Striving for equality: who "deserves to be a union citizen?"

In this contribution I would like to take these three themes – intellectual coherence, attention to the individual and the emergence of the Union citizen – to see how they can inform our understanding of the nature of Union citizenship. In this respect, I will focus particularly on the external boundaries of the Treaty, i.e. on investigating how we can attempt to draw the limit of Union law when examining the rights of individuals. The issue here is not dissimilar from that solved so brilliantly by Advocate General Tesauro in Hünermund – the broader the scope of the Treaty, the more Member States see their regulatory choices curtailed: for this reason to decide on the external boundaries of the Treaty is of pivotal constitutional importance and serves also to shed light on the nature of the EU integration project. However, in the field of citizenship matters cannot be reduced to a constitutional match between pro and anti-integration factions; rather, and as explained below, there are forces pulling in all directions – and it might be impossible to reconcile them all without first agreeing on the direction of the EU integration project. This is the case for a plurality of reasons. First of all, the concern towards individuals as individuals rather than as mere factors of production, such as it is so evident in Professor Tesauro’s work, becomes more contentious when applied to those who, being economically inactive, are seen not to have contributed sufficiently to the host State, or to the European integration project, to be able to partake in the advantages deriving therefrom. At the same time though, it is those very people who are in a more vulnerable position; and it is in relation to those individuals that, often, fundamental rights issues become cogent. Secondly, the debate about immigration seems to have become central to many a political arena: the promise of tougher rules on immigration easily captures the popular imagination, and one might say distracts it from more pressing issues such as debates about equality, welfare and distribution of wealth and resources. As a result, Member States get particularly irritated when their policies, so carefully and restrictively drafted to achieve electoral gains, are undermined by an extensive application of EU law (or human rights law). Thirdly, when talking about family rights a certain degree of coherence within as well as outwith the EU system is necessary: here, it is very difficult to explain the nuances of the application of EU law to those who suffer the evils of reverse discrimination; or to those who, with less economic resources or unable to afford health insurance, happen to be slightly less privileged than those in very similar circumstances. Fourthly, the Victorian ideal of the ‘deserving’ poor seems to be mirrored in an abstract idea of the ‘deserving’ Union citizen: this is true, at least to a certain extent, of the legislative framework and is becoming alarmingly the case in the Court’s vision of the ‘good’ Union citizen. Finally, the adoption of the Charter cannot but have some influence on those debates not only because we have yet to understand when and how the Charter applies, but also because it holds a promise of equality which must be, as much as possible, made true. Overall the debate about inclusion and exclusion might well have more profound ramifications and one could well query whether the results of the recent European Parliament elections, which saw anti-European movements on the rise, are not also due to the fact that the EU is not seen as delivering palpable and clear advantages to its less entrepreneurial inhabitants. This said, I will argue that the Court is showing a retreat from its ambitious citizenship vision, according to which Union citizenship should be the ‘fundamental status’ of Union citizens, hence even more important than their market status. This is particularly visible in recent cases in relation to own citizens and public policy derogations. I will then suggest that such a retreat is symptomatic of a broader phenomenon which was triggered by the Eurozone financial crisis and that sees the EU, its institutions and its Member States at a cross road, where a decision has to be taken as to the future direction of the integration project. And possibly the debate on Union citizenship, even though not phrased in those terms in the media, is interesting in that it has shown both the distance between the institutional rhetoric and the citizens’ perception; and how easily some of the elements of the citizenship debate can be manipulated to suite political agendas. It is in times like those, much as it was the case in the 1970s, that we need a Court capable of showing a vision, and delivering rulings which are intellectually coherent, attentive to the individual and citizenship centred.