Kochenov: Good European Citizenship
As the integration project matured, what was Europe’s main strength became its chief weakness. Conceived as a market to serve those ideals that are grander than simple economic prosperity, and are thus intended to benefit every European by becoming part of our “legal heritage”, as noted in Van Gend and Loos vs. Netherlands Inland Revenue Administration in 1963,1 European law has failed to move on with the times. Once considered a stepping stone to peace and other valuable ideals, the EU has gradually lowered its ambition; the means for greater progress, which was the market, has assumed chief place among the EU’s ends.
For the first time in its history, the EU is today routinely perceived as a potentially powerful agent of injustice — not only by nationalists and outcast lunatics but also by its own servants and facilitators, professors of EU law. Perceptions have likely changed because the market without a mantle of ideals is not a pretty sight; the citizenship it is responsible for — having de facto overpowered the core elements of the nationalities of member states in a number of respects — frequently punishes instead of protects. This is done with a most meticulous attention to detail. The ‘good citizenship’ that the EU cherishes rests on an intimate personal connection with the idea of the internal market and cross-border movement: virtually the only measure of someone’s worthiness in the eyes of the supranational law.
The EU could try to redeem itself through making its law at least sensitive to human suffering. This can be done, at the bare minimum, through allowing the Van Gend and Loos legal heritage of the citizens to play a more significant role in the system than the market logic. Market logic will remain particularly problematic in the citizenship context as long as it shapes the formal status of citizenship, which can be deactivated by a failure to engage with the market sufficiently, forming the worst and the least humane blend of the legal truth and social reality paradigms of personhood in law. In a constitutional system, even where democracy as such is out of reach, rights cannot be acquired by engaging in ethically and morally irrelevant acts. For instance, parents are not punished when their child’s disability prevents them from working, and tax breaks do not depend on the nationality of one’s former spouse.
The core problem with EU citizenship today is precisely that the principle behind the application of the law, which directly impacts on countless lives, is rather farcical and thus inexplicable from a rational, humane perspective. Moreover, violence is done in the name of member states’ perceived sensitivities when in fact it is (often absurdly) dull, market-inspired sophistry that is at play: “When he grows up, he might want to move across the non-existent border.”
1 Case 26/62, NV Algemene Transport en Expeditie Onderneming van Gend en Loos v Netherlands Inland Revenue
Cf. Case C-148/02 Carlos Garcia Avello v Belgian State, ECLI:EU:C:2003:539 , ECR I-11613
The full contribution of the author on ‘The Citizenship of Personal Circumstances in Europe’ is available in Daniel Thym (ed.), Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU (Oxford/Portland: Bloomsbury/Hart 2017)