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European single currency, citizenship and constitutional developments

di - 19 Giugno 2009
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These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder”.
Most legal scholars, however, believe that, while reconstructing the notion of European citizenship, further elements need to be taken into account, namely the judicial developments following the Maastricht Treaty’s enactement, and the fact that the features of that citizenship are inextricably connected with a legal order which is itself far from being fairly stabilized.
In this perspective, European citizenship is conceived as part of a wider process of progressive definition of the EU’s identity, rather than as a clearly defined legal notion. This gets the legal approach closer to the sociological, although the former, contrary to the latter, is bound by the before mentioned constraints, which in the meantime afford at least a general structure of the discourse. While adopting a legal approach, even the function of the single currency in the construction of European citizenship needs then to be investigated in light of these elements.
An analysis of the Treaty provisions, of the further developments due to the European Court of Justice, and of the attempts of the EU’s constitutionalization occurring, with different words, since the 2001 Laeken Declaration, drives to the assumption that the European citizenship is characterized by two distinguished dimensions, namely the transnational and the supranational. While the former corresponds to the bundle of rights of the citizen of a EU Member State moving or resident in another EU Member State, the latter corresponds to that citizen’s rights with respect to the EU institutions[1].
The transnational dimension is older and far more consolidated than the supranational, going back to the very foundation of the EEC as grounded on freedom of movement of persons, goods, services and capital, and particularly to the ECJ’s recognition of the EEC Member State’s worker’s rights irrespective of its residence in a certain Member State.
That jurisprudence was encapsulated in Article 17 of the TEC. While stating that citizens of the Union shall have “a) the right to move and reside freely within the territory of the member States”, the Maastricht Treaty labeled under the wording “citizen” the bundle of rights which the ECJ had already deemed inherent to the status of the citizen of a certain Member State working in another Member State. On the other hand, Art. 17, lett. a) of the TEC paved the way to a further development of the ECJ’s jurisprudence. Departing from the need of combining the right to free movement with the equal treatment principle, the ECJ helds that free movement is a fundamental right that does not need to be justified. It is rather for the Member State to justify any restriction to such right as reasonable and proportionate. This reversal of the burden of proof puts the citizen on the move in a much stronger position vis-à-vis national administrations. The cases relate to the need to reconcile free movement of citizens with policies such as access to education, social benefits, taxation, which are highly sensitive and close to national sovereignty.
The Treaty and the way it is being implemented by the ECJ is also bringing about more recognition of citizens as citizens rather than as different categories of the population or professions. Following the lead taken by the Court, EU legislation on free movement and residence – the “European citizenship” directive (2004/38) – collects 9 separate legal texts for different categories. Similarly, new legislation on the recognition of professional qualifications brings together 15 previous texts for separate professions. At any rate, the expansion of the transnational dimension of the European citizenship is still led by the ECJ. Legislative acts follow, and tend rather to rationalize, previous judicial holdings.
The supranational dimension of European citizenship appears more fragile and problematic than the transnational. Its legal origin lies of course in Art. 17 of the TEC, but the only rights herein recognized corresponding to the supranational dimension are “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”. A thin list, if not insignificant, certainly not comparable with the flourishing recognition of the European citizen’s rights grounded on freedom of movement. Nonetheless, the Treaty provisions are far from exhausting the rights which are likely to be connected with the supranational dimension of European citizenship. The 2000 Charter of fundamental rights of European citizens, although not entered into force yet, has become a crucial point of reference for these rights, mainly due to the case-law of national courts. On the other hand, European courts have hugely expanded their own jurisdiction over rights falling outside the traditional sphere of the European market.
Hence derives the widely held opinion that European citizens rights, both in the transnational and in the supranational dimension, are meeting sufficient judicial protection, and that the issue at stake at this respect is rather the overlapping among national and European Courts, including the European Court of Human Rights. Apart from this inconvenience, the degree of protection of citizens rights at the European scale is believed to have gradually reached that ensured at the national. But this doesn’t lead to the conclusion that the process of creating an European citizenship has come to an end. To the contrary, in spite of the increasing judicial protection of citizens rights occurred in the last decade, the European citizenship remains a difficult objective to achieve.

Note

1.  On this see C.Pinelli, Cittadinanza europea, in Enciclopedia del diritto. Annali I, Giuffrè, Milano, 2005, 185-186.

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