Earned citzenship: understanding union citizenship through its scope

In this contribution I will argue that we are witnessing a reactionary phase in the Court’s interpretation of the citizenship provisions which not only reaffirms the migration paradigm, but also contracts the scope of application of Article 20(1) TFEU and imposes additional criteria for the enjoyment of citizenship rights to those provided for in Directive 2004/38. In turn, this development in the case law has important repercussions on how we think about Union citizenship – in particular, the status/beneficiary dichotomy, along with the additional requirements imposed by the Court and the reallocation of responsibility of vulnerable citizens across national boundaries, not only reduce the relevance of Union citizenship, but also transform it from a fundamental status to a mere additional one, so that the significance of Union citizenship is much diminished. While this turn in the case law can be defended from a hermeneutic perspective, it has important consequences. First, it restates the primacy of the market citizen; secondly, and more importantly, Union citizenship far from being a uniting concept becomes a vehicle for further discrimination. In this writer’s opinion it becomes nigh impossible to defend the concept of Union citizenship thus interpreted: no citizenship at all is preferable to such an unequal citizenship. To illustrate my claim I will recall the more recent case law on the scope of application of Union citizenship. I will then briefly analyse the significance of the ‘substance of rights’ case law, to then turn to a critique of the Court’s approach.