Jean Monnet Center at NYU School of Law


1. The Europeanisation of the Legal Citizen

Ralf Dahrendorf (1990:823), a bi-national witness par excellence and above all suspicion, once confessed that he remained an `unreconstructed Kantian' in the assumption that constitutional patriotism becomes possible only where there is a legal unity. This is vigorously promoted by the European Court of Justice. But as long as even the German Federal Constitutional Court (BverfGE Bd. 89) beavers away to prevent further erosions of national powers, not even this mildest form of the creation of a unitary legal citizen is assured. In Denmark-not notorious for nationalism-the government spontaneously clarified: `Citizenship of the Union is a political and legal concept which is entirely different from the concept of citizenship within the meaning of the Constitution of the Kingdom of Denmark and the Danish legal system. In no way does the Citizenship of the Union in itself give a national of another Member State the right to obtain Danish Citizenship.' This is a country with one of the most liberal naturalisation practices in the Union. The Edinburgh Summit attempted appeasement: `The provisions of Part Two of the Treaty ... do not in any way take the place of national citizenship.' But this definition is not watertight (Jessurun d'Oliveira 1994:135) as the right to vote in local elections and the right to stand pursuant to Article 8b(1) shows. In European elections, non-citizens from other Member States are to be equated with national citizens (Article 8b(2)). But it is no coincidence that the necessary implementing rules have not been adopted.

The citizenship conception of the Maastricht Treaty is clearly non-ethnically defined. But an itio in partes in the definition of granting of citizenship, such as even the Swiss Cantons still have, would protect archaic relicts of jus sanguinis. However, this cannot be the EU's intention. Outside commentators have continually criticised the `ontological conception of citizenship' in Germany. This emerged not from any specific racism but from the fact that the territory of the German Reich, the German Federation and the German states after 1945, constantly shifted. Inclusion of the excluded Germans was necessary. Not till 1990 were the conditions for removing the jus sanguinis principle fully present. The Schröder government has begun the necessary steps.

Among legal aspects of citizenship, the status of minorities is important. These are often citizens-especially where a generous citizenship policy was pursued, as in France. The Jacobin tradition of the `nation une et indivisible' brought about integration through language. For a long time, France seemed not to have any problems with the North Africans. Many could speak excellent French. Nonetheless, their accumulation in the suburbs, from Marseilles to Strasbourg, along with high unemployment, has become a social problem. Paradoxically, the citizens' nation of France was more intolerant towards the dress code and principles of Islamic fundamentalism in schools than was Germany.

Legally considered, how far may tolerance go? Political philosophy has set the boundary where severe bodily damage is caused-from tribal scars to female circumcision. But the willingness to implement such principles as the Community could agree to is very differently developed in individual Member States.

Protection of EU citizens abroad is fairly clearly regulated. But fundamental rights within the country are open to dispute. Article F2 of the `Union Treaty' calls for respect for fundamental rights, also adding the common constitutional traditions of Member States. But broad areas of fundamental rights are not common, as the differences in the excessive stress on fundamental social rights in Italy and the reticence about them in Germany's constitution show. The basic policy clauses in Germany's constitution, though not justiciable, are, in contrast, totally foreign to the English-speaking tradition, which mistrusts metaphysical declarations. Human rights are universal and therefore also enjoyed by non-citizens of a Member State, yet the inclusion of alien residents is regulated extremely diversely within Europe (Wiener 1998).

The basic fundamental rights are, on the whole, respected everywhere in the Union, even if Amnesty International every now and again puts EU Members, too, on the pillory. But below this level of fundamental rights there are rights such as those of Article 8a, with `freedom of residence and movement within the territory of the Member States,' where it cannot be concealed that they conflict with national provisions and restrictions. Conditional fundamental rights are conferred in Article 48, such as the `freedom of movement of workers, at least at the end of a transitional period.' Again, national provisions are very diverse. Italy has brought the right to work into its constitution at a prominent position, in a compromise between Christian Democrats and Communists. In contrast, the Federal Republic regarded it as misleading. Everyone knows that, even today, with German unemployment running into double-figures, Italy still has more unemployment than Germany. Yet, such articles are nonetheless defended as symbolic policies and guideposts, and have repercussions on the acceptance of the freedom of movement for the labour production factor. It can be seen from the ongoing debate about the fundamental rights charter that Europe can unite only around the hard core of human and civil rights.



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