symbols of `European' culture, or a uniform passport or driving licence. See also Wiener, `Rethinking Citizenship: The Quest for Place-Oriented Participation in the EU', (1996) 7 Oxford International Review 44.
[193] Cram, Policy-making in the European Union: Conceptual Lenses and the Integration Process, London: Routledge, 1997, forthcoming; ibid, `Policy-Making and the Integration Process - Implications for Integration Theory', Paper delivered at the Fourth Biennial International Conference of ECSA, Charleston, SC, May 1995.
[194] See Wiener, `Making Sense of the New Geography of Citizenship - Fragmented Citizenship in the European Union', forthcoming, Theory and Society.
[195] See supra at n.96 et seq.
[196] Leca (1990; no specific reference given), cited in Bouamama, `The Paradox of the European Social and Political Ties: `Nationalitarian' Citizenship and Identity Ambiguity', in Martiniello, Migration, Citizenship and Ethno-National Identities in the European Union, Aldershot: Avebury, 1995, at p63.
[197] De Lange, `Paradoxes of European Citizenship', in Fitzpatrick (ed.), Nationalism, Racism and the Rule of Law, Aldershot: Dartmouth, 1995.
[198] Cf. Obradovic, op. cit. supra n.103 at pp196-198.
[199] De Lange, op. cit. supra n.197 at p111.
[200] Schlesinger, `"Europeanness" - A new cultural battlefield?', (1992) 5 Innovation 11 at p17.
[201] The term used by Hutchinson, op. cit. supra n.68 at p39 et seq.
[202] Op. cit. supra n.22 at pp86-87.
[203] Smith, National Identity, Harmondsworth: Penguin, 1991, p143.
[204] Smith, op. cit. supra n.203 at p174.
[205] Wilterdink, `The European Ideal. An examination of European and national identity', (1993) 34 Archives europÈennes de sociologie 119.
[206] Shore, `Inventing the `People's Europe': Critical Approaches to European Community `Cultural Policy'', (1993) 28 Man 779; Shore and Black, `Citizens' Europe and the Construction of European Identity', in Goddard, Llobera and Shore (eds.), The Anthropology of Europe. Identities and Boundaries in Conflict, Oxford: Berg, 1994.
[207] Howe, `A Community of Europeans: The Requisite Underpinnings', (1995) 33 JCMS 27; this sits less happily with some work on the legitimacy of the Court of Justice which also uses Eurobarometer surveys as its empirical base, and suggests that the Court of Justice may have a serious popular legitimacy problem in terms of perceptions of its rulings: Gibson and Caldeira, `The Legitimacy of Transnational Legal Institutions: Compliance, Support, and the European Court of Justice', (1995) 39 American Journal of Political Science 459; ibid, `The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support', (1995) 89 American Political Science Review 356.
[208] Fuchs, Gerhards, and Roller, `Nationalism Versus Eurocentrism? The Construction of Collective Identities in Western Europe', in Martiniello, op. cit supra n.196.
[209] Delanty, Inventing Europe. Idea, Identity, Reality, Basingstoke: Macmillan, 1995; for a summary of his ideas see `The Limits and Possibilities of a European identity. A critique of cultural essentialism', (1995) 21 Philosophy and Social Criticism 15.
[210] Delanty, Inventing Europe, op. cit. supra n.209 at pp160-163.
[211] Delanty, `Limits and Possibilities', op. cit. supra n.209 at p31.
[212] Delanty, Inventing Europe, op. cit. supra n.209 at p163.
[213] Weiler, `Fin-de-SiËcle Europe', in Dehousse, op. cit. supra n.27.
[214] BVerfGE 89, 155; published in English as Brunner [1994] 1 CMLR 57. See generally Everling, `The Maastricht Judgment of the German Federal Constitutional Court and its Significance for the Development of the European Union', (1994) 14 YEL 1 and MacCormick, `The Maastricht-Urteil: Sovereignty Now', (1995) 1 ELJ 259. Habermas, op. cit. supra n.83 at p137 describes the decision as revealing a `tragic irony' since the attempt to defend the nation state against erosion by requiring a certain degree of cultural homogeneity amongst its people is unrealistic in view of the current weaknesses of the nation state.
[215] See generally `Does Europe Need a Constitution?', op. cit. supra n.147.
[216] Weiler, op. cit. supra n.147 at pp243-244.
[217] Weiler, op. cit. supra n.147 at p250.
[218] Weiler, op. cit. supra n.147 at p253.
[219] Cf. the similar approach taken by Garcia and Wallace, op. cit. supra n.103.
[220] Preu?, `Problems of a Concept of European Citizenship', (1995) 1 ELJ 267 at p280.
[221] Preu?, op. cit. supra n.220 at p280.
[222] See supra at n.197.
[223] See the discussion supra at n.79.
[224] Op. cit. supra n.54 at pp32-34.
[225] See for example `Communicative Versus Subject-Centered Reason', in Faubion (ed.), Rethinking the Subject. An Anthology of Contemporary European Social Thought, Boulder, Col.: Westview, 1995. A similar idea of using a deliberative poll as a means of legitimating the EU has also been suggested by Weale, `Democratic Legitimacy and the Constitution of Europe', in Bellamy, Bufacchi and Castiglione, op. cit. supra n.29.
[226] Habermas, op. cit. supra n.54 at p32.
[227] Habermas, op. cit. supra n.54 at p32.
[228] Tassin, `Europe: A Political Community?', in Mouffe, op. cit. supra n.25 at p189.
[229] Weiler, op. cit. supra n.9 at p75; see also Ferrera, A New Social Contract? The Four Social Europes: Between Universalism and Selectivity, EUI Working Paper RSC 96/36; Rhodes, "A New Social Contract? Globalisation and West European Welfare States, EUI Working Paper RSC 96/43; Jordan, A New Social Contract? European Social Citizenship: Why a New Social Contract will (probably) not happen, EUI Working Paper RSC 96/47. Reference is also made to this phenomenon in the context of the specific role of the Court of Justice by Burley and Mattli, op. cit. supra n.166 at p61.
[230] Op. cit. supra n.144 at p205.
[231] Op. cit. supra n.5 at p13.
[232] This idea is not dissimilar to that developed by Della Sala and Wiener, op. cit. supra n.32 which examines citizenship in the context of the relational linkages between the individual and community which, they argue, are the stuff of citizenship practice. The approaches share a fundamental philosophy that citizenship is to be understood as a dynamic and historically/geographically contingent dialogue, not as a stable or single-stranded normative framework.
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