Jean Monnet Center at NYU School of Law

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II Assumptions

Citizenship Union-style

Citizenship of the European Union was institutionalised by the Treaty of Maastricht. A new provision was included in the Treaty (Article 8 EC) which proclaims:

`Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union.'

Simple words; and, perhaps, empty gestures also. The formal rights and duties conferred on Union citizens in the provisions which follow are few, and are primarily linked to residence in a Member State other than the one of which the citizen is a national. They are limited to a right of residence in other Member States (which is not absolute and may be limited by Council legislation), voting rights based on residence in local and European parliamentary elections, consular and diplomatic protection in third countries, petitions to the European Parliament and complaints to the European Ombudsman. Only the last two are not directly linked to free movement or at least movement away from the home state. This emphasis highlights the primary heritage of Union citizenship, which lies in a conception - fostered principally by the Commission and the Court of Justice - that the free movement of persons implies more than merely economic rights under the Treaties and secondary legislation. The predominant emphasis of the citizenship rights is to constitute the strong transnational citizen who holds and exercises rights vis-à-vis the Member States which are set up as the obstructive parties. It does nothing, on the face of it, to constitute either a vertical relationship between the EU and `its' citizens, or a horizontal relationship between the citizens inter se. It suggests little or nothing about the essentially reciprocal nature of citizenship.

It is wrong, however, to study the citizenship question in the European Union wholly or even primarily by reference to the formal rights established in Part Two of the Treaty. A fuller, but still incomplete perspective on the scope of citizenship is given if it is described by reference to some sort of ideal type of citizen with `full membership' of a given community, following many standard definitions of the concept of citizen.[3] Paradoxically, the message to be derived from such an exercise in EC law is that the progress (described in the terms of Marshall) from civil, to political and thence to social rights is to a large extent flipped on its head in the EU context. The legacy of market citizenship embedded in the Treaty provisions on free movement of commodities and factors of production strongly marks the present status quo of EU citizenship rights (Everson, 1995). Thus what emerges is less a purely `social' status, than a broader socio-economic status combining elements of market, industrial and welfare citizenship. The other elements of the rights of citizenship remain underdeveloped: EU citizens are alienated from the enjoyment of political sovereignty in relation to the European Union, and there is no meaningful public space within which they can operate as political actors. Furthermore, their civil status (i.e. their enjoyment of classical liberties) is largely constituted by reference to rights anchored in national constitutions or in a different type of `European' frame of reference - the European Convention of Human Rights and Fundamental Freedoms. The scope and nature of Community fundamental rights remains profoundly problematic and a contested terrain.

Notwithstanding this gloomy prognosis, let us assume that Raymond Aron's classic statement that there can be no European citizens no longer holds - if it ever did (Aron, 1974). At one level, it is not difficult to see the normative imperative that some attention must be paid - after more than thirty years of development - to the `affective' dimension of the European integration (Laffan, 1996). The widely recognised legitimacy deficit of the `Monnet' method has placed demands upon the political process - and the changes introduced by the Treaty of Maastricht, not to mention the Treaty of Amsterdam, represent one form of response to this problematic. Conceptually speaking, many would suggest that citizenship, while historically linked to the vocation of the nation state, is not inextricably bound to notions of nationalism or indeed attempts in the state context to distinguish between citizen insiders and alien outsiders. Citizenship remains a means for setting the parameters of inclusion and exclusion of any given community, as well as postulating the ideal type of membership of and participation in that community. But identity, loyalty and community-based fellow-feeling can operate in different ways and to different degrees at many levels, including the local, the regional, the national and the supranational. Identity is not a zero-sum game. There are no a priori reasons why a form of `community' could not emerge at the EU level, based on more than simply the holding of a set of legal rights, although so far any such `community' has proven to be more imaginary than most. Moreover, there are equally no a priori reasons why the boundaries of membership must be set by reference to the category of nationals of the Member States, although political realism might suggest that it will be some time before that national reference point is abandoned - if it ever is - to include, for example, lawfully resident third country nationals.

To achieve this conceptualisation of Union citizenship, however, we have to draw more widely on the rich intellectual heritage of citizenship studies. At one level, David Held's description of citizenship simply as `membership of a community' involving a reciprocity of rights against and duties towards that community (Held, 1991, p.20) is evocative. But we need to interrogate more closely its individual elements. So we must also focus on the political element of citizenship, where citizenship constitutes the political community, or indeed vice versa. Citizenship, on this view, constitutes a `community of concern and engagement' (Kostakopoulou, 1996), and offers the space in which political claims can be articulated and resolved (Everson, 1996). Another possibility is to focus more on personal rather than purely political identities, and on the competing claims of individuals and groups. For example, Charles Tilly identifies `citizenship as a set of mutual, contested claims between agents of states and members of socially-constructed categories: genders, races, nationalities and others' (Tilly, 1996, p.6). One might conclude, that citizenship comprises not only the well established dual elements of identity and rights, but also elements of access, experience and practice. These emerge not only through individual experience, but also through institutional practice. The negotiation of these elements is a historical, dynamic and indeed geographically contingent process. It is combining these elements which reminds us that citizenship is not just an object of study in itself, but also a frame of reference for making sense of other aspects of the human condition, and in the context of the EU, the `European condition.'

Perhaps more pertinent than the theoretical possibility of a form of postnational membership emerging independently of pre-existing notions of state citizenship or national definitions of affinity, is the more pragmatic observation that the practice of citizenship in the EU has in fact become deeply embedded in what the Union does and is. This is not to suggest that a citizenship perspective should be used as a prism of analysis for every aspect of EU law, policies and politics, although many facets of the `European condition' can be nicely illuminated by such a perspective. Thus, for example, if the optic is that of studying the challenge of democracy in an emergent non-state polity, then the `claim' of the citizen to be politically sovereign - banal in a state context, novel perhaps in the supranational domain - needs to be taken seriously and dissected in respect of its constituent elements (individual rights and principles of collective representation). Moreover, while it is right to say citizenship is more than a legal status, the dominance of the ideology of the transnational rule-of-law polity demands that some emphasis is placed on observing the gradual accretion (or diminution) of formal legal rights guaranteed by judges and courts at the national and EU levels. These observations about democracy, polity formation and law will shape many of the comments made in the next two sections. But above all, as the last section of this part will show, IGCs and new Treaties are only part of the overall picture of the European polity-in-the-making, and this is highly relevant to the constitution of the citizen not only as a figure in IGCs and Treaties, but also in the day-to-day practice of EU governance.

Governance and the EU: the hard legal core and the soft political contours

To use a description of the EU as an emergent non-state, a transnational polity-in-the-making, or a multi-level supranational governance system as a starting point for analysis could, of course, be said to beg the question of precisely what is being studied. Equally, it could be regarded as a virtue, in that it makes no a priori assumptions about the nature of the EU, avoiding descriptions by reference to misleading specified categories such as the (nation) state, the federation or even the international organisation. Moreover, it emphasises the point that the key issue is to identify how we are studying the governance process in the EU, not what we are studying when we examine governance issues. The study of governance in the EU, therefore, is a constructive rather than a deductive process. It is also a multi-faceted process, since EU governance, just like the EU polity itself, is not a unitary phenomenon. In certain respects the policy-making process is a principally intergovernmental exercise. In other cases, it lies largely in the hands of the relatively autonomous supranational institutions. In yet other instances, what Weiler has described as the characteristic of infranationalism holds, where the dominant governance mechanism is the `committee' ruled by experts and `faceless bureaucrats' (e.g. Weiler, 1997a). In each case, the study of governance faces different challenges, and a single theory of how the EU works and why it changes seems to elude articulation.

Methodologically, there have been deep cleavages between legal and political approaches to the EU (Wincott, 1995). Legal scholarship on the EU is often criticised because it privileges a rule-bound conception of the `progress' of integration over an understanding of the underlying political or economic dynamics (Caporaso, 1996). In similar terms - positing a continued and essentialist separation of the two lines of argument - Bellamy and Castiglione have recently argued that legal means and institutions must be subordinated to political practices of mediation and reconciliation, `for democratic deliberation has a capacity that legal mechanisms lack to build new allegiance and identities, and to negotiate workable compromises when a consensus on new forms of common life cannot be achieved' (Bellamy and Castiglione, 1997, p.444).

Yet as Obradovic has shown, far from the legal nature of the EU needing to be seen as somehow separate from the EU's political development, it is in fact one of the key building blocks of the `Community of law' - the `rule-of-law bargain' promoted by the Court of Justice - which has become central to the projection of what limited legitimacy the Union can in fact claim (Obradovic, 1996). Indeed, the project of `government under law', as well as the conferment of rights on individuals, has been almost fetished in the EU context, perhaps because of the prominent position which the Court of Justice, with its rule of law discourse, was able to take in the early years of the Community.[4] Burley and Mattli have argued convincingly of the role of law as a mask for politics (Burley and Mattli, 1993, p.44). I would argue that the Member States are sensitive to this issue. Over the course of a number of intergovernmental conferences, it is notable that they have eschewed most opportunities to interfere directly with that rule-of-law bargain, or to undermine in any significant way the claimed authority of the Court of Justice in its constitutionalisation of the Treaty and of individuals as the subjects of EC law. The hard legal core locks in the Member States in a manner which offers a guarantee of reciprocity on a dyadic or contractarian model, and which suggests the presence of favourable conditions for a process of judicialization and triadic dispute resolution (Stone, 1996). Even so, some of the apparent certainties of the EC law/national law relationship from the early years of the Community legal order have themselves been `softened' through the Court's increased sensitivity to national regulatory competences, and perhaps the influence of the principle of subsidiarity (Armstrong, 1998). In the context of market regulation, the Court of Justice has developed a more nuanced principle of preemption in determining the extent to which EU measures displace national measures, matching also the legislative tendency to allow a greater degree of national regulatory discretion and freedom (Weatherill, 1994).

Equally, the principle of limited powers (Article 5 [3b] EC[5]) simultaneously empowers and constrains the EC/EU, guaranteeing the legal status of Community competence, but purporting to mark its outer contours. It has been conventional wisdom that in the past the Court of Justice has played fast and loose with the boundaries of Community competence. This is a charge which is barely sustainable in the light of two recent Opinions of the Court of Justice on external trade competence and the conclusion of the GATT Uruguay Round and the possibilities of acceding to the European Convention on Human Rights where the Court marked sharply the boundaries of what the Community can do - outside an Intergovernmental Conference.[6] Indeed, the interpretation of powers in the political domain itself has not always been entirely strict, as the example of the early anticipation of the ratification of the Treaty of Amsterdam at the Luxembourg Employment Summit of November 1997 shows quite neatly. For the purposes of constructing a supranational employment policy, the Member States were prepared to treat the Treaty of Amsterdam as if it were already ratified and to `apply' these new provisions (although formally `old' powers will need to be found to undertake the `new' tasks). The point precisely highlights how much of the development of the EU governance structure is about ongoing negotiations and interdependencies between political and legal constraints and possibilities.

Democracy: a normative and practical challenge

Just as the European Union escapes easy categorisation by reference to established types of political entity, so there are no simple `quick-fixes' to the pressing conceptual and practical challenges of envisioning democracy within the EU. Let us assume that democracy is a worthy goal, whether as an end in itself or as a means towards promoting human virtue and decency. If that is so, then Curtin is correct to say that the European Union remains `in search of a political philosophy' (Curtin, 1997) with the help of which the democracy gap which appears when powers are shifted from one (national) forum to another (the supranational) may be at least partially closed. But returning to the constitution of the citizen in Article 17 [8] et seq EC, it is very relevant to this conundrum that these provisions provide no real guidance (pace complaints to the Ombudsman and petitions to the Parliament) as to the nature of the relationship of the EU as political authority and `its' citizens as political community which would be an essential substratum to a debate about democracy.

Unsurprisingly, no clear solutions to the democracy challenge are as yet visible, but the outcome is very unlikely to be the straightforward re-application at the supranational level of a single variant of liberal/representative, republican/deliberative, communitarian or even associative approaches to democracy. This is precisely a field in which the statist paradigm risks limiting the institutional imagination of those responsible for constitutional design. The supreme irony of the crisis of democracy at the EU level - and indeed what might be anticipated to be impending crises of a not dissimilar but less acute nature which will arise in the not too distant future as other trade-relations organisations of a regional or multilateral nature such as NAFTA and the WTO acquire the capacity through trade liberalisation, to challenge the regulatory autonomy of nation states - is that it comes at precisely the same time that the global spread of democracy (if not always in its classic `liberal' guise) at nation state level has seemed most assured. But it is important to remember that the problem of democracy at the EU level is not simply a single-stranded EU problem. It is a problem with multiple strands, evident within the individual Member States, as well as a challenge to intergovernmental relations more generally. Resolutions of the democracy conundrum must therefore respond to the multi-levelled, multi-facetted and continually changing nature of governance in the EU.

Governance: an ongoing scenario

Intergovernmental conferences, the debates which feed into and off them, and the primary outputs in the form of new Treaties, are moments of high political and legal importance, not to say drama, in the life of the European Union. Changes to the Treaty framework may institute or formalise new types of relationships between old and new actors (e.g. the insertion of the European Council into the institutional system by the Treaty on European Union), or disrupt old relationships based on previous provisions, or convention and practice evolved over several years. After the conclusion of new Treaties, the ratification process offers the one moment when some electorates are given the opportunity to express themselves directly upon the acceptability or not of the integration process. Such (limited) possibilities for citizen `participation' in the act of Treaty-making are themselves constitutive of citizenship in its Union context (Wiener and della Sala, 1997), along with pressure group or similar activities which seek to make agenda-setting stage for the IGC less of an intergovernmental or institution-dominated affair.

Overall the significance of IGCs understood as constitutionally defining moments for all parties involved should not be overstated. As Caporaso comments, `viewed from a long-term perspective, the 1996 conference is likely to be but one punctuation mark in a long, meandering, often messy process of political change' (Caporaso, 1996: 30). The tendency is to assume that IGCs and Treaties give the Member States the invariable `last say' (Dahl, 1956, p.38 quoted in Chryssochoou, 1997, p.522). Is it in fact the case that through intergovernmental conferences and new Treaty provisions the Member States recapture and redirect the integration process? Or rather, is it that the new ongoing rhythm of conferences and amendments visible throughout the 1990s where one IGC has led onto the next has allowed the institutions, which are the real repeat players in the context of European integration, to `capture' and `direct' the will of the Member States?

IGCs occur alongside the ongoing and routeinised governance processes of the EU. The management of the internal market, the customs union, and the common agricultural policy does not cease during an IGC. Treaties, once ratified, escape the exclusive control of the Member States. It seems almost trite to point to the dramatic expansions or changes in meaning resulting from interpretations placed upon individual Treaty provisions such as Articles 28 [30] or 141 [119] EC by the Court of Justice, in particular changes which have resulted in conferring `new' legal rights on individuals as subjects of law. New legal powers agreed in a Treaty lead into a legislative process where those powers may or may not be exercised, and where the precise substantive outcomes cannot be predicted by reference to the contents of the Treaty or the travaux preparatoires of the IGC alone. Treaty powers have to be managed, and the Council of the EU comprising the representatives of the Member States is just one of the institutions involved in the management process. Hence, whilst the focus of the second part of this chapter is on changes instituted by the Treaty of Amsterdam which are significant from the perspective of the constitution of the citizen at EU level, it takes `Amsterdam in context' as its primary point of reference.

Studying a constitutional settlement

Constitutional development can be seen as a conventional response to problems of human organisation and disorganisation, and the study of the constitution need not necessarily presuppose the type of political entity which is being settled. We can study the basic rules of the game understood in a more formalistic or procedural sense, which tells us most of what we need to know about how things happen, but very little about why or what for. We shall look in the next part to see if the Treaty of Amsterdam in fact does tell us rather more about the why, even though in many respects it continues a trend in such EU treaty instruments of concentrating on the how.

Much of the history of constitutionalism in the EU so far has been marked by two key features: it has been predominantly a form of `top-down' constitutionalism, driven by institutions, governments and states and not citizens, and in the early years it was dominated by the discourse of the Court of Justice. The first big `constitutional' debate concerned the relationship between EC law and national law, and the establishment of the crucial characteristics of EC law (notwithstanding the absence of any relevant provisions in the Treaty), whereby EC law is considered - by the Court of Justice at least - to be both part of national law, and also a superior source of law, even vis-à-vis national constitutions. The Court established the basic principle that individuals may derive rights from EC law which national authorities and courts must respect, and it has since buttressed that conclusion by finding, for example, that there is a general principle of state liability under which Member States can be required to make good loss caused by their failure to observe their Community obligations. This form of constitutionalisation of the Treaty, if not of the polity, remains one of the most important contributions of the Court to the development of the EU overall, but as a rules-based conclusion it tells us little or nothing about what the rules are for (Armstrong, 1998), other than the self-evident objective of securing and strengthening the authority of EC law which is not necessarily coterminous with the political authority of the EC/EU as a whole. On the contrary, the work of the Court precisely needs to be read in the context of the market-building activities of the EU as a whole - including the Commission and the Council - before it becomes more understandable.

Top-down constitutionalism continues to be the leitmotiv of EU polity formation, but is hampered by the limited extent to which such processes can in fact deliver meaningful statements about the type of society that `Europeans want', and the type of political community which would engage their involvement. And yet the elements of `bottom-up' constitutionalism in the Amsterdam process are also extremely weak. In themselves, they represent a decisive change from previous IGCs, with a `louder' noise being made by a number of organisations purporting to represent the interests of vulnerable and not so vulnerable groups, and the more diffuse interests of civil society and citizens generally. While the democratic credentials of many such groups are unlikely to stand up to close scrutiny, they remain a vital surrogate for the expression of citizen interests in any imperfectly organised political community. They represent a continual reminder that supranational institutions and supranational legal and political authority will inevitably have a substantive content. If Treaties themselves pay little or no attention to issues of content, then that will be delivered by some other means such as through the legislative process or executive decision-making - the `constitutional' credentials of which may be even more tenuous than the treaty-making process involving the governments, the institutions and the national ratification procedures. The second part of this chapter argues that evident in the Treaty of Amsterdam, and the events and debates which surround it, is a greater (if still rather slight) degree of attention to issues of content; moreover, changes which posit the citizen as constitutional entity within the Treaty - but one who escapes the bounds of national-type classifications - and as an increasingly active participant in an embryonic transnational civil society are the key elements within this shift. The key shifts in the ongoing European integration process come out of the tensions between these elements of top-down institutional design and bottom-up struggles and claim-making.

[3] Fuller exposition of my approach to Union citizenship can be found in Shaw, 1997 and 1998a.

[4] The best example is Case 294/83 Parti Ecologiste `Les Verts' v. Parliament [1986] ECR 1339.

[5] Numbering policy: the numbers used for Treaty provisions are those in the consolidated texts, which enter into force once the Treaty of Amsterdam is ratified. The numbers appearing in the square brackets are the pre-consolidation numbers.

[6] Opinion 1/94 [1994] ECR I-5267; Opinion 2/94 [1996] ECR I-1759.

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