EU citizenship: Still a Fundamental Status?
3
temptation to take a ‘frozen in time’ approach to explicating this story. On
the contrary, we should remind ourselves, by reference to classic texts such
as that of TH Marshall,3 that the location of citizenship forms and functions
has always been a mobile process, morphing at different points in history
between the local (e.g. the city), the regional, the national and the supranational. In fact, we can use the concept of citizenship across all of these levels, wherever there are institutions of political authority.
The idea of the link between a community of citizens and a political
authority was not really the starting point for EU citizenship. The European
Union began its journey towards recognising a uniform legal status for individuals at the supranational level not by acknowledging and supporting the
political agency of individuals as citizens, but by giving them rights and
freedoms. Specifically, it was through the civil and socio-economic rights
and freedoms that are inherent in the idea of a single market that a notion of
the individual having a stake in the integration project originally emerged.
Much of the power of these rights and freedoms to effect a transformation of
individual rights lay in the recognition of individuals as autonomous legal
actors within the European legal order by the European Court of Justice
(CJEU). This was an important conclusion, which the Court derived from a
purposive reading of the founding treaties. In addition, some further contributions towards the development of the rights of EU market actors were also
made by the EU legislature, especially when it came to giving effect to the
principles of non-discrimination on grounds of nationality and mutual recognition. Most of this work predated the formal establishment of the legal
concept of the Union citizen.
Only later was a modest edifice of political rights constructed (once the
Treaty of Maastricht had entered into force and the constitutional provisions
we recognise today had been introduced) and it was even later still that we
have come to see a closer legal and constitutional intertwining of the legal
statuses of EU citizenship and national citizenship, again largely as a result
of the interventions of the CJEU. We will come back to this dimension of
EU citizenship shortly. What has been most noticeable about this process
has been that the idea of the ‘civil’ (a ‘Europe of law’) has underpinned and
accompanied every stage of the putative building of supranational
citizenship. This looks, at first blush, like a wholly top-down construction of
3
Marshall, T.H. (1950), Citizenship and Social Class. Cambridge: Cambridge
University Press.
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