EU citizenship: Still a Fundamental Status? 7 the reflections below will help to show, amongst other insights, that EU citizenship is not just a matter of institutional choices but also, increasingly, of choices made and routes followed by individuals and groups. It has both a top-down and a bottom-up dimension.  ow far does EU citizenship constrain member state H sovereignty in matters of nationality law? The EU has been accused of being ‘over-constitutionalised’.9 That is, that too much in terms of substance and too many constraints on national sovereignty have been packed into its founding treaties, and handed over for authoritative interpretation and application to the CJEU. This has the effect of over-emphasising the role of the judiciary, both at the supranational and the national level (as the starting point for most pathways to the Court of Justice, especially for individual litigants, lies in the national courts, not the EU courts). Some have argued that there is no obvious legitimating factor justifying this function. It just looks like overpowerful and overweaning judges, undermining political constitutionalism.10 This unnecessarily subverts the role of elected institutions and thus of ‘the people’ who elect those institutions. Equally, EU legislative measures are often – of necessity – somewhat broad and protean in their drafting, and require frequent judicial reinterpretation even once they have been transposed into the national legal orders. They are also very difficult to amend because of multiple veto points within the system. The field of EU citizenship is arguably ripe for such an interpretation. EU citizenship, established in Articles 20 and 21 TFEU, has operated as a backstop in cases where the most important secondary legislation, notably the so-called citizens’ rights or free movement directive,11 does not apply. CJEU case law, on issues such as the rights of third country national family ­members of mobile EU citizens, has proved challenging for national authorities to accept and implement. Exploring the well-known point that fears about loss of national sovereignty over immigration and about CJEU judicial power have been important factors in the Brexit vote, Susanne Schmidt has shown in some detail how this process has worked in the case of free movement, leaving little 9 10 11 Grimm, D. (2015), ‘The Democratic Costs of Constitutionalisation: The European Case’, European Law Journal 21 (4): 460–473. See Bellamy, R. (2007), Political Constitutionalism. A Republican Defence of the Constitutionality of Democracy. Cambridge: Cambridge University Press. Directive 2004/38/EC [2004] OJ L158/77.