Kochenov: The Citizenship of Personal Circumstances in the EU

Citizenship has been defined as “an object and an instrument of closure”1 — the chalk of the line between the ‘outs’ and the ‘ins’; an indispensable element of the legal ‘world-making’. Exclusion is one of the traditional functions of citizenship. However, the creation of a supranational citizenship derivative from the nationalities of the member states has produced something new in the EU.

The EU altered the essence of citizenship by demanding inclusion of other EU citizens into the national community guided by the principle of non-discrimination based on nationality, thus abolishing the legal relevance of member state nationalities in an array of crucial areas of human activity where EU law applies. The EU has also removed somewhat the member states’ ability to regulate migration of EU citizens, with a very clear outcome for the relevance and function of the nationalities of the member states to go beyond providing a bridge to the ius tractum status of EU citizenship, that is the means to acquire the supranational status. Thirdly, and crucially, EU law deactivated what is usually perceived as one of the last remaining purely citizenship, as opposed to human, rights: the right not to be deported.

The ability of anyone to stay within the realm of their national legal system, protected by it from expulsion to a foreign land, is equally shattered. EU law does not only reward the movers regarded as useful in the context of the internal market but also ‘un-protects’ the static citizens even at the national level. EU law’s opening of states is empowering for those who are willing and ready to benefit from what is on offer. Enforcing old assumptions would unquestionably imply trimming the life chances of such individuals.

While EU citizenship has the potential to ‘take over’, de facto, from the nationalities of the member states, it seems to be based on entirely different principles. It is a citizenship conditioned on a market endorsement and the performance of ethically questionable acts, like venturing out across the invisible inter-state borders within the internal market. Rather than celebrating the abstract humanity of the bearer through the extension of rights based on a formal legal status aimed at ignoring the actual differences between the holders, EU citizenship, on the contrary, virtually never protects the weak and the needy based on their humanity and legal status but uniquely connects such protection with the perceived cross-border or economic aspects of the lives in question.

This said, this is all about giving recognition to the person. Instead of using the logic of the shift from the purely legal to social reality to extend additional protections to those whom the legalistic framework renders invisible, EU citizenship deploys the same to the opposing end: to pre-empt the extension of rights. In this sense, EU citizenship is a negative departure from the abstract citizenship ideal, looking beyond the strictly legal truth of supranational-level status only to undermine the latter’s effects should the dogmatic ideal of a ‘good market citizen’, which is by definition deprived of any moral or ethical contenu whatsoever, not be satisfied. This unexpected development demonstrates the attractiveness of the formal legalistic world of clearly formulated and meticulously enforced legal truths, which citizenship has precisely been drifting away from over the last decennia, turning modern constitutionalism towards the person.

1 W Rogers Brubaker, Citizenship and Nationhood in France
and Germany (HUP 1992) 34

The full contribution of the author on ‘The Citizenship of
Personal Circumstances in Europe’ is available in D Thym (ed),
Questioning EU Citizenship: Judges and the Limits of Free
Movement and Solidarity in the EU (Bloomsbury/Hart, Oxford/
Portland, OR, 2017).

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