What’s in a People? Social Facts, Individual Choice, and the European Union
39
change is responsible for social change. That the two are connected is hardly
surprising. In fact, this is a testimony to the success of the legal-political
endeavour in the first place.
The fact that French men and women cannot imagine a war with Germany
is a great sign of the EU’s achievements. This is just the tip of the iceberg of
change that the EU has brought into state behaviour, which has direct consequences for what is expected of states in Europe today. According to Philip
Allott3, we have witnessed a shift from diplomacy (using all the available
means to promote the states’ ‘own people’s’ well-being in interaction with
others) to democracy (taking the interests of all into account) in inter-state
relations in Europe. In other words, selfishness and inward-looking construction of the state at the expense of others, putting the interests of states’
‘own people’ above everything, gave way to the awareness of the interests
and expectations of others. For concrete people the effects of these developments are as important as they are for the states these people inhabit. The
fundamental shift from diplomacy to democracy means that favouring ‘your
own’ is prohibited in the majority of cases: a Scot is not and cannot be better
in the eyes of the British government than a Slovak. While implementation
problems are well-known, the starting point is nevertheless clear. In the
words of Gareth Davies4, Article 18 TFEU prohibiting discrimination on
grounds of nationality between EU citizens has largely abolished the nationalities of the member states within the scope of application of EU law. Even
more, by granting EU citizens free movement rights, the Treaties de facto
and also de jure made it largely impossible for the member states to have
any ‘immigration’ policy concerning EU citizens. In other words, modern
EU states cannot give preference to their own nationals compared with other
EU citizens and are not entitled to stand in the way of EU citizens exercising
their Treaty rights. This means that from container societies of destiny
(which is a synonym for the lack of individual choice) the member states
have turned into spaces for the expression of free will. EU law grants the
majority of EU citizens a right to be welcomed where they think they will
feel at home and the Court of Justice of the European Union is ready to step
in to protect such rights by defending EU citizens in their supranational
capacity against member states’ claims. This is a bitter pill for nationalists to
swallow. Their nationality, however much glorified in primary school education, means much less in the EU context than it would in a world where
there is no Union in Europe. This is one of EU’s main achievements.
3
4
Allott, P. (1991), ‘The European Community Is not the True European
Community’, The Yale Law Journal 100 (8): 2485.
Davies, G. (2005), ‘“Any Place I Hang My Hat?” or: Residence is the New
Nationality’, European Law Journal 11 (1): 55.
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