‘Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union.’ (Article 2, Treaty of Maastricht, 1992).
It was with this short – and apparently simple – statement that Citizenship of the European Union (EU) was first formally established by the Treaty on European Union (TEU – more commonly referred to as the ‘Maastricht Treaty’) which came into effect in 1993 (Painter 2003, 4). Yet from the moment of its creation, numerous commentators have identified a broad range of challenges for European Union Citizenship policy from the perspective not only of individual citizens (and non-citizens), but also from countries both within and outside of the European Union, and for the institutions of the EU itself. These challenges include, inter alia, how the policy can: account for the status of third country nationals living in the EU (see Hansen 1998); respond to the naturalisation policies of third country governments (see Freeman and Ögelman 1998); ensure the rights associated with EU citizenship are applied and enforced equally across all member states (see Maas 2009); justify the restricted rights applied to new member states during transitional arrangements after Enlargement (see Maas 2005); and promote a sense of European identity (see Schall 2012). This article agrees that these are indeed serious challenges, but will further argue that underlying many of them is one principal challenge: that EU citizenship lacks clarity and definition regarding exactly what it is intended to do, leading to a significant gap between the expectations and reality of the policy. It will therefore be argued that the main challenge for EU Citizenship policy is to set, and to communicate effectively to EU citizens, realistic normative expectations concerning what it actually aims to achieve.
Before embarking on a detailed evaluation of the main challenges facing EU citizenship, a few words are first necessary on the context and content of the policy itself. Whilst it was first formally described in the Maastricht Treaty, which set about establishing a common citizenship for nationals of all EU states, a report by the Institute for the Study of Civil Society notes that there were earlier steps in the direction of citizenship as ‘European Community residents had already been carrying a symbol of shared European identity since 1988 when the first burgundy-coloured passports were issued by all member states’ and that ‘In 1999, the idea of citizenship gained another boost, when the European Court of Justice (ECJ) ruled that EU citizenship should be a ‘fundamental status of nationals of member states’’ (Civitas 2006, 1). What these earlier steps lacked was the explicit creation of EU citizenship and the rights it entails; a gap which was addressed by the Maastricht Treaty.
Fourteen years after the signing of Maastricht, the 2007 Lisbon Treaty built on the definition of EU citizenship, asserting a claim of equality for all EU citizens and defining exactly who those citizens would be. According to Article 8 of the Treaty:
‘In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.’
The Lisbon Treaty goes on to outline four fundamental rights granted to EU citizens, including: ‘(a) the right to move and reside freely within the territory of the Member States; (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State; (c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State; (d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language’ (Treaty of Lisbon 2007, 52).
Having briefly outlined the content of EU Citizenship policy, a first set of challenges can be seen to flow directly from the very definition given in the Lisbon Treaty text. For example, Hansen (1998) and Kochenov (2011) both highlight a major challenge for EU Citizenship policy in how it struggles to address the status of long-term resident non-EU nationals living in EU member states. As detailed above, Article 8 of the treaty asserts that: ‘Every national of a Member State shall be a citizen of the Union’ (2007, 14). This loose phrasing disguises the fact that national citizenship of an EU member state is, in fact, a necessary condition of EU citizenship, excluding all individuals who do not possess that status. The requirement to be an EU member state national presents two key problems: firstly, that long-term resident non-EU nationals lack the rights provided to EU citizens; and secondly that since naturalisation policies are far from identical in different EU member states, there is no consistent path to attaining EU citizenship. As Schall puts it, this presents an unsatisfactory situation in which: ‘EU citizenship is determined by citizenship in the member states, despite widely varying definitions of who is and who may become a citizen’ (2012, 130).
In considering these two challenges, it might be countered that the exclusion of long-term resident non-EU nationals from the EU citizenship definition is not really a genuine problem for EU Citizenship policy itself. After all, it is surely the case that every form of citizenship, by demarcating a certain group as ‘citizens’ based on some criteria, must necessarily exclude others; no citizenship can be all-encompassing. Maas (2009), however, insists that the sheer size of the group not included by the EU citizenship definition makes it a subject of real concern. He comments that: ‘Totalling the undetermined number of third country nationals residing in the EU without legal [citizenship] status makes it clear that proposals for common European policies regarding third country nationals affect a group of people larger than the populations of most of the Member States’ (Maas 2009, 276). Hansen goes further, asserting the plight of long-term resident non-EU nationals to be the single most pressing of all the criticisms that can be levelled against EU Citizenship policy. Noting that ‘third country nationals resident in the EU do not possess the right to participate in national elections in their country of residence… [or] to avail themselves of employment possibilities in the rest of the EU’, he urges that ‘the most objectionable aspect of European citizenship is its failure to address the status of some 12-13 million disenfranchised permanent residents across the EU’ (Hansen 1998, 753-754). Reviewing the political barriers to remedying this situation, Hansen goes on to lament that: ‘There is every reason to believe that neither the extension of Maastricht’s [EU citizenship]… to third country nationals nor the introduction of a separate European citizenship granting its rights are serious political options’ (1998, 775).
As for the second issue – the lack of a level playing field for attaining EU citizenship – Hansen explores in detail the policy differences with regard to naturalisation between EU states such as Germany, France and the United Kingdom, demonstrating the highly contrasting – and sometimes very demanding – requirements imposed on those who wish to attain national citizenship, and thereby EU citizenship as well. For example, he finds that (at the time of his report in 1998) seven EU countries did not accept dual nationality: ‘Austria, Denmark, Finland, Luxembourg, Sweden, Spain and Germany’ (1998, 760). Many countries also had stringent requirements for second-generation migrants, such as Belgium’s requirement that the parents of applicants for naturalisation had lived in the country for 10 years; or Germany’s insistence on applicants having eight years’ residency, including six in education, of which four were to be in secondary education (Hansen 1998, 758). This is a problem which the EU itself seems little able to resolve, as the Court of Justice of the European Union has indicated that, in accordance with international law, ‘Member States have the power to lay down the conditions for the acquisition and loss of nationality’ (European Commission 2010a, 4). Maas concurs, stating: ‘EU institutions have little power to prevail upon Member States which adjust their citizenship criteria and thereby include or exclude individuals from the status of EU citizen’ (2009, 265). In summary, the challenge facing EU citizenship, as an additional layer of citizenship, is how the policy can be applied equally when naturalisation practices are determined differently at the member state level.
Freeman and Ögelman (1998) expand this argument, pointing out that EU member states’ naturalisation policies are only one side of a relationship that should not be considered in isolation. Rather, they argue that it is essential to recognise the importance of the policies of sending countries (those from which migrants have emigrated to the EU) which may restrict individuals’ ability to apply for naturalisation, and subsequently gain EU citizenship. In common with virtually all states, sending countries not only have laws regulating the ‘acquisition of their own citizenship, but… also pursue policies that regulate its loss, renunciation, or reacquisition. They may encourage, tolerate, or prohibit dual nationality. They may recognise expatriation, but in turn impose penalties on their ex-citizens and their children’ (Freeman and Ögelman 1998, 771). In other words, whilst EU citizenship may claim to represent EU citizens equally, what is most evidently not equal is the path for non-EU nationals to attain EU citizenship in the first place. Instead, their ability to become EU citizens operates with the context of the myriad legal frameworks of both their country of origin and residence, which provide incentives and disincentives, possibilities or restrictions for applying for naturalisation. Freeman and Ögelman arguably summarise the whole situation best when they assert that:
‘The rights and status of third country nationals are not simply a matter for the governments of member states to determine, even less to be peremptorily resolved at Community level; they must be forged in light of the sensibilities, laws, interests, and strategic behaviour of the sending country governments as well’ (1998, 770).
In short, despite defining EU citizenship in apparently broad terms, the policy is challenged by its conditionality on EU member state nationality, and its inability to enforce a common approach across its constituent states.
It is not only within the domain of naturalisation law that policy differences between EU member states pose difficulties for EU citizenship. Both Freeman and Ögelman (1998) and Maas (2009) also consider the serious challenge of having to incorporate EU directives into each member state’s laws. In the latter’s view: ‘The most important and fundamental challenge faced by EU citizenship is the prospect of Member States or other authorities not respecting the rights it confers, for example, not complying with binding interpretations regarding Union citizenship’s content’ (Maas 2009, 268). Maas’s particular criticism is that the EU lacks the enforcement mechanisms required to back up the rights (as outlined earlier) offered by EU citizenship,. Examining this challenge more closely, the problem appears to emanate from the fact that whilst EU citizenship rights are created and specified at the European Union level, their actual delivery is performed at the national (or even local) level, often with poor levels of consistency, leading to an unequal experience of EU citizenship by European Union citizens themselves. Maas articulates this point well, declaring that: ‘Rights are differentially applied: some citizens benefit more from their rights than others, even if they nominally possess the same rights’ (2009, 274). For evidence of this argument, a European Commission report published in 2010 is revealing. In its EU citizenship Report 2010, the Commission details a multitude of examples of specific cases where EU citizens have received unsatisfactory treatment due to the fact that their rights were administered by different member states, operating within a variety of legal frameworks, and using differing outlets for service delivery. As the report states: ‘a gap still remains between the applicable legal rules and the reality confronting citizens in their daily lives, particularly in cross-border situations’ (European Commission 2010b, 3). The examples cited include discrepancies in the law regarding marriage and divorce; the purchase and sale of property; the recognition of academic and professional qualifications across national borders, and employment requirements for obtaining residency in an EU state (European Commission 2010b, 5-14). The document additionally describes cases where EU laws are equally applied, but where states have failed effectively to inform citizens of their rights. Highlighting one example, the European Commission indicates that: ‘EU citizens who live in a Member State other than their own have the right to vote and stand as candidates in European Parliament elections. Some Member States appear not to adequately inform EU citizens about this right’ (2010b, 17). Assessing the points described above, it can be summarised that EU Citizenship policy faces three main challenges with regards to rights: firstly, ensuring that EU citizenship rights are correctly and efficiently implemented in member state laws; secondly, providing services at a local level in each member state to deliver on the citizens’ rights specified in the treaties; and thirdly, communicating widely to ensure that EU citizens are aware of the rights to which they are entitled.
Whilst the arguments above concern the rights and experiences of individual citizens, it should also be acknowledged that through the process of Enlargement, EU Citizenship policy has been accused of discriminating against the populations of entire states through the application of so-called ‘transitional arrangements’. Transitional arrangements have on occasion been put in place when new states have acceded to the European Union and their citizens have been subjected to temporary limitations in their ability to enjoy the full rights of EU citizenship. Recalling the complaints of countries such as Spain and Portugal, who joined the EU in 1986 (albeit before the formal creation of EU citizenship), and whose citizens were initially denied the right to work in other EU states for seven years, Maas comments of the 2004 accession countries that, yet again: ‘There was a significant disjuncture between the existence of EU citizenship and the reality of the accession negotiations, in particular the transition arrangements passed to render enlargement more politically palatable in the existing member states’ (2005, 2). Writing five years later, the same writer highlights a case study of how ‘the United Kingdom and Ireland… opened access to the free movement of workers from the 2004 enlargement states such as Poland but decided to restrict immigration from 2007 enlargement states Bulgaria and Romania’. So whilst ‘all citizens of new member states should have gained residency rights throughout the EU, and all citizens of existing member states should have gained the right to move into the territory of the new member states when these states acceded to the EU’ this was unequivocally not the case (Maas 2005, 2-3). Here again, it is clear that the ideals of EU Citizenship policy have been challenged by the limitations of member states’ political willingness to see the rights of citizenship extended in ways which are perceived to threaten their own people. This (albeit temporary) variability in the rights held by the nationals of different EU member states may even challenge the most traditional assumptions about citizenship which is ‘usually seen as a unitary status: either one is a citizen or one is not. That is not the way to think of citizenship in this case, because the current enlargement involves step-by-step extension of rights to individuals’ (Maas 2005, 9).
The challenges discussed and evaluated thus far have focused on who is included in – and given the rights and benefits of – EU citizenship. Other commentators, meanwhile, have instead drawn attention to challenges which derive from the substance and status of EU citizenship itself. Painter, for one, believes that the term ‘European Citizenship’ is quite simply far too ambiguous, arguing that it could be taken to mean either ‘citizenship of Europe’ or ‘citizenship in Europe’ (2003, 4). The former interpretation, he believes, ‘links people with a specifically European polity’, whereas the latter draws attention to the ‘complex landscapes of citizenship in European political space’ (Painter 2003, 4). In raising this distinction, he makes plain the challenge for EU policy in being both tangible and understood by commentators of International Relations, and for EU citizens themselves.
Schall’s particular concern is not over the interpretation but rather the substance of EU citizenship (or rather the lack thereof), arguing that ‘The formal legal status of EU citizenship… remains a weak citizenship, which only indirectly affects the political processes of the union’ (2012, 123). To make this argument, Schall uses as a starting point the definition of citizenship given by T.H. Marshall in the essay ‘Citizenship and Social Class’ (1964). In that work, Marshall describes ‘three dimensions of citizenship: civic, political, and social. He [Marshall] proposed that these dimensions have developed largely sequentially to arrive at full, modern citizenship’ (Schall 2012, 125). Whilst EU citizenship arguably achieves important legal and political elements, such as the right to own property, to conclude valid contracts, and to take part in elections in EU member states, Schall contends that it falls short in the civic element, and that social citizenship is entirely absent (2012, 125). On the civic side she points to the low voter turnout in all member states in elections to the European Parliament. On the social side she argues that ‘there are no programmes for social provision at the European level. Thus, social rights continue to be claimed at the national level’ (Schall 2012, 126). In other words, EU citizenship has fallen short of the expected norms of the very definition of ‘full, modern citizenship’.
Yet this criticism is perhaps not fair. As Schall herself admits, Marshall’s definition is ‘primarily an account of British citizenship. He assumes a society largely untroubled by cultural diversity – “Englishness” was unproblematic in a way that “Europeanness” is not’ (2012, 128). It must therefore be questioned to what extent it is possible or legitimate to compare EU citizenship with the more familiar experiences of national citizenship at a member state level. For whilst there are some commentators such as Maas who believe that ‘EU citizenship approximates Member State citizenship’ (2009, 270), Schall does admit that: ‘It is possible… that traditional notions of social citizenship are inappropriate in the case of the EU, given that it is unique in being not quite a state, but more than a simple free trade area’ (2012, 137). Indeed, it may simply be wrong to try to equate the two.
One could therefore come to the rescue of EU Citizenship policy by judging it against a different model of citizenship against which it does not fall short. Somers (2008), for example, refers to a ‘Liberal’ model of citizenship, which guarantees elements such as ‘individual freedom and autonomy through the granting of rights, but does not concern itself with the ‘republican’ (participatory) and ‘communitarian’ (solidarity)’ aspects of citizenship (quoted in Schall 2012, 127). This approach would recognise that EU citizenship is not the same as that practiced in member states, and that it is therefore right and proper that it succeeds at the legal and political elements whilst deliberately omitting the civic and social aspects. It must also be recognised that this is not the only way in which differing models of citizenship are relevant to the debate on the challenges facing EU Citizenship policy. Compounding the problems outlined above, Maas observes that the process of EU Enlargement has highlighted that ‘there is no single model of central and east European citizenship, just as there is no single model of west European citizenship.’ He adds that ‘existing member states may have to start grappling with the legacies of Communist-inspired or pre-existing collectivist notions of the relationship of the individual to political authority’ (Maas 2005, 7). Put simply: by bringing together countries of differing political backgrounds, EU citizens themselves are likely to have widely variable views on what citizenship entails.
Despite the range of more legalistic models of citizenship on offer, Schall continues to agree with Maas that EU citizenship somehow does need to be more content-rich, and include elements such as European identity and a democratic connection with EU institutions. In this regard, both authors again find EU citizenship to be lacking. ‘EU citizenship… must inspire a fully developed citizenship identity in its own right, separate from national citizenship identities. EU citizenship ought not to be seen as a threat to national citizenship, but rather… a fruitful addition, not the empty addition it currently is’ (Schall 2012, 138). Both Maas and Schall believe that in most countries, national identity derives from attachment to a polity, in part achieved by the active role which the state plays in the lives of its citizens in providing services and benefits. Consequently, ‘A key challenge for the EU… relates to social entitlements in such areas as health care, education, pensions, and other benefits, which have come to characterize modern welfare states. Unless the EU institutions are able to guarantee some degree of portability and equality to these entitlements… EU citizenship… will remain relatively hollow’ (Maas 2009, 279). Aiming to explain the lack of an EU identity, Schall compares the Union to the formation of the United States of America, observing that: ‘some of the barriers to supranational identity in the EU – for instance, the diversity of languages spoken… and… their resistance to marginalization – did not exist, or existed to a much lesser extent, in the United States’ (2012, 135). It is not just academics who believe that EU citizenship lacks a sense of European citizen identity. The same idea is underscored by the fact that EU nationals consistently fail to identify themselves as citizens of Europe. According to a 2004 Eurobarometer Survey, only 10 per cent of those surveyed described themselves as ‘primarily European’ citizens. 41 per cent described themselves as not feeling like citizens of Europe at all (Eurobarometer 2004, quoted in Schall 2012, 123). In a 2010 survey, 79 per cent of European citizens claimed some familiarity with the term ‘citizen of the European Union’, yet only 43 per cent knew the meaning of the term and 48 per cent indicated that they were ‘not well informed’ about their rights as EU citizens (Eurobarometer 2010). Presented with such evidence, one must ask the question: is the challenge for EU Citizenship policy to try to develop a sense of identity, or is it rather to explain that it is not trying to create one?
It seems that one is left with a choice: should the lack of social and civic elements of EU citizenship, its lack of obligations and common identity, be regarded as shortfalls, or are these simply not elements which EU Citizenship policy aims to achieve? The decision must ultimately come down to what EU citizenship itself sets out to be. If it is intended to emulate a form of national citizenship (like that seen in the USA), then clearly it has serious challenges in that it fails to achieve the necessary components of that citizenship model. If, however, it only aims to fulfil a narrow, legalistic, definition of citizenship, then it has failed to convey its real aspirations and aims (as evidenced by the fact that commentators have judged it to have fallen short).
How can one determine what type of citizenship the EU itself aspires to deliver? There is clearly evidence that a narrow, legalistic model looks promising. In the definition given in Article 8 of the Lisbon Treaty, several rights are explicitly outlined, but there is no mention of specific responsibilities (other than those outlined in other treaties), immediately pointing to a difference with traditional notions of citizenship which focus on the obligations of the citizen to the state. It is even recognized ‘within the institutions of the European Union that the legal definition of citizenship, while establishing an important principle… is currently of limited practical significance to most European citizens’ (Painter 2003, 5). Yet on the other hand, whilst the official definition of citizenship as described in the treaties is indeed narrow, the European Commission itself does appear to have aspirations for a much more encompassing view of citizenship. Morano-Foadi provides evidence of the desire to go beyond the literal text of the treaties, saying:
‘The European citizenship concept redefines a polity in which the ‘us’ may no longer be Germans or Italians but would become European and the ‘them’ non-European. The treaties would have to be seen not only as an agreement among states, but as a social contract among the nationals of those states’ (2010, 418).
Further evidence comes from the Commission itself, stating in a 2010 report that it is implementing ‘the “Europe for Citizens” Programme, established… [with] a view to fostering civic participation, creating a sense of belonging to the European Union among its citizens, enhancing tolerance and mutual understanding and developing a European identity’ (European Commission 2010a, 12). Painter agrees that ‘EU policy makers are keen to see the development of a more widespread sense of European citizenship and of citizenship practices with a European Dimension’ (2003, 5). He cites a 1998 report from the Directorate-General for Education in Culture which states that: ‘a more holistic [than simply legalistic] conception of citizenship is more appropriate to modern European society, which can incorporate legal, political and social elements as well as working critically with a foundation of diverse and overlapping values and identities’ (quoted in Painter 2003, 5). He also refers to another European Commission report which states that: ‘in the context of European citizenship, it is also important that people feel psychologically attached to Europe’, leading Painter to conclude that: ‘despite the quite narrow definition of EU citizenship contained in the Treaties… it is clear that EU decision-makers do work… with more holistic conceptions of citizenship that incorporate questions of attachment, identity and participation’ (2003, 5). Assessing the evidence above, it seems that there is a disconnect between the legal (treaty) definition of EU citizenship and the aspirations of the European Commission. The challenge is surely to resolve that gap.
This article has explored a number of very significant challenges for EU Citizenship policy, as described by a wide range of different commentators. Broadly speaking, these challenges can be divided into two camps: those which are not affected by the model of citizenship assumed, and those which are.
Regardless of which model of citizenship one believes is the appropriate analogue, it has been shown that EU Citizenship policy struggles to address the status of the millions of long-term resident non-EU nationals living in EU member states. Article 17 of the Maastricht treaty describes EU citizenship as being ‘complementary to national citizenship’, whereas the ‘Lisbon Treaty emphasizes the fact that it is a status additional to national citizenship’ (European Commission 2010a, 3). However described, national citizenship remains a necessary condition, and that presents a challenge for the EU in that access to its citizenship is highly variable based on different naturalisation laws and requirements in member states. This in turn was shown to be compounded by the policies of so-called ‘sending countries’ whose laws may restrict an individual’s ability to apply for naturalisation in an EU member state. The application of the rights associated with EU citizenship was also seen to be inconsistent, revealing a major challenge for the policy in ensuring an equal experience of citizenship – a stated aim of EU citizenship itself. This was attributed to the difficulty of integrating EU laws into member states’ legal frameworks and the dependence on local delivery of EU-level rights. The transitional arrangements of Enlargement represent a large scale example of rights limitations, highlighting the EU’s challenge of achieving equality for its citizens in an environment in which member state politics prevents it. No matter what definition of citizenship is applied – even the narrow liberal model – these issues remain serious challenges for EU Citizenship policy.
More debatable are those challenges which commentators have argued derive from what EU citizenship sets out to be. Clearly, the EU lacks the day-to-day interaction with its citizens that member states have with their own nationals. There is a lack of identity with Europe on the part of many EU citizens, as evidenced by poll data. Missing too are the social and civic elements associated with national citizenship. These suggested challenges are different in that they do depend on what model of citizenship the EU policy is compared against. If only a narrow legal definition is the EU’s aim, then the criticisms laid out above seem unfair: identity, civic and social involvement are simply not aims of EU citizenship, and therefore cannot legitimately be said to be challenges. However, if EU citizenship is intended to include all these elements, then it must be accepted that the EU faces a serious challenge in fulfilling those aspects which are conspicuous by their absence. The treaties support the narrow view; the reports of the European Commission support a bolder interpretation. The fact that this question is debated serves to highlight that the EU has failed clearly to articulate to academics and its citizens precisely what EU citizenship is designed to achieve. It must therefore be concluded that the main challenge for EU citizenship is to clarify what model it intends to emulate, what elements of citizenship it hopes to encompass, and what EU citizens can expect of their citizenship status. Morano-Foadi declares that ‘There are two dominant visions of the EU as a political community. The first is based on the idea that the EU is a right-based entity and the second considers the EU as a political community’ (2012, 418). The challenge for the EU is to decide upon and to communicate which vision its Citizenship policy aims to achieve.