The Failure of Union Citizenship Beyond the Single Market
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Moreover, broader societal debates on the impact of immigration across
Europe illustrate that the corrective reading of transnational mobility
defended by De Witte remains mostly negative. It invites European societies
to abandon essentialist self-perceptions, but does not contribute much to
how the normative foundations of social cohesion should be construed
instead. The EU’s vision of ‘a society in which pluralism, non-discrimination,
tolerance, justice, solidarity and equality between women and men prevail’
(Article 2 TEU) or the ECHR’s standard invocation of ‘pluralism, tolerance
and broadmindedness’ as hallmarks of a democratic society which are supposed to structure the proportionality assessment often remain hollow. That
is why De Witte’s vision of free movement reinforcing emancipation at
national level remains a thin normative account.
Access to social benefits as a test case
Equal access to social benefits has received much attention in scholarly treatises on Union citizenship over the years, but only recently has it caused
widespread political frictions. One reason for the limited impact of the original equal treatment guarantee may have been that it concerned those who
were engaged in some sort of economic activity. For such scenarios, the
Court extended the range and vigour of equal treatment against restrictive
national laws, but the principle itself was uncontroversial, since most
Member States had embraced territoriality as the door-opener for work-
related social benefits anyway. Moreover, free movement did not substitute
national policy preferences with a supranational vision of social justice.
Britain and Sweden had to treat equally Union citizens who were economically active, but this did not affect the distinct structure of their welfare
state.3 Again, free movement rules reinforced a trend which took place
anyway.
Against this background, the central novelty of the original free movement provisions was not equal treatment of those engaged in economic
activities, but access to the labour market. To this date, the central difference
between a Polish and a Ukrainian national who wants to work in Amsterdam
3
See Thym, D. (2013), ‘Towards “Real” Citizenship? The Judicial Construction
of Union Citizenship and its Limits’, in: M. Adams et al. (eds.), Judging
Europe’s Judges. The Legitimacy of the Case Law of the European Court of
Justice, 155–174. Oxford: Hart.
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