134
M. van den Brink
addition to the Treaties was precisely because it was largely premised on
free movement.1
In other words, also post-Dano free movement remains the core of EU
citizenship; it is simply that the precise contours of this right have changed
somewhat. The real discussion thus is about the precise scope of the freedom to move and, relatedly, the principle of non-discrimination on grounds
of nationality. The Treaty provisions on free movement are of course indeterminate and their meaning far from evident. Indeed, as de Witte suggests,
the decision demonstrates that free movement is not unlimited, but whether
this is a problem is something people will reasonably disagree about. This is
also recognized by de Witte, who acknowledges that not everyone shares his
belief that Dano is unjust.
Justice, free movement, disagreement, and authority
But it is at this point that the real issue arises, namely, how, in the face of
disagreement about justice, such contestation is to be settled? Through
which political procedures do we want to resolve such disagreements? What
is necessary, in other words, is to ‘complement one’s theory of rights with a
theory of authority’.2 This issue has been largely ignored by most discussions of the recent social assistance case law.
While not addressed explicitly, for de Witte the authority to settle such
disputes is clearly to be given to the Court. This might be, as Bellamy in his
reply submits, because de Witte’s argument ‘suggests that appropriate
mechanisms do not exist for a constructive democratic dialogue that allows
for a clear discussion of how we might balance reciprocity between citizenship regimes and reciprocity within them in an equitable and sustainable
way’. However, while far from perfect, the EU has in fact adopted decision-
making procedures that to the extent possible allow for such a dialogue. This
dialogue, of course, takes place when the different institutions involved in
the EU’s legislative process, in which the EU citizen is represented by the
national governments as well as by the European Parliament, deliberate and
decide. These institutions have also spoken on many of the questions under1
2
Everson, M. (1995), ‘The Legacy of the Market Citizen’, in J. Shaw &
G. More (eds.), New legal dynamics of European Union, 73–90. Oxford:
Clarendon Press.
Waldron, J. (1998), ‘Participation: The Right of Rights’, Proceedings of the
Aristotelian Society New Series 98: 307, 322.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents