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Co-creating European Union Citizenship: Institutional Process and Crescive Norms

  • Dora Kostakopoulou

Abstract

By focusing on processes and institutional change, EU citizenship emerges as a co-created institution. It is the product of institutional design and co-creation by actors at all levels of governance and is shaped by multilogues at the ‘top’, ‘bottom’ and ‘sideways’, as well as by citizens’ formal and informal actions. A co-creation perspective leads us to reconsider state-centred assumptions about which form of citizenship should be predominant and the dualism of centralism (supra-nationalism) versus ‘home-rule’ (intergovernmentalism), and to embrace a genuinely citizen-centred perspective. The chapter develops the co-creation paradigm, examines its dimensions, various forms and patterns and, by discussing the post-Rottmann and Zambrano case law (McCarthy, Dereci, Iida, O, S and L and Ymeraga) as well as Tsakouridis and PI, sheds light onto the complex dynamics that make EU citizenship a vehicle of transformative institutional change but that can also work against it.

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1 Case C-184/99 Grzelczyk v Centre Public d’Aide Sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I-6193 [31].

2 See, inter alia, Kochenov, D and Plender, R, ‘EU Citizenship: From an Incipient Form to an Incipient Substance?’ (2012) 37 European Law Review 369 ; Wollenschlager, F, ‘A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration’ (2011) 17(1) European Law Journal 1 ; Shaw, J, ‘Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism’ in Craig, P and de Búrca, G (eds), The Evolution of European Union Law (Oxford, Oxford University Press, 2011); Shuibhne, N Nic, ‘The Resilience of EU Market Citizenship’ (2010) 47 CML Rev 1597 ; Maas, W, ‘Unrespected, Unequal, Hollow? Contingent Citizenship and Reversible Rights in the European Union’ (2009) 15(2) Columbia Journal of European Law 265 ; Everson, M, ‘The Legacy of the Market Citizen’ in Shaw, J and More, J (eds), New Legal Dynamics of European Union (Oxford, Oxford University Press, 1995) 7390 . Compare also Recchi, E, ‘Cross-state Mobility in the EU’ (2008) 10(2) European Societies 197 ; Kostakopoulou, D, ‘European Union Citizenship: The Journey Goes On’ in Ott, A and Vos, E (eds), 50 Years of European Integration: Foundations and Perspectives (The Hague, TMC Asser Press, 2009), 270–90; ‘EU Citizenship: Writing the Future’ (2007) 13(5) European Law Journal 623; Jacobs, F, ‘Citizenship of the European Union—A Legal Analysis’ (2007) 13(5) European Law Journal 591 ; Elmore, M and Starup, P, ‘Union Citizenship—Background, Jurisprudence and Perspective: The Past, Present and Future of Law and Policy’ (2007) 26 Yearbook of European Law 57 .

3 For a recent overview, see de Witte, B and Micklitz, H-W (eds), The European Court of Justice and the Autonomy of the Member States (Leiden, Intersentia, 2012). But compare A Stone-Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford, Oxford University Press, 2000).

4 Compare, here, Favell’s notion of ‘Eurostars’: Favell, A, ‘Immigration, Migration, and Free Movement in the Making of Europe’ in Checkel, JT and Katzenstein, PJ (eds), European Identity (New York, Cambridge University Press, 2009) 167–89.

5 I adhere to a broad definition of institutions encompassing formal as well as informal practices, rules, norms, procedures and organisations facilitating human cooperation and coordinated action. See Norgaard, A, ‘Rediscovering Reasonable Rationality in Institutional Analysis’ (1996) 29 European Journal of Political Research 31, 39; Armstrong, K and Bulmer, S, The Governance of the Single Market (Manchester, Manchester University Press, 1998) 56 .

6 The co-creation or co-construction of reality was the subject matter of Berger, P and Luckmann’s, T book entitled The Social Construction of Reality: A Treatise in the Sociology of Knowledge (London, Penguin Books, 1971 [1966]). In it, they sought to develop a theory of society as a dialectical process between objective and subjective realities. They referred to the existence of multiple realities and the process of weaving a coherent sense of meaning among them. Their thoughtful comments and observations unravel the activist, in the sense of participatory as well as activity-based (that is, practice-oriented), construction of all institutional realities.

7 D Kostakopoulou, ‘The European Court of Justice, Member State Autonomy and European Union Citizenship: Conjunctions and Disjunctions’ in de Witte and Micklitz (eds) (n 3) 202–03.

8 This phrase is borrowed from Gasset, J Ortega y, The Revolt of the Masses (New York, WW Norton and Company, 1957 [1930]) 7576 .

9 Aristotle, Poetics, 1448b.

10 Hallstein, W, Europe in the Making (London, Allen & Unwin, 1972 [1969]) 173–74.

11 The Free Movement of Workers in the Countries of the European Economic Community, Bull EC 6/61, 5–10, 6.

12 European Council, Regulation 1612/68 of 15 October 1968 on freedom of movement for workers within the Community, OJ Special Edition 475, [1968] OJ L257/2.

13 Plender, R, ‘An Incipient Form of European Citizenship’ in Jacobs, F (ed), European Law and the Individual (Amsterdam, North Holland, 1976).

14 Kostakopoulou, T, ‘Nested “Old” and “New” Citizenships in the EU: Bringing Forth the Complexity’ (2000) 5 Columbia Journal of European Law 389 . See also Kostakopoulou, T, Citizenship, Identity and Immigration in the European Union: Between Past and Future (Manchester, Manchester University Press, 2001).

15 European Commission, ‘7th General Report EC’ (1973) annex 2, ch II.

16 For a more detailed exposition, see Wiener, A, Building Institutions: The Developing Practice of European Citizenship (Boulder, Westview, 1998); Kostakopoulou, Citizenship, Identity and Immigration in the European Union (n 14); Maas, W, Creating European Citizens (Lanham, Rowman & Littlefield, 2007).

17 [1977] OJ 278/1.

18 (1972) 10 EC Bull.

19 The latter term is borrowed from Brubaker, R, ‘Migration, Membership and the Modern Nation-State: Internal and External Dimensions of Belonging’ (2010) XLI(I) Journal of Interdisciplinary History 61, 76.

20 Pietro Adonnino chaired the ad hoc Committee for a People’s Europe in line with the mandate given to it by the Fontainebleau Council in 1984.

21 A Spinelli, 1966, 7, quoted in Maas (n 16) 120.

22 See Adonnino Committee, ‘Second Report’ (1985) 2 EC Bull Supplement 7, 9–14.

23 European Commission, ‘Completing the Internal Market (White Paper)’ COM(85) 310.

24 Directives 90/364, 90/365 and 90/366, which were replaced by Directive 93/96. The European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their Family Members to move and reside freely within the territory of the Member States [2004] OJ L158/77, which repeals the above-mentioned Directives, introduces three separate categories of residence rights and establishes an unqualified right of permanent residence after five years of continuous legal residence in the host Member State.

25 The term is borrowed from Bourdieu, P, Outline of a Theory of Practice (Cambridge, Cambridge University Press, 1999 [1977]) 97 .

26 See the discussion in section IV below.

27 Compare here Dewey’s understanding of society and agents as forming a restless and fully integrated system. Indeed, according to Dewey, we are parts of a moving, dynamic, interactive system: ‘we, who are also parts of the moving present, create ourselves as we create an unknown future’: Dewey, J, Individualism Old and New (Amherst, NY, Prometheus Books, 1999) 83 .

28 Thelen, K, ‘How Institutions Evolve: Insights from Comparative-Historical Analysis’ in Mahoney, J and Rueschemeyer, D (eds), Comparative Historical Analysis in the Social Sciences (Cambridge, Cambridge University Press, 2003) 225 .

29 As Dewey has observed, ‘in every judgement some meaning is employed as a basis for estimating and interpreting some fact; by this application the meaning is itself enlarged and tested. When the general meaning is regarded as complete in itself, application is treated as an external, non-intellectual use to which for practical purposes alone it is advisable to put the meaning. The principle is one self-contained thing; its use is another and independent thing. When this divorce occurs, principles become fossilised and rigid; they lose their inherent vitality, their self-impelling power … A true conception is a moving idea’: Dewey, J, How We Think (Memphis, Central Books, 2012) 59 .

30 See North, DC, Institutions, Institutional Change and Economic Performance (Cambridge, Cambridge University Press, 1990); Thelen, K and Longstreth, F (eds), Structuring Politics: Historical Institutionalism in Comparative Analysis (Cambridge, Cambridge University Press, 1992). But compare Pierson, P, ‘The Limits of Design: Explaining Institutional Origins and Change’ (2000) 13 Governance 474 .

31 Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ L158/77 (Citizenship Directive).

32 Case C-85/96 Maria Martinez Sala v Freistaat Bayern [1998] ECR I-2691.

33 Grzelczyk (n 1) [31].

34 Weatherill, S, Cases and Materials on EU Law (Oxford, Oxford University Press, 2003) 490 ; Van Der Mei, P, Free Movement of Persons within the European Community (Oxford, Hart Publishing, 2003); Kostakopoulou, D, ‘Ideas, Norms and European Citizenship: Explaining Institutional Change’ (2005) 65(2) MLR 233 ; Reich, N, ‘The Constitutional Relevance of Citizenship and Free Movement in an Enlarged Union’ (2005) 11 European Law Journal 675 ; Dougan, M, ‘The Constitutional Dimension of the Case Law on Union Citizenship’ (2006) 31 European Law Review 613 ; Albors-Llorens, A, ‘A Broader Construction of the EC Treaty Provisions on Citizenship’ (1998) 57 CLJ 461 .

35 Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091.

36 Case C-224/02 Heikki Antero Pusa v Osuuspankkien Keskinainen Vakuutusythio [2004] ECR I-5763; Case C-406/04 G De Cuyper v Office national de l’emploi [2006] ECR I-06947; Case C-192/05 K Tas-Hagen and RA Tas v Raadskamer WUBO van de Pensioen—en Uitkeringsraad [2006] ECR I-10451; Joined Cases C-11/06 and C-12/06 Rhiannon Morgan v Bezirksregierung Köln and Iris Bucher v Landrat des Kreises Düren [2007] ECR I-9161.

37 See Case C-391/09 Runevič;-Vardyn (ECJ, 12 May 2011); Case C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien [2010] ECR I-13693.

38 Case C-135/08 Janco Rottmann v Freistaat Bayern [2010] ECR I-1449. See also Case C-200/02 Zhu and Chen v Secretary for the Home Department [2004] ECR I-9925.

39 Wollenschlager (n 2).

40 Pierson, P, Politics in Time (Princeton, Princeton University Press, 2004).

41 Ibid.

42 Case C-60/00 M. Carpenter [2002] ECR I-6279; Baumbast (n 35); Case C-459/99 MRAX [2002] ECR I-6591; Case C-540/03 European Parliament v Council [2006] ECR I-5769; Case C-127/08 Metock [2008] ECR I-6241.

43 Case C-34/09 Ruiz Zambrano v Office national de l’emploi (ONEM) [2011] ECR I-0000. Ruiz Zambrano was a Colombian national who had been residing in Belgium without a residence permit following the rejection of his asylum application, but could not be deported to his country of origin, Colombia, owing to non-refoulement reasons. His wife gave birth to two children, Diego and Jessica, both Belgian nationals and EU citizens since the father failed to register the births with the Colombian embassy. Although Mr Zambrano and his wife could not leave Belgium and were denied work and residence permits, he nevertheless had taken up full-time employment for five years in order to support his family and contributed to the tax and social security burden of the Belgian commonwealth. But when, following his redundancy, he challenged the authorities’ refusal to recognise his entitlement to unemployment benefit, he and his family faced the prospect of exclusion from Belgium and thus from the European Union.

44 Mantu, S, ‘European Union Citizenship anno 2011: Zambrano, McCarthy and Dereci’ (2012) 26(1) Journal of Immigration Asylum and Nationality Law 40 ; Hinarejos, A, ‘Citizenship of the EU: Clarifying “Genuine Enjoyment of the Substance” of Citizenship Rights’ (2012) 71(2) CLJ 279 ; Tryfonidou, A, ‘Redefining the Outer Boundaries of EU Law: The Zambrano, McCarthy and Dereci Trilogy’ (2012) 18 European Public Law 493 ; Wiesbrock, A, ‘Disentangling the “Union Citizenship Puzzle”? The McCarthy Case’ (2011) 26 European Law Review 861 ; Hailbronner, K and Thym, D, ‘Annotation of Case C-34/09 Ruiz Zambrano’ (2011) 48 CML Rev 1253 .

45 Zambrano (n 43) [44]. For commentary, see also Lenaerts, C, ‘“Civis Europeaus Sum”: From the Cross-Border Link to the Status of Citizen of the Union’ (2011) 2 Online Journal of Free Movement of Workers within the EU 12 ; Kochenov, D, ‘A Real European Citizenship: The Court of Justice Opening a New Chapter in the Development of the Union in Europe’ (2012) 18(1) Columbia Journal of European Law 55 ; Kochenov, D, ‘The Essence of EU Citizenship Emerging from the Last Ten Years of Academic Debate: Beyond the Cherry Blossoms and the Moon?’ (2013) 62(1) International and Comparative Law Quarterly 97 ; Hailbronner, M and Sanchez, S Iglesias, ‘The European Court of Justice and Citizenship of the European Union: New Developments Towards a Truly Fundamental Status’ (2011) 5 International Constitutional Law Journal 498 .

46 Rottmann (n 38).

47 Case 175/78 R v Saunders [1979] ECR 1129, [1979] 2 CMLR 216. See also R White, ‘A Fresh Look at Reverse Discrimination?’ [1993] European Law Review 527.

48 Case 180/83 Moser v Land Baden-Wurttemberg [1984] ECR 2539; Case 35-36/82 Morson and Jhanjan v The Netherlands [1982] ECR 3723; Case 298/84 Iorio v Arienda automata delle Ferrovie dello stato [1986] ECR 257; Cases C-64 and 65/96 Uecker and Jacquet v Land Nordrhein-Westfalen [1997] 3 CMLR 963; Joined Cases C-225/95, C-226/95 and C-227/95 Anestis Kapasakalis, Dimitris Skiathitis and Antonis Kougiaskas v Elliniko Dimosio [1998] ECR I-4239.

49 In Rottmann (n 38) [42], the Court held that ‘by reason of its nature and its consequences, the situation fell within the ambit of European Union law’.

50 Shuibhne does not detect a novel approach in the Court’s judgment in Zambrano (N Nic Shuibhne, ‘Annotation of Case C-434/09 McCarthy and Case C-256/11 Dereci’ (2012) 49 CML Rev 349). Kochenov, Hailbronner and Thym see ‘the substance of rights’ as a judicial innovation: Hailbronner, K and Thym, D, ‘Zambrano’ (2012) 48 CML Rev 1253 (note), 1257; Kochenov, 2012 (n 45). Compare also Maduro, MP, ‘The Scope of European Remedies’ in Kilpatrick, C et al (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000) 117, 134–35; Kadelbach, S, ‘Union Citizenship’ in Von Bogdandy, A and Bast, J (eds), Principles of European Constitutional Law, 2nd edn (Munich, CH Beck, 2009) 435 .

51 Advocate General Sharpston, in her Opinion on Zambrano of 30 September 2010, highlighted the importance of fundamental rights in the light of the legally binding Charter of Fundamental Rights, but the Court premised its decision on EU citizenship rather than on fundamental rights. Notably, AG Sharpston had also stated that ‘Article 18 TFEU should be interpreted as prohibiting reverse discrimination caused by the interaction between Article 21 TFEU and national law that entails a violation of a fundamental right protected by EU law, where at least equivalent protection is not available under national law’ (point 144).

52 It would have been impossible for the judiciary, but also for other Community institutions to ignore the Charter’s Preamblic reference to ‘[the Union] places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice’. Compare also the British case ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 [30].

53 Shuibhne, N Nic, ‘Free Movement of Persons and the Wholly Internal Rule: Time to Move on?’ (2002) 39 CML Rev 731 ; Spaventa, E, ‘Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and its Constitutional Effects’ (2008) 45 CML Rev 13 ; Tryfonidou, A, Reverse Discrimination in EC Law (Alphen aan den Rijn, Kluwer, 2009).

54 Case C-434/09 Shirley McCarthy v Secretary of State for the Home Department [2011] ECR I-03375.

55 Ibid [50].

56 Ibid [49].

57 Case C-256/11 Dereci, Heiml, Kokollari, Maduike and Stevic v Bundesministerium fur Inneres (ECJ, 15 November 2011).

58 According to the Court, third-country national members of the family of EU citizens (in that case, all Austrian nationals) who had never exercised their right to free movement and did not rely on their spouses for their subsistence fell within the ambit of the internal situation doctrine. Accordingly, both the family reunification directive (art 3(3) 2003/86) and the Citizenship Directive (n 31) did not apply.

59 Case C-40/11 Yoshikazu Iida v Stadt Ulm (ECJ, 8 November 2012).

60 Dereci (n 57) [67].

61 Ibid [66].

62 Ibid [67].

63 Ibid [69].

64 Ibid [72].

65 The association of fundamental rights and EU citizenship was discussed more explicitly in Yoshikazu Iida v Stadt Ulm (n 59). For the proposal of linking ‘the substance of rights’ doctrine of EU citizenship with fundamental rights, thereby enabling EU citizens to activate a ‘reverse Solange’ situation and rebut the presumption that the Member States comply with fundamental rights by relying on Article 20 TFEU before national courts and the Court, see Von Bogdandy, A, Kottmann, M, Antpohler, C, Dickschen, J, Hentri, S and Smrkolj, M, ‘Reverse Solange: Protecting the Essence of Fundamental Rights against EU Member States’ (2012) 49 CML Review 489 .

66 Case C-83/11 Secretary of State for the Home Department v Muhammad Sazzadur Rahman, Fazly Rabby Islam, Mohibullah Rahman (ECJ, 5 September 2012) [25] and [26].

67 Ibid. See AG Trstenjak’s Opinion on Yoshikazu Iida v Stadt Ulm (n 59), which was delivered on 15 May 2012.

68 Joined Cases C-356/11 and C-357/11 O, S and L (ECJ, 6 December 2012).

69 Joined Cases C-356/11 and C-357/11 O, S v Maahanmuuttovirasto and Maahanmuuttovirasto v L, Opinion of AG Bot delivered on 27 September 2012, points 44–46. The Advocate General stressed that such decision would be ‘freely’ taken by the mother for a reason linked to the preservation of family life.

70 O, S and L (n 68) [49].

71 Ibid [51].

72 Ibid [53].

73 Ibid [55].

74 Ibid [56] and AG Bot’s Opinion (n 67) point 44.

75 Council Directive 2003/86/EC of 22 September 2003 on the Right to Family Reunification [2003] OJ L251/12.

76 O, S and L (n 68) [70].

77 Case C-578/08 Chakroun v Minister van Buitenlandse Zaken [2010] ECR I-1839.

78 O, S and L (n 68) [78].

79 Indeed, according to Maslow, ‘facts are to a certain extent signposts which tell you what to do, which make suggestions to you, which nudge you in one direction or another’: Maslow, AH, The Farther Reaches of Human Nature (Harmondsworth, Penguin Books, 1971) 28 .

80 McCarthy (n 54) [50].

81 Case C-87/12 Kreshnik Ymeraga, Kasim Ymeraga, Afijete Ymeraga-Tafarshiku, Kushtrim Ymeraga, Labinot Ymeraga v Ministre du Travail, de l’Emploi et de l’Immigration (ECJ, 8 May 2013). In this case, a former national of Kosovo who naturalised in Luxembourg but could not invoke the Citizenship Directive (n 31) because he had not crossed borders (Directive 2003/86 could not apply because he had become an EU citizen). He could not rely on art 20 TFEU in order to secure a right of residence in Luxembourg for his mother, father and two of his brothers if ‘the deprivation of the genuine substance of rights’ test was not met.

82 For if one takes into account its diachronic evolution (see sections II and III above) and, in particular, the normative ideas surrounding it since the 1970s and the trajectory of the Court’s case law in the new millennium, one realises that the Court simply partook of the process of its co-creation by refining it and thus redefining it. In fact, the leap between ‘depriving the effective exercise of EU citizenship rights’ to ‘depriving the genuine enjoyment of the substance of the rights’ conferred by EU citizenship is not a big one. Similarly, one can recall the use of the effet utile (ie, the principle of effectiveness of Community law) coupled with the solidarity clause (ie, the principle of sincere co-operation) by the Court—a line that can be traced back to Simmenthal in the early 1970s, in order to pronounce a specific obligation on bodies to provide full and effective protection of Community law rights.

83 Case C-168/91 Konstadinidis [1993] ECR I-1191 [46].

84 Lenaerts (n 45). Similarly, although Lenaerts has argued that the deprivation effect relates to some and not necessarily to all of the EU citizenship rights and does not require the crossborder element, while the impeding effect refers to the traditional approach of the CJEU to indirect discrimination or non-discriminatory restrictions causing serious inconvenience for EU citizens (compare here Case C-391/09 Runevič-Vardyn [2011] ECR I-03787; Case 208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien [2010] ECR I-13693), whereby the cross-border link is necessary. In [56] of the Zambrano ruling. the CJEU refers to both deprivation and impediment for EU citizens finding themselves in purely internal situations.

85 Compare the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families adopted by the General Assembly Resolution 45/158 of 18 December 1990. Article 44(2) was phrased rather diplomatically: ‘state parties shall take measures that they deem appropriate and that fall within their competence to facilitate the reunification of migrant workers with their “family members”’. For the original text of UN Doc A/C.3/39/WG.1/WP.1 of 14 June 1984, which included a right to family reunification as opposed to recommendation to facilitate family reunification, see Battistella, G, ‘Migration and Human Rights: The Uneasy but Essential Relationship’ in de Gichteneire, P, Pecoud, A and Cholewinski, R (eds), Migration and Human Rights: The United Nations Convention on Migrant Workers’ Rights (Cambridge, Cambridge University Press, 2009).

86 I have in mind Robert Cover’s term ‘jurispathic’. According to him, the ‘jurisgenerative’ is always partnered with the ‘jurispathic’; Cover, R, ‘The Supreme Court, 1982 Term—Foreward: Nomos and Narrative’ (1983) 97(4) Harvard Law Review 469 .

87 Council Directive 64/221/EEC on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health [1964] OJ 56 (OJ Special Edition 850/64) 117, which was replaced by the Citizenship Directive (n 31). For early accounts, see Durand, A, ‘European Citizenship’ (1979) 4 European Law Review 3 ; Evans, A, ‘European Citizenship: A Novel Concept in EEC Law’ (1984) 32(4) American Journal of Comparative Law 674 ; Barav, ACourt Recommendations to Deport and the Free Movement of Workers in EEC Law’ (1981) 6 European Law Review 129 ; O’Keeffe, D, ‘Practical Difficulties in the Application of Article 48 of the EEC Treaty’ (1982) 19 CML Rev 35 ; Handoll, J, Free Movement of Persons in the European Union (London, John Wiley, 1995) ch 7 .

88 Case 36/75 Rutili v Minister of the Interior [1975] ECR 1219; Case 30/77 R v Bouchereau [1977] ECR 1999.

89 Rutili (n 88) [29]; Case C-441/02 Commission v Federal Republic of Germany [2006] ECR I-3449; Case C-524/06 Heinz Huber v Bundesrepublik Deutschland [2008] ECR I-9705. See also art 27(2) of the Citizenship Directive (n 31).

90 R v Bouchereau (n 88) [43].

91 Article 28(1) of the Citizenship Directive (n 31).

92 Case C-268/99 Aldona Malgorzat Jany v Ministre de l’Interieur [2001] ECR I-8615; Case C-430/10 Hristo Gaydarov (ECJ, 17 November 2011) [32]. I discussed this in ‘European Union Citizenship: Enduring Patterns and Evolving Norms’ (EUSA 12th Biennial International Conference, Boston MA, 3–5 March 2011) as well as in ‘When EU Citizens Become Foreigners’ (2nd Jean Monnet Workshop on ‘The Reconceptualisation of EU Citizenship’, Universidad Pontificia Comillas, Madrid, 7–8 October 2012).

93 European Commission, ‘On guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Communication)’ COM(2009) 313 final, 10.

94 Case C-145/09 Land Baden-Wurttemberg v Panagiotis Tsakouridis [2010] ECR I-11979; and Case C-348/09 PI v Oberburgermeisterin der Stadt Remscheid (ECJ, 22 May 2012).

95 Compare also AG Bot’s conclusion of his Opinion on Tsakouridis (n 94) delivered on 8 June 2010 [133].

96 European Commission (n 93) 10.

97 See recital 24 of the Citizenship Directive (n 31). Compare also AG Bot’s Opinion (n 95) [45].

98 Kostakopoulou, ‘When EU Citizens Become Foreigners’ (n 92).

99 AG Bot, Opinion on Case C-348/09 PI v Oberburgermeisterin der Stadt Remscheid, delivered on 6 March 2012. For commentary, see Azoulai, L and Coutts, S, ‘Restricting Union Citizens’ Residence Rights on Grounds of Public Security. Where Union Citizenship and the AFSJ Meet: PI’ (2013) 50 CML Rev 553 .

100 PI (n 94) [33].

101 Above n 93.

102 PI (n 94) [21] and [29].

103 For the definition of an historical crisis, see Gasset, J Ortega y, Man and Crisis (London, Jarrold & Sons Ltd, 1958) 8586 .

104 Pierson (n 40) 133.

* This chapter originated as a paper presented at Manchester University, Conference on ‘The Human Face of the Union’ (20 July 2012), the UACES 42nd Annual Conference, Old Borders, New Frontiers, University of Passau, 3–5 September 2012 and at the Centre for European Legal Studies, Cambridge University (23 January 2013). I would like to thank all the participants for questions and comments, and, in particular, Dagmar Schiek, Nuno Ferreira, Catherine Barnard and Tammy Hervey, as well as Alan Norrie. It originates from a presentation at the conference on ‘EU Citizenship and the Market’ at the European Institute, UCL on 17 June 2011, and I am grateful to all the participants there for their observations.

Co-creating European Union Citizenship: Institutional Process and Crescive Norms

  • Dora Kostakopoulou

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