The Failure of Union Citizenship Beyond the Single Market
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Connecting to the Union as a whole
Twenty years ago, the European Union could reasonably be considered a
political union in the making. Union citizenship could be perceived, like
direct elections to the European Parliament or the ill-fated Constitutional
Treaty, as a building block of the EU constituting itself as a supranational
political community based upon meaningful public discourse and a functioning ‘representative democracy’ (Article 10.1 TEU). The famous dictum of the Court that citizenship was ‘destined’ to be a fundamental status
arguably hinted at this forward-looking aspiration. A vision of social justice embracing the fight against social exclusion, whose absence in the
Dano judgment De Witte criticises, would undoubtedly have been an integral part of such supranational polity (see Article 34 Charter of Fundamental
Rights).
We all know that the state of the EU is a different one at this juncture. The
confidence that some sort of political union would be forthcoming was seriously damaged after the failure of the Constitutional Treaty, as a result of the
eurocrisis and regarding the surge of anti-European populism. That is why a
continuation of the trend towards ever more citizens’ rights was no forgone
conclusion. Indeed, the Dano judgment is not the only example in which the
ECJ refrained from developing its vision of social justice: not assessing austerity measures in light of the Charter is another example.8 By deciding not
to engage in such debates, the Court signalled that it would not develop a
thick reading of citizens’ rights. This hands the initiative back into the
domestic arena. National constitutional courts or the ECHR will ultimately
have to decide the fate of Ms Dano.9 The ECJ abdicated responsibility in the
same way as it handed questions of family unity in purely domestic situations back to national courts and the ECHR.10
8
9
10
See José Menéndez, A. (2014), ‘Which Citizenship? Whose Europe?—The
Many Paradoxes of European Citizenship’, German Law Journal 15 (907):
928–931.
After the German Federal Social Court had granted Ms Dano (and some other
Union citizens who are economically inactive) a right to social benefits on the
basis of statutory rules, the Merkel government announced a change in the law,
which would ultimately require the German Constitutional Court to decide
whether Union citizens can be expected to return to their home state to obtain
social benefits.
Cf. ECJ, Dereci u.a., C-256/11, EU:C:2011:734, paras 70–74.
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