|
|
Previous |Next |Title |Contents
The objective in this section, as has been stated before,[233] is not to provide a comprehensive restatement of both the codified and the dispersed citizenship rights and duties under EC law. Rather, it is intended to reinforce the strong relationship between a constitutionalized conception of citizenship within the EU legal order, and the body of legal rights and duties which EC law already grants to or imposes on individuals as an expression of its dynamic policy development. It is about understanding the concept of citizenship in the specific EU integration context, not only at an abstract level of constitutional dialogue, but also through closer empirical and critical analysis of a balance-sheet of rights and duties. `EC law' is understood in its broadest sense here in order functionally to describe the various conventional outcomes of most policy-making processes (regulations, directives, decisions, case law of the Court of Justice), and to include aspects of `soft law' and programmatic policy-making.
The section proceeds in three parts, with the first two directly reflecting the duality of identity/membership and rights used throughout this paper. The first part addresses the definition of membership for the purposes of citizenship of the EU, and looks first at the relationship between EU citizenship and the nationality of the Member States, and then at the treatment of third country nationals under EC law. The second part apes the `classic' tripartite treatment of rights by post-Marshall citizenship scholarship, and looks at the three groups of rights separately: civil, political and social. Changing tack, the third part briefly confronts the `duty problem', an area where there has been relatively sparse development at EU level.
Throughout the discussion, woven into the text where appropriate, are references or brief discussions of possible changes to issues of citizenship status which may be introduced in the context of the Intergovernmental Conference foreseen in the Treaty on European Union, which began in March 1996 in Turin and which began to crystallize with the publication of the Irish Presidency draft Treaty text in December 1996, before the Dublin Summit. However, there is no attempt to provide a comprehensive review of the IGC agenda, or its likely outcome, given the so far uncertain nature of the possible Treaty amendments. The treatment of the IGC is limited to what is necessary to emphasize the dynamic character of the citizenship concept and to reinforce the intimate link between citizenship as something citizens `do' as well as something they `are'. Indeed, it is important to note an overall increase in activity on the part of what might loosely be termed the organisations of `civil society' in relation to claims for enhanced citizens' rights. Organisations as diverse as the so-called `Civil Society Forum', the Council of European Municipalities and Regions, the European Anti-Poverty Network and the Euro Citizen Action Service have put forward concrete proposals in the area of citizenship which may possibly have some concrete influence ultimately upon the agenda for and outcomes of the IGC. The very existence of this type of citizen action and pressure is itself worthy of note.[234] Furthermore the development of the internet as a tool of communication and information[235] has led to a dramatic increase in the ability of such groups to place their proposals in front of a (still relatively limited, and elite, but nonetheless interested) public.
Altogether, the framework of analysis used in this section allows an assessment of whether or not an empirically documented concept of postnational membership, to be distinguished from a `conventional' concept of national citizenship, is indeed emerging within the structures and legal order of the European Union.
We have seen already that EU citizenship is limited to `nationals' of Member States (or, in some language versions of the Treaty such as the Italian, where there is no separate concept of nationality, to `citizens').[236] Inevitably, it is to this point that writers turn first when examining the question whether EU citizenship is truly `postnational'. It was not surprising that this construction of the relationship between EU citizenship and Member State nationality was drawn by the drafters of Article 8 EC. Article 6 EC restricts the right to non-discrimination on grounds of nationality implicitly to nationalities of the Member States alone. Article 48 benefits only the nationals of the Member States - although again this is not explicitly stated. [237] Furthermore, Articles 52 and 53 EC expressly provide only for the abolition on restrictions on freedom of establishment for nationals of a Member State in the territory of another Member State, and an equivalent standstill clause respectively. In essence all of these provisions are horizontal, preoccupied with the open borders between the Member States, not with the relationship between individuals and the EU as a political entity. In that context, it should be noted that Article 157 has always provided that only nationals of the Member States may be appointed to the membership of the Commission, although Articles 138D and 138E provide for the right of petition to the European Parliament, and the right to complain to the Ombudsman appointed by the Parliament, respectively, to be exercised by `any citizen of the Union, and any natural or legal person residing or having its registered office in a Member States.'
The very different national histories in relation to citizenship and nationality - whether these two are conflated or not, the use of ius soli or ius sanguinis, or a combination of the two, liberal or restrictive approaches to changes of civil status through naturalisation or marriage, acceptance or rejection of dual nationality, and so on - inevitably will have consequences for the purposes of understanding a superimposed EU citizenship which makes use of the definitional power of the Member States. The Member States attached a declaration to the Treaty of Maastricht explicitly restating the right of the Member States to determine who are to be considered their nationals. This is not illogical or unreasonable in view of the position in international law that the capacity of each state to define its own nationals by its own legislation is a component of sovereignty.[238] However, the position needs to be viewed in the light of cases such as Micheletti v. DelegaciÛn del Gobierno en Cantabria,[239] which effectively restricted the right of Spain to apply its own legislation to Micheletti (who was an Argentine national holding an Italian passport issued on the basis of his Italian parentage). Under Spanish law he was regarded as possessing Argentine nationality alone, but EC law required Spain to accept his Italian passport as well. In Micheletti, the Court of Justice declared that the competence of the Member States to determine who are their nationals must be exercised
`having due regard to Community law.... [I]t is not permissible for the legislation of a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty.'[240]
Hall would further extrapolate from cases such as Micheletti, and from the notion of EU citizenship, that Member States are restricted in their ability to withdraw nationality from individuals, where to do so would violate general principles of EC law, within the framework of EC law.[241] However, restrictions on the autonomy of the Member States through such judicial action can at best be described as `rudimentary'. [242] The Maastricht declaration on nationality indicates that the Member States are unlikely to countenance in the near future a harmonisation of rules on the acquisition of nationality, dual nationality or naturalization, whatever the expressed wishes of the European Parliament and its Committees,[243] or certain writers.[244]
This definitional question is not only important in terms of how it positions EU citizenship in relation to the nationalities or citizenships of the various Member States, but also because of the consequential knock-on effects for third country nationals. Whatever their formal or de facto status within the countries in which they are resident, third country nationals are excluded from benefiting from EU citizenship, and the rights which it confers, including the right of free movement. Also excluded from EU citizenship are third country nationals who are entitled to entry and residence by virtue of national laws governing family reunion, by virtue of EC law which gives free movement rights to the family members of EU nationals who themselves exercise their Treaty rights,[245] by virtue of the Court of Justice's interpretation of the free movement of services provisions which allow for a form of free movement for third country nationals moving as employees of a service provider,[246] or by virtue of international agreements linking the EU and its Member States with third countries some of which grant limited residence rights.
At this point, it is worth observing that migration - both in the intra-EU and the broader international contexts - is an important socio-economic, political, and cultural phenomenon, even where the numbers of persons involved may not be so significant in comparison to total national populations (of either the giving or the receiving countries). One reason for this is that it poses challenges at the symbolic and practical levels. At the symbolic level, it raises questions about notions of identity for the receiving state, and the `immigrant population'. At the practical level, the question arises - assuming that the case for open borders[247] is not accepted - how migration is to be controlled, channelled or even prevented/reversed. In fact, migration (or, at least, the willingness to migrate) is generally recognised to be a phenomenon which is growing more common, as a consequence of which the range of governmental controls on migration and migrants is increasing in parallel.[248] In the EU context, it is migration from third countries which receives the greatest political attention, a phenomenon which often operates to the detriment of the some 10 million legally settled third country nationals resident in the EU, especially where there is an implicit coupling of immigration, asylum-seeking, refugees and certain types of international criminality, especially (Islamic) terrorism.
One reason for the uncertain and rather uneven treatment which third country nationals receive under EC law stems from the problem of competence. Peers describes their unsatisfactory situation as one of being entitled to a `pot-pourri of actual and potential rights that may be gleaned from international agreements and indirectly from rights granted to citizens of the European Union'. [249] Above all, there is a split between the treatment of third country nationals at the external borders of the EU (or, perhaps better, its Member States), where such questions are primarily matters of national competence or, since the Treaty of Maastricht, covered by the `intergovernmental' Third Pillar (Co-operation in Justice and Home Affairs) (Article K.1 TEU), and some aspects of the treatment of third country nationals within or between the Member States which fall within the scope of `Community' competence. Even so, in the latter case, the extent of Community competence is strenuously contested between the Commission and the Member States,[250] except in relation to those third country nationals who are members of the families of EU citizens who have taken advantage of the right of free movement.[251] The position of the Commission received substantial support from the Court of Justice in the Migration Policy case[252] where it was held that the Commission had the competence under Article 118 EC to adopt a decision requiring the Member States to engage in a process of co-operation regarding certain aspects of the integration of third country migrants in the social policy sphere, especially working conditions and their situation in the employment market.
The position on the issue of competence is further complicated by a number of factors: - the proliferation of different international agreements between the EU and its Member States and third countries, including the European Economic Area Agreement (which does extend the right to non-discrimination on grounds of nationality to EEA nationals), a number of Association Agreements, and the so-called Europe Agreements with the countries of Central and Eastern Europe; - the existence of the Schengen arrangements, separate to the EU, which have resulted in something akin to a common travel area linking a number of Member States;[253] - the (not always clear) cross-overs between the EC Treaty and the Third Pillar, whereby policies on, for example, a list of states whose nationals require visas[254] and a uniform format for visas are to be determined under the provisions of Article 100C EC; [255] - the so-called passerelles or bridges which link the provisions on Co-operation on Justice and Home Affairs to the provisions of the `Community Pillar' proper and allow for possible transfers of competence at a later stage;[256] - the very gradual development of `policies' under the Third Pillar. Even though these essentially comprise forms of consultation and co-ordination which may lead to joint action or the conclusion of conventions between the Member States - all of which are ultimately intergovernmentalist rather than supranationalist - many proposals including the External Frontiers Convention,[257] arrangements regarding Europol and police co-operation, and even common rules on asylum and immigration where the Member States have demonstrated a willingness to co-operate in order to tighten up on the existing rules[258] - have been stalled by disagreements.[259]
Some initial steps towards clarifying these complexities are suggested in the Irish Presidency's draft discussion text placed before the Intergovernmental Conference in December 1996.[260] This suggests a new and separate title on free movement of persons, asylum and immigration, covering the crossing of both internal and external borders, to overcome problems concerned with `coherence, consistency and impetus'. This will be part of a broader objective of creating an as yet ill-defined `area of freedom, security and justice', rather than from any specific concern with the status of third country nationals. Moreover, the ultimate status of any such new title within the Treaty is as yet wholly undecided, since a number of Member States implacably oppose any increase in EC competence in relation to the crossing of external borders, and wish to protect the framework of the current three pillar system more or less intact.
Despite all of these complications, a number of arguments for the recognition of the civil status of lawfully resident third country nationals as EU citizens can and have been made.[261] The first reason derives from the universalistic approach to human rights and personhood, portrayed in the quotation from Soysal which began this paper. A similar argument points to the unfortunate creation of an ever larger number of different categories of persons holding various bundles of rights (nationals, EU citizens resident in another Member State, third country nationals resident in a Member State who may or may not be part of the family of an EU citizen, etc.), superimposed upon the traditional `national' dichotomy between citizens and aliens/foreigners, which in turn creates new forms of discrimination between those with and those without certain key entitlements, not to mention situations of considerable legal uncertainty. A number of arguments could also be made on the strength of the `market' aspect of the EU. In the first place, the definition of a single internal market in Article 7A EC makes no reference to issues of nationality, but refers simply to an area in which internal frontiers are removed. Furthermore, if the (market) right to free movement, and consequently the possibility of acquiring a strong economic stake in another country, is an important argument in favour of EU citizenship, and indeed currently its substantive and even intellectual core, the same principle ought perhaps to apply to third country nationals who also have a stake in one of the Member States. Yet as Evans notes, the use of the nationality criterion in Article 8 reflects a `statist ideology', which reinforces the right of the Member States to resist some aspects of market-led integration.[262] Conversely, if the idea of EU citizenship reflects a rejection of statism, and part of an attempted reconceptualisation of the link between citizenship, national identity and nationality, it might seem inappropriate for the EU to `ape' the nationality approach of the nation state by lifting it, in effect, to the EU level. Instead, the EU should instead opt for a form of membership which goes beyond consanguinity or national membership, and use a form of postnational membership based on residence or territoriality.
O'Keeffe has argued that EU citizenship could be conferred on third country nationals, subject to the consent of the relevant third country, and to the satisfaction of criteria such as qualifying residence period, employment or other economic activity, language proficiency, etc. There is some inconsistency in the proposals he makes: he insists that EU citizenship is complementary to national citizenship, and certainly not a form of nationality, so that it should not be difficult for third countries to accept it for their nationals. On the other hand, he suggests that third country nationals would have to pass tests such as language proficiency or `attachment to the Union' which are not imposed upon the nationals of the Member States, and which reek of the type of naturalisation restrictions which are the most strongly ethno-cultural.[263] It does not make sense to make EU citizenship essentially different for third country nationals than it is for the nationals of the Member States. D'Oliveira concentrates his comments at the political level on the illogicality of extending local voting rights to EU nationals, but not to third country nationals, as well as a possible conflict with international law.[264]
An alternative to concentrating the arguments upon the extension of Article 8 EC is to focus instead on the possibility that certain internal free movement rights may be extended to third country nationals by virtue of a number of pending proposals concerned with the implementation of the single market principle, where the impact of non-implementation has disproportionately burdened third country nationals by limiting their rights. One proposal with limited application would remove the right of Member States to impose an entry visa requirement on the third country national family members of intra-EU migrants exercising their right of free movement.[265] A further more general proposal pertains to the removal of frontier controls, a matter which the Commission regards as a logical component of the creation of an internal market, under Article 7A EC.[266] Article 1 of the draft Council Directive provides that
`All persons, whatever their nationality, shall be able to cross Member States' frontiers within the Community at any point, without such crossing being subject to any frontier control or formality' (emphasis added).
However, the removal of such administrative controls on internal movement for all persons, and the consequent creation of new entitlements for third country nationals, is ultimately dependent on the creation of a common external frontier, with Member States applying the same external formalities, applying visa requirements to the same countries, having common policies on asylum and refugees, and being confident about controls and restrictions on illegal (third country) immigrants. These matters, the majority of which are being dealt with under the Third Pillar, have been stalled at the level of agreement between the Member States for some time, a significant obstacle being disagreements between Spain and the United Kingdom over Gibraltar which is preventing the coming into force of the External Frontiers Convention. [267]
A similar argument concerning issues of national sovereignty is not so easy to apply to the extension of the right of (short term) travel to third country nationals, which is contained in the second general proposal which is pending.[268] This could logically be adopted, even where full frontier controls remain in force, and parts of it could effectively operate even without agreement on the External Frontiers Convention. Indeed, quite the contrary, the preamble to the proposal makes it clear that the creation of a substantive right to travel will remove a remaining obstacle to the removal of frontiers: the Member States will no longer be able to `consider the fact that there were people in other Member States who were not entitled to enter its territory' as a factor justifying the maintenance of frontier controls. It is noteworthy, therefore, that the argument is not being advanced in the draft measure itself - although it may be a relevant background reason for the Commission, at least - that third country nationals should be granted the right to travel on substantive `rights grounds' (as opposed to the promotion of the political objective of the completion of the internal market, primarily in the economic interests of EU Member States and their citizens). Nonetheless substantial new rights would be granted: third country nationals lawfully resident in one Member State (Article 3), those holding a mutually recognised visa valid for the crossing of the external frontiers of the EU (Article 4(1)), and third country nationals exempted by all Member States from visa requirements (Article 4(2)) would be entitled to three months visa free travel within the EU. Third country nationals subject to visa requirements in some Member States would be entitled to visa free travel in those which did not require a visa (Article 4(3)). The provisions of the draft directive also carefully preserve the rights of the Member States to expel overstayers, and those failing to satisfy a requirement that they have adequate means of subsistence, and to apply reasons of ordre public to third country nationals. Moreover, it does not extend to long term stays, or grant any rights of residence or employment, or even a general right to equal treatment in the context of the right to travel.[269]
The competence problem is likely to prove a significant obstacle to the adoption of such proposals, particularly for the proposal on visa-free travel. The three institutions - Commission, Council and Parliament - are far apart in their approaches to these problems. [270] It may be that the visa free travel measure may ultimately be adopted under the Third Pillar as a `joint action', because of pressure from some Member States. Such a move on the part of the Council would also be likely to provoke some form of legal action on the part of the Commission, as has already occurred in the case of the Joint Action on transit visas, where the Commission is seeking to establish that this particular type of measure should have been adopted under the competences provided for in the EC Treaty.[271]
If - despite all of these problems - provisions along the lines outlined were adopted, it is arguable that although they are limited in scope, and even though they are not necessarily directly motivated by humanitarian concerns to equalize the status of third country nationals and EU citizens, nonetheless the EU would have taken some small steps on the road to some form of `denizenship'[272] status vis-‡-vis both the EU - as the guarantor of interstate free movement rights - and each of the Member States who are bound by such measures. This would mirror the fact that many of them will already have a status like `denizenship' in the Member State in which they reside, in the sense of enjoying permanent rights of residency, and other rights of `substantial' citizenship. Their problem at present is that except in exceptional circumstances they are treated as `pure' aliens in all other Member States. This could be an interesting example of the gradual de facto extension of citizenship rights through step-by-step policy-making rather than grand constitutional gestures. The argument would apply even if the measures were adopted under the Third Pillar, although the incremental steps towards establishing substantial citizenship would have to be seen as being even smaller than if they were adopted under the `Community Pillar'. Perhaps later might come the extension of Article 8 EC, and the recognition that such measures are concerned with rights as well as with the economic imperatives of the single market or the security imperatives of the growth of immigration co-operation between the Member States. In the interim, however, the prevalence of the security agenda wherever the treatment of third country nationals is at issue reminds us that
`There are two sides to `Europe': a progressive vision based on social justice and an authoritarian, `other' Europe'.[273]
Similarly, Hervey has suggested that the market construction of rights within the EU raises what she terms the `racist implications of Community law'.[274]
Other evidence of a gradualist approach to citizenship building through the policy-making route leading to improvements in the status of third country nationals can be seen in a Council Resolution (albeit again under the Third Pillar) of March 1996 which includes a minimum standard of treatment for long-term lawfully resident third country nationals,[275] and the Commission's plan in its 1996 work programme[276] to propose the extending of other `limited benefits' to third country nationals. [277] Considerable impetus would be given were the 1996 Intergovernmental Conference to agree upon the inclusion of a general right to non-discrimination in the EC Treaty, which would naturally benefit third country nationals subject to racial discrimination, although this is most likely to be vetoed by the United Kingdom. This issue will be addressed below.[278]
Ultimately, it has perhaps been naÔve to suggest that the Member States were in 1991, or are even now, ready to include third country nationals within the scope of Article 8. However, the benefits of the gradualist policy-making approach to the understanding of citizenship is that it can still lead inexorably to a breaking of the logic of the dependent definition of EU citizenship by reference to the nationality of the Member States. Such a definition cannot for ever be retained as more and more categories of non-Member State nationals are enjoying free movement, and while it remains clear that the core of citizenship is free movement. The logical consequence should therefore be: all persons enjoying free movement are de facto `citizens' of the EU, regardless of the restrictive de jure definition in Article 8. The next step would then indeed be the constitutionalisation of such changes through amendments to the Treaty, including a change in the definition in Article 8, and perhaps also an express generalisation of the scope of Community competence, and the breaking down of remaining barriers between the First and Third Pillars. Until such time, it is difficult to escape the conclusion that the EU is in fact not (or at least not yet) on the road to creating a type of postnational membership along the lines suggested by Soysal, or embodying the types of liberal principles articulated by Habermas and others, if, to adapt and to apply the ideas suggested by Weiler, `we, the Germans or the French' is simply being replaced by `we, the [by implication, essentially white, Christian] Europeans'.[279]
Moving on from the issue of membership, the second area in which it is possible to test whether the EU is moving towards a form of postnational membership as suggested in this paper is that of `rights'. This is the second limb of the identity/rights dichotomy used in this paper to frame the discussion of citizenship. The justification for using the `Marshallian' paradigm in the context of the development and articulation of EU citizenship in its (single) market context is clear. As Closa comments:[280]
`In a continuing debate with Marshall, the sociological tradition has linked the process of rights acquisition with the development of the market. If the civic and political rights were the logical correlate of individual equality created by the market, social rights - and specifically redistributive rights - were created as an instrument for modifying the logic of the market.'
One of the key factors which will emerge from this discussion is that a number of these rights - such as rights to petition the Parliament, or to complain to the Ombudsman, mentioned earlier, as well as rights of access to the two European Courts, or rights of access to information which will be discussed below - are certainly not confined to EU citizens. In fact, they have almost certainly not been conceived in their inception as adjuncts of a type of EU citizenship, but as functional correlatives of the project of completing a common or single market. If they can be considered as `citizenship rights', then it might be appropriate to reconsider our interim conclusion that EU citizenship does not yet merit the rubric `postnational membership', as something operating beyond semantic and political limitations imposed by national citizenship. The discussion will also continue to revisit the many levels of EU policy-making, highlighting the balance between decisions or changes which can be seen as grand constitutional or history-making shifts, and those which result from an incremental step-by-step process of exercising and widening existing competences. As a final preliminary point, it must be recalled that the approach to rights taken in this section takes very seriously the need to go beyond formalistic entitlements alone, and to consider to what extent rights entitlements in fact operate at a substantive level and incorporate an element of access or participation, for it is only by taking the access dimension into account that the relational and dynamic properties of rights can begin to operate.
According to Marshall, the civil element of citizenship
`is composed of the right necessary for individual freedom - liberty of the person, freedom of speech, thought and faith, the right to own property and to conclude valid contracts, and the right to justice.' [281]
He went on to argue that the institutions most closely associated with these citizenship rights were the courts of justice, and the rule of law. Accordingly, even though the EU remains an entity limited by the principle of attributed competence, there are nonetheless a number of important respects in which the civil rights of EU citizens are now constructed by virtue of the operation of EC law. In other words, concentrating on the economic mission of the European Community, it might have been anticipated that the primary focus of `citizenship' rights for EU citizens would fall in the area of socio-economic rights concerned with participation in a market-place combined with a modicum of political participation rights associated with the decision-making processes needed to make the market idea work. This notion is encouraged by the way in which Articles 8-8E EC are structured and phrased. Nonetheless the very fact that the EU has a relatively well developed legal order instantiating a number of strong federalist principles concerning the relationship between EC law and national law is one reason for suggesting that the basic civil status of individuals under the rule of law is substantially affected by being the subjects of EC law, as well as national law. So, according to Curtin,[282]
`the unique sui generis nature of the Community, its true world-historical significance [is constituted by its character] as a cohesive legal unit which confers rights on individuals'.
There are a number of facets to this. First, the construction of a transnational legal order has increasingly come to be treated by all those studying the EU integration process - not just by lawyers, but by others such as political scientists and scholars of international relations - as a defining characteristic of the EU polity, and therefore of its ability to define itself and its `people'. Four features seem the most important: the transfer of sovereign powers by the Member States to the European Communities, which has certain consequences from the perspective of the Court of Justice for the nature of the relationship between EC law and national law, the role of national courts, and the construction of the individual as a subject of EC law;[283] the nature and regular usage of the implementation and enforcement powers given to the Commission and the Court under the Treaties; the existence of an EU budget and budgetary powers, especially of the European Parliament; the general and autonomous law-making powers of the EU institutions, which increasingly can be exercised by a qualified majority vote in the Council of the EU, and involve the enhanced participation of the European Parliament.[284] It would be wrong to overstate the relevance of the legal order within the EU, but the creation of a `rule-of-law' ideology, although problematic in some respects,[285] has been a major constituting force which should not be discounted.
Second, while limited in scope and, some might say, effectiveness, the EU lays claim to a system protecting the fundamental rights of those affected by EC law.[286] It is above all the Court of Justice which provides the cornerstone here, since Article F(2) TEU, which declares the observance of fundamental rights, is precisely that - declaratory - and it simply refers back to the articulation by the Court of Justice of respect for fundamental rights, including those enshrined in the European Convention on Human Rights and Fundamental Freedoms, as general principles of EC law with superordinate value.[287] It is appropriate to agree with Weiler that the enjoyment of human rights is not the `principal hallmark of citizenship', but of `humans',[288] but they are equally, as he says also, part of the `citizenship package' and an essential element of the body of rights which constitute full membership of a community. Consequently, it is significant to note that the Court of Justice has had occasion to uphold the application in EC law of so-called rights of the defence effectively protecting the right those under investigation in the competition policy sphere to a fair trial,[289] and certain `traditional civil and political liberties'[290] such as the right to privacy.[291]
The third point concerns the ambiguous status of the free movement rights; in certain respects these rights have been constructed as civil rights rather than solely as economic or market rights. It is certainly the case that the impetus of the free movement rights (goods, services, labour, capital, enterprise) was the construction of the market citizen or Marktb¸rger as the first figure of EC law (and the primary actor in the new European market)[292] - those `acting as participants in or as beneficiaries of the common market'.[293] Arguably, however, legislative[294] and judicial[295] developments which have generalised the right of free movement (of persons) and given it a broader `citizen-focused' character, followed by the constitutionalisation of a general right of free movement in Article 8, have moved at least that element of the range of free movement rights into the sphere of civil rights for citizenship purposes. This version of free movement rights as civil rights is stated most eloquently (but not authoritatively, as the point was not taken up by the Court of Justice) by AG Jacobs in Konstantinides.[296] He stated that
`a Community national who goes to another Member State as a worker or self-employed person under Articles 48, 52 or 59 of the Treaty is entitled not just to pursue his trade or profession and to enjoy the same living and working conditions as nationals of the host State; he is in addition entitled to assume that, wherever he goes to earn his living in the European Community, he will be treated in accordance with a common code of fundamental values, in particular those laid down in the European Convention on Human Rights. In other words, he is entitled to say `civis europeus sum' and to invoke that status in order to oppose any violation of his fundamental rights'.
The point is perhaps buttressed also by the paucity of exemptions which Member States can use to deny individuals the right of free movement, and the controls over those rules which EC law operates.[297] On the other hand, the Court has done little in the service of this argument in recent years. Its line in the Konstantinides case was that the applicant masseur's right to have his Greek name transliterated into German as he wished it to be, not according to certain German rules, was based on the need to avoid confusion on the part of his clients, not on a fundamental rights foundation. Since the coming into force of the Treaty of Maastricht, including Article 8A, the Court has already held that this provision is residual, and should not be invoked so long as other more specific free movement rights apply.[298] But even if one follows broadly the line of reasoning espoused by Jacobs, for example, the search for the citizen through the `market citizen' is a problematic one. Everson has critiqued the concept of the market citizen, suggesting that[299]
`the highly productive character of the market citizen has also endowed Europe with a troublesome legacy. Having been so strongly instrumentalized with regard to the completion of the internal market, the market citizen had no choice but to become instrumentalist. In that self-interest alone drove the European market citizen in his or her dealings with Europe, a general allegiance to the Communities was not established.'
This suggests that there are strict limits to seeking to establish the sovereignty of the EU citizen, and the legitimacy of the polity in which the EU citizen is to be sovereign, by working through this troublesome legacy. Ultimately an impasse will be reached if it is sought to reconcile the individually beneficial outcomes of market transactions with a broader general interest idea that it is `good' for market citizens to participate in the Community market. This leads in turn to a realisation that the construction of the rights of citizenship is only one half of an equation: the sovereignty of the citizen stems also from her willingness - free consent - to be subject also to duties (i.e. to be governor and governed, owing allegiance as well as making claims).
There is one other key respect in which the civil rights perspective highlights some core difficulties in the EU conception of citizenship. This concerns the question of access to justice, or more specifically, access to the EU courts (Court of Justice and Court of First Instance). [300] In general terms, the Court of Justice is supportive of a general right of access to justice. In Johnston v RUC the Court declared that the
`requirement of judicial control stipulated by [Article 6 of Directive 76/207] reflects a general principle of law which underlies the constitutional traditions common to the Member States. That principle is also laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.' [301]
More specifically, Advocate General Darmon made it clear in his Opinion in the same case that access to justice is to be balanced against questions of public order, but public order will not necessarily take priority:
`Although the principle of legality is the cornerstone of the rule of law, it does not exclude consideration of the demands of public order. Indeed, they must be accommodated in order to ensure the survival of the state, whilst at the same time arbitrary action must be prevented. Review by the court is the fundamental safeguard against such action; the right to challenge a measure before the courts is inherent in the rule of law.'
However, these words were pronounced in the context of access by an individual, aggrieved at a breach of EC law by a national authority, to a national court (whence came a reference for a preliminary ruling to the Court of Justice). In the context of access to the Court of Justice itself, not quite such an open textured approach has been adopted. The principles have been quite clearly stated in the case of Les Verts:[302]
`It must first be emphasized.... that the European Economic Community is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty...'
In reality, the practical application of the principle of access to justice in the context of claims brought by so-called non-privileged applicants (i.e. individuals, companies, interest groups) under Articles 173, 175 and 215 EC has been quite restrictive. The terms of those Articles are narrowly worded, easily allowing an interpretation of standing rules by the Court of Justice, and latterly the Court of First Instance which now hears those cases brought by non-privileged applicants against the EU institutions, which focuses on direct, individuated harm to specific economic interests, [303] wrought by individual rather than general measures. No particular leeway has been given to interest groups, even those which have participated in administrative processes before the Commission,[304] unless those processes formally recognise the status of complainants, as is the case, for example, in the context of competition policy.[305] The problem is diagnosed by Harlow as being partly historical:
`the present access problems of the European Court of Justice derive directly from the Treaty concept of a domestic tribunal, designed for use by the Treaty makers and their institutions. Almost as a concession, marginal rights of entry were given to individuals but the arrangements were flawed by an inherent imbalance between privileged and non-privileged parties.'[306]
These flaws are not fully corrected by the possibility, frequently re-emphasised by the Court of Justice, that unlawful EU measures may always be challenged indirectly if direct challenge is not possible by means of an application to the national court challenging a national measure based on or linked to the putatively unlawful EU measure. The national court must refer a question to the Court of Justice if it is of the view that the EU measure may be unlawful under EC law, since a national court has no competence - according to the division of powers articulated by the Court of Justice - to declare unlawful an EU measure.[307] For the most part, the exceptions to the very strict application of the letter of the locus standi rules have been limited to cases where the Commission takes a quasi-judicial role (implementing and enforcing the competition rules, the rules on state aid, and the anti-dumping rules) which has a particular impact upon individuals, and to the arena's of the EU's most `traditional' regulatory activities in the fields of customs and agriculture. Innovations in the EU's activities into the fields of environmental policy, the disbursement of regional development aid through the structural funds, [308] and increasingly direct interventions in the market place through its policies on public utilities may need to be matched by a careful rethinking of the rules on access to the Court of Justice and the Court of First Instance for `non-privileged' applicants.[309] This was an issue for possible change which was placed before the 1996-97 IGC, but no proposals appear in the Irish Presidency draft of December 1996.[310]
Similarly, the IGC has been asked to confront the general issue of fundamental rights protection in the EU, and more specifically the possibility of introducing a general clause prohibiting discrimination on grounds including (but not confined to) sex, race, nationality, religion, cultural heritage, age, sexuality and ability. This represents an important challenge to the construction of the EU as a political union.
In a decision which may turn out to be of some constitutional significance, [311] the Court of Justice recently decided in P v. S[312] that the dismissal from employment of a transsexual on the grounds that she had undergone or was undergoing gender reassignment was discrimination on grounds of sex, contrary to the Equal Treatment Directive.[313] The Court held that the dismissal of a transsexual on the grounds of gender reassignment from male to female was discrimination `based, essentially if not exclusively, on the sex of the person concerned' and was contrary to the Equal Treatment Directive (para. 21). The Court added that `to tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard' (para. 22) which appears to postulate an absolute minimum standard of treatment for all persons. On the other hand, there is some uncertainty in the way in which the judgment is phrased, as the Court also appeared to employ a more traditional form of comparative reasoning when it stated that P was treated unfavourably in comparison with a person of the sex that P was deemed to belong to (the male sex) prior to gender reassignment.
For our purposes, however, whatever the conception of equality employed in the judgment, what is significant is that the Court is stepping into the hitherto uncharted territory in relation to `grounds' for claiming the right to non-discrimination. Beyond the relatively limited possibilities opened up by outlawing discrimination based on gender reassignment, the judgment steps close to acknowledging that discrimination on grounds of sexuality may be brought within the remit of the EU's sex equality law.[314] On the other hand, the Court is remaining within the Treaty-based and legislative framework of discrimination by drawing any inspiration from the Equal Treatment Directive, and is not making free with some form of judicially-created general clause prohibiting discrimination.
The suggestion to incorporate a general non-discrimination clause into the Treaty has, of course, been put before the agenda of the IGC, and it is worth considering whether it would be an appropriate direction for the development of EU citizenship rights to take.[315] The proposal has received considerable support from the Commission and the European Parliament, as well as an indication from the Court of Justice that it would wish to be involved in considering the implications for judicial review if there were to be a large scale revision of the existing approach to the protection of fundamental rights in general.[316] Support for the general clause has also come from a wide range of non-governmental organisations which have sought to intervene in the process of constitution-building - although the extent to which their voices will be or have been heard has to be doubted to a considerable degree. The strongest level of support has been for the adoption of, at the very least, an EU-level prohibition on discrimination on grounds of race, but should that narrow proposal receive support it would, coupled with the other `grounds' already accepted, raise the question why a generalised rather than itemised approach to the issues of discrimination and equality should not be adopted.
If the Member States were to insert a general clause prohibiting discrimination into the EU Treaties, and if they were to leave a wide discretion in the interpretation and enforcement of that clause to the courts, it would be following the lead taken at state level in terms of the process of constitution-building by, amongst other countries in recent years, Canada and South Africa. Canada adopted a Charter of Fundamental Rights and Freedoms in 1982 as part of a process of adopting an autonomous constitution and separating itself from the constitutional heritage of the United Kingdom. [317] The interpretation of the clause by the judiciary has been broad, both in the sense of the groups not specifically mentioned which have been brought within the ambit of the clause (non-citizens; gay men and lesbians, public housing tenants), and also in the `test' of equality which has been applied. Because the test has focused on concepts of disadvantage rather than differential treatment per se it has been easier for the courts to fit a variety of circumstances of socio-economic inequality into a process of ever-increasing enfranchisement of all citizens.[318] On the other hand, the promise of `rights' has not been universally accepted in commentaries upon the Charter, with a critique being developed from the political left in particular to the effect that the rights rhetoric of the Charter has been `nothing more than a buying off of progressive energy'.[319]
Even more recent is the acceptance of a new Constitution for South Africa by a special sitting of the South African Constitutional Assembly in May 1996, which contained not only provisions addressing the general problem of equality, but also, after an effective campaign spearheaded by a number of groups including the National Coalition for Gay and Lesbian Equality, a provision explicitly giving protection against sexual orientation discrimination.[320] In the light of South African history the careful crafting of equality provisions guaranteeing respect for human dignity was to be expected; less to be anticipated was the successful lobbying of groups representing interests such as those of gays and lesbians for a form of inclusionary equality policy, since the history of the legal treatment of gays and lesbians in South Africa has been one of considerable repression reflecting a society in which to be openly homosexual has not until recently been a realistic life choice.
It should not be thought, for example, that the process of constitution-making in South Africa has been hijacked by monied and influential groups perverting a directionless process to their own ends. Both constitutional documents were only adopted after widespread democratic consultation, of a type which is not going to occur at least before some form of Treaty is adopted at the conclusion of the IGC. The sense of popular involvement with the text ultimately adopted is simply not going to occur; on the contrary, the Treaty when concluded will be a tablet of stone handed down as a result of a highly impervious process of compromise and negotiation based largely on single-stranded perceptions of the national interest represented by those present at the negotiating table. In circumstances involving an element of popular involvement or even struggle, the inclusion of new rights becomes more than pure symbolism[321] and becomes itself part of the process of constitution-building from below. This lies within the tradition of `new constitutionalism', which is more than just the process of engineering a new constitutional settlement based on the charismatic perceptions of worthy political leaders, but involves incorporating what Tully has called the `politics of cultural recognition' into constitution building itself.[322] The politics of new constitutionalism explicitly recognise that the process of constitution-making is also part of the process of shaping new communities - a point which feeds neatly back into the earlier discussion of relationship between EU citizenship and `European identity'. Given the wide-ranging perceptions of constitutional values which might be fed into such a `European' non-discrimination clause - a point well illustrated by the saga relating to abortion information and the Irish Constitution in the Grogan case[323] - the fostering of a full public debate seems an essential prerequisite to constitution-building in this field.
In December 1996, the Irish Presidency published a draft revision text for the Treaties comprising a proposed new Article 6A EC which would empower the Council, acting unanimously, on a proposal from the Commission, and after consulting the European Parliament, to adopt appropriate measures to prohibit any discrimination based on an enumerated list of factors, namely sex, race, ethnic or social origin, religious belief, disability, age or sexual orientation. The weakness of this proposed clause is that it does not specifically enshrine new rights, providing instead a legal basis which relies for its full completion upon the possibility of achieving a political consensus for action amongst the Member States and the institutions. This can only occur after the conclusion of the IGC and the ratification of any new Treaties by the Member States.[324] Interestingly, however, the Presidency draft does contain a number of provisions which specifically strengthen the existing Treaty provisions on sex equality, reflecting, perhaps, an immediate concern with the effects of the Court of Justice's judgment in the Kalanke case [325] where it significantly limited the ability of Member States to construct positive action programmes through national legislation, in order to offset the effects of historical and structural disadvantage in the labour market faced by women. The most significant change suggested is to include in Article 3 EC a paragraph specifically concerned with `inequality':
`In all the activities referred to in this Article, the Community shall aim to eliminate inequalities and to promote equality between men and women.'
This concentration on the already well-developed field of sex equality,[326] which contrasts with the failure to broaden the EU's concerns with rights and discrimination issues into other fields, probably reflects the strength of a coalition of interests in this area, including the Commission, the European Parliament, a number of Member States and sub-national governments within the Member States, and non-governmental organisations of a national and transnational nature. This coalition of interests appears to have the strength to shift the IGC agenda, but perhaps only in ways which are relatively uncontroversial given the widespread `mainstreaming' of equal (gender) opportunities as an economic as well as a rights issue in many political fora.
Returning again to the Marshallian model, on which this part of the paper is based, we see that the `political element' of citizenship means
`the right to participate in the exercise of political power, as a member of a body invested with political authority or as an elector of the members of such a body. The corresponding institutions are parliament and councils of local government.'[327]
Looking then to the political rights of EU citizens, and extrapolating what Marshall says to the `supranational' level, problems and contradictions quickly emerge. On the one hand, La Torre seems to suggest, applying a liberal conception of citizenship, that political rights are the most important adjunct of membership of a community.[328] On the other hand, d'Oliveira warns that[329]
`the political dimension of [EU] citizenship is underdeveloped. The instruments for participation in the public life of the Union are lacking as this public life itself, as distinguished from the public life in the Member States, is virtually non-existent: a weak Parliament, next to no direct access to the European Courts, and so forth.'
Laffan echoes this point in very similar terms:[330]
`The European Union does not represent a shared public realm in any meaningful sense of the term. The novel idea of transforming diplomacy into democracy faces considerable barriers.'
The practice of democracy [331] at the EU remains a pale shadow of the national `versions' on which the EU still, in truth, largely depends for a large degree of its legitimacy. It seems reasonable to suggest with Lenaerts and de Smijter, [332] however, that the forms of democratic representation of popular interests in the EU comprise not only the European Parliament itself, but also other bodies such as the Committee of the Regions and the Economic and Social Committee. As they put it,[333]
`the legitimacy of the exercise of public authority by the European Union requires a system of democratic representation of the citizens of the Union which takes into account the several kinds of loyalty of the citizens corresponding to the communities to which they belong.'
In other words, there is an intimate link between giving effect to principles of democracy and the complex identities of EU citizens, who enjoy links also to national and subnational political entities. In the formation of transnational identity sketched by Breton, citizenship input into decisions constitutes a means of reducing the gap between individuals and organisations, and thus of enhancing citizenship.[334] The message from the EU is a little mixed: Article A TEU proclaims the importance of `closeness to the citizen', one political adjunct of the subsidiarity principle. On the other hand, so long as the European Parliament is elected on the basis of `national quotas' of members, it will not be a truly `European' institution, although the extension of the franchise allowing all those EU nationals resident in a given Member State to vote for the members elected in that state, by virtue of Article 8B(2) EC, represents a significant change in the electoral basis of that institution.[335]
There is also widespread support for the notion that the symbiotic relationship between the European Parliament and the national parliaments needs further development to enhance `parliamentary Europe' at the expense of a `Europe of executives'.[336] Democracy will likewise remain weak so long as political parties remain organised almost entirely at the national level alone,[337] and in the absence of a real EU-level media capable of acting as a conduit for a concept of the public interest at that level. In the post-Maastricht EU, however, perhaps the most discussed facet of political life has been the notion of `transparency': [338] it is this concept which is identified as capable of suggesting an effective transition from the conventional secrecy of diplomacy to a notion of `public' democracy in every sense.[339] Transparency in the EU comprises two main elements. [340] The first is access to information by the public, who can, if properly informed, participate more fully in political debate. The second concerns the fact that the main decision-making body in the EU, the Council, continues to operate almost entirely behind closed doors.[341] It continues to legislate in secret, although it has introduced a very limited number of public sessions. Little information is put into the public domain about the legislative process, with mandatory publication even of voting records introduced only in 1993.[342] The position is eloquently summed up by Twomey: [343]
`At present the work of the Council is carried out in a culture of secrecy, tempered by leaks, official and unofficial, and ministers putting inflections on Council proceedings for consumption by domestic electorates.'
Thus although the post-Maastricht `transparency' debate has touched each of the institutions, with the Commission revising some of its policies on public access to information, closest attention has been paid to the manner in which the Council has reacted to the challenge of more open government.
Examining the approach taken by the Council yields disappointing results. There is no Treaty article enshrining a general principle of `open government', or the citizen's right to information. That said, in Netherlands v. Council the Court held
`the domestic legislation of most Member States now enshrines in a general manner the public's right of access to documents held by public authorities as a constitutional or legislative principle. In addition, at Community level, the importance of that right has been reaffirmed on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions. Moreover, (...) the European Council has called on the Council and the Commission to implement that right.' [344]
The Court also refers to a `trend, which discloses a progressive affirmation of individuals' right of access to documents held by public authorities', and a departure from the Council's previous working practices based on a principle of `confidentiality' (not `secrecy', in the language of the Court!).[345] The approach of the Court is somewhat less affirmatory of such democratic rights than that taken by Advocate General Tesauro, who refers approvingly in his Opinion to `openness of decision-making processes' as
`an innate feature of any democratic system and the right to information, including information in the hands of the public authorities .... (as) a fundamental right of the individual.'[346]
He finds the basis for the right to information
`in the democratic principle, which constitutes one of the cornerstones of the Community edifice, as enshrined now in the Preamble to the Maastricht Treaty and Article F of the Common Provisions. In the light of the changes which have taken place in the legislation of the Member States,[347] the right of access to official documents now constitutes part of that principle. It is the essential precondition for effective supervision by public opinion of the operations of the public authorities.'[348]
The rather vague and diffuse nature of the so-called sources of such a right to information within the EU system, as found by the Court and the Advocate General, emphasise the urgency for a clarification of these questions at the constitutional level in the context of the IGC which began in March 1996.[349] The implementation of the principles, particularly by the Council, is also a matter for concern. The immediate post-Maastricht period - building on Declaration 17 referred to by the Court - saw a proliferation of `soft' measures in the field of transparency. In particular, the Commission adopted a Communication entitled `Public access to the institutions' documents'[350] and the Commission and Council adopted an interinstitutional agreement in December 1993, taking the form of a Code of Conduct enumerating the principles governing public access to documents in their possession, and committing themselves to the implementation of the principles before the beginning of 1994.[351] For the Council, implementation took the form of a change to its Rules of Procedure, Article 22 of which now provides that
`The detailed arrangements for public access to Council documents disclosure of which is without serious risk of prejudicial consequences shall be adopted by the Council.'
Acting on the basis of Article 151(3) EC, which empowers it to adopt its Rules of Procedure, and Article 22 of the Rules, the Council then adopted a Decision setting out detailed modalities for public access.[352] That Decision lays down a general principle of the `professional secrecy' of the deliberations of the Council, unless it decides otherwise, and then sets out cases where the Council `shall not' disclose documents, and cases where it `may' do so. In particular, under Article 4(2), access to a document may be refused in order to protect the confidentiality of the Council's proceedings. Despite the apparently clear contradiction between that statement, and the supposedly immanent principle of open government, the rules laid down by the Council have survived serious scrutiny.
Curiously, the Court of First Instance was faced with an appeal by a citizen refused access to certain documents (which essentially addressed questions of process), before the Court of Justice was able to decide upon a more fundamental challenge brought by the Netherlands to the legal basis of the Council's measures. In Carvel v. Council, an application brought by a journalist and his newspaper, who were refused access to certain Council documents, and who had followed the procedures laid down in Article 7 of the 1993 Decision, the Court of First Instance gently chastised the Council for the `blanket' way in which it was operating its self-imposed rules, requiring that the discretion which the Council has arrogated to itself be exercised on an individual basis.[353] This precipitated some changes to the procedural rules operated by the Council,[354] but the evidence of a further systematic campaign to obtain release of documents in the politically sensitive and exceedingly secretive arena of Justice and Home Affairs by the UK journalist Tony Bunyan indicates that the (majority of the) members of the Council remain reluctant in practice to release many documents.[355]
Subsequently, the Court of Justice rejected the challenge brought by the Netherlands (with the support of the European Parliament) to the legal basis of the transparency rules.[356] The Netherlands challenged the use of legal bases concerned with the internal organization of the Council's work for the purposes of giving effect to a fundamental right. It suggested that this manner of proceeding also infringed the balance between the institutions, because it excluded the European Parliament - which in many important areas is now a co-legislator, and at the very least has the right to be consulted in other fields. Although the Court did acknowledge the existence of the principles of open government which underlay the arguments made by the applicant government, it rejected the application on the merits, finding that
`so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organization, which authorizes them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration' (emphasis added).[357]
Thus, far from acting wrongfully, the Council had in fact acted as it should; the irony of the Court's finding lies in the fact that for purposes such as the adoption of document disclosure rules or a basic rule of freedom of information, the Community legislature would, for all practical purposes, be the Council given that such a measure would undoubtedly require adoption by unanimity, probably under Article 235 EC. The Council as an institution therefore escapes censure because of the failure of action on the part of legislature. The Court also rejected the plea based on institutional balance.
As Curtin comments, there is an ongoing (and still unresolved) dispute about
`the legal nature of the principle of freedom of information in the Union context: the Dutch emphasise the fundamental (at least from the perspective of democratic philosophy) nature of the principle and maintain that the primary purpose of the Decision was to regulate the openness of the administration for third parties. On the other hand, the other members of the Council (with the probable exception of the Danes) are convinced that the Code of Conduct and Council Decision constitute a simple policy orientation adopted by the Council in the interests of its own good administration, subject as a matter of course to the other rules of its Rules of Procedure as well as the stringent and discretionary exceptions outlined in the Decision itself.'[358]
It is difficult to escape the conclusion, despite the wording adopted by the Court of Justice, that the EU has not adopted a rights-based approach to the question of transparency. There has not in truth been a thorough-going espousing of the principle of open government, incorporating also concrete rights for individuals, although the applicants in Netherlands v. Council may be partially satisfied because the Court showed some willingness to `find' a principle of open government in the system of the Union Treaties. The link back to the construction of EU citizenship is made by Armstrong. [359] Relating the wide-ranging exclusion of the citizen from EU decision-making processes, and from the construction of EC law, he comments:
`There is (...) a paradox at the heart of the concept of Union citizenship. The concept of citizenship has been invoked as a counterbalance to the seemingly remote institutions of the EU in order to attach political legitimacy to EU governance. However, the essentially inter-institutional nature of EU governance has not changed leaving the Union citizen as a rather ambiguous identity within the Union's political and legal systems. (...) At no point does John Carvel as a Union citizen ever become constructed in the Court's mind.'[360]
Returning to the cautionary comments about a rights-based approach to citizenship entered above,[361] it is worth recalling the limited ability of courts to construct and then resolve public interest issues through the frame of litigation and case law.[362] On the other hand, the progressive development of administrative law in many jurisdictions in recent years has highlighted the capacity of judges to find justiciable issues in many unexpected places and to act as a real fetter upon arbitrary or excessive state power.[363] The Council has already begun to show signs of irritation with public interest applicants, arguing in relation to the efforts made one applicant in particular - the editor of the Statewatch on civil liberties, Tony Bunyan - that these are not made in the public interest, but are vexatious.[364] Now the EU courts are being faced directly with the question of freedom of information as a public or a private issue in a further case brought before the Court of First Instance by disappointed applicants for documents to the Council. In its defence statement in the case brought by the Swedish Journalists' association and made available on the internet by the applicant association the Council appears to assert that a `general and political interest' in seeking documents should be a reason for denying the applicants standing to challenge the Council's decision refusing access.[365] Furthermore, because the applicants already had the documents they were seeking from the Council, having taken advantage of Swedish freedom of information laws, it was likewise suggested that their application to the Court of First Instance should be dismissed because it was brought for the wholly frivolous reason of checking up on the Council. As the Council `owns' its own documents, it is Sweden which is in breach of its Treaty obligations by virtue of having released them to the applicants under its own laws! Finally, it is interesting to see how the practice of citizenship and the rights of citizenship can swiftly become closely intertwined. The release into the public domain by the defendants in Tidningen Journalisten of the confidential Council defence pleadings which seek a narrowing of the interpretation of one citizens' right - that of access to justice - highlights the power of new technology for the rapid diffusion of information to a wider audience. It raises also the question of the extent to which proceedings before the Court should also be subject to the principle of transparency in cases involving public rather than private interests.
The Irish Presidency draft of December 1996, placing certain specific proposals on the agenda of the Intergovernmental Conference,[366] puts forward a new right of access to be included in the EC Treaty. Article 192A EC would provide:
`Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to conditions which shall be laid down by each of these institutions under its own rules of procedure. General principles and limits governing the exercise of that right may be determined by the Council, acting in accordance with the procedure referred to in Article 189B [the co-decision procedure].'
A new paragraph in Article 151(3) EC would also clarify certain matters relating to the right of access to Council documents, and information about the workings of the Council especially voting records and statements in the minutes, in circumstances where the Council is acting in its legislative capacity. The terms of the draft Article 192A EC seem to suggest a rather minimalist approach to the constitutionalisation of the right of access, allowing a very significant margin of appreciation to the institutions in restricting access, and especially to the Council as legislator in laying down general principles. The relationship between such a provision and any measures adopted thereunder and the `unwritten' general principle `found' by the Court of Justice in Netherlands v. Council would have to be clarified.
By way of a conclusion, it needs to be affirmed that there are good reasons - particularly in a polity like the EU where there exists such a wide gulf between the institutions and individuals, as interlocutors - for the Court of Justice to intervene to secure the preservation and enhancement of certain types of individual rights, as citizenship rights in the political domain. One such right might be the so-called `giving reasons requirement', laid down in Article 190 EC as a prerequisite for all valid EU measures. Shapiro links this provision back to the belief held by Carl Friedrich that
`the very concept of political authority, or indeed any kind of authority, implies the capacity to give reasons.'[367]
Both Shapiro, and Craig and de B?rca,[368] have argued for the mutation of the giving reasons requirement into a participation right, forcing the Commission, in particular in its administrative processes, to enter into dialogues with those who put forward arguments in favour of or against the adoption of particular measures.[369] So far the conclusion must be, however, that citizens' (enforceable) good governance rights are exceedingly limited.
Reference should, of course, be made to the creation of the office of a European Ombudsman by Article 138E EC, an appointment made by the European Parliament, the confirmation of the right to petition the European Parliament (Articles 8D and 138D EC), and the power given to the European Parliament to set up temporary committees of enquiry to look at complaints of maladministration within the scope of the EU's activities (Article 138C EC). One point which needs to be made is that these rights (like indeed rights of access to the EU courts, and the limited transparency rights sketched out in this section) are not limited to EU citizens. Political participation rights might be thought constitutive of identity in the context of the development of a concept of citizenship, but they seem less likely to be so if they do not attach themselves sufficiently explicitly and exclusively to the legal definition of EU citizenship. On the other hand, if the boundaries of EU citizenship are not so much the exclusions and inclusions stated in Article 8 EC, but the actual scope of application of the EU legal order, then that might suggest that there is a real and effective link between such political participation rights and a developing notion of post-national membership of the European Union.
The third and final element of citizenship, according to Marshall, is the social element. This means
`the whole range from a right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilised being according to the standards prevailing in the society. The institutions most closely connected with it are the educational system and social services.'[370]
In comparison with the first two elements of citizenship discussed above, it will be apparent that the definition given here contains a stronger element of description and little of a normative character about the foundations of social citizenship. On the other hand, it is the social element of citizenship, in particular, which needs to be understood in the light of social class, understood as a `system of inequality'.[371] Moreover, Marshall also goes on to link `social rights' and the `civilised' evolution of society by stating that
`social rights imply an absolute right to a certain standard of civilisation which is conditional only on the discharge of the general duties of citizenship.'[372]
It is to be anticipated that the social institutions of citizenship in this domain will manifest numerous tensions which derive from the environment in which they operate. For example, there may be tensions between the (industrial/social) citizenship rights of workers organized collectively as members of trades unions, or exercising the `right' to strike, and the (civil) citizenship rights of property and freedom to trade of employers. Significantly, it is frequently the courts which have been called upon to adjudicate between such conflicts.[373]
In Section II of this paper we did examine briefly the normative foundations of social citizenship. It was identified as requiring particular attention to be paid to the search for an active, participatory conception of citizenship which gives the individual the full membership rights which citizenship, as an ideal, constantly seeks, as well as providing an adequate level of focus on the collective security rights of any given community. A number of constructive suggestions which successfully combined these individual and collective elements were highlighted, in particular some of the contributions put forwrd by feminist analysis. However, moving to the level of the EU, the idea of a European social citizenship may seem profoundly misguided for a number of different reasons, however desirable it might be from the perspective of providing a means of giving expression to full membership of a community. One principally formalistic reason concerns the limited competence of the European Union to legislate and regulate in the broad domain of `social policy'. Another reason is because the fissures appearing in the (national) social fabric, with the breakdown of the post World War Two social democratic consensus and the increased polarization of society, cannot hope to be sealed at the EU level given the difficult ratification process which the Treaty of Maastricht underwent, and the scepticism concerning a form of identity for `Europe'. On the other hand, social citizenship concerns not just the welfare state aspects where the EU does indeed lack comprehensive regulatory competence, but it also covers broader questions about how an individual lives as a respected and full-participating member of any given socio-economic system, in particular the type of mixed economy/social market system which is - in very broad generalising terms - to be found in the European Union and its Member States.
Thus EU social citizenship has to be read against a broader canvas of (socio-)economic citizenship. Taking this as a starting point, three types of economic citizenship can be distinguished, comprising market citizenship, industrial citizenship, and welfare citizenship, although as the analysis below will show, it may be unhelpful to draw distinctions which are too sharp. To this should be added the somewhat amorphous and also rather contentious dimension of `cultural' citizenship, which comprises the efforts made principally by the Commission to bring about a stronger sense of European identity `from above' through measures such as the European passport, anthem and flag. It will now be apparent that framing `social citizenship' in these terms invites an assessment of substantially the full range of EC social and economic law in so far as this constructs the scope of individual rights or the collective situation of EU citizens, an endeavour well beyond the scope of a single paper. Consequently, the approach taken in this paper will be essentially schematic and exemplary, and is limited to an enquiry into the extent to which social citizenship as an EU phenonemon has contributed - or might in the future contribute - to the development of a conception of postnational membership.
The concept of market citizenship has already been introduced in this paper, specifically in relation to the question of the scope of the civil rights of EU citizens. Market citizenship directly links the individuals who are the beneficiaries of Treaty-based free movement rights, as construed by the Court of Justice, to the process of building a single market without internal frontiers. Overall, as has already been observed, it is the `market citizen' dimension of the EU citizen which has been most highly developed, both in terms of the range of rights made available (as consumer, worker, professional, employer, trader, etc.), which comprise passive and active market access rights (i.e. including the right to receive services or goods from other Member States, as well as information about such goods and services), and in terms of the legal sophistication of those rights.
An examination of free movement rights reveals the ever intensifying construction of the individual as a subject of EC law through, for example, a shift from `non-discrimination' understood as a negative protective principle to a situation in which individuals are seen as having directly enforceable rights. The evolution comprises a number of different facets:
- the development of a broader concept of `discrimination' to encompass not only `direct', but also `indirect' discrimination; this looks at the effects of a measure, rather than its `facial' appearance, and has been applied particularly in the field of free movement of persons; [374] - the development of a concept of `restriction' to govern many fields of market access, opening up greater possibilities for the free movement of goods and services with Member States frequently required to justify national market access rules which restrain interstate trade;[375] - the articulation of administrative and judicial `access' rights, opening up the effective enforcement of substantive EU rights; examples include the Heylens and Vlassopoulou cases.[376] These principles require national authorities to scrutinize qualifications held by a person seeking access to the market on a case-by-case basis, and give a right of judicial review against adverse decisions denying market access.
In the citizenship context, specific attention should be paid to the development of the range of rights associated with the status of `migrant worker' as part of the process of market building through free movement rights. Judicial developments continue to be extremely important for the range and reach of non-discrimination rights: the Court of Justice has recently held that a Belgian national employed on the local staff of the German embassy in Algiers enjoyed the benefit of the prohibition on non-discrimination on grounds of nationality laid down in Article 6 EC. [377] Here, however, the legislature has played a greater role from an earlier stage in the evolution of the EC/EU, particularly in the field of social security for migrant workers, through the construction of a system of coordination intended to ensure that migrant workers do not lose entitlements to benefits as a result of exercising the right of free movement. In terms of preparation for market citizenship, the coverage given to education and vocational training - most particularly for the children of migrant workers, but also in relation to students who are encouraged to take advantage of mobility opportunities - has both a specifically economic dimension regarding the development of the competitiveness of the European workforce, but also a cultural dimension relating to the development of `European' consciousnesses and some efforts to ensure the preservation of cultural heritages of migrant workers and their families. [378] In this context, `market' citizenship shades into a notion of `cultural' citizenship. Likewise, it should not be thought that the construction of market citizenship is normatively neutral in terms of gender. Ackers has argued for greater attention to be paid to the gender implications of the free movement of persons provisions, and of their application and enjoyment in practice,[379] and Scheiwe has questioned the differential treatment of notions of the `family' across EC law on sex discrimination and national discrimination.[380]
This reminds us that the principle of free movement has essentially remained a liberal market-based concept. In a discussion of the utility of a `social contract' grounding for EU citizenship, Closa argues that what remains an essentially negative formulation of non-discrimination constitutes an inadequate foundation for a principle of equality providing a basis for egalitarian citizenship.[381] To that extent, the market citizenship concept can be seen as a limited one, unless the concept of the single market itself can be given a wider meaning, perhaps comprising also the so-called `flanking policies', for example, on environmental or consumer protection.[382]
This leads into another dimension of market citizenship, which, like that concept itself, largely derives from the debates in the German literature.[383] This interrogates specifically the framework for `membership' and raises the question of the so-called `economic constitution' of the EU, and the question whether the single market framework explicitly links into one specific and normatively defined notion of a socio-economic system. In particular, it has been suggested that the EU single market is explicitly underpinned by a ordoliberal economic theory of the market, in which market freedoms are seen as intrinsic to the notion of human dignity as well as the upholding of freedom of contract and private property rights.[384] As Chalmers [385] has argued, there have been tendencies in the Court of Justice's case law which have suggested the influence of German schools of ordoliberal economic thinking, leading to the single market developing some elements of an economic constitution. In a sense these tendencies were logical in the early period of development of the single market through the interpretation and application of the central market freedoms, in that they enhanced the status of both the individual, and - at an institutional level - the Court itself as an arbiter of individual freedoms. However, as the process of market integration has deepened and conflicts between, for example, market freedoms and diffuse interests such as consumer protection or environmental protection have emerged more strongly, the pressure towards a central normative concept of the single market has ebbed away, leaving the Court constructing
`a system based on a series of segregated parallel legal orders, each structured according to its own internal points of reference. The result has been a redefinition of the single market in a manner which has diminished its scope and made it less seminal to the development of the integration process.'[386]
Grahl and Teague, in a paper which does not address those specific `free market' and `free trade' aspects of socio-economic citizenship in the EU discussed above, suggest that there are two principal institutional dimensions to economic citizenship: collective bargaining, allied to the institutional structures of employment and labour markets, and the welfare state. [387] The welfare aspects of citizenship are examined below, but the discussion here concentrates, like the Grahl and Teague paper, specifically on the issues raised by trade unions and collective bargaining. It is in this sphere of socio-economic citizenship that the impact of European integration has been greater than upon the institutions of the welfare state where (individual) redistributive mechanisms remain primarily in the control of the Member States. Grahl and Teague suggest a limited scope for the `industrial citizenship' aspect to be developed at a European level, at least partly in response to the difficulties at national level such as tensions between corporatism and flexibility in relation to labour market regulation, and high unemployment. Their model (which is explicitly portrayed as based on an optimistic (and probably unrealistic) reading of the development of the EU and its capacity for policy-making)
`responds to the important contemporary trend towards productive decentralisation, while preserving social integration. Our citizens are protected by regulation from the worst dangers of decentralised employment contracts and they are linked to their fellows by two key forms of association - professional organisations and the small-scale (and hence accessible) institutions of regional and local economies which together constrain individual behaviour to avoid opportunitism and to respect some general social priorities. While our citizens bear the risks associated with the decentralised economic agency they are assured against economic and social exclusion by the fact that public authorities are ready and able to finance employment in the last resort.'[388]
Feeding into this wish list, in their view, are policies in the four fields: labour market regulation; training, education and professional qualifications; regional policy to combat damaging spatial realignments within the European economy; and the promotion of employment. A full restatement of policies in these fields, including the contribution which each makes to the practice of citizenship within the EU, lies beyond the scope of this paper. Two specific developments could, however, usefully be mentioned. The first is the adoption - under the Social Policy Agreement and consequently without formal binding effect in law for the United Kingdom - of the Works Councils Directive.[389] Wheeler[390] has argued the case for Works Councils to be taken seriously as mechanisms for enhancing the `citizenship' of the employee within the business enterprise, albeit her conclusion is one of scepticism about the practical ability of these mechanisms to deliver upon their promise. Nonetheless the advent of Works Councils in all EU multinationals as a result of the Directive represents an important incursion by the EU as a legislator into the field of industrial relations. The second development of note is the adoption of the so-called Delors White Paper of 1993[391] which specifically linked the evolution of an enhanced EU-level concern about employment and unemployment with the desirability and feasibility of enhanced labour market flexibility.[392] Grahl and Teague warned that
`if it does not prove possible to define an effective EU employment programme then the prospects for citizenship must be bleak. Frictional or even cyclical unemployment may be compatible with a sense of shared economic status if there are adequate systems of social protection, but long-term unemployment, often appropriately described as a form of exclusion from economic life, necessarily corrodes any perception of a common relationship to political and economic structures.'[393]
The message of the White Paper must be, therefore, that so far as the EU may adopt proactive labour market policies, they will embed within them at least some elements of the deregulatory neo-liberalism pursued in some Member States. That perspective on industrial citizenship leads back once again to the `moral prestige of markets' which lies at the heart of the European Union.[394]
As Spicker notes,
`part of the aim of `welfare states' has been to invest citizens equally with a status entitling them to draw on the resources of the society.'[395]
This is not part of the mission of the European Union. `Solidarity', as Closa notes, is often invoked in EU rhetoric, and it receives a mention in Article A TEU.[396] However, since policies promoting solidarity are not listed amongst the Union's objectives in Article B TEU, he doubts whether or not the promotion of solidarity, `although a declarative principle, is...an objective for EU policies.'[397] The absence of solidarity, he concludes, is a barrier to the creation of both redistributive policies and social rights, upon which EU citizenship might then rest in the sense of being a `social contract'. Notwithstanding that scepticism, it should not be thought that there is no welfare dimension to EU citizenship or to EU policies, in the sense of a range of impacts upon redistributive mechanisms or policies, either through autonomous EU institutional action, or through the placing of constraints upon, or the reshaping of the goals of, national action. Part of the reason for the impact of the EU in this field lies in the close interrelationship between welfare and work, and the particular questions which this raises within a framework which presupposes the existence and regulation (or better, deregulation) of migration (here intra-EU migration). The point is well made by Rea:
`Denizens and foreigners acquired their legitimate social positions because of their status as workers. With massive unemployment and in countries where the process of naturalisation is difficult, their legitimacy is called into question: if denizens and foreigners work, they are taking jobs from nationals, and if they are unemployed, they are taking advantage of the hospitality they are offered. But the absence of full employment puts the question in broader terms: does citizenship have any meaning without work?'[398]
Without attempting to set out the full range of EU social policies, it is important to summarise and highlight the key elements of the so-called `social dimension' of the EU, with particular emphasis upon those which betray a specific welfare element in promoting individual and collective security for EU citizens. A good starting point is the Commission's 1994 (Flynn) White Paper on social policy.[399] The general frame used by the Commission for its discussion of social policy is a not uncontroversial notion of a `European social model', which is intended to suggest the essential elements of the `sort of society' which Europeans `want'. The Commission's model is shaped around certain shared values it claims to have identified:
`These include democracy and individual rights, free collective bargaining, the market economy, equality of opportunity for all and social welfare and solidarity. These values....are held together by the conviction that economic and social progress must go hand in hand. Competitiveness and solidarity have both to be taken into account in building a successful Europe for the future.'[400]
In line with this statement, the Commission then develops the `guiding principles and objectives' for future Union action in the field of social policy, namely:
- employment, and especially employment generation, as the key to social and economic integration; - recognising competitiveness and social progress as `two sides of the same coin'; - promoting convergence within a framework which respects diversity; - developing and enhancing a level playing field of common minimum standards.
The two most dynamic and proactive instruments which the EU possesses to achieve these objectives are those of regulation and law-making (either through legislation, or through the promotion and/or facilitation and adoption of Union-level collective agreements between the social partners), and financial support and incentives. Also available to the EU, and especially to the Commission itself as a policy actor, as complementary mechanisms for policy-making, are the promotion of mobilisation and cooperation (reminding us once more of the significance of the bottom-up dimension of citizenship), the dissemination on a strategic basis of information, and a continuing process of `collective reflection and coordinated action' within a view to analysing future trends.
Clearly, not all of these aspects either have been in the past, or will be in the future, equally developed by the EU and its institutions. There are a number of reasons for this, including the availability of relevant law-making powers within the EC Treaty and, more recently in the social policy sphere, within the Agreement on Social Policy from which the United Kingdom has `opted out'. These law-making powers are not always consistent and coherent in the intensity or nature of the legal powers they give rise to. The existence of an enormously complex EC law on sex equality is a good example of an area where the EU has successfully adopted regulatory policies in the social sphere. This body of law comprises many of the principles developing the concept of discrimination noted in relation to the example of market citizenship. This includes the concept of indirect discrimination, [401] a principle of effective remedies,[402] and a notion of transparency which brings about a partial reversal of the burden of proof in respect of breaches of the equal pay principle.[403] In contrast, there is no concept of race discrimination in EC law, even though its relevance to the EU integration processes is just as clear, if not clearer.[404] On the other hand, like many of the `social principles' of the EU,[405] sex equality law, whatever its complexity, remains essentially hidebound by a liberal market orientation, and an especially clear division between issues of work and family, between public and private spaces.[406] Most famously, in the Hoffmann case which was concerned with an attempt to extend `maternity' leave entitlements to fathers,[407] it declared that
`the (Equal Treatment) Directive is not designed to settle questions concerned with the organization of the family, or to alter the division of responsibility between parents.'
This reminds us that the organisation of the `welfare state' remains substantially in the hands of the Member States, and outside the competence of the EU. The continuing sensitivity of this proposition, in the light of the prevailing distribution of competence between the Member States and the EU, is clearly visible, in particular to the Court of Justice which has, on a number of occasions in recent cases concerned with the scope and effect of the Social Security Directive, intended to enshrine a principle of sex equality into the provision of social security benefits, has limited the effect of EC law by reference to the continuing discretion of Member States in the social policy sphere, allowing them, for example, the ability to reduce benefits across the board in the name of `equality', because of financial pressures on the institutions of the welfare state.[408] There has to be a sense of irony to this self-limiting ordinance, since it is precisely some of the processes of European integration (or perhaps, more accurately, some of the by-products of those processes) which generate pressures on national welfare states.[409] The possibility now exists that if the proposals on strengthen EU sex equality provisions contained in the Irish Presidency draft of December 1996 are taken up[410] a space may be opened up within which the underlying meaning of `equality' and `inequality' may be debated, in a way which challenges the primacy of a limited economic or marketplace orientation in which public and private spheres are segmented.
One reason why, at least until very recently,[411] EC social law has remained the `Cinderella'[412] or poor relation of other EU policies, has been that the general weakness of the law-making provisions (at least in comparison to those on the Single Market or other `flanking policies' such as the environment or consumer protection) has meant the institutions have been unable to indulge their `preference' for regulatory policies which shift the burden of enforcement onto the Member States, and even on to citizens, because of the judicial liability policies formulated by the Court of Justice.[413] That regulatory phenomenon (the `regulatory state' and `regulatory federalism') has been interpreted by writers such as Majone as part of a wider trend, encompassing also the Member States themselves. He writes of a shift from the `Keynesian welfare state' to the `regulatory state'.[414]
Turning to the second main instrument of action - financial support, particularly that focused on redistributive policies - leads us to another area of EU social policy, understood in its widest sense, which is now, belatedly, becoming relatively well developed. That is the policy on economic and social cohesion. [415] `Solidarity' between the Member States, and a policy comprising the `strengthening of economic and social cohesion' has represented an increasingly high profile EC/EU objective since the adoption of the Single European Act in 1986. The greater financial disparities between the Member States, especially since the Mediterranean enlargements, as well as the structural changes mandated if the single market programme (and now the move to EMU) was to be a holistic (as opposed to a narrowly neo-liberal) success have contributed heavily to an ever-growing budget line for the EC. Structural policy funding is anticipated to be running at 30-40 per cent of the budget by the turn of the century, although there remains little firm evidence that these policies either have, or will, significantly contribute to the reduce of regional disparities or inequalities within the European Union.[416] It is worth commenting upon the level at which these policies operate, however. The reference is to solidarity between the Member States (not citizens, or peoples), and the policies are not `tax-and-spend' policies in the classic sense since the taxes are `levied' (as EU own-resources) on the Member States, not upon EU citizens directly. This will undoubtedly have an impact upon the extent to which such policies can generate citizen loyalty,[417] or command a degree of legitimacy. Even so, anecdotal evidence indicates that the strong support given by the citizens of Eire to the Treaty of Maastricht in 1992 referendum was not unrelated to `promises' of additional funding, and `threats' of loss of funding, through the medium of the EU's structural funds.[418] Moreover, in terms of the development of a Europe of the regions, it is interesting to note some evidence that the operation and management of the funds may have led to a reduction in the autonomy of central governments, even in centralised states such as the United Kingdom, and an intensified relationship between the European Commission itself and sub-national governments and agencies, [419] often mediated through the concept of `partnership'.[420] However, a cautionary note must be sounded about the ability of `citizens' and representative organisations to control some aspects of the management of the structural funds and the disbursement of monies by the EU, bearing in mind the very limited possibilities of access to justice for `non-privileged' applicants under Article 173 EC. [421]
By the term `cultural citizenship' is meant in this context those aspects of EU policy-making which are specifically intended to strengthen the edifice of European integration by feeding into a notion of `European identity'. It is difficult, as was noted above,[422] to identify a wholly separate notion of `cultural citizenship', especially when the focus is turned to the rights of migrant workers, their families, and other beneficiaries of the EU's free movement policies. Likewise, the divide between rights articulated under a rubric of cultural citizenship, and the group of civil rights discussed above, especially fundamental rights,[423] is not always clearcut. The point becomes especially clear on a review of one contribution specifically on the `Citizens' Europe' debate which examines under the headings of `personal', `political' and `cultural' many of the rights of `citizens' already examined elsewhere in Section IV. [424] However, the point to be made is that there remain two further purposes in looking directly at the issue of cultural citizenship: first, it is useful to direct attention specifically at the types of policies self-avowedly aimed at creating this notion of a `Citizens' Europe', developed ever since the Paris Summit of 1972 identified the goal of European Union, and especially the process whereby those policies have been introduced and developed; and second, although EU `cultural' policies are often derided as being useless/irrelevant or alternatively dangerously culturally imperialistic, they merit a mention as the clearest example of an attempt to create a `top-down' notion of European identity. They offer an opportunity, therefore, to link together the identity and rights branches of the citizenship figure, specifically at a level which is less abstract than the notions of a European political identity developed by writers such as Weiler and Habermas.[425]
It is interesting to interject here that many of the most analytic works on EU policy-making [426] devote little if any attention to policies within the cultural dimension, perhaps because they remain formally relatively underdeveloped compared, for example, to agricultural or competition policies, and perhaps also because they comprise overall a rather diffuse sector, incapable of encapsulation within a single notion of a `policy style',[427] or lacking a single organising conception more useful than the notion of a Europe of `Citizens' or `People(s)'.[428] On the other hand, as the publication of a book entitled Culture and Community Law. Before and After Maastricht has made plain,[429] notions of culture need to be read carefully into the application and interpretation of EC law at a number of different levels, including internal market and competition law and policy. This analysis shows particularly clearly the constraints that EC law places upon the furtherance of national cultural objectives and policies, notwithstanding the provisions in the Treaty on European Union and the EC Treaty guaranteeing the preservation of national identity (Article F(1) TEU) and the promotion of the `flowering of the cultures of the Member States while respecting their national and regional diversity' (Article 128 EC). In terms of the increasing involvement of the EU institutions in the field of culture, it should be noted that Article 128 EC also refers to the need to bring `the common cultural heritage to the fore.'
So far as concerns the particular linkage of `culture' and `citizenship' in current political practice, policy on education and, to a lesser extent, vocational training can be seen as a flagship of `cultural policy', although its less controversial reference points are the interests of migrant workers and their families, and the need for a highly qualified and flexible workforce within the European Union. Reference should also be made to the Commission's policy priorities in the field of broadcasting,[430] and to the continuing flow of `new symbols and initiatives'[431] many of which stem from the Adonnino Reports on a `People's Europe'.[432] These include the European passport and driving licence, the European anthem, the European flag and `consciousness-raising initiatives' such as `European years'. 1997 is European Year against Racism.[433] The interest lies not so much in a sober consideration of the empirical effect of such measures on citizens' consciousnesses but on the contradiction, highlighted by Shore and Black[434] between official and semi-official rhetoric[435] which lauds the remarkable strides towards the creation of `European identity' and the appreciation of the officials themselves in policy-making that European identity cannot, of course, be imposed from above. As this paper has consistently emphasised, cultural citizenship is more likely to result from `citizenship practice' linked to the development of a European civil society; in that context, the emphasis must at the present time be upon the development and articulation of political and civil rights, rather than manipulations of uncertain or unhappy cultural constructs. As Wiener has shown in a detailed case study[436] the institutions have also shown a great deal of institutional imagination in their management of the available `resources of citizenship', in order to build from a framework of rhetoric into the constitutional outcomes of the Treaty on European Union and Article 8 et seq EC following the Maastricht IGC. Hence it is important to see elements of cultural citizenship within the broader framework sketched out by this paper, where it is the historical process of learning as well as the emergence of citizenship practices from below which constitute the most significant features.[437]
One element of a rounded conception of citizenship which has received little attention in the EU context of the so-called duty problem. This is so, even though the EC Treaty now provides that Union citizens not only enjoy rights under the Treaty, but also `shall be subject to the duties imposed thereby' (Article 8(2) EC). The topic of citizenship duties is by no means uncontroversial. Meehan suggests the following as a possible, but by no means certain, list of citizenship duties:[438]
_the duty to obey lawful rules;
_defence of the country (perhaps through physical force, if necessary);
_duty to pay taxes;
_willingness to work;
_duty to vote.
However, as she points out, the identification of specific duties is always difficult when it can - in philosophical or theological terms - be postulated that human beings owe duties to a `higher' authority of moral right than the communities or collectivities in which they live.
It is perhaps simpler to frame the issue in more general terms such as `the willingness to and possibility of helping with the construction, maintenance, and improvement of the collectivity'[439] or as `allegiance' or `loyalty', without being specific on the duties involved. Seen in these terms it is the obvious correlative of identity, and conforms to a human need for in-groups.[440] Everson discusses the issue of allegiance with particular reference to the figure of the `market citizen',[441] a matter which she describes as the `most pressing concern' at the present time.[442] The tendency of any discourse of citizenship duties is to construct the figure of the citizen in the light of some conception - however vague - of moral virtue.[443] Individual moral virtue in the marketplace is an extremely difficult notion to construct, since the primary moral of the market should be to promote rational self-interested behaviour. As Everson comments, `market citizenship cannot by itself create allegiance',[444] but in order to foster allegiance there is a need to go beyond the utilitarian identities which Breton remarks as being those most likely to be fostered by a transnational polity such as the EU.[445] The duty problem is not a separate issue from the questions of institutional innovation, or citizenship practice, which have formed the primary focus of the discussion throughout this paper. Since many rights and duties are so closely linked (right to vote/duty to vote; right to social security/duty to work), the two sets of problems are soluble at the EU level, if at all, together rather than separately.
Although this review of EU citizenship rights and duties has been schematic and often merely exemplary, it has not been brief. It will be apparent that there exist a wide range of rights which betray a citizenship character, although they are not equally well-developed. Moreover, by no means all are to be found in the current `citizenship provisions' of Article 8 EC et seq. Those latter provisions at present constitute what Weiler terms the `rather laughable effort to pad citizenship rights', and it is interesting to note that his preferred outcome for the IGC would be a bald statement of the existence of citizenship as a rights-based status in Article 8, with all other rights to be derived from the other provisions of the Treaty.[446]
However, it was not intended that the review would be purely, or evenly primarily, enumerative, but that it would illustrate the points made in earlier sections about the nature of EU citizenship in the dual perspectives of citizenship theory and integration theory, and would offer some empirical insights as to whether EU citizenship could in truth be called an incipient form of `postnational membership'. Like the review itself, therefore, the conclusions will be schematic rather than comprehensive.
The version of the `postnationalism' thesis developed in this paper has focused upon reciprocal reinforcement between a notion of `community' or `identity' which is neither statist nor ethnicist, but rather derived from a politics of the public and private spheres within the European Union, and a body of rights expressing the ever-increasing stake which citizens enjoy in the legal, political and economic processes of European integration. In that context, an active and participatory conception of `social citizenship' has been identified as an ideal-type outcome for EU citizenship. Ultimately it has to be admitted that there is so far no conclusive evidence of the emergence of a concept of postnational membership along these lines.
The first point to mention is the formalistic adherence to the use of Member State nationality in order to define the boundaries of European Union citizenship. Yet third country nationals do in practice enjoy many of the rights which are the actual adjuncts of citizenship (e.g. access to the EU courts, right to complain to the European Ombudsman or to petition the European Parliament, and some of the socio-economic rights which derive in particular from market citizenship). This raises the question of the uncertain boundaries of EU citizenship: are they constituted by the formalistic definition in Article 8, or by the actual contours of rights, including rights of access and rights of participation conferred under the Treaties, secondary legislation and the jurisprudence of the Court of Justice? It is useful here to refer back to the warning delivered by Mouffe:[447] in so far as the politics of citizenship is part of a broader radical or democratic politics concerned with the search for a `new social justice' which recognises and supports `difference' as well as `equality', it is important to create a balance between the promotion of citizenship as an exclusionary concept, and an inclusionary concept of individual justice. It is precisely within this terrain that the concept of postnational membership offers the possibility of overcoming the potential conflicts between the interests of `citizens', and those of `individuals'.
Second, it is important to reinforce the vital importance in the citizenship context of the legal framework offered by the supranational legal order principally shaped by the hands of the Court of Justice. Throughout this paper, it has been stressed that citizenship is not only a legal concept, but also an expression of political community and socio-psychological identity. Legal rights, with their normative dimension and formal resistance to encroachment,[448] are nonetheless important, and in that respect the EU with its relatively `effective' legal order offers at least a good starting point for the development of a transnational, even a postnational, membership concept.
A third point to reinforce is the continuing influence, across the full range of citizenship rights highlighted in this section, of the (single) market concept. In so many ways, the market framework remains the raison d'Ítre of European Union, and so long as it does it is imperative to see the multiplicity of points at which it is `knitted into' the constitutional fabric. It is impossible to understand fully the citizenship figure in the European Union without recalling at every point that it is a figure developing in a transnational market context. It is interesting to speculate to what extent Treaty amendments enshrining a new figure entitled an `area of freedom, security and justice' might mark a decisive shift away from market orientation. However, since documents so far issued[449] are notably vague on the questions of `whose freedom?', `whose security?', and `justice for whom and by whom?', it seems premature to be overoptimistic about the possibilities of this figure for generating a more active and participatory concept of citizenship.
Finally, specific mention should be made of the extent to which `social rights' in the broad sense in which they have been developed in this paper are an emerging feature of the European Union. This section has highlighted the very uneven development of this facet of policy-making, but has equally suggested that there is cause for some tempered optimism with regard to the ability of the European Union, through a combination of constitutional development and policy-making activity, to contribute a more rounded citizenship figure.
[233] See supra at n.27.
[234] See generally the analysis by Della Sala and Wiener, op.cit. supra n.32.
[235] See also the Commission and Parliament website on citizenship `Citizens First': http://citizens.eu.int/ focusing on the rights of citizens working in other Member States.
[236] See supra at n.106 et seq.
[237] It is implicitly accepted by the Court of Justice: see for example Case C-355/93 Eroglu [1994] ECR I-5113. For a general discussion of the interpretation of such general provisions of the EC Treaty see Szyszczak, `Race Discrimination: the Limits of Market Equality?', in Hepple and Szyszczak, Discrimination: The Limits of Law, Mansell, London, 1992.
[238] See for example Liechtenstein v. Guatemala (Second Phase) (Re Nottebohm) [1955] ICJ Reports 4.
[239] Case C-369/90 [1992] ECR I-4329.
[240] [1992] ECR I-4329 at p4262.
[241] Hall, `Loss of Union Citizenship in Breach of Fundamental Rights', (1996) 21 ELRev. 129.
[242] Evans, `Union Citizenship and the Equality Principle', in Rosas and Antola, op. cit. supra n.27 at p100.
[243] See for example OJ 1981 C260/100; OJ 1993 C115/178; Report of the Committee of Institutional Affairs on Union Citizenship, Doc A3-0300/91, PE 153.099/fin.
[244] Marias, `From Market Citizen to Union Citizen', in Marias, op. cit. supra n.27 at p15.
[245] Article 10 of Regulation 1612/68, OJ Sp. Ed. 1968 (II), p475.
[246] Case C-43/93 Van der Elst [1994] ECR I-3803.
[247] As advocated, for example, by Carens, `Aliens and citizens: the case for open borders', in Beiner, op. cit. supra n.52 and ibid, `Realistic and Idealistic Approaches to the Ethics of Migration', (1996) 30 International Migration Review 156; contra Walzer, Spheres of Justice, Oxford: Martin Robertson, 1983. See also Wiener, `Ethics, National Sovereignty and the Control of Immigration', (1996) 30 International Migration Review 171.
[248] See generally van Amersfoort, `Migration: the limits of governmental control', (1996) 22 new community 243; M¸nz, `A continent of migration: European mass migration in the twentieth century', (1996) 22 new community 201.
[249] `Towards Equality: Actual and Potential Rights of Third-Country Nationals in the European Union', (1996) 33 CLMRev. 7.
[250] See for example O'Keeffe, `The emergence of a European immigration policy', (1995) 20 ELRev. 20.
[251] See Case C-370/90 Surinder Singh [1992] ECR I-4265 which appears to create enhanced rights of family reunification for British citizens married to third country nationals where they take advantage of the right of free movement, and then return to the UK. The application of British immigration rules on marriages (especially the infamous `primary purpose' rule) is then restricted.
[252] Cases 281,etc/85 Germany et al v. Commission [1987] ECR 3203.
[253] (1991) I.L.M. 425.
[254] See for example the recently adopted Visa Regulation establishing a list of states whose nationals require a visa when crossing the external frontiers of the EU, adopted under Article 100C EC: Council Regulation 2317/95 OJ 1995 L234/1. See Peers, `The Visa Regulation: Free Movement Blocked Indefinitely', (1996) 21 ELRev. 150.
[255] Council Regulation 1683/95 on a common format for visas, OJ 1995 L164/1.
[256] See Article 100C(6) EC and Article K.9 TEU.
[257] See Commission Proposal for a Decision based on Article K.3 TEU establishing the Convention on the Crossing of the External Frontiers of the Member States, COM(93) 684; OJ 1994 C11.
[258] See the (not yet in force) Dublin Convention on asylum (1991) 30 I.L.M. 425. On the treatment of immigrants and asylum seekers and the question of civil liberties infringements in that context see Webber, Crimes of arrival: immigrants and asylum-seekers in the new Europe, London: Statewatch, 1995.
[259] See for example McMahon, `Maastricht's Third Pillar: Load-Bearing or Purely Decorative?', Legal Issues of European Integration, 1995/1, p51.
[260] Op. cit. supra n.19.
[261] On the nature of the policy-making `compact' in the field of immigration of third country nationals see Ugur, `Freedom of Movement vs. Exclusion: A Reinterpretation of the `Insider' - `Outsider' Divide in the European Union', (1995) 29 International Migration Review 964 and Convey and Kupiszewski, `Keeping Up with Schengen: Migration and Policy in the European Union', (1995) 29 International Migration Review 939.
[262] See Evans, op. cit. supra n.242 at pp97-98.
[263] O'Keeffe, op. cit. supra n.27 at pp104-106.
[264] D'Oliveira, op. cit. supra n.27 at p142.
[265] See Article 3(2) of Council Directive 68/360 OJ 1968 Sp. Ed. 1968 (II), p485; Proposal for a Council Directive amending Directives 68/360 and 73/148 OJ 1995 C307/18.
[266] Commission Proposal for a Council Directive on the elimination of controls on persons crossing internal frontiers, OJ 1995 C289/16.
[267] See generally Cremona, `Citizens of Third Countries: Movement and Employment of Migrant Workers within the European Union', Legal Issues of European Integration, 1995/2, p87 at pp89-92.
[268] Proposal for a Council Directive on the right of third-country nationals to travel in the Community, OJ 1995 C306/5.
[269] See generally Peers, `Border in Channel: Continent Cut Off', (1997) 19 Journal of Social Welfare and Family Law 108. It could be argued, logically, that if a right to travel directive falls within Community competence, then Article 6 rights to non-discrimination on grounds of nationality must apply to third country nationals enjoying their Community rights, under the principles enunciated in Case 186/87 Cowan v. Le TrÈsor public [1989] ECR 195 (supra n.12).
[270] It is not difficult to construct the arguments about free movement rights and the internal market as problems of interinstitutional balance: it is probable that the measures were proposed by the Commission for the specific reason of avoiding losing an action for failure to act brought by the European Parliament: Case C-445/93 Parliament v. Commission Order of July 1 1996 concluding that no decision on the case was necessary. See generally on interinstitutional balance and litigation Shaw, Law of the European Union, London: Macmillan, 1996, at pp171-176.
[271] Case C-170/96 Commission v. Council pending.
[272] See further supra n.112 et seq.
[273] Cannan, `A Europe of the Citizen. A Europe of Solidarity? Social Policy in the European Union', in Einhorn, Kaldor and Kavan (eds.), Citizenship and Democratic Control in Contemporary Europe, Cheltenham/Brookfield: Edward Elgar, 1996 at p141. One of the sources quoted by Cannan (Bunyan, `Towards an authoritarian European state', (1991) 32(3) Race and Class 19) charts the emergence of some of these `darker' statist aspects of the EU, often operating under the cover of the Third Pillar. See further Bunyan (ed.), Statewatching the new Europe. A Handbook on the European State, London: Statewatch, 1993 and the developments charted regularly in the Statewatch bulletin.
[274] See Hervey, `Migrant Workers and their Families in the European Union: the pervasive market ideology of Community law', in Shaw and More, op. cit. supra n.31 at p95 et seq.
[275] Council Resolution on the status of third country nationals residing on a long-term basis in the territory of the Member States OJ 1996 C80/1.
[276] COM(95) 512; see also the White Paper on European Social Policy COM(94) 333.
[277] See generally Peers, op. cit. supra n.249; Cremona, op. cit. supra n.267; Hailbronner, `Third-Country Nationals and EC Law', in Rosas and Antola, op. cit. supra n.27.
[278] See infra at n.311 et seq.
[279] See Weiler, op. cit. supra n.213 at p213.
[280] Op. cit. supra n.5 at p8.
[281] Marshall, op. cit. supra n.37 at p10.
[282] `The Constitutional Structure of the Union: A Europe of Bits and Pieces', (1993) 30 CMLRev. 17 at p67.
[283] On the notion of effective judicial process as a construct of citizenship, see generally Szyszczak, op. cit. supra n.15.
[284] See generally Shaw, op. cit. supra n.270 esp. chs. 3, 5, 7 and 9.
[285] See the discussion supra at n.197 et seq.
[286] On the relationship between citizenship and human rights see O'Leary, op. cit. supra n.27.
[287] The Irish Presidency draft (op. cit. supra n.19) discussions a number of ways of dealing with the problem of the justiciability of rights declarations, including changing the status of Article F(2), amending Article L TEU (exclusion of the jurisdiction of the Court of Justice from TEU provisions), and the accession of the EU/EC to the European Human Rights Convention (supported by only a minority of Member States and likely to require quite far-reaching Treaty amendments following the Court's conservative interpretation of the scope of Article 235 EC in Opinion 2/94 [1996] 2 CMLR 265).
[288] See Weiler, op. cit. supra n.9 at p61.
[289] E.g. Cases 46/87 and 227/88 Hoechst AG v. Commission [1989] ECR 2859.
[290] The language used by de B?rca, op. cit. supra n.31 at p32. See also Lundberg, `Political Freedoms in the European Union', in Rosas and Antola, op. cit. supra n.27.
[291] Case C-404/92P X v. Commission [1994] ECR I-4780. Privacy rights in the European Union have enjoyed significant enhancement as a result of the adoption of Directive 95/46 on the protection of individuals with regard to the processing of personal data and the free movement of such data (OJ 1995 L281/31); see Carlin, `The Data Protection Directive: the introduction of common privacy standards', (1996) 21 European Law Review 65.
[292] See generally Everson, `The Legacy of the Market Citizen', in Shaw and More, op. cit. supra n.31.
[293] Ipsen, Europ°/ooisches Gemeinschaftsrecht, T¸bingen: JCB Mohr, 1972, quoted in Everson, op. cit. supra n.292 at p71.
[294] See the Directives cited supra at n.8.
[295] See the cases cited supra at n.12.
[296] Case C-168/91 Konstantinides v. Stadt Altensteig [1993] ECR I-1191 at p1211.
[297] See Wilkinson, op. cit. supra n.7; Case C-175/94 R v. Secretary of State for the Home Department, ex parte Gallagher [1996] 1 CMLR 557, noted by White, `Procedural guarantees and expulsion', (1996) 21 ELRev. 241.
[298] Case C-193/94 Skanavi supra n.14.
[299] Everson, op. cit. supra n.292 at p85.
[300] See generally Shaw, `Citizens' Rights and Access to Law', in Reich and Micklitz (eds.), Public Interest Litigation in European Courts, Baden-Baden: Nomos, 1996.
[301] Case 222/84 [1986] ECR 1651; see also Case 222/86 UNECTEF v. Heylens [1987] ECR 4097.
[302] Case 294/86 Les Verts v. European Parliament [1986] ECR 1339.
[303] See Case T-219/95R Danielsson et al v. Commission [1995] ECR II-3051.
[304] Case T-585/93 Stichting Greenpeace Council v. Commission [1995] ECR II-2205 (on appeal as Case C-321/95 P).
[305] Case T-37/92 BEUC v. Commission [1994] ECR II-285.
[306] `Towards a Theory of Access for the European Court of Justice' , (1992) 12 YEL 213 at p231.
[307] Case 314/85 Firma Foto-Frost v Hauptzollamt L¸beck [1987] ECR 4199 and Cases C-143/88 and C-92/89 Zuckerfabrik S¸derithmarschen & Zuckerfabrik Soest [1991] ECR I-415.
[308] See Scott, `Environmental Compatibility and the Community's Structural Funds: A Legal Analysis', (1996) 8 Journal of Environmental Law 99;
[309] See for example Arnull, `Private Applicants and the Action for Annulment under Article 173 of the EC Treaty' (1995) 32 CMLRev. 7. See now Case C-32/95P Commission v. Lisrestal (24.10.96) on the rights of the defence of those in receipt of financial assistance from the Community's structural funds.
[310] Op. cit. supra n.19.
[311] I must acknowledge having seen in early draft an as yet unpublished paper by Catherine Barnard entitled `P v S: kite flying or a new constitutional approach', in which many of these questions are discussed in detail.
[312] Case C-13/94 [1996] 2 CMLR 247.
[313] Directive 76/207 OJ 1976 L39/40.
[314] See Skidmore, `Can Transsexuals suffer sex discrimination', (1997) 19 Journal of Social Welfare and Family Law 103.
[315] See generally Flynn, `Europe on its Way Towards a General Non-Discrimination Clause', Schneider (ed.), The Position of Women in the European Union in the 21st Century: A Legal and Economic Perspective, Maklu, 1997 forthcoming; Bell and Waddington, `The 1996 Intergovernmental Conference and the Prospects of a Non-Discrimination Treaty Article', (1996) 25 ILJ 320.
[316] Report of the Court of Justice on certain aspects of the application of the Treaty on European Union, paras. 19-23.
[317] See generally Penner, `The Canadian Experience with the Charter of Rights: Are there lessons for the United Kingdom', [1996] Public Law 104.
[318] For a comparison of EC law and Canadian law on the use of concepts of equality see More, `"Equal Treatment" of the Sexes in European Community Law: What does "Equal" Mean?', (1993) 1 Feminist Legal Studies 45.
[319] See Herman, `Beyond the Rights Debate', (1993) 2 Social and Legal Studies 25, replying to a left critique of rights: Fudge and Glasbeek, `The Politics of Rights: A Politics with Little Class', (1992) 1 Social and Legal Studies 45. The various positions are reviewed in Penner, op. cit. supra n.317 at pp105-106.
[320] See generally Stychin, `Constituting Sexuality: The Struggle for Sexual Orientation in the South African Bill of Rights', (1996) 23 Journal of Law and Society 455.
[321]On the symbolism of European Union rights-giving see Weiler, op. cit. supra n.9 at p79.
[322] Tully, Strange Multiplicity: Constitutionalism in an age of diversity, Cambridge: Cambridge University Press, 1995; see generally on the impact (actual and potential) of new constitutionalism upon EU constitution-building processes Della Sala and Wiener, op. cit. supra n.32.
[323] Case C-159/90 Society for the Protection of Unborn Children (Ireland) Ltd (SPUC) v. Groan [1991] ECR I-4685; the influence of national values is well illustrated by the commentary provided by Phelan: `Right to Life of the Unborn v. Promotion of Trade in Services" The European Court of Justice and the Normative Shaping of the European Union', (1992) 55 Modern Law Review 670. A general commentary on national values is provided by de Witte: `Community Law and National Constitutional Values', Legal Issues of European Integration 1991/2, p1 and `Sovereignty and European Integration: The Weight of Legal Tradition', (1995) 2 MJ 145.
[324] Op. cit. supra n.19
[325] Case C-450/93 Kalanke v. Freie Hansestadt Bremen [1995] ECR I-3051.
[326] See also infra at n.401 et seq.
[327] Marshall, op. cit. supra n.37 at p11.
[328] La Torre, op. cit. supra n.6.
[329] D'Oliveira, op. cit. supra n.27 at p147.
[330] Laffan, op. cit. supra n.22 at p93.
[331] For a general analysis see Weiler, Haltern and Mayer, `European Democracy and its Critique', in Hayward (ed.), The Crisis of Representation in Europe, London: Frank Cass, 1995.
[332] `The Question of Democratic Representation', in Winter et al op. cit. supra n.9.
[333] Lenaerts and de Smijter, op. cit. supra n.332 at p192.
[334] Breton, op. cit. supra n.96 at p50.
[335] The development of electoral rights under Article 8B EC are dealt with fully by Oliver, `Electoral Rights under Article 8B of the Treaty of Rome', (1996) 33 CMLRev. 473, covering the `municipal' and `European' electoral rights of EU citizens.
[336] See Vauber, `Comments on the Article by Lenaerts and de Smijter', in Winter et al op. cit. supra n.9 at p200. See generally Norton (ed.), National Parliaments and the European Union, London: Frank Cass, 1996; Smith (ed.), National Parliaments as Cornerstones of European Integration, London/The Hague: Kluwer, 1996; Andersen and Burns, `The European Union and the Erosion of Parliamentary Democracy: A Study of Post-parliamentary Governance', in Andersen and Eliassen (eds.), The European Union: How Democratic Is It?, London, etc.: Sage, 1996; Birkinshaw and Ashiagbor, `National Participation in Community Affairs: Democracy, the UK Parliament and the EU', (1996) 33 CMLRev. 499; Judge, `The Failure of National Parliaments', in Hayward, op. cit. supra n.331.
[337] Andeweg, `The Reshaping of National Party Systems', in Hayward, op. cit. supra n.331.
[338] See generally Curtin, `Betwixt and Between: Democracy and Transparency in the Governance of the European Union', in Winter et al, op. cit. supra n.9.
[339] See generally on freedom of information in the EU: Birkinshaw, `Freedom of Information and Open Government: The European Community/Union Dimension', (1997) Government and Information Quarterly no. 1, forthcoming.
[340] As Chiti points out (`The Right of Access to Community Information under the Code of Practice: the Implications for Administrative Development', (1996) 2 EPL 363 at p370) it is wrong simply to conflate transparency with the right of access to information, which there is a current tendency to do. On the other hand, the interlocking topic of `freedom of information' comprises also the vital private interest in access to information about individuals, protected by fundamental rights related to the development of the private sphere and notions of personality.
[341] Chiti, op. cit. supra n.340 at p370, suggests two additional elements: the `simplification and rationalization of Community and national legislation', through means such as consolidation, repeal of superfluous instruments, and drafting improvements; and the `repartition of competences between Community and Member States' the `level of the `intensity' of Community action' (i.e. the subsidiarity and proportionality principles). These issues are not further considered here because they do not have such direct `citizenship' implications.
[342] Article 7(5) of the Council's Rules of Procedure. See Curtin, op. cit. supra n.338 at p106.
[343] Twomey, Case Note on Carvel v. Guardian, (1996) 33 CMLRev. 831 at p839.
[344] Case C-58/94 Netherlands v. Council [1996] 2 CMLR 996 at 1018 (paras. 34 and 35).
[345] Ibid, at para. 36.
[346] Opinion of November 28 1995; [1996] 2 CMLR 996 at 1002 (para. 6).
[347] The usage of the democratic heritages of the Member States in order to generate a meaningful principle for the new EU polity is an example where the parasitic nature of the EU constitution and of its conception of political citizenship fulfils an important and positive function. Without the constitutional heritages of the states which it comprises, the EU would lack all historical depth.
[348] [1996] 2 CMLR 996 at 1009-1010 (para. 19).
[349] See Curtin, op. cit. supra n.338 at p114 et seq; de B?rca, op. cit. supra n.17 at pp368-371.
[350] OJ 1993 C156/5.
[351] OJ 1993 L340/41.
[352] Council Decision 93/731 OJ 1993 L340/43.
[353] Case T-194/94 [1995] 3 CMLR 359.
[354] Council Code of Conduct on access to minutes and statement in the minutes, Bulletin EU 10/1995.
[355] See Statewatch, Vol. 6, no. 3, May-June 1996: `Secrecy application splits EU. Eight governments vote for secrecy - seven back openness'.
[356] Case C-58/94 supra n.344.
[357] At para. 37 of the judgment.
[358] Curtin, op. cit. supra n.338 at p103.
[359] Armstrong, `Citizenship of the Union? Lessons from Carvel and The Guardian', (1996) 59 MLR 582 at p586 et seq.
[360] Op. cit supra n.359 at p588; a similar point is made by Twomey, op. cit. supra n.343 at p838.
[361] E.g. supra at n.167.
[362] See also Shaw, op. cit. supra n.300.
[363] See for example on the UK Irvine, `Judges and Decision-Makers: The Theory and Practice of Wednesbury Review', [1996] Public Law 59 and Le Sueur, `The Judicial Review Debate: From Partnership to Friction', (1996) 31 Government and Opposition 8; with comparisons to the US on the role and impact of judicial review, see Richardson and Sunkin, `Judicial Review: Questions of Impact', [1996] Public Law 79.
[364] See `EU: Secrecy Report "secret", then released', Statewatch September/October 1996, Vol. 6, no. 5, p22. The Council suggests in its report on the working of the Code of access to documents that `applicants are not required to give reasons for the interest they take in the Council's proceedings. Yet the very nature of certain applications sometimes elicits the thought that steps are being taken to test the system rather than exercise a legitimate option. It might therefore be worth considering whether a provision should be made for access to documents which are manifestly excessive or involve disproportionate costs to be refused, where appropriate, after examination of the reasons for the applicant's interest.'
[365] Case T-174/95 Tidningen Journalisten, Svenska Journalistfobundts Tidning v. Council of the European Union pending; see http://www.jml.su.se/dig/. The attempt to restrict standing rights specifically to private interest actions only is particularly worrying given the already narrow range of standing rights for individuals: see supra at n.303 et seq.
[366] Op. cit. supra n.19.
[367] Shapiro, `The Giving Reasons Requirement', [1992] Univ. of Chicago Legal Forum 179 at p181, referring to Friedrich, `Authority, Reason and Discretion', in Friedrich (ed.), Authority, Cambridge, MA.: Harvard Univ. Press, 1958, at p28.
[368] EC Law. Text, Cases and Materials, Oxford: Oxford University Press, 1995 at pp107-112; see also Shaw, op. cit. supra n.270 at pp142-143.
[369] The case law is somewhat uneven: see Cases 240/82 etc. Stichting Sigarettenindustrie v. Commission [1985] ECR 3831, which is largely unsupportive of such idea, but compare Case T-95/94 Chambre Syndicale Nationale des Entreprises de Transport de Fonds et Valeurs et Brink's France Sarl v. Commission [1995] ECR II-2651.
[370] Marshall, op. cit. supra n.37 at p11.
[371] Marshall, op. cit. supra n.37 at p29.
[372] Marshall, op. cit. supra n.37 at p43.
[373] Barbalet, op. cit. supra n.40 at p21. See also the discussion of this tension in Close, op. cit. supra n.46 at p158 et seq.
[374] E.g. Case 379/87 Groener v. Minister for Education [1989] ECR 3967; Case 152/73 Sotgiu v. Deutsche Bundespost [1974] ECR 153.
[375] Case 8/74 Procureur du Roi v. Dassonville [1974] ECR 837; Case C-384/93 Alpine Investments BV v Minister van FinanciÎn [1995] ECR I-1141. See now also in the context of the free movement of workers Case C-415/93 Union Royale belge des SociÈtÈs de football association ASBL v. Bosman [1995] ECR I-4921.
[376] Case 222/86 UNECTEF v. Heylens supra n.301; Case C-340/89 Vlassopoulou v. Bundesministerium f¸r Justiz, Baden-W¸rttemberg [1991] ECR I-2357.
[377] Case C-214/94 [1996] ECR I-2253, supra n.16.
[378] Cullen, `From Migrants to Citizens? European Community Policy on Intercultural Education', (1996) 45 ICLQ 109; see generally on the development of EU education and vocational training policies: Shaw, `Education and the Law in the European Community', (1992) 21 Journal of Law and Education 415 and Lenaerts, `Education in European Community Law after Maastricht', (1994) 31 CMLRev. 7.
[379] `Women, Citizenship and European Community Law: The Gender Implications of the Free Movement Provisions', [1994] Journal of Social Welfare and Family Law 391; ibid, `Citizenship, gender and dependency in the European Union: women and internal migration', in Hervey and O'Keeffe, op. cit. supra n.144
[380] `EC Law's Unequal Treatment of the Family: The Case Law of the European Court of Justice on Rules prohibiting Discrimination on Grounds of Sex and Nationality', (1994) 3 Social and Legal Studies 243.
[381] Closa, op. cit. supra n.5 at p6.
[382] I am grateful to Kenneth Armstrong for this insight; the fact that consumer protection and environmental policy are singled out as needing a degree of strengthening in the Irish Presidency draft of December 1996 put before the IGC for debate suggests that the concept of the single market is becoming increasingly broad: see op. cit. supra n.19.
[383] See generally Gerber, `Constitutionalizing the Economy: German Neo-Liberalism, Competition Law and the "New" Europe', (1994) 42 American Journal of Comparative Law 25; Behrens, `Die Wirtschaftsverfassung der Europ°/ooischen Gemeinschaft', in Br¸ggemeier (ed.), Verfassungen f¸r ein ziviles Europa, Baden-Baden: Nomos, 1994.
[384] Petersmann, `National Constitutions, Foreign Trade Policy and European Community Law', (1992) 5 European Journal of International Law 1.
[385] Chalmers `The Single Market: From Prima Donna to Journeyman', in Shaw and More, op. cit. supra n.31.
[386] Chalmers, op. cit. supra n.385 at p56.
[387] Grahl and Teague, `Economic Citizenship in the New Europe', (1994) 65 Political Quarterly 379.
[388] Grahl and Teague, op. cit supra n.387 at p395.
[389] Council Directive 94/45 of September 22 1994 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees, OJ 1994 L254/64. For reviews see Hall et al, European Works Councils - Planning for the Directive, London: Eclipse Group, 1995; McGlynn, `European Works Councils: Towards Industrial Democracy?', (1995) 24 Industrial Law Journal 79.
[390] `Works Councils: Towards Stakeholding?' (1997) 24 Journal of Law and Society forthcoming.
[391] EC Commission, Growth, Competitiveness, Employment: the Challenges and Ways Forward into the 21st Century, Bull. EC, Supp. 6/93; COM(93) 700.
[392] See generally More, `The Acquired Rights Directive: Frustrating or Facilitating Labour Market Flexibility?', in Shaw and More, op. cit. supra n.31.
[393] Op. cit. supra n.387 at p393.
[394] See supra at n.145.
[395] Op. cit. supra n.136 at pp29-30.
[396] The task of the Union `shall be to organise, in a manner demonstrating consistency and solidarity, relations between the Member States and between their peoples' (Article A TEU, para. 3).
[397] Closa, op. cit. supra n.5 at p12.
[398] `Social Citizenship and Ethnic Minorities in the European Union', in Martiniello, op. cit. supra n.196 at pp191-192.
[399] European Social Policy. A Way Forward for the Union, COM(94) 333 of July 27 1994, itself building on an earlier Green Paper on the same topic: COM(93) 551 of November 17 1993.
[400] Ibid, para. 3.
[401] Case 170/84 Bilka-Kaufhaus GmbH v. Karin Weber von Hartz [1986] ECR 1607.
[402] Case 222/84 Johnston v. RUC supra n.301; Case 14/83 Von Colson and Kamann v. Land Nordrhein Westfalen [1984] ECR 1891; Case C-271/91 Marshall v. Southampton and South West Hampshire AHA (No. 2) [1993] ECR I-4367.
[403] Case 109/88 Danfoss [1990] ECR I-3979.
[404] See Szyszczak, op. cit. supra n.237.
[405] See Barnard and Deakin, `Social Policy in Search of a Role: Integration, Cohesion and Citizenship', Caiger and Floudas, (eds.), 1996 Onwards: Lowering the Barriers Further, Chichester: Wiley Chancery, 1996; Leibfried and Pierson, op. cit. supra n.162.
[406] See generally More, `Equality of Treatment in European Community Law: the Limits of Market Equality', in Bottomley, (ed.) Feminist Perspectives on the Foundational Subjects of Law, London: Cavendish, 1996; Fenwick and Hervey, `Sex Equality Law in the Single Market: New Directions for the European Court of Justice', (1995) 32 Common Market Law Review 443; Hervey and Shaw, `Women, work and care: women's dual role and double burden in EC sex equality law', (1997) forthcoming.
[407] Case 184/83 Hofmann v. Barmer Ersatzkasse [1984] ECR 3047.
[408] E.g. Case C-280/94 Posthuma-van Damme [1996] ECR I-179 and Case C-8/94 Laperre [1996] ECR I-273. See generally Sohrab, Sexing the Benefit: Women, Social Security and Financial Independence in EC Sex Equality Law, Aldershot: Dartmouth, 1996.
[409] Leibfried and Pierson, op. cit. supra n.162 at p200-202.
[410] Op. cit. supra n.19; see the discussion supra at n.325.
[411] There are signs that the adoption of the Working Time Directive, which gives rise to greater intrusions than hitherto by EC law into the contracts of employment of workers in the EU, and the interpretation by the Court of Justice of Article 118A EC (health and safety) as a legitimate legal basis for that Directive, may lead to (yet another) new dawn for EU social policy (Council Directive 93/104 OJ 1993 L307/18; Case C-84/94 United Kingdom v. Council, judgment of November 12 1996).
[412] A metaphor used frequently by writers, e.g. by Szyszczak, `Social Policy" A Happy Ending or a Reworking of the Fairy Tale?', in O'Keeffe and Twomey, op. cit. supra n.27.
[413] See Snyder, `The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques', (1993) 55 MLR 690; but compare the comments on certain recent developments brought about by the Court, made in a `citizenship' context by Szyszczak, op. cit. supra n.15.
[414] For a summary statement of Majone's views see Majone, Regulating Europe, London/New York: Routledge, 1996, esp. pp54-56; for further details on social policy and social regulation see Majone, `The European Community between social policy and social regulation', (1993) 31 JCMS 153.
[415] For a summary see Allen, `Cohesion and Structural Adjustment', in Wallace and Wallace, op. cit. supra n.162.
[416] For a generally sceptical view see Amin and Tomaney (eds.), Behind the myth of European Union. Prospects for Cohesion, London/New York: Routledge, 1995.
[417] Cf. Breton, op. cit. supra n.96 et seq.
[418] See generally on Irish nationalism and European integration: Ruane, `Nationalism and European Community Integration: The Republic of Ireland', in Goddard et al, op. cit. supra n.206.
[419] See Pollack, `Regional Actors in an Intergovernmental Play: The Making and Implementation of EC Structural Policy', in Rhodes and Mazey (eds.), The State of the European Union. Building a European Polity?, Harlow/Boulder: Longman/Lynne Rienner, 1995.
[420] See generally on partnership Scott, `Regionalism, Subsidiarity and Development', Paper delivered at a Workshop on Law, Legitimacy and Governance, Keele University, May 1996. This development can usefully be analysed in the light of communitarian conceptions of citizenship. For a more sceptical view see Allen, op. cit. supra n.415.
[421] See the discussion supra at n.303 et seq; Scott, op. cit. supra n.308.
[422] See supra at n.378.
[423] See supra at n.281 et seq.
[424] Magiera, `A Citizens' Europe: Personal, Political, and Cultural Rights', in Hurwitz and Lesquesne (eds.), The State of the European Community. Policies, Institutions and Debates in the Transition Years, Harlow/Boulder: Longman/Lynne Rienner, 1991.
[425] See supra at n.213 et seq.
[426] A good example would be Wallace and Wallace's standard work, now in its 3rd edition; see Wallace and Wallace, op. cit. supra n.162.
[427] See Mazey and Richardson, `Promiscuous Policy-Making: The European Policy Style', in Rhodes and Mazey op. cit. supra n.419.
[428] But cf. Holland, op. cit. supra n.172 who uses a chapter to `A People's Europe' to show the different levels at which this concept operates including representation, attitudes, citizenship and the Social Charter; de Witte and Post, `Educational and Cultural Rights', in Cassese, Clapham and Weiler (eds.), Human Rights and the European Community: The Substantive Law, Baden-Baden: Nomos, 1992 at p138 et seq acknowledge the rather disparate range of substantive competences which are touched by the issue of `culture'.
[429] Loman, Mortelmans, Post and Watson, Culture and Community Law. Before and After Maastricht, Deventer/Boston: Kluwer Law and Taxation, 1992.
[430] Following the Council Directive 89/552 on television broadcasting (`television without frontiers' Directive) OJ 1989 L298/23; the Commission's attention has shifted partiuclarly towards problems of the concentration of ownership in the field of television broadcasting: Green Paper on Pluralism and Media Concentration in the Internal Market. An Assessment of a need for Community Action, COM(92) 480; Follow up of the Green Paper , COM(94) 353. See generally Hitchens, `Media Ownership and Control: A European Approach', (1994) 57 Modern Law Review 585; Barendt, `Towards a European Media Law', (1994) 1 MJ 41.
[431] Shore and Black, op. cit. supra n.206 at p286.
[432] See supra at n.156.
[433] COM(95) 653.
[434] Op. cit. supra n.206 at p287.
[435] Examples they cite are Commission Communication on A People's Europe, COM(88) 331 and Fontaine, A Citizen's Europe, Luxembourg: OOPEC, 1991.
[436] Op. cit. supra n.10.
[437] See Tilly, op. cit. supra n.190.
[438] Meehan (1), op. cit. supra n.
[439] Breton, op. cit. supra n.96 at p53.
[440] Zetterholm, `Why is Cultural Diversity a Political Problem? A Discussion of Cultural Barriers to Political Integration', in Zetterholm (ed.), National Cultures and European Integration, Oxford/Providence: Berg, 1994 at p69.
[441] See Everson, op. cit. supra n.292 and the discussion at supra n.374 et seq.
[442] Everson, op. cit. supra n.292 at p89.
[443] See Plant, `Social Rights and the Reconstruction of Welfare', in Andrews, op. cit. supra n.34 esp. p60 et seq.
[444] Op. cit. supra n.292 at p88.
[445] Op. cit. supra n.96 at p45.
[446] Weiler, op. cit. supra n.9 at p71.
[447] See supra n.51: `the individual is not to be sacrificed to the citizen'.
[448] On the normative dimension of the EU legal order see in particular Joerges, `Taking the Law Seriously: On Political Science and the Role of Law in the Process of European Integration', (1996) 2 ELJ 105.
[449] Op. cit. supra n.19.
Previous |Next |Title |Contents