EU citizens’ whimsical status

doi:10.1017/CBO9781139924795.009

8 - EU citizens’ whimsical status

Persons or actors on their way to full agency?

from Part II - The individual: at the centre and in the periphery

Published online by Cambridge University Press: 05 August 2016

Päivi Johanna Neuvonen

Edited by

Nuno Ferreira and

Dora Kostakopoulou

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Nuno Ferreira: Affiliation:
University of Sussex
Dora Kostakopoulou: Affiliation:
University of Warwick

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Type: Chapter
Information: The Human Face of the European Union
Are EU Law and Policy Humane Enough?
, pp. 187 - 205

DOI: https://doi.org/10.1017/CBO9781139924795.009 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2016

8 EU citizens’ whimsical status Persons or actors on their way to full agency?

1 Introduction

The right to non-discrimination and equal treatment irrespective of nationality has played a central role in constitutionalising EU citizenship as the ‘fundamental status of all nationals of the Member States’ during the past two decades. However, it is not so clear when EU citizens can actually enjoy this right. This can be demonstrated by examining the situations in which EU citizens are not granted equal treatment as EU citizens either because a more explicit ‘connecting factor’ with EU law is needed to jurisdictionally activate the status of EU citizenship, or because their differential treatment can be justified in the absence of a ‘sufficient degree of integration into’ or a ‘real link with’ the society of the Member State in question. These conditions and limitations on EU citizens’ right to non-discrimination and equal treatment point towards a compelling legal and philosophical problem: the status of EU citizenship is meant to be a ‘fundamental status’ of all Member State nationals, but the rights granted under it can only be enjoyed by a select few.

This chapter uses the concept of ‘agency’ to discuss where and how EU citizenship still falls short of becoming a ‘fundamental status’. This critique builds on the following two premises. Firstly, the status of EU citizenship is fundamentally defined by how EU citizens’ right to non-discrimination and equal treatment is construed by the Court of Justice of the EU (the Court). Secondly, the accepted conditions and limitations on EU citizens’ access to equal treatment can be conceptualised as parameters for their agency as EU citizens. These parameters constitute the de facto value of EU citizenship to its holders. In order to materialise the potential of EU citizenship as a ‘fundamental status’, the current parameters for EU citizens’ agency must be clarified and reinterpreted in light of the post-Lisbon values and aims of European integration; these include promoting the values of human dignity, freedom, democracy, equality, non-discrimination, tolerance, justice and solidarity.Footnote ¹ This chapter contributes to this task by demonstrating how the idea of personhood can play a central role in filling the normative gap between the current parameters for EU citizens’ agency and the fundamental status of EU citizenship.

This analysis integrates a critical appraisal of case law with a theoretical examination of EU citizenship in the light of political and philosophical personalism. First, it will be seen how the recent case law on EU citizenship demonstrates that the functional requirements to prove individual activity and integration still prevail over the constitutive status of EU citizenship in the field of social equality (Section 2). It will then be seen how more inclusive parameters for EU citizens’ agency can emerge from recognising EU citizens as persons. The central claim in this chapter is that, in order to treat EU citizens as responsible actors, they must first be treated as persons (Section 3). Finally, these practical and theoretical arguments about the status of EU citizenship are brought together in the concluding section, which outlines how the objectives of European integration both justify and necessitate a more personalist approach to EU citizenship as an important step towards a more developed ideal of justice for the EU (Section 4).

2 EU citizens as ‘responsible actors’ in light of Court of Justice of the EU’s case law

The fundamental status of EU citizenship has often been explained with reference to the fact that EU citizens enjoy the right to equal treatment and non-discrimination on grounds of nationality.Footnote ² However, it remains controversial to describe EU citizenship as a ‘fundamental status’ of all EU citizens as long as many holders of this status cannot de facto access non-discrimination and equal treatment based on their status as EU citizens. New theoretical and conceptual tools, such as the agency-based account of EU citizenship in this chapter, are therefore needed to clarify the nature and limitations of EU citizenship as a ‘fundamental status’. This section will outline in more detail how the accepted parameters for EU citizens’ agency can provide a helpful analytical tool for addressing the current imbalance between EU citizenship as a fundamental status, on the one hand, and as a qualified status, on the other.

The basic notion of ‘agency’ refers to ‘the necessary preconditions for human activity rather than passivity’.Footnote ³ The agency-based critique of EU citizenship is rooted in the view that citizenship rights play a central role in enabling people to ‘act as agents’.Footnote ⁴ According to this view, ‘[t]o be a citizen, in the legal and sociological sense, means to enjoy the rights of citizenship necessary for agency and social and political participation’.Footnote ⁵ It follows from this idea of ‘citizenship as agency’ that the relationship between ‘agency’ and the ‘conditions within which that potential originates’ become central to analysing citizenship.Footnote ⁶ Similarly, in order to better understand the status of EU citizenship, we must understand the accepted parameters for EU citizens’ agency. EU citizens’ agency as EU citizens is fundamentally defined by and conditional on their ability to exercise and enjoy citizenship rights as equals with other EU citizens. Thus, the parameters for EU citizens’ agency consist of those conditions under which EU citizens are recognised as agents with full access to their citizenship rights granted under EU law.

Understanding this connection between citizens’ agency and their equal access to citizenship rights is central to a more constructive critique of EU citizenship. It is therefore important to have a closer look at how the parameters for EU citizens’ agency are currently defined in EU legislation and by the Court of Justice. This insight into EU citizens’ agency, or their lack of it, helps us to clarify how and where the status of EU citizenship still falls short of materialising the potential of EU citizenship as a ‘fundamental status’. The ongoing debate on the external boundaries of EU citizenship is central to the development of EU citizenship.Footnote ⁷ However, the focus of this section lies in those holders of EU citizenship who are banned from equal treatment on the basis of lacking a ‘connecting factor’ to EU law (Section 2.1) or on the basis of lacking a ‘sufficient degree of integration’ into the society of the Member State in question (Section 2.2). This analysis problematises the way in which relevant agency is currently defined in the case law and lays the ground for a more theoretical critique of EU citizenship in terms of personhood in Section 3.

2.1 ‘Static’ EU citizens and the requirement of a ‘connecting factor’

Economically active EU citizens enjoy the right to non-discrimination and equal treatment on the basis of their status as ‘Union workers or self-employed persons, or as service providers or recipients.Footnote ⁸ In the case of economically inactive EU citizens, it is less clear what activates their right to non-discrimination and equal treatment under EU law. The Court’s traditional understanding has been that there must be a ‘sufficient connecting factor’ between EU law and the situation in which access to equal treatment is claimed. It follows from this that the Treaty provisions on non-discrimination and equal treatment do not apply to the so-called purely internal situations ‘where there is no factor connecting them to any of the situations envisaged by Community law’.Footnote ⁹ In practice, however, the requirement of a link to ‘any of the situations envisaged by Community law’ has been interpreted loosely by the Court in several cases.Footnote ¹⁰

Excluding the ‘purely internal situations’ from the scope of EU law means that, in two otherwise similar situations, those holders of the status of EU citizenship who have not exercised their right to free movement and residence before invoking the right to non-discrimination and equal treatment may suffer from what is called ‘reverse discrimination’ in comparison with migrant EU citizens.Footnote ¹¹ The evolution of EU citizenship has played an important role in moving the requirement of a ‘connecting factor’ towards a more status-based understanding of what relates an individual to the European Union. But it is still unclear as to what exactly activates the status of EU citizenship in those cases in which a Union citizen has not made use of the right to free movement but which still cannot be assimilated to purely internal situations.Footnote ¹²

In the Ruiz Zambrano case, the Court of Justice finally addressed this question in its well-known statement that Article 20 TFEU on EU citizenship ‘precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’.Footnote ¹³ What was noticeable in this judgment was the clear emphasis on the status of EU citizenship, irrespective of the activities pursued by a Union citizen who invokes his/her rights under EU law.Footnote ¹⁴ However, the reference to the ‘genuine enjoyment of the substance of EU citizenship rights’ was clarified in the later McCarthy and Dereci and Ymeraga judgments, which underline that the criterion relating to the denial of the genuine enjoyment of the substance of EU citizenship rights concerns those rather extreme situations in which ‘the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole’.Footnote ¹⁵ It therefore seems that the criterion of ‘genuine enjoyment of the substance of EU citizenship rights’ only provides an exception to the main rule that the right to non-discrimination and equal treatment is not applicable to EU citizens who have not exercised their right to free movement and who have always resided in the Member State of which they are nationals.Footnote ¹⁶

The Court’s reference to the ‘genuine enjoyment of the substance of Union citizens’ rights’ has provided a new interpretative tool for defining the distinction between the purely internal situations and a sufficient ‘connecting factor’ with EU law. However, unlike the status of a ‘Union worker’, the status of EU citizenship still does not in itself establish a sufficient ‘connecting factor’ to EU law. It has rightly been noted that the case law distinguishes between the ‘status of Union citizenship’ and the ‘exercise of certain rights which that status confers’.Footnote ¹⁷ This is problematic because it in practice leaves the status of EU citizenship deprived of the constitutive and fundamental nature assigned to it in the Court’s rhetoric.Footnote ¹⁸ What is central to this body of case law in regard to the parameters for EU citizens’ agency is that the enjoyment of the substance of EU citizenship rights seems to only provide a secondary criterion for legal interpretation. In practice, the requirement of individual activity as a means of activating the status of EU citizenship prevails in the majority of cases, meaning that the holders of EU citizenship cannot invoke the right to non-discrimination and equal treatment on the basis of that status alone.

2.2 ‘Needy’ EU citizens and the requirement of a ‘real link’

The limited access to equal treatment in the case of those EU citizens who have not used their right to free movement and residence is often regarded as the main example for the lack of substance of EU citizenship as a fundamental status. But further limitations on EU citizens’ right to non-discrimination and equal treatment stem from the accepted justifications (‘objective justifications’) for legitimate differential treatment between EU citizens in those cases in which the status of EU citizenship has been activated by establishing a ‘connecting factor’ with EU law, as discussed in Section 2.1. In the case of economically inactive and dependent EU citizens, the substantive limits of the right to non-discrimination and equal treatment are defined by using integration requirements as decisive criteria. The so-called real link test defines which degree of integration is required between the Member State and an economically inactive migrant Union citizen before the right to equal treatment can be fully enjoyed under EU law. The ability to prove economic or social integration has therefore become a central parameter for EU citizens’ agency in the field of non-discrimination and equal treatment irrespective of nationality.

In principle, lawful residence in another Member State suffices to bring an economically inactive Union citizen within the scope of the right to non-discrimination and equal treatment under Article 18 TFEU.Footnote ¹⁹ The Court has confirmed that a ‘national of a Member State lawfully residing in the territory of another Member State’ comes within the material and personal scope of EU citizenship and is therefore entitled to rely on the rights attached to that citizenship.Footnote ²⁰ However, although EU citizens now enjoy a ‘prima facie entitlement’Footnote ²¹ to residence and equal treatment, it is still legitimate for the Member States to ensure that awarding social benefits to economically inactive and dependent EU citizens on the basis of their fundamental right to non-discrimination and equal treatment does not burden their welfare system disproportionately. In practice, the lack of a ‘sufficient degree of integration’ or a ‘real and effective’ link between a migrant Union citizen and the territory or the society of the Member State that awards funding has become the main criterion for deciding whether refusing equal treatment can be regarded as proportionate in this sense.Footnote ²²

Under Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, the migrant Union citizens’ right to equal treatment is protected when they reside in the area of another Member State for more than three months and as long as their right to residence is not determined on the basis of becoming an ‘unreasonable burden’ and they do not seek social assistance as migrant students or jobseekers.Footnote ²³ The requirement of a ‘real link’ can therefore limit EU citizens’ access to equal treatment in two ways. Firstly, by showing that the applicant has become an ‘unreasonable burden’ on its social assistance system, the host Member State can claim that she/he does not fulfil the conditions for the right to residence under Article 7(1)(b) of Directive 2004/38, which requires that economically inactive migrant EU citizens ‘have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State’.Footnote ²⁴ Whether or not this is the case in any specific situation is subject to a proportionality analysis which considers whether the EU citizen has established a ‘real link’ with the society of the host Member State. Secondly, the lack of sufficient integration can also be used as an objective justification for differential treatment even when the EU citizen enjoys the right to residence and, thus, the right to equal treatment under Directive 2004/38.

The Court’s case law on integration requirements has often been criticised for the lack of substance in academic commentary. This criticism is rooted in the Förster judgment where the Court concluded that the requirement of uninterrupted residence of five years was proportionate as a condition for equal treatment in the case of migrant students because it could not be held ‘excessive having regard, inter alia, to the requirements put forward with respect to the degree of integration of non-nationals in the host Member State’.Footnote ²⁵ By choosing a strictly durational approach to the requirement of a ‘real link’, the Court arguably failed to address the question of whether other factors could indicate integration into the society of the host Member State.Footnote ²⁶ The core of this criticism is that more attention should be paid to ‘other indications of integration, such as the individual circumstances of the applicant’.Footnote ²⁷

However, the Court itself had already outlined in its early ‘real link’ case law that the social integration requirement must be regarded as ‘too general and exclusive in nature’ if it ‘unduly favours an element which is not necessarily representative of the real and effective connection … to the exclusion of all other representative elements’.Footnote ²⁸ Later, the Court has explicitly distanced itself from the strictly durational approach to the ‘real link’ test by confirming that a residence requirement cannot be considered as a ‘satisfactory indicator’ of the degree of connection between the applicant and the Member State if it leads to differential treatment in the case of ‘persons resident abroad whose degree of integration into the society of the Member State granting the benefit is in all respects comparable’.Footnote ²⁹ This means that the definition of a link should not ‘be fixed in a uniform manner’ but should depend on ‘the constitutive elements of the benefit in question’.Footnote ³⁰ Moreover, the Court has also showed some willingness to engage in a more substantive analysis of those economic and social factors that may count for ‘other representative elements’ when it needs to assess whether the applicant is ‘sufficiently connected’ to the Member State in question even in the absence of required residence.Footnote ³¹

For instance, in the joined Prinz and Seeberger cases, the list of relevant factors presented both by the Advocate General and the Court included nationality, prior education, family ties, employment, and language skills. The list is open-ended and ‘other social and economic factors’ may also gain relevance in the assessment.Footnote ³² In both of these cases, the applicants had to prove a ‘real link’ with their State of origin. Directive 2004/38 therefore did not apply to their situation and the Court assessed the legitimacy of integration requirements in relation to Article 21 TFEU. The Court’s reasoning is nevertheless important because it may add more substance to the rulings on social integration requirements in other contexts. However, in so far as EU citizens’ fundamental right to non-discrimination and equal treatment does not fully materialise in the absence of lawful residence in the host Member State, the assessment of relevant integration often only happens in regard to the right to residence. This became clear in the more recent Dano v Jobcenter Leipzig judgment, in which the Court interpreted EU citizens’ right to equal treatment under Article 24(1) of Directive 2004/38 in conjunction with the conditions of residence as they emerge from Article 7(1)(b) of that directive.Footnote ³³

In Dano, the applicant was described as an EU citizen who had resided in the host Member State for more than three months, was not seeking employment and had not entered the host Member State in order to work.Footnote ³⁴ The refusal to grant social benefits to her was regarded as justified on the basis that she did not meet the conditions for lawful residence and did not enjoy the attached right to equal treatment in Directive 2004/38.Footnote ³⁵ The Court emphasised the requirement of ‘sufficient resources’ as a central condition for lawful residence and, thus, for equal treatment in the case of economically inactive migrant EU citizens after the initial three months of residence.Footnote ³⁶ According to the Court, this requirement is designed to ensure that economically inactive migrant EU citizens do not become an unreasonable burden on the social assistance system of the host Member State and to prevent them from ‘using the host Member State’s welfare system to fund their means of subsistence’.Footnote ³⁷ This judgment did not discuss the alternative, non-economic, ways of establishing a ‘sufficient degree of integration’ into the host Member State.Footnote ³⁸ It therefore confirms the ideal of economic self-sufficiency as the central parameter for EU citizens’ agency in the field of social equality.

The Member States can ‘limit the range of beneficiaries in order to achieve the economic objective; and it is acceptable for that purpose to use a criterion that establishes evidence of a degree of integration’, as Advocate General Sharpston has put it.Footnote ³⁹ However, when the Court holds that the lack of sufficient resources, together with the original reason for entering into the territory of the Member State, constitute an unreasonable burden, it is less likely to engage in considering what other factors could establish a ‘real link’ under EU law. This merging between the ‘real link’ test and the ‘unreasonable burden’ test illustrates the problematic nature of social integration requirements from the perspective of EU citizenship as a ‘fundamental status’.Footnote ⁴⁰ The ‘real link’ case law therefore fails to respond to the need to rethink the parameters for EU citizens’ agency in so far as the individual responsibility to prove economic or social integration is categorically given priority over the status of EU citizenship in assessing the limits of EU citizens’ right to equal treatment.

3 EU citizens as ‘persons’ in the light of political and philosophical personalism

In order to fully enjoy their right to non-discrimination and equal treatment on the basis of EU citizenship, EU citizens must first activate their status as EU citizens and then prove economic or social integration into the society of the Member State in which citizenship rights are claimed. A number of different economic and social factors can now contribute to this process, as discussed above in Section 2. However, the establishment of both a ‘connecting factor’ and a ‘real link’ is still, more often than not, based on the individual responsibility to be active in ways recognised as valid by EU law. This is striking in light of the fact that, at the same time, the Court frequently underlines the constitutive nature of EU citizenship as the ‘fundamental status of all nationals of the Member States’.Footnote ⁴¹ It is therefore important to consider how this normative indeterminacy over the nature of EU citizenship could be overcome by virtue of reinterpreting the parameters for EU citizens’ agency as they now emerge from the case law.

What remains of this chapter will explore EU citizens’ agency from a personalist perspective which holds that EU citizens must be treated as persons before they can be treated as responsible actors. This theoretical analysis uses one specific philosophical tradition, namely that of political and philosophical personalism, to challenge the ideals of individual activity and self-sufficiency as central virtues of EU citizens and to provide a constructive alternative to the parameters for relevant agency as they now exist in EU law. What is important for the analysis of EU citizenship is the argument that the equal status, including freedom and self-determination, is a precondition for responsible actions. The personalist critique of EU citizenship therefore points out that the current parameters for EU citizens’ agency need to be rethought because they fail to treat EU citizens as persons and that an alternative account of agency can be based on the view that EU citizens’ equal treatment forms a necessary precondition for their responsible actions.

Personalism in its different forms is a school of thought that adopts the idea of the ‘person’ as the starting point for understanding the world. Its three main branches are philosophical personalism, political personalism and theological personalism. Theological personalism has its roots in medieval Christianity. The concept of a person as we know it was first developed in the theological context.Footnote ⁴² However, the purely philosophical definition was outlined as early as the sixth century by Boethius who stated that persons are individuals possessing a rational nature.Footnote ⁴³ The modern idea of personhood is based on the concepts of subjectivity and self-consciousness.Footnote ⁴⁴ Philosophical personalism was further developed in the nineteenth century as a counter-reaction to the allegedly impersonalistic or depersonalising ideas of the Enlightenment and Romanticism, above all Comte’s philosophical positivism and Hegel’s absolute idealism, by such thinkers as F. H. Jacobi, F. W. J. Schelling, and R. H. Lotze. The first advocates of personalism still argued for ‘idealistic personalism’, but the European personalism in the twentieth century turned away from idealism towards phenomenological and existential foundations.Footnote ⁴⁵

The school of European personalism developed in the aftermath of the First World War to defend the human person as a criterion according to which the post-war economic and political crisis could be solved. Some of the French personalists, for instance Emmanuel Mounier, argued for a radical ‘spiritual’ revolution, claiming that even liberal democratic values might have impersonalistic tendencies and might not, therefore, suffice to protect society against totalitarianism. Existentialism was typical of the French personalism, whereas most German personalists adopted the phenomenological realism as their methodological approach. Phenomenologists, such as Edmund Husserl, focused on exploring the ultimate structures of being through human experience with the aim to reconnect philosophical reflection and discourse with objective reality.Footnote ⁴⁶ What is termed American personalism differs from European personalism in the sense that, instead of presenting a critique of idealism, it has provided its own model of idealism by defining being as personal consciousness.Footnote ⁴⁷ American personalism is therefore more directly based on the thoughts and legacy of so-called ‘speculative theists’, including Jacobi, Schelling and Lotze, and their idealism.Footnote ⁴⁸

Although some personalist thinkers have been realists and theists, many are idealists who simply believe that reality is constituted by human consciousness.Footnote ⁴⁹ Thus, personalism is not a single theory or philosophical school but it consists of several different versions, some of which may be mutually conflicting.Footnote ⁵⁰ It is, nonetheless, possible to outline certain commonalities and basic principles which are shared by all the main forms of personalist thought. Personalists are above all interested in the experience, status and dignity of human beings as persons.Footnote ⁵¹ The common denominator for different branches of philosophical and political personalism is the idea that personhood is the ultimate reality and value. For personalists, a genuine understanding of the person consists of such elements as self-consciousness, interiority and personal autonomy. This means that ‘personhood’ appears as something more than the mere ability to act which can equally be assigned to non-personal beings. The equal status which allows self-determination as persons is then argued to lead to a deeper sense of responsibility for action.Footnote ⁵² It is for this reason that the idea of personhood can provide a mediating factor between the ideal of ‘active agency’, on the one hand, and that of a ‘fundamental status’, on the other.

The challenge imposed on EU citizenship by political and philosophical personalism is whether EU citizens are de facto treated as persons under EU law before the requirement of individual responsibility to be active and prove integration is imposed on them. In addressing this question, it is important to consider what it means to treat someone as a person in general and what it means to treat an EU citizen as a person in more particular. Personalism builds on the proposition that the difference between persons and non-persons is ‘one of kind’ and not just ‘one of degree’.Footnote ⁵³ This idea of the uniqueness of the person in relation to the material world leads to the argument that the person alone is ‘someone’ rather than ‘something’.Footnote ⁵⁴ The idea of the uniqueness of persons is often intertwined with the argument that dealings with persons must depend on a ‘different ethical paradigm’; namely, the dignity of the person is argued to give rise to particular moral standards.Footnote ⁵⁵ Firstly, the claim for dignity rejects the possibility of valuing persons on the basis of their ‘utility’. Secondly, the person can never be assimilated with or subordinated to the collectivity. Thirdly, what one deserves under the principles of justice is thought to significantly depend on one’s personhood.Footnote ⁵⁶ To the extent that EU citizens’ right to equal treatment is conditioned on the establishment of a connecting factor and a real link, the value attached to the status of EU citizenship seems to remain utility-based. These considerations imply that the status of EU citizenship in its current form is not firmly based on the idea of personhood.

4 A post-Lisbon EU citizenship: toward a more humane view of agency?

Analysing EU citizenship through the lens of personalism contributes a perspective which is generally absent when the status of EU citizenship is discussed in academic literature.Footnote ⁵⁷ In particular, personalism sheds light on the fact that moving towards a more inclusive account of agency in EU law depends on our reply to the question of what kind of view of the human personFootnote ⁵⁸ is embedded in EU law. It has been noted that becoming a person ‘is not just to be a reflexive actor, but to have a concept of a person as applied both to the self and others’.Footnote ⁵⁹ For personalists, this understanding of one’s own and others’ personhood can only emerge from self-determination that is rooted in ‘equal status’. That is to say, personalists emphasise that the causality of action requires the holding of equal status which, then, allows the person to act freely and to exercise his/her self-determination. Similarly, it is important to recognise the connection between treating EU citizens as persons and treating them as equals. If EU citizens can become responsible agents only by virtue of their personhood and equal status as EU citizens, it is a mistake to make the individual responsibility to be active and prove integration a precondition of their equal treatment. The basic principles of philosophical and political personalism therefore provide a normative framework within which EU citizens’ fundamental right to equal treatment can be seen as a precondition for their self-determination and agency as persons.

The current parameters for EU citizens’ agency are defined in such a way that only a select group of EU citizens can actually enjoy the rights that follow from that status. In practice, the goal of recognising EU citizens as persons might justify the enjoyment of non-discrimination and equal treatment in the case of those EU citizens who now fall outside the recognised parameters for agency as discussed in Section 2. The important question is whether the existing constitutional framework of the EU can provide a normative justification for a more inclusive view of human agency in the light of philosophical and political personalism. This section will therefore consider whether the objectives of European integration can support a more personalist approach to what constitutes relevant agency in the case of ‘static’ or ‘needy’ EU citizens.

In the post-Lisbon EU Treaties, the emphasis is increasingly placed on the human rights and democratic values of integration. According to Article 2 TEU, the EU ‘is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’. Article 3 TEU explicitly states that one of the aims of the EU is to ‘promote its values’. Moreover, Article 9 TEU holds that ‘[i]n all its activities, the Union shall observe the principle of the equality of its citizens’. Both the incorporation of the EU Charter of Fundamental Rights into primary law in the Treaty of Lisbon and the possible future accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms further support the argument that affirming EU citizens as persons can be seen as a crucial step for implementing the values and aims of European integration. What therefore seems clear is that the legal analysis of EU citizenship can no longer avoid the philosophical question of which conception of personhood is embedded in the interpretation of EU citizenship rights.Footnote ⁶⁰

The personalist accounts of citizenship reject the dualism between the material and non-material dimensions of the world and the person. Instead, they maintain that the biological and economic explanations of the reality cannot be understood in isolation from the moral values, systems and doctrines within which the biological and economic necessities function.Footnote ⁶¹ In practice, this means that more emphasis should be placed on the importance of values in shaping and maintaining the legal institutions of European integration. Although adopting a more inclusive account of agency in the case of economically inactive EU citizens may create tensions between different Member States, it is clear that developing the principles of justice transnationallyFootnote ⁶² will require a more advanced conception of personhood than that which can be induced from the current parameters for EU citizens’ agency – and the success or failure of this enterprise in years to come is what in many respects defines the future of the European Union as a polity. The personalist analysis of EU citizenship can therefore also provide a basis for a more advanced account of political and social justice for the EU.

The philosophical critique of EU citizenship can go only so far and further doctrinal analysis is still needed to transplant these theoretical findings of EU citizens’ agency into the existing legal institution of EU citizenship. At the level of case law, it seems important to reconsider the idea of meaningful integration, as well as the relationship between the ‘unreasonable burden’ test and integration requirements. However, the first step in that direction is to have a clear and articulate conception of ‘person’ for the purposes of interpreting EU citizenship rights. The emergence of transnational citizenship is clearly a normative project, but it is not yet clear which system of values underpins this project in the case of economically inactive and dependent EU citizens. It is this gap between the democratic values of European integration and their legal application which both justifies and necessitates the quest for a more personalist interpretation of EU citizens’ agency. Only by treating EU citizens as ‘persons’ rather than mere ‘actors’, is it possible to move towards more self-determination and responsible actions for all EU citizens, i.e. towards more political agency for EU citizens.

5 Conclusion

In the light of the recent case law of the Court of Justice of the EU, this chapter first demonstrated how the current parameters for EU citizens’ agency are still biased in favour of the requirement to prove cross-border activity and economic or social integration. It then argued that an alternative, more inclusive and humane, view of agency can emerge from a more serious engagement with EU citizens as persons. By using political and philosophical personalism as a critical tool, the chapter introduced a set of theoretical principles which provide the basis for the argument that equal treatment is an important precondition for personal self-determination and that responsible actions as an agent require ‘equal status’. Finally, the chapter concluded that a more personalist interpretation of EU citizenship is needed to implement the post-Lisbon values of European integration. This insight into EU citizens’ agency helped the chapter to draw a clearer picture of where and how the status of EU citizenship still falls short of actualising the potential of EU citizenship as a ‘fundamental status’.

Footnotes

¹ Articles 2 and 3 TEU, Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, OJ 2012 No. C326.

² E.g. Case C-391/09, Malgožata Runevič-Vardyn, Lukasz Pawel Wardyn [2011] ECR I-3787, paras 60–61.

³ Margaret Archer, Being Human: The Problem of Agency (Cambridge: Cambridge University Press, 2000), p. 2.

⁴ Ruth Lister, Citizenship: Feminist Perspective (London: Palgrave Macmillan, 1997), p. 37.

⁵ Footnote Ibid., p. 42.

⁶ E.g. Shelley Budgeon, Third Wave Feminism and the Politics of Gender in Late Modernity (London: Palgrave Macmillan, 2011), p. 139.

⁷ Dora Kostakopoulou, ‘European Citizenship: Writing the Future’ (2007) 13 European Law Journal 623 at 626–28. See also Dora Kostakopoulou, ‘Towards a Theory of Constructive Citizenship in Europe’ (1996) 4 The Journal of Political Philosophy 337 at 341 and Mark Bell, ‘Civic Citizenship and Migrant Integration’ (2007) 13 European Public Law 311 at 314.

⁸ See Article 45 TFEU on the freedom of movement for workers, Article 49 TFEU on the right of establishment, and Article 56 TFEU on the freedom to provide services. Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, OJ 2012 No. C326. See also Article 7(2) of Regulation (EU) No. 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union, OJ 2011 No. L141/1 and Articles 19 and 20 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 2006 No. L376/36.

⁹ E.g. Case 175/78, The Queen v Vera Ann Saunders [1979] ECR 1129, para. 11 and Joined Cases C-64/96 and C-65/96, Land Nordrhein-Westfalen v Kari Uecker and Vera Jacquet v Land Nordrhein-Westfalen [1997] ECR I-3171, para. 23.

¹⁰ The Court has, for instance, stated that ‘[t]he situation of a national of a Member State who was born in the host Member State and has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation’. Case C-200/02, Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department [2004] ECR I-9925, para. 19. The Court has also held that the right to provide services can be relied against the Member State in which the applicant is established ‘if the services are provided for persons established in another Member State’ and that this freedom would not be ‘fully effective’ unless that State allows the entry and residence of the applicant’s spouse who is a third-country national. Case C-60/00, Mary Carpenter v Secretary of State for the Home Department [2002] ECR I-6279, paras 30 and 39. See also the Court’s statement that ‘a link with Community law does exist in regard to children who are nationals of one Member State and are lawfully resident in the territory of another Member State’. Case C-353/06, Stefan Grunkin and Dorothee Regina Paul [2008] ECR I-7639, para. 17 and Case C-148/02, Carlos Garcia Avello v État belge [2003] ECR I-11613, para. 27.

¹¹ See further about this e.g. Niamh Nic Shuibhne, ‘Free Movement of Persons and the Wholly Internal Rule: Time to Move On?’ (2002) 39 Common Market Law Review 371, Alina Tryfonidou, ‘Reverse Discrimination in Purely Internal Situations: An Incongruity in a Citizens’ Europe’ (2008) 35 Legal Issues of Economic Integration 43 and Dominik Hanf, ‘“Reverse Discrimination” in EU Law: Constitutional Aberration, Constitutional Necessity, or Judicial Choice?’ (2011) 18 Maastricht Journal of European and Comparative Law 29.

¹² E.g. Case C-403/03, Egon Schempp v Finanzamt München V [2005] ECR I-6435, para. 22.

¹³ Case C-34/09, Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM) [2011] ECR I-1177, paras 42 and 45.

¹⁴ More detailed reasoning was found in the Opinion of Advocate General Sharpston, which discussed whether EU citizenship implies a ‘true citizenship’ beyond being merely a ‘non-economic version of the same generic kind of free-movement rights as have long existed for the economically active and for persons of independent means’. Opinion of Advocate General Sharpston in Case C-34/09, Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM), para. 3. The Advocate General’s suggestion was that Article 18 TFEU should be applicable if the following three ‘cumulative conditions’ were met: (1) discrimination is caused by the ‘interaction’ between Article 21 TFEU and national law, i.e. the situation of ‘static’ Union citizens must be ‘comparable’ to that of migrant Union citizens, (2) the case will ‘entail a violation of a fundamental rights protected under EU law’ and (3) ‘at least equivalent’ protection is not available under national law. Footnote Ibid., paras 145–148.

¹⁵ Case C-256/11, Murat Dereci, Vishaka Heiml, Alban Kokollari, Izunna Emmanuel Maduike, Dragica Stevic v Bundesministerium für Inneres [2011] ECR I-11315, para. 66; Case C-434/09, Shirley McCarthy v Secretary of State for the Home Department [2011] ECR I-3375, paras 49–50 and Case C-87/12 Kreshnik Ymeraga and Others v Ministre du Travail, de l’Emploi et de l’Immigration, 8 May 2013, para 38.

¹⁶ Case C-256/11, Murat Dereci, Vishaka Heiml, Alban Kokollari, Izunna Emmanuel Maduike, Dragica Stevic v Bundesministerium für Inneres [2011] ECR I-11315, para. 74 and Case C-434/09, Shirley McCarthy v Secretary of State for the Home Department [2011] ECR I-3375, paras 55–56.

¹⁷ Síofra O’Leary, ‘The Past, Present and Future of the Purely Internal Rule in EU Law’ in Michael Dougan, Niamh Nic Shuibhne and Eleanor Spaventa (eds.), Empowerment and Disempowerment of the European Citizen (Oxford: Hart Publishing, 2012), p. 58.

¹⁸ Eg See eg Case C-184/99, Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I-6193, para 31; Case C-413/99, Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091, para 82 and Case C-148/02, Carlos Garcia Avello v Belgian State [ 2003 ] ECR I-11613 , para 22.

¹⁹ According to Article 21 TFEU, ‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’. According to Article 18 TFEU, ‘Within the scope of application of the Treaties, and without prejudice to any special provision contained therein, any discrimination on grounds of nationality shall be prohibited’. Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, OJ 2012 No. C326.

²⁰ E.g. Case C-85/96, Maria Martínez Sala v Freistaat Bayern [1998] ECR I-2691, paras 61–62.

²¹ Síofra O’Leary, ‘Solidarity and Citizenship Rights in the Charter of Fundamental Rights of the European Union’ in Graínne de Búrca (ed.), EU Law and the Welfare State: In Search of Solidarity (Oxford: Oxford University Press, 2005), p. 71.

²² See e.g. Case C-209/03, The Queen, on the application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills [2005] ECR I-2119, paras 54–57.

²³ According to Article 24(1) of the Directive, ‘all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty’. Article 24(2) of the same directive qualifies this right by stating that ‘the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4) (b)’ which regulates the jobseeker’s right to residence in the area of another Member State. Article 24(2) also includes a provision stating that the Member States are not obliged to ‘grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their family’. 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, OJ 2004 No. L158/77.

²⁴ The limitations and conditions of Union citizens’ right to reside under Article 21 TFEU find their expression in Article 7 of Directive 2004/38/EC, which states that all Union citizens have the right of residence in the territory of another Member State for a period longer than three months if they are workers, self-employed persons or students or ‘have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State’. 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, OJ 2004 No. L158/77.

²⁵ Case C-158/07, Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep [2008] ECR I-8507, paras 54–55. Directive 2004/38/EC was not applicable to the facts in the main proceedings, but the Court, nonetheless, used it as a tool of analysis.

²⁶ Opinion of Advocate General Mazák in Case C-158/07, Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep [2008] ECR I-8507, para. 130.

²⁷ Koen Lenaerts and Tinne Heremans, ‘Contours of a European Social Union in the Case-Law of the European Court of Justice’ (2006) 2 European Constitutional Law Review 101 at 114. See also Oxana Golynker, ‘Jobseekers’ Rights in the European Union: Challenges of Changing the Paradigm of Social Solidarity’ (2005) 30 European Law Review 111.

²⁸ Case C-224/98, Marie-Nathalie D’Hoop v Office national de l’emploi [2002] ECR I-6191, para. 39.

²⁹ Case C-192/05, Tas-Hagen v Raadskamer WUBO van de Pensioen- en Uitkeringsraad [2006] ECR I-10451, para. 38.

³⁰ Case C-75/11, European Commission v Republic of Austria, 4 October 2012, para. 63.

³¹ See for further analysis in Päivi Johanna Neuvonen, ‘In Search of (Even) More Substance for the “Real Link” Test: Comment on Prinz and Seeberger’ (2014) 39 European Law Review 123.

³² Cases C-523/11 and C-585/11, Laurence Prinz v Region Hannover and Philipp Seeberger v Studentenwerk Heidelberg, 18 July 2013, para. 38.

³³ Case C-333/13, Elisabeta Dano, Florin Dano v Jobcenter Leipzig, 11 November 2014, paras 67–69.

³⁴ Footnote Ibid., para. 66.

³⁵ Footnote Ibid., para. 81.

³⁶ Footnote Ibid., para. 73.

³⁷ Footnote Ibid., paras 74 and 76.

³⁸ Footnote Ibid., para. 78.

³⁹ Opinion in Prinz and Seeberger (C-523/11 and C-585/11) 21 February 2013, para. 70.

⁴⁰ See more about this e.g. in Charlotte O’Brien, ‘Real Links, Abstract Rights and False Alarms: The Relationship between the ECJ’s “Real Link” Case Law and National Solidarity’ (2008) 33 European Law Review 643 at 663.

⁴¹ See e.g. Case C-184/99, Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I-6193, paras 30 and 31; Case C-148/02, Carlos Garcia Avello v Belgian State [2003] ECR I-11613, paras 22 and 23, and Case C-209/03, The Queen, on the application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills [2005] ECR I-2119, para. 31.

⁴² The concept of a person and the relationship between a ‘person’ and a ‘nature’ required more precision in order to clarify the following two theological doctrines: the Trinity (i.e. three persons in one God) and the incarnation of the second person of the Trinity (i.e. two natures – divine and human – in one person). See further in Robert Spaemann, Persons – The Difference between ‘Someone’ and ‘Something’ (Oxford: Oxford University Press, 2006), pp. 17 and 26–27.

⁴³ Boethius’s Latin formulation on this topic was ‘persona est naturae rationalis individua substantia’. Severinus Boethius, Liber de Persona et Duabus Naturis, Ch. 3.

⁴⁴ In this regard, Immanuel Kant’s emphasis on both the subject and the object of knowledge has paved the way for the modern notion of person. See further in Spaemann, Persons, p. 39.

⁴⁵ For more historical details, see Jan Olof Bengtsson, The Worldview of Personalism: Origins and Early Development (Oxford: Oxford University Press, 2006).

⁴⁶ For more about this, see Thomas D. Williams, Who is My Neighbor? (Washington DC: The Catholic University of America Press, 2005), pp. 113–15. Mounier’s thoughts influenced other thinkers such as Gabriel Marcel, Denis de Rougemont, Jacques Maritain and Paul Ricœur. In Germany, Edmund Husserl’s phenomenological realism influenced such thinkers as Max Scheler, Dietrich von Hildebrand, Edith Stein and Roman Ingarden. Footnote Ibid.

⁴⁷ See further in Thomas D. Williams and Jan Olof Bengtsson, ‘Personalism’ in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Summer 2013 Edition) http://plato.stanford.edu/archives/sum2013/entries/personalism.

⁴⁸ See further in Williams and Bengtsson, ‘Personalism’.

⁴⁹ For more about this, see Williams, Who is My Neighbor?.

⁵⁰ Emmanuel Mounier speaks of ‘a plurality of personalism’ and Jacques Maritain writes: ‘Yet nothing can be more remote from the facts than the belief that “personalism” is one school for doctrine’. Emmanuel Mounier, Personalism (London: Routledge & Kegan Paul Ltd., 1950), p. viii and Jacques Maritain, The Person and The Common Good (London: Geoffrey Bles, 1948), p. 10.

⁵¹ See further Williams, Who is My Neighbor?.

⁵² E.g. John Macmurray, The Self as Agent (London: Faber and Faber, 1957), p. 38.

⁵³ Along with the subjectivity, man’s ability to reason is thought to differentiate him from objective entities. See further in Williams and Bengtsson, ‘Personalism’.

⁵⁴ Spaemann, Persons, p. 72.

⁵⁵ Williams, Who is My Neighbor?, p. 118.

⁵⁶ See in more detail in Williams, Who is My Neighbor?, pp. 118–19.

⁵⁷ As a welcome exception, see Charlotte O’Brien’s recent article ‘I Trade, Therefore I am: Legal Personhood in the European Union’ (2013) 50 Common Market Law Review 164.

⁵⁸ For a more detailed analysis of the concept of person see, for instance, Christian Smith, What is a Person? (Chicago: University of Chicago Press, 2010), p. 61 who defines the notion of person as ‘a conscious, reflexive, embodied, self-transcending, center of subjective experience, durable identity, moral commitment, and social communication who – as the efficient cause of his or her own responsible actions and interactions – exercises complex capacities for agency and intersubjectivity in order to develop and sustain his or her own incommunicable self in loving relationships with other personal selves and with the nonpersonal world’.

⁵⁹ Anthony Giddens, Modernity and Self-Identity: Self and Society in the Late Modern Age (Cambridge: Polity Press, 1991), p. 53.

⁶⁰ For instance, Andrew Evans writes: ‘persons from the various Member States will usually be alike in some respects and different in other respects. Hence, criteria are necessary to determine which similarities demand like treatment and which differences demand differential treatment’. Andrew Evans, ‘Union Citizenship and the Equality Principle’ in Allan Rosas and Esko Antola (eds.), A Citizens’ Europe: In Search of a New Order (London: SAGE Publications, 1995), p. 95.

⁶¹ Emmanuel Mounier, Personalism (London: Routledge & Kegan Paul Ltd., 1950), pp. 8–9.

⁶² For recent steps in this direction see e.g. Jürgen Neyer, The Justification of Europe: A Political Theory of Supranational Integration (Oxford: Oxford University Press, 2012); Sionaidh Douglas-Scott, ‘The Problem of Justice in the European Union – Values, Pluralism, and Critical Legal Justice’ in Julie Dickson and Pavlos Eleftheriadis (eds.), Philosophical Foundations of European Union Law (Oxford: Oxford University Press, 2012) and Dimitry Kochenov, Gráinne de Búrca and Andrew Williams (eds.), Europe’s Justice Deficit (Hart Publishing in 2015) and Floris de Witte, Justice in the EU: The Emergence of Transnational Solidarity (Oxford: Oxford University Press, 2015).

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