EU Citizenship, Free Movement and Emancipation: A Rejoinder
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part of the construction of the self. Vesco Paskalev argues that the ease of
movement across borders destabilizes another element that is crucial to justice and citizenship: that of (equal) political participation and engagement. On
these accounts, free movement does not suffice. Union citizenship should be
about more than simply free movement if it is to be normatively appealing. I
broadly agree on these points, in so far as they indicate that Union citizenship
offers a partial vision of justice at best. It does not set out a vision of substantive justice for 500 million Europeans. It does not deal well with instances of
discrimination that transcend borders, as Julija Sardelić reminds us.
The problem is that Union citizenship can never offer more than a partial
vision of justice unless we recreate on the European level the institutional
preconditions that we find on the national level (and that I have argued in
favour of above). To use the example mentioned above: is it more ‘just’ to
fund tertiary education through general taxation or make the student pay
himself? If we have a fiscal windfall of €400 million, should we spend it on
healthcare, pensions, or education? These questions can only legitimately be
answered if they are discussed and mediated through a ‘thick’ democratic
institutional structure – of which the EU is a very very distant cousin. The
EU simply does not possess the institutional structure required to answer the
question: ‘what is it to be European?’ or ‘what do we Europeans owe each
other’. And this institutional incapacity leaves us in a double bind: national
political processes are sufficiently ‘thick’, but structurally exclude relationships across borders from consideration. European political processes are too
thin to articulate a substantive vision of justice for all 500 million Europeans.
What we are left with is the legal norms of free movement and EU citizenship that seek (and not always succeed) to figure out what these relationships
across borders mean in terms of justice. The idea of justice in the EU, in a
sense, is tiered: it depends on both national institutional structures and transnational legal norms. Free movement and Union citizenship, then, as Païvi
Johanna Neuvonen forcefully argues in her comment and her recent book,
may not be sufficient to achieve justice in the EU – but they are necessary.
Unless and until the EU develops its institutional structure in a way that is
more sensitive to the views of its citizens, this is as good as it gets.
The institutional implication of this argument is that the scope and limits
of free movement and Union citizenship cannot be decided through political
structures as they currently are. Martijn van den Brink has argued that the
Union legislator offers a democratic – if not particularly ambitious – vision
on what free movement means, and the Court in Dano was right in accepting
this vision. Union citizenship, in his view, is not a normative commitment
towards emancipation and the limitation of state power, but its opposite: an
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