A. EU Citizenship's Nature

The story of scholarly disagreements about EU citizenship is incredibly rich and full of radically different assessments of the same law and identical facts. The legal meaning of EU citizenship is profoundly contested. According to Articles 9 EU and 20 TFEU, EU citizenship is derivative from the nationalities of the Member States in that one presumably cannot exist without another. The starting question is whether or not to make a distinction between the acquisition of EU citizenship (which is purely derivative) and its essence, which is potentially not, in that it accompanies the EU-level legal status and is not in any way based on the national law of the Member States. Here is where a cleavage in the literature emerges. While one camp of commentators, including Dora Kostakopoulou, Miguel Poiares Maduro and others,Footnote ³⁰ submits that derivation is merely a determinant of access to the status, unrelated to the EU citizenship rights, other scholars, including Giuseppe Tesauro and Leonard Besselink, seem to believe that derivative acquisition profoundly affects the very essence of EU citizenship, hindering it from acquiring legal importance on its own, especially in terms of rights it would grant. In the words of Tesauro, ‘non esiste, né potrebbe allo stato ippotizzarsi, una nozione communitaria di cittadinanza, sì che le norme che ne prescrivono il possesso come presupposto soggettivo per la loro applicazione in realtà rinviano alla legge nazionale dello Stato la cui cittadinanza viene posta a fondamento del diritto invocato’.Footnote ³¹ In a co-written EuConst editorial Besselink goes even further in submitting that also ‘the kind of rights which the EU citizens resident in another Member State enjoys [sic] depend primarily on the law of the Member State’Footnote ³² and ‘the nexus of rights as granted by the Member States remains intimate’.Footnote ³³

It seems that doubting the legal importance of European citizenship based on the fact that access to it is derivative is logically unsound: if ius soli citizenship is not better or worse that ius sanguinis citizenshipFootnote ³⁴—there is no reason to claim that the same should not be valid for ius tractum (ie derivative) citizenship:Footnote ³⁵ particular rules of access to the status have nothing to do with the existence of the status as such, let alone the rights associated therewith. Scholars disagreeing with those colleagues who overemphasize the derivative aspect in EU citizenship make a clear distinction between access to a legal status and its essence and contenu. This position was outlined with clarity by AG Poiares Maduro, as he then was, who indicated that ‘la citoyenneté de l'Union suppose la nationalité d'un État membre mais c'est aussi un concept juridique et politique autonome par rapport à celui de nationalité’.Footnote ³⁶ Virtually all the ECJ case law on citizenship is a confirmation of the fact that access to the status of EU citizenship is always provided via the nationality of a Member State does not diminish the importance of the former status or the rights it brings.

In fact, derivation functions practically in such a way that not only does EU citizenship follow Member State nationalities, but the opposite is also possible. Crucially, EU citizens whose Member State nationality from which the status of EU citizenship is derived is put into question can potentially rely on EU citizenship in order to retain their Member State nationality. The ECJ ruled in Rottmann that the EU principle of proportionality applies in the situations ‘capable of causing [EU citizens] to lose the status conferred by Article 17 EC and the rights attaching thereto’,Footnote ³⁷ which comes down to a possibility to force the states to confer/not to withdraw their nationality in certain cases where EU citizenship status is in danger.Footnote ³⁸ This would never be possible, should the perspective adopted by Tesauro et al be accurate. Moreover, even where rights associated with EU citizenship and particular Member State nationalities seem to overlap this is not to be taken at face value: in terms of scale, EU citizenship provides for rights in the territory of the Union,Footnote ³⁹ which is 27 times more than one jurisdiction, where Member State rights operate.Footnote ⁴⁰ As Gianluigi Palombella observes, ‘this enables each of us to reconceive the horizon of our zeal capabilities (to recall Sen) beyond the limits of national citizenship and territory’.Footnote ⁴¹ Add to this the possibility to turn EU citizenship rights against one's own Member State of nationality (including when decisions on that very nationality are taken) and the story is complete. The fundamental distinction made between the legal essence of EU citizenship and that of the nationalities of the Member States—anticipated by Dora Kostakopoulou in her studyFootnote ⁴²—provides a key for the understanding of the dynamics of EU citizenship evolution and the place of this concept in European law, as well as its interrelation with Member State nationalities.Footnote ⁴³ In practice, EU citizenship no longer operates as a simple guarantor of the home country rule for those residing in a different Member State compared with their Member State of nationality, but adds, in the words of Besson and Utzinger, ‘a European dimension to each national demos’,Footnote ⁴⁴ which certainly makes the perspective adopted by Besselink much less convincing. Ius tractum access does not mean ius tractum nature. The consequences of this are very far-reaching indeed. Drawing on an illuminating account provided by Gianluigi Palombella, this amounts to endowing the Union with direct legitimacy, which ‘becomes primary and no longer dependent of the legitimacy of states’.Footnote ⁴⁵

Needless to say, the very rules on derivative access contained in the Treaties have met with scholarly opposition. Clear arguments have been made in favour of decoupling access to EU citizenship and Member State nationalities in the future. Positions adopted by Ulli Jessurun d'Oliveira and Dora Kostakopoulou are particularly enlightening in this respect.Footnote ⁴⁶ In fact, it is more or less accepted in the literature that EU citizenship is incomplete unless it takes third-country nationals onboard in some form, thus moving beyond the confines of Member States' nationalities.Footnote ⁴⁷

Now that the ECJ has clarified beyond any reasonable doubt that although the two are naturally fused together, EU citizenship is different in principle from the nationalities of the Member States, any mode of accessing this status can be chosen. Besides diminishing the harshness of apartheid européen,Footnote ⁴⁸ this would do justice to EU citizenship which de facto seems to have outgrown its initial framework.Footnote ⁴⁹ Analysis of the history of European integration also seems to point in this direction: third-country nationals legally present in the EEC theoretically could become the beneficiaries of free movement of workers provisions.Footnote ⁵⁰ It certainly makes little sense to divide the territory of the Union with borders exclusively for the third-country nationals, recreating for this vulnerable categoryFootnote ⁵¹ all the problems which free movement of persons was intended to solve.Footnote ⁵² Moreover, EU citizenship does not even cover all Member State nationals.Footnote ⁵³ Now that Member States nationalities and EU citizenship have started, conceptually, to part ways,Footnote ⁵⁴ the logical arguments for the automatic exclusion of third-country nationals from the latter status becomes much less convincing.

B. The Underlying Logic of EU Citizenship

Once it is clear that EU citizenship is not affected in its essence by the derivative mode of its acquisition, the citizenship of the Union has to be placed within a broader context of the dynamic development of EU law. Notwithstanding numerous nods in the direction of the fédération européenne, as envisaged in the Schuman DeclarationFootnote ⁵⁵ and the establishment of an ever closer union among the peoples of the Member States,Footnote ⁵⁶ the maturing of EU law has been largely associated with the establishment of the Internal Market.Footnote ⁵⁷ What then is the relationship between EU citizenship and the market? And if EU citizenship is a break away from purely economic considerations, a potentially more important issue arises, namely, what is its rationale then? The very essence of the Union is in this question.

While connecting EU citizenship with the market in the most direct way was a popular approach at the initial phase of EU citizenship evolution,Footnote ⁵⁸ at this stage, the ECJ has made it absolutely clear that EU citizenship does not per se have market-oriented aims and also plays an important role in the lives of those who are not economically active in the context of the Internal Market. The mainstream approach in the literature, which is fully supported by ECJ case law and secondary EU law instruments consists in characterizing EU citizenship as a Grundfreiheit ohne Markt,Footnote ⁵⁹ or lying ‘outwith the immediate confines of the single market’.Footnote ⁶⁰ Among the proponents of this approach are Ferdinand Wollenschläger, Dora Kostakopoulou and numerous others. A concurrent reading, which emphasizes the important role of the Internal Market behind the framing of EU citizenship is promoted, inter alia, by Niamh Nic Shuibhne, who argues, essentially, that EU citizenship remains largely a market citizenship.Footnote ⁶¹ Although the now classical distinction between Marktbürger and citoyen in EU law is not challenged,Footnote ⁶² Niamh Nic Shuibhne looks for what could actually inform EU citizenship's development and returns to the economic roots of European integration in answering this question. She submits that ‘[n]o polity, constitutional or otherwise, exists just for the sake of existence. “What” is grounded in constitutionalism is the substantive point. And what the EU constitutionalizes is a framework within which functions, primarily, a market’.Footnote ⁶³

It is absolutely true that a set of underlying values and principles is indispensable for a polity to function. Yet, would the market alone, even if it is a ‘constitutional market’Footnote ⁶⁴ provide a sufficient base for the supranational citizenship? Among a myriad of ideal citizenship models formulated by lawyers and political scientists,Footnote ⁶⁵ the presumption has always been that pure considerations of prosperity provide too thin a foundation for the development of what could aspire to becoming a ‘real’ citizenship. Should we believe, following Wollenschläger, Kostakopoulou et al, that EU citizenship is indeed a citizenship beyond the market—and the ECJ certainly pushes us in this direction—it is necessary to find an alternative basis for it, rather than prosperity and economic freedom: it cannot be left suspended in thin air. To be sure, the moral starting point of the European market integration—that of avoiding yet another war, and dealing with the heritage of the cataclysms of the first half of the last century which lay behind the market at its inception is gone, removed by the ‘paradox of success’.Footnote ⁶⁶ To concur with Joseph Weiler, the market is now alone, with no ‘moral imperative’ and no ‘mantle of ideals’.Footnote ⁶⁷ An ideal of justice among other substantive principles seems to be required to build a sound European citizenship upon.

In the quest for the likely foundations—if not justificationFootnote ⁶⁸—of European integration which could provide EU citizenship with an indispensable core, at least three concepts are discussed in the literature. The idea of justice, focused on by Andrew Williams in his recent ground-breaking work;Footnote ⁶⁹ political representation, in the work of Joseph Weiler;Footnote ⁷⁰ and the idea of equality, analysed elsewhere in detail.Footnote ⁷¹ All three concepts—especially, an organic combination of the three—could in theory provide a sound foundation for a supranational citizenship stretching beyond the market. In practice, however, they do not.Footnote ⁷²

The picture that emerges out of these studies is discomforting. As Andrew Williams has brilliantly demonstrated, the problems plaguing the key principles of law in the Union could have much deeper roots than one would expect,Footnote ⁷³ going as far as the flaws in the foundational philosophy of the European integration exercise,Footnote ⁷⁴ leading to an impoverished idea of justice,Footnote ⁷⁵ and a highly proceduralized vision of the principles of law, threatening to strip the latter of even its most essential substance.Footnote ⁷⁶ Looking behind the façade of purely rhetorical values, scholars find a worrying void. According to Weiler, ‘oggi, noi accumuliamo la retorica dei valori anche se, nelle parte operative dei trattati, vi diamo poca importanza o lasciamo prevalere ambiguità’.Footnote ⁷⁷ Williams concurs: ‘[t]he principles which the ECJ proceeded to develop through its case-law have not been based on fundamental values that have any coherence, even though the consistent use of the rhetoric of certain values might suggest otherwise.’Footnote ⁷⁸ The values and virtues problem in the EU is apparent.Footnote ⁷⁹

When the underlying philosophy is ‘based on a theory of interpretation (of original political will) rather than a theory of justice’,Footnote ⁸⁰ all the fundamental principles of law are in danger. In the citizenship context, a glance at the principle of equality is particularly informative, since equality is one of citizenship's key elements.Footnote ⁸¹ Drawing on the work by Gareth Davies,Footnote ⁸² Gráinne de BúrcaFootnote ⁸³ and numerous other commentators, in a recent study dedicated to the functioning of the principle of equality in the context of EU citizenship, the present author was bound to conclude that equality in the EU is not safeguarded, as any substantive understanding of the principle is lacking.Footnote ⁸⁴

The situation is identical in the context of another major facet of citizenship—that of political representation—which seems to be equally undermined. The citizen, as Joseph Weiler demonstrated, ‘è ridotto a un consumatore di resultati politici’.Footnote ⁸⁵ The possibility of active participation in politics at the European level proper is minimal—quite an obvious reality which no window-dressing in the form of non-binding citizens' initiative can hide.Footnote ⁸⁶ Moreover, the ECJ does not even treat electoral rights as EU fundamental rights, as the case law abundantly demonstrates.Footnote ⁸⁷ It thus seems right to claim that electoral provisions found in Part II TFEU are merely non-discrimination rights.Footnote ⁸⁸

Citizenship thus came under attack at all the fundamental levels outlined, where one could most legitimately expect this status to play a fundamental role: justice, equality, and democracy. Key values of citizenship remain ignored in the Union. Worse still: no agenda exist to date to remedy the key deficiencies outlined. Having stepped into the citizenship world, the EU is still unable to cope with its birth defect, ie the strong market bias, which is logically inexplicable in the new situation, where citizenship and the Internal Market conceptually parted ways.Footnote ⁸⁹ The analysis of the recent EU citizenship case-law of the ECJ entirely confirms Weiler's view that ‘[l]'aspetto problematico di questa giurisprudenza è che precisamente omette di compiere la transizione concettuale da una libera circolazione basata sul mercato ad una libertà basata sulla cittadinanza.’Footnote ⁹⁰ Nic Shuibhne can thus be absolutely right in turning to the market in her search for the conceptual foundation of EU citizenship: neither justice, nor political participation, nor equality, can pass a reality check: in the future they could possibly gain in importance, but currently they fail to provide a sound basis for EU citizenship. Consequently, to refer to Andrew Williams once again, the EU is building on an ‘institutional ethos that lacks reasonable coherence and moral purpose’.Footnote ⁹¹ This is problematic well beyond the level of rhetoric, threatening to cause numerous problems in the future.

To say that EU citizenship has an underlying cornerstone supplied by the market, as Niamh Nic Shuibhne does, although factually correct in the sense that other perspectives are proven wrong, does not actually solve the conceptual problem of lacking moral purpose which is of no small importance, should citizenship be taken seriously. Or is it true, as submitted elsewhere that ‘EU citizenship, frankly, is hardly worthy of this glorifying term’?Footnote ⁹² Although it seems undisputable that the EU is a ‘citizenship-capable polity’,Footnote ⁹³ a different perspective seems to be necessary. What is clear at this point is that although EU citizenship and the Internal Market have parted ways, which created ‘a fundamental freedom beyond the market’, this parting of ways has not, as of yet, been accompanied by the formulation of any fundamental principle of law, which would supply a moral essence or a durable principled foundation for EU citizenship.

C. EU Citizenship's Role within EU Law

The day-to-day functioning of EU citizenship does not seem to be much affected in the short term by the conceptual deficiencies it suffers from. The Court regards it as ‘the fundamental status of the nationals of the Member States’,Footnote ⁹⁴ creatively applying the provisions of Part II TFEU and clearly recognizing EU citizenship's far-reaching potential. Unsurprisingly, EU citizenship started influencing the application of the market freedoms sensu stricto by affecting them through the scope ratione personae of EU law. With the entry into force of the Treaty of Maastricht the scope ratione personae of EU legal order was enlarged from less than 2.3 per cent of Member States nationalsFootnote ⁹⁵ to 100 per cent. It follows that, as outlined with admirable clarity by Eleanor Spaventa, ‘any Union citizen now falls within the [personal] scope of the Treaty, without having to establish cross-border credentials’.Footnote ⁹⁶ Consequently, the rhetoric of the ECJ claiming that the notion of EU citizenship was not designed to enlarge the scope of EU law,Footnote ⁹⁷ when applied to the scope ratione personae, is, with all respect, simply nonsensical.Footnote ⁹⁸ Here is where another important cleavage in the literature emerges. While a number of scholars, including Eleanor Spaventa and Oxana Golynker, welcomed the new interpretation of the scope of EU law in the light of EU citizenship also in the context of the economic freedoms—and not only in EU citizenship cases sensu stricto,Footnote ⁹⁹—others maintain, in essence, that the economic freedoms should not be ‘contaminated’ by the new approach formulated in the context of the citizenship provisions, criticizing the Court for abandoning its pre-citizenship ratione personae testFootnote ¹⁰⁰ to the effect of enlarging the number of economically active persons able to benefit from EU law.

After Maastricht, those workers who moved residence, not jobs, ended up covered by economic free-movement provisions—just as all other economically active EU citizens in cross-border situations.Footnote ¹⁰¹ The Court's new approach treats all economic activities with a cross-border element present differently from all non-economic activities within the scope ratione materiae of EU law. Charlotte O'BrienFootnote ¹⁰² and Alina TryfonidouFootnote ¹⁰³ criticize the Court for updating its approach following the entry into force of the Treaty of Maastricht. O'Brien goes as far as to state that ‘the more appropriate assessment of a migrant whose State of work remains unchanged is arguably under [Article 21 TFEU]’.Footnote ¹⁰⁴ Scholars in this camp find bringing workers who work and reside in different Member States within the scope of economic provisions ‘counterintuitive’,Footnote ¹⁰⁵ craving to see more citizens and fewer worker-citizens to whom EU law would apply. This approach is profoundly problematic for a number of reasons, not least because it comes down to arguing for two different tests of the scope of the law to apply to EU citizens not depending on whether they are economically active or not in a cross-border situation (which is the current approach),Footnote ¹⁰⁶ but whether their intentions are directly enough connected to the Internal Market.Footnote ¹⁰⁷

According to Oxana Golynker and other commentatorsFootnote ¹⁰⁸ who regard the Court's approach approvingly, the Court merely moved away from exercising an ultra vires activity of reading citizens' minds towards assessing the facts.Footnote ¹⁰⁹ Golynker submits in this context that ‘it seems appropriate to classify Union citizens who exercised their right to free movement under Art. 18 EC but remained employed or took up employment elsewhere in the Community as Community workers’.Footnote ¹¹⁰ It is incontestable that de facto it is impossible to change the economic nature of someone's activity by swapping the places of employment and residence and that the direction of movement should not matter in the context of the Internal Market, which takes an area without internal frontiers as a starting point.Footnote ¹¹¹

The dogmatic opposition to the Court's citizenship case law by those unwilling to see economic freedoms applied to EU citizens with ‘wrong intentions’ fails to convince. Upon the introduction of EU citizenship and the enlargement of the personal scope of supranational law to cover virtually everyone, the intentions-based reading of the Internal Market is no longer acceptable. EU citizenship became lex generalis covering the situations not caught by the economic free movement provisions.Footnote ¹¹² Moreover, it is moving fast to play the same lex generalis role where the existence of a cross-border situation is not clearly articulated, ie when either someone's intentions, or the market-considerations as such, cannot possibly play any role, as we have seen in Ruiz Zambrano, for instance.Footnote ¹¹³ When Internal Market considerations still play a role, however, clearly it is not intentions but rather economic activity, which matters in deciding which provisions are to apply.

There is another side to the coin of EU citizenship affecting the scope of EU fundamental freedoms, however, which is, regrettably, frequently overlooked. EU citizenship not only enlarges the scope of such freedoms, but also potentially limits them. This is owing to, relative considerations, such as the ‘real links’ with the host Member State test first formulated in the EU citizenship case law for non-economically active citizens,Footnote ¹¹⁴ come to limit the scope of economic free-movement provisions. This is arguably what happened in Geven Footnote ¹¹⁵ and Hartmann,Footnote ¹¹⁶ where the grant of social advantages to economic migrants was subjected to a test of ‘real links’ with the society of the Member State in question.Footnote ¹¹⁷ In this context Síofra O'Leary is very convincing in deciphering the signs of ‘cross-pollenisation’ of EU citizenship and economic free movement of persons case-law, expressing a concern with the unwanted consequences of EU citizenship case-law for economic free movement provisions.Footnote ¹¹⁸ Drawing a clear dividing line between EU citizenship and economic free-movement case law, thus sticking to the ‘old-fashioned classification’Footnote ¹¹⁹ is problematic at this point. The two are much interconnected and are likely increasingly to influence each other's scope in the years to come.

A. EU Citizenship's Relationship with Member States' Nationalities

EU citizenship went far beyond affecting the scope of EU law provisions. It started reshaping the federal status quo in Europe, with direct implications for the division of powers between the EU and the Member States. The starting point of this important process was marked by the profound change which the maturing of EU citizenship introduced into the relationship between EU law and the nationalities of the Member States.Footnote ¹²⁰

An old academic debate, exemplified by the positions adopted by Gerard-René de Groot and Andrew EvansFootnote ¹²¹ on the one side and Ulli Jessurun d'Oliveira on the otherFootnote ¹²² came to a resolution in 2010 when the Court unreservedly embraced de Groot's position that Member States are not absolutely free in framing their nationalities as they see fit. The Court thus explicitly dismissed Jessurun d'Oliveira's approach, which was based on an assumption that the regulation of nationalities belongs to a reserved domain of national law of the Member States, where the Union is not in the position to intervene. The ECJ answered Jessurun d'Oliveira's question ‘is Union citizenship the crowbar that will break open the nationality law of the Member States?’Footnote ¹²³ in the affirmative and ruled in Rottmann that EU law has to be taken into account when a decision on nationality taken by a Member State is bound to have implications for the EU citizenship status of a person.Footnote ¹²⁴ Consequently, virtually any instance of loss (and, necessarily, also acquisitionFootnote ¹²⁵) of a Member State nationality is potentially covered by EU law, thus making the ECJ, in the words of Gareth Davies, ‘the final arbiter’ in citizenship cases.Footnote ¹²⁶ To suggest that this development was not in the making for a long time does not take the development of EU citizenship seriously. Indeed, Rottmann has been generally regarded in the literature as a predictable and logical development,Footnote ¹²⁷ especially when viewed in the light of the earlier Micheletti ruling,Footnote ¹²⁸ which concerned the necessity to take EU law into account in the cases of recognition of each other's nationality by the Member States.Footnote ¹²⁹ The similarity with conferral and withdrawal of nationalities is obvious in this context.Footnote ¹³⁰ To deny the Union any possibility to protect EU citizenship status from the encroachments of the Member States would be to leave it entirely to the Member States to decide who EU citizens are, even when such decisions are taken in breach of the core principles of EU law—a flawed construct whose underlying logic is bound to be criticized whatever the relationship between EU citizenship and Member State nationalities established by the Treaties.Footnote ¹³¹ Arguments against such approach go back as far as the 1970s, when Sir Richard Plender convincingly argued against the legality under European law of the British DeclarationsFootnote ¹³² on UK nationality for the purposes of EEC law.Footnote ¹³³ It took the Court 30 long years and a dubious decision in Kaur Footnote ¹³⁴ to start checking the nationality decisions of the Member States against EU law, accomplished for the first time, albeit indirectly, in Rottmann.Footnote ¹³⁵ In the meanwhile, the literature, and especially the analysis provided by Andrew EvansFootnote ¹³⁶ and Gerard-René de Groot,Footnote ¹³⁷ warned of the numerous situations where nationality decisions would be incompatible with EU law long before Rottmann was decided. The Court thus made a small predictable revolution in following the mainstream literature on the subject and confirming that the reserved domains which Jessurun d'Oliveira argued for are unknown to the system of EU law.Footnote ¹³⁸ EU citizenship came out of this seriously reinforced, since although the Member States remain free to decide who their nationals are, in doing this they are bound to take EU law fully into account.

The Rottmann decision merely reveals a small part of the full story of the influence of EU citizenship on the nationalities of the Member States. It only focuses on the direct role played by EU law in the sphere of the acquisition and loss of Member State nationalities, but the indirect influence is arguably by far more important. Although there is not much research done in this area,Footnote ¹³⁹ the literature raises several important points.

First, since all the nationalities of the Member States provide access to the same single status of EU citizenship from which a constantly growing number of rights is then derived, including the right not to be discriminated against on the basis of nationality, the possibility for one Member State to have a ‘better nationality’ within the EU is non-existent, legally speaking at least.Footnote ¹⁴⁰ This is especially evident once one takes into account the importance of residence, a ‘place to hang [one's] hat’,Footnote ¹⁴¹ to which the majority of practically usable rights are connected in any Member State, as well as the fact that such residence can be established with the use of EU citizenship status.Footnote ¹⁴²

Secondly, EU citizenship de facto amounts to the possession of a quasi-nationality of the Member State of residence of which the citizen is not a national,Footnote ¹⁴³ as well as a ‘relativisation’,Footnote ¹⁴⁴ if not ‘abolition’Footnote ¹⁴⁵ of the Member State nationalities through Article 18 TFEU. Clearly, EU citizens cannot be equated with foreigners (ie third-country nationals) anywhere in the Union any more.Footnote ¹⁴⁶ Consequently, the lack of any coordination between the Member States in terms of access to their nationality was bound to result in the mutation of the accessibility of the legal status of nationality even without any formal intervention of the EU.Footnote ¹⁴⁷ The only detailed study of this matter to dateFootnote ¹⁴⁸ distinguishes between two ways of such accommodation: formally, where the nationality laws of the Member States are changed to treat EU citizens differently from third-country nationals on the issues of loss and acquisition of nationality; and informally, with de facto preferential treatment for EU citizens when compared with the third-country nationals in terms of access to the nationality of the Member State of residence, since they are not subject to immigration control and derive residence rights from EU law.Footnote ¹⁴⁹ Consequently, while, following Rottmann, EU law now plays a role in the framing of Member State nationalities, at the Member State level, EU citizens get preferential access to local nationalities compared with third-country nationals both at the formal and informal levels even without any direct involvement of EU law in this matter. These developments taken together provide yet another illustration of how much EU citizenship and the Member States nationalities are interconnected in practice. The circle is thus ‘rounded up’Footnote ¹⁵⁰—a derivative status of EU citizenship comes to affect the Member State nationalities from which it is derived.

Finally, it can also be argued that the formalization of the preferential treatment of EU citizens in naturalization issues in a number of Member States amounts to the establishment of separate modes of acquisition of EU citizenship:Footnote ¹⁵¹ those not in possession of the supranational status have a much harder time acquiring Member State nationality since it comes in tandem with EU citizenship in their case. This is unlike those who are already EU citizens and can usually naturalize in their Member State of residence more easily than third-country nationals.

Although Member States are formally in charge of their nationalities, all decisions on nationality issues are subject to the scrutiny of the ECJ and can always be framed in the context of EU law, whether or not the EU is generally competent to act in the field. The very federal context of the European integration project is responsible for the adaptation of the Member States to the new reality of EU citizenship.

B. EU Citizenship's Influence on the Vertical Delimitation of the Scopes of the Law

EU citizenship plays a global role in shaping the borderline between national and EU law beyond influencing the scope of Member States' nationalities. This is due to three factors, two of which have been presented above. First, EU citizenship has overwhelmingly enlarged the scope ratione personae of EU law.Footnote ¹⁵² Secondly, the introduction of EU citizenship has also enlarged the scope of the economic freedoms in the Treaties.Footnote ¹⁵³ Thirdly, and probably most importantly, the introduction of EU citizenship pushed the Court towards a profound reassessment of the concept of purely internal situations, by moving more situations, however artificially, within the scope of EU law. This process has been brilliantly documented by Alina Tryfonidou,Footnote ¹⁵⁴ Niamh Nic Shuibhne,Footnote ¹⁵⁵ and Peter Van Elsuwege and Stanislas Adam,Footnote ¹⁵⁶ among other commentators.Footnote ¹⁵⁷ The classical approach to purely internal situations espoused by such authorities as LA Geelhoed, or Lord SlynnFootnote ¹⁵⁸ is not supported by the latest developments in the law.Footnote ¹⁵⁹ EU citizenship exposed reverse discrimination in purely internal situations to much more convincing criticism compared with the arguments advanced in the pre-citizenship (market-oriented) era of development of EU law, since EU citizenship as such is not necessarily a market conceptFootnote ¹⁶⁰ and reverse discrimination targets mostly those who are viewed as not contributing to the market.Footnote ¹⁶¹ Moreover, the general equality considerations necessarily connected to the concept of citizenship provide an equally important starting point for criticism of the current state of the law.Footnote ¹⁶²

It is now settled case law that ‘the situation of a national of a Member State who … has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation’.Footnote ¹⁶³ This signifies a potentially infinite enlargement of EU law's scope. Eleanor Spaventa is undoubtedly correct, submitting that ‘no national rule falls a priori outside the scope of the Treaty, since movement is enough to bring the situation within its scope’.Footnote ¹⁶⁴ Such movement need not be connected with any physical travel in space or economic activity of the mover.Footnote ¹⁶⁵

Consequently, any economic engagement within the Internal Market does not necessarily play a role in shaping the material scope of EU law: EU citizenship does the trick. The meaning of the notion ‘cross border situation’ came to be so technical that it now has virtually nothing to do with borders.Footnote ¹⁶⁶ The Court stretches ratione materiae of EU law to cover virtually hypothetical cross-border situations, eg those depending on cross-border birth,Footnote ¹⁶⁷ wives’ movements,Footnote ¹⁶⁸ or potential movements in the future.Footnote ¹⁶⁹ While entitling the growing numbers of individuals to the protections of EU law, such developments stand to be seriously criticized, since they do not actually solve the problem of poor foundations informing the divide between the scopes of national and EU law, and may even exacerbate it, as they risk turning the determination of which law is to apply into a game of chance, simultaneously ensuring that the principle of equality ‘undergoes something of an ideological battering’.Footnote ¹⁷⁰ Numerous lawyers, including Niamh Nic Shuibhne and, most importantly, AG Sharpston,Footnote ¹⁷¹ argue for a gradual total overhaul of the approach to purely internal situations. As AG Sharpston aptly observes, there is ‘something deeply paradoxical about [the toleration of reverse discrimination by the EU] although the last 50 years have been spent abolishing barriers to freedom of movement between … Member States’.Footnote ¹⁷² Dominique HanfFootnote ¹⁷³ and AG KokottFootnote ¹⁷⁴ are more traditional, viewing reverse discrimination as a necessary evil within the context of multi-level EU constitutionalism.

Even if Nic Shuibhne, Sharpston and others provide convincing arguments that it is ‘time to move on’,Footnote ¹⁷⁵ away from reverse discrimination, it is difficult to see on what fundamental basis this could be done, without leaving the omnipresent market paradigm, however deficient. This challenge might be too much for the Union to take on at this stage.Footnote ¹⁷⁶ One thing is clear, however: EU citizenship resulted in an exponential growth of the scope of EU law, notwithstanding the (textually unsubstantiated) claims that this was not the intention of the drafters.Footnote ¹⁷⁷ Moreover, this growth brought about a serious diminishing in clarity concerning the vertical delimitation of powers between the two legal orders in the Union.Footnote ¹⁷⁸

C. EU Citizenship and the Choice of a Jurisdiction Test

In the most recent line of case law,Footnote ¹⁷⁹ the Court attempted to remedy the much criticized deficiencies of its cross-border situation approach by formulating a new jurisdiction test in EU citizenship cases which would be entirely removed from Internal Market considerations and where Member State borders within the Union or economic activity would not play any role. Welcomed elsewhere,Footnote ¹⁸⁰ this approach has been criticized by Niamh Nic Shuibhne,Footnote ¹⁸¹ Daniel Thym and Kay Hailbronner.Footnote ¹⁸² Yet, their criticism mostly concerns the extent of the Court's reasoning, rather than its underlying logic and the outcome. Academics seem to agree that the new vision of jurisdiction, which can now be derived from EU citizenship alone, is a ground-breaking innovation in EU law. Eleanor Spaventa regretted that ‘orthodox thinking led us to believe that, in order to fall within the scope of the Treaty, the migration paradigm had to be satisfied for Union citizens to acquire rights in Community law’.Footnote ¹⁸³ The ECJ ultimately concurred and embarked on purifying its case law of the unwelcome orthodoxy, which in fact amounted to the discovery of the actual text of Part II TFEU, which contains no references whatsoever to an internal market rationale or the Court's maxim that EU citizenship was not meant to enlarge the material scope of EU law.Footnote ¹⁸⁴

The Court ruled that any 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 ¹⁸⁵ are within the ambit of EU law. In other words, since 2011 there are two tests of jurisdiction in the Court's arsenal: a familiar cross-border situation test and a new degree of interference with EU citizenship rights test.Footnote ¹⁸⁶ The two are already being used side-by-side,Footnote ¹⁸⁷ even if further clarification concerning their practical functioning will be required. This new development is one of the most far-reaching evolutions in the case law in decades. EU citizenship is finally taken seriously.Footnote ¹⁸⁸

The new jurisdiction test comes down to a yet another decisive extension of the scope of EU law, since the number of situations which can produce the ‘effect of depriving Union citizens of the genuine enjoyment of the substance of [their EU citizenship] rights’Footnote ¹⁸⁹ is potentially quite considerable. As advocated by the majority of scholars working in the field,Footnote ¹⁹⁰ it has been established for the first time by the Court that EU citizenship alone can trigger the application of EU law in a number of situations, with all its accompanying and inestimable consequences. Important though this recognition is, there remain unresolved a considerable number of key questions of fundamental importance. The Court's approach failed to provide clarity concerning the rights of EU citizenship which would be capable of activating EU law in wholly internal situations beyond the problematic right not to be pushed to leave the territory of the Union but not of your Member State of nationality, a right which these cases introduced. Moreover, it is unclear to what extent such rights must be breached to have such effect; what the sources of such rights are; who will decide that such breaches have indeed occurred—national courts, or the ECJ?—and numerous other questions.Footnote ¹⁹¹

A. EU Citizenship and Social Solidarity

Michael Dougan and Eleanor Spaventa are absolutely right, ‘the idea of social solidarity can no longer be treated as a national or local monopoly’.Footnote ¹⁹³ While they claim that the Union lacks ‘any clear organizing concept of social solidarity’,Footnote ¹⁹⁴ Catherine Barnard disagrees in part, finding that ‘[t]he principle of “solidarity” is taking root as a guiding principle of European Community law’.Footnote ¹⁹⁵ Her compelling analysis of the case law makes a convincing point that the ECJ used this purely non-economic principle to establish EU citizenship.Footnote ¹⁹⁶

But is solidarity confined to citizens—or is it broader in scope? Addressing this question, Sandrine Maillard formulates an all-encompassing approach to social citizenship in Europe, not only connecting the concept with workers’ rights before the incorporation of EU citizenship into the acquis,Footnote ¹⁹⁷ but also, simultaneously, attempting to detach it from EU citizenship sensu stricto.Footnote ¹⁹⁸ In fact, this approach seems to be working well, as the majority of social rights, at a closer inspection, are not in fact granted exclusively on the basis of nationality or EU citizenship. So long term resident third-country nationals usually enjoy social rights too, notwithstanding the fact that problems with the application of Article 18 TFEU to them abound.Footnote ¹⁹⁹ Consequently, social citizenship emerges as a parallel layer of citizenship in Europe, which is largely residence-based, situating the whole debate on the European social model within a much larger context—what Maillard is masterfully doing in her study, which demonstrates the fading away in importance of nationality as such in the context of modern social law. The link between a Member State nationality or EU citizenship and social solidarity appears not at all necessaryFootnote ²⁰⁰ in the context of the emergence, following Sandrine Maillard, of ‘solidarité au-delà de la nationalité’,Footnote ²⁰¹ which is independent of nationality.Footnote ²⁰² In this context the potential influence of EU citizenship on social solidarity emerges as a much inflated topic. Daniel Thym is absolutely right in this context to state that the ‘long-term implications of the social benefits case-law are, from today's viewpoint, less revolutionary than initial analyses suggested.’Footnote ²⁰³

Alongside the links between social solidarity and citizenship, and between social solidarity and the State, the presumption of ‘social dumping’ in the EU is questioned in the literature. It has been generally assumed that EU citizenship, particularly in the context of enlargement, can lead to a much feared erosion of solidarity or a ‘race to the bottom’ between the providers of social services at the national and local level. Empirical evidence to support this is missing entirely, as Michael Keating compellingly demonstrates.Footnote ²⁰⁴

In one example, Michael Dougan sounded several warnings along such lines in the wake of the EU's enlargement: ‘Enlargement might lead to large-scale benefit migration towards western countries which have established generous welfare systems; that a massive influx of workers from the CEEC would seriously disrupt labor markets in the EU-15; that difference between wages and other compliances costs might lead to social dumping in favor of undertakings from the CEEC.’Footnote ²⁰⁵ Needless to say, none of this has materialized in reality.Footnote ²⁰⁶ Endemic in the whole discussion of the dangers of EU citizenship for the social sphere is unfortunately one feature, namely that it tends to ignore the facts, which are quite simple: ‘[c]ontrary to the “race to the bottom” hypothesis, European governments have not dismantled their welfare systems in the face of market competition and, indeed, have retained a variety of distinct models’.Footnote ²⁰⁷

Moreover, it appears that a nation state is not a necessary platform for a system of social solidarity, which numerous sub-national social security systems demonstrate.Footnote ²⁰⁸ The consequences of such dissociations are twofold. First, it does not matter whether a social citizen is in possession of a legal status of nationality of the Member State of residence or EU citizenship. Secondly, nationality of a Member State or EU citizenship would not necessarily guarantee preferential treatment when decoupled from residence.Footnote ²⁰⁹ In this context, the relevance of Member State nationality or EU citizenship in the social plane is only determined by the extent to which the two permit access to residence durable enough to endow individuals with social rights: ‘residence is new nationality’.Footnote ²¹⁰ In the context of cross-pollenization of EU citizenship and economic freedoms in the Treaties outlined by Síofra O'Leary,Footnote ²¹¹ a danger also exists that workers’ access to social citizenship (in terms of Maillard) could be constrained. This could be done with the use of the tools developed in the context of non-economically active EU citizens, aimed at delaying the full application of Article 18 TFEU in the Geist of the secondary legislation and the case law aiming to prevent the so-called ‘benefits shopping’. Notwithstanding the Court's occasional willingness to help,Footnote ²¹² its general approach to the issueFootnote ²¹³ is much criticized in the literature.Footnote ²¹⁴

All in all, while scholars too numerous to be mentioned aim to ‘shield’ national-level solidarity from EU interference, a contrasting approach, exemplified by Gareth Davies’ enlightening scholarship, points to the benefits of exposing state-run monopolistic social solidarity systems to competition with a view to increasing efficiency and improving lives.Footnote ²¹⁵ After all, a claim that the ‘shielded’ national solidarity systems are per se better than any possible alternative is absurd and cannot be taken seriously.Footnote ²¹⁶ But since Member State nationalities can be cherished by their holders because of the trust they put in the social services provided by their States, being vocal about the actual detachment of citizenship and ‘social citizenship’ as well as allowing for open competition between what States actually provide can result in the ‘hollowing of national citizenship’.Footnote ²¹⁷ Consequently, crusades to defend national solidarity against EU encroachments seem to come down to an ideological stance, not grounded in reality.

B. EU Citizenship and Identity

Nations—and nationalities—are conceived by ‘creating or elaborating an “ideological” myth of origins and descent’.Footnote ²¹⁸ In Mythologies Roland Barthes explains that myths are not important for the story they tell, but for what they do.Footnote ²¹⁹ The identity side of citizenship works in the same way. Although the myth itself is usually so naïf that it does not even pretend to be true ‘nationality is to a greater or lesser degree a manufactured item’Footnote ²²⁰—‘l'oublie et l'erreur historique’Footnote ²²¹—identity's perceived true nature is not thereby undermined, ensuring that people are ready to sacrifice it all; mourir pour la Patrie.Footnote ²²² The related debate is well known. ‘If national allegiances can be based on false beliefs, how is it possible for a purportedly rational institution such as morality to accommodate them?’Footnote ²²³ While philosophers are occupied, European political scientists and legal scholars observe EU citizenship and are expectedly divided around its identitarian contenue. What if the Union is creating a community of people on different principles? Or is it, again, about identities and myths?Footnote ²²⁴

The prevalent perspective in the literature, as outlined, for instance, in the authoritative study by Elsmore and Starup, claims that ‘[i]n an EU context citizenship focuses on the legal aspect. It lacks the cultural … angle’.Footnote ²²⁵ Taking this as a starting point, scholars entirely disagree with regard to its implications for the future of EU citizenship. While for some commentators, such as Richard Bellamy, the likely ‘transfer of allegiance to the EU’Footnote ²²⁶ is the key way to measure EU citizenship's success or failure, others, like Joseph WeilerFootnote ²²⁷ and Gianluigi Palombella,Footnote ²²⁸ see the lack of this aspect precisely as a strong point.Footnote ²²⁹ After all, there is no reason to believe that Habermasean ‘constitutional patriotism’ is anything else but ‘the last refuge of a scoundrel’Footnote ²³⁰—which removes ground from under the feet of the analysts viewing EU citizenship from Bellamy's perspective. The general framework of constitutionalism as such—‘an empire of uniformity’Footnote ²³¹—is also unlikely to be helpful, as James Tully masterfully demonstrated.Footnote ²³² What would be the reason to embark on a European project if it were to result in a grand-scale replication of the Member State-level nationalistic mythology? Gianluigi Palombella seems right that ‘Europe does not need to abandon dēmoi in order to make it e pluribus unum’.Footnote ²³³ Serious problems with such a line of thinking arise, however, when classical democratic representation at the EU level, implying the existence of a dēmos is advocated: we come back to Bellamy's vision.Footnote ²³⁴ How does one create such a dēmos and should one? A ‘Constitution’, to agree with Joseph Weiler is unlikely to be a helpful tool.Footnote ²³⁵ Just accepting dēmoicracy could be an option.Footnote ²³⁶

Speaking of identity in purely theoretical termsFootnote ²³⁷—which plagues much of legal and political works in on EU citizenship—does not seem sufficient. In this respect the analysis by Jürgen Gerhards, employing sociological data is of fundamental importance.Footnote ²³⁸ Although this is obviously not to advocate ‘government by public opinion’,Footnote ²³⁹ social reality has to be taken into account, especially by those seeking ‘thick’ European identity. The results of Gerhards’ study are fascinating.Footnote ²⁴⁰ They demonstrate that on average only 33.9 per cent of EU citizens support the idea of non-discrimination on the basis of nationality, on which EU citizenship rests. Numbers vary greatly across countries. The acceptance of non-discrimination is the highest in Sweden,Footnote ²⁴¹ Benelux, France and Denmark and the lowest in Eastern Europe,Footnote ²⁴² with Poles being most opposed to the idea of non-discrimination,Footnote ²⁴³ tightly followed by Lithuanians, Slovenes, Maltese, Hungarians and Czechs. In other words, the main principles of EU citizenship have only become a social reality in North-Western EuropeFootnote ²⁴⁴ and are failing to reflect the ideals of the population of the new Member States with a notable exception of Estonia,Footnote ²⁴⁵ which has its own ugly skeletons in the closet, however.Footnote ²⁴⁶

The whole edifice of European integrationFootnote ²⁴⁷ is not a reflection of popular sentiments among EU citizens: Greeks prefer the Greeks.Footnote ²⁴⁸ Could it be then, that the main identitarian contribution of the EU in general and its citizenship in particular runs contrary to State-doctored myths? If so, European citizenship is a potent tool to be deployed against the ‘suffocating bonds’.Footnote ²⁴⁹ Gianluigi Palombella, Gareth Davies and Will KymlickaFootnote ²⁵⁰ all point in this direction, the latter going as far as connecting the failure to recognize the EU's ability to ‘tame and diffuse liberal nationhood’Footnote ²⁵¹ with ‘moral blindness’.Footnote ²⁵² Joseph Weiler is more cautious: if States are the only seat of classical democratic legitimacy, how far can the Union be successful in undermining them?Footnote ²⁵³

All in all, while the mainstream literature sees EU citizenship as a legalistic creation with no implications for identity, spilling ink analysing whether it is a problem—an alternative, negative reading, consists of emphasizing EU citizenship as a liberal check protecting its holders against any state-mandated ‘culture’ and ‘identity’ impositionsFootnote ²⁵⁴ in the State of residence.Footnote ²⁵⁵ Non-discrimination on the basis of nationality blocks any moves of the Member States to ‘integrate’ EU citizens into their societies by imposing parochial culture and language tests,Footnote ²⁵⁶ which are gaining in popularity in the context of third-country national migrants.Footnote ²⁵⁷ This unquestionably liberates EU citizens—although Joseph WeilerFootnote ²⁵⁸ and Ulli Jessurun d'OliveiraFootnote ²⁵⁹ disagree.Footnote ²⁶⁰ While the ECJ and its AGs seem to fully recognize the EU citizenship's liberating function in this respect,Footnote ²⁶¹ the ‘genuine links’ jurisprudence of the Court is in direct tension with the liberal essence of EU citizenship. It is to be seen how it will evolve, but there is certainly a danger in allowing the ‘genuine links’ to become a push for the acceptance of State-level mythology.

C. EU Citizenship's Worth

In the long term, should the negative vision of the identity side of EU citizenship be correct, residence comes to the fore as the main distinction between those who are in and those who are out, as opposed to myths and ideologies.Footnote ²⁶² Following Gareth Davies, ‘the new Belgians are those who choose Belgium’.Footnote ²⁶³ The element of choice is fundamentally important here, since a classical relationship between an individual and a State does not presuppose anything like this. A citizen can try to change her State through democratic or violent means, but no State outside of the EU can empower her to swap States. Under 2 per cent of the world's population changes nationality in the course of their lives.Footnote ²⁶⁴ Scholars applaud EU citizenship for offering individuals this possibility of choosing where to live their lives, which ultimately amounts to choosing friends, foes, and the law, by voting with their feet.Footnote ²⁶⁵ The Union offers a much broader playground of opportunities than any individual State would, enabling EU citizens to live their lives as they, as opposed to a State where they were born and of which they are nationals see fit, from work to marriage,Footnote ²⁶⁶ from healthcareFootnote ²⁶⁷ to education.Footnote ²⁶⁸ Through the EU, Member States act as facilitators of personal choices not limited by their own borders or particular ideologies. This approach is in line with federalist thinking connecting the choice of jurisdiction and liberty.Footnote ²⁶⁹ As Stine Jørgensen observes, ‘in the eyes of the citizens, welfare benefits, freedom of movement and the principle of non-discrimination all support and supplement the legal position of the individual’.Footnote ²⁷⁰ Catching the essential core of this vision, Davies brings it to apotheosis, claiming that the constitutional tactic of the EU amounts to ‘humiliating the State’.Footnote ²⁷¹

The opposing view is espoused by Joseph Weiler, who takes the democratic-legitimating core of a modern State as the starting point.Footnote ²⁷² Lacking functional democratic mechanisms apart from the negative freedom inherent in it, EU citizenship is said to corrupt individuals,Footnote ²⁷³ since political involvement—let alone justice, equality, etcFootnote ²⁷⁴—is simply not part of its package. Humiliating the State, the main added value of EU citizenship in the view of some, becomes the main reason why it is a ‘bad thing’ in the view of others.

Gianluigi Palombella offers a possible way to resolve the conflict between the two perspectives through dissociating State and popular sovereignty, which diminishes the importance of the State, and, simultaneously, tackles the problematic individualismFootnote ²⁷⁵ of the ‘humiliating the State’ vision. He argues that ‘it is evident that popular sovereignty can withstand the passage of time, as an expression of our trust in democracy, and it can do so independently of the fate of the state as a form of the organization of power’.Footnote ²⁷⁶ Consequently, it is fundamental not to confuse the decline of the sovereignty of the State—a ‘concept founded on the reduction of law to the will of the state as an autonomous macro-person’Footnote ²⁷⁷—and the decline of the sovereignty of the citizens.Footnote ²⁷⁸ The sovereignty of the people is presumably reinforced by an ability to choose the community, as opposed to an obligation to be faithful to the one which you possibly find unbearable.Footnote ²⁷⁹ Consequently, Weiler's and Davies’ perspectives on the essence of the Union and its citizenship can theoretically be reconciled. However, how important is seeking this reconciliation at this stage? Even the most optimistic accounts of EU citizenship would not present it as a real and imminent danger to Member States and their nationalities.

Can it be that both Davies with his ‘humiliation of the State’ and Weiler with his ‘corrupting the individual’ accounts of the Union are guilty of exaggerating its imminent positive or negative effects? Could this cleavage be resolved through a simple toning down of the claims? Presently, the majority of EU citizens are not even aware of possessing this status. What is clear, however—and in this Joseph Weiler's work goes against the flood of literature embracing a purely individualistic approach to EU citizenship's potential as overwhelmingly important—is that the EU is unquestionably not mature enough to offer citizenship grounded in substantive values independent of ‘humiliating the State’. This is its main problem which is unlikely to be solved any time soon and of which all those working in the field of EU citizenship should be acutely aware. Individualism has clear limits.

A. Legal Nature: Three Main Conclusions

Concerning the legal nature of EU citizenship, the literature allows distilling three main points. First, EU citizenship (its derivativeFootnote ²⁸⁰ius tractum acquisition notwithstandingFootnote ²⁸¹) has unquestionably outgrown the act of derivation, turning into an autonomous legal status,Footnote ²⁸² which is essentially independent from the nationalities of the Member States as far as the role it plays and the rights it brings. This development necessarily results in a marked diminution of the role of Member States’ nationalities in the context of EU law. Given the autonomous nature of EU citizenship, the exclusion of those who are long-term EU residents but are not in possession of one of the Member States’ nationalities is logically more and more difficult to justify. Consequently, the legal situation of third country nationals residing in the Union, who are now essentially excluded from all the key benefits which EU law has to offer in terms of creating a single territory of opportunity for all to enjoy,Footnote ²⁸³ will remain an important frontier of EU citizenship law. Such apartheid européen will need to be dealt with sooner or later.Footnote ²⁸⁴

Secondly, the foundations of such an independent status are actually quite feeble. Pointing towards the Internal Market as an underlying value supporting supranational citizenship, however legitimate,Footnote ²⁸⁵ seems profoundly insufficient. It is vital to ground the new independent legal status in something more than mere economic interactions. In fact, EU citizenship has already outgrown its market rationale in many respects.Footnote ²⁸⁶ The literature offers a trio of potentially useful starting points to consider in this regard: democracy,Footnote ²⁸⁷ equalityFootnote ²⁸⁸ and justice.Footnote ²⁸⁹ As of now, however, all of them unquestionably fail the reality check in the EU context. Consequently, EU citizenship is clearly threatened, if not undermined, by the questionable foundations of this status, partly balancing in thin air, rather than firmly sitting on the conceptual ground. It is thus unavoidable that the issue of EU citizenship's foundations will have to be dealt with by the Court and the legislator: nods in the direction of the ‘market’ are insufficient in the contemporary context, when the legal importance of this status is growing at an astonishing pace.

Thirdly, EU citizenship now affects the interpretation of pre-citizenship economic freedoms too. In this it does not show any signs of being practically undermined by the conceptual deficiencies described above. During the last decade it clearly came to play the essential role in framing EU law's development, becoming ‘the fundamental status of the nationals of the Member States’,Footnote ²⁹⁰ promised as long ago as in Grzelczyk.Footnote ²⁹¹ The scope of the fundamental economic freedoms is now profoundly affected by the citizenship concept.Footnote ²⁹² The main problem, which can arise in this context, is the potential spread of at times less generous rules of access to non-discrimination on the basis of nationality from the context of EU citizenship law covering non-economically-active citizens to the economic free-movement law.Footnote ²⁹³ A firewall will need to be put in place to protect the EU's fundamental freedoms.

B. Influencing the EU's Federal Structure: Three Main Conclusions

The second most popular topic addressed in EU citizenship literature concerns the possible influence of such citizenship on the vertical delimitation of the two legal orders in the EU. First, it is indisputable that EU citizenship moved beyond mere autonomy from the nationalities of the Member States and came to profoundly affect the essence of such nationalities, as the ECJ acquired jurisdiction to check the legality of the decisions on granting and withdrawing EU citizenship (and, consequently, the very nationalities of the Member StatesFootnote ²⁹⁴) by the national authorities.Footnote ²⁹⁵ This reaffirmed once again that nationality is not a reserved domain where EU law cannot intervene,Footnote ²⁹⁶ thus definitely clarifying the division of powers between the two legal orders in Europe. At the informal level the legal importance of Member States’ nationalities has also been diminishing, ending up ‘relativised’,Footnote ²⁹⁷ if not, in many respects ‘abolished’.Footnote ²⁹⁸ This led to a conceptual reframing of the balance between the two statuses. A number of Member States went as far as to establish de facto separate rules on the acquisition of EU citizenship,Footnote ²⁹⁹ compared with the acquisition of nationalities only. The main problem arising in this context is the poor coordination of nationality matters between the Member States, some of them still lost in the sovereignty mythology and unwilling to take full account of the reality where without such coordination they actually regulate little.

Secondly, EU citizenship led to an exponential growth of the scope of EU law, notwithstanding the unconvincing ECJ claims to the contrary. The analyses in the literature put it straight: EU citizenship is responsible for an overwhelming enlargement of the scope ratione personae and, also, of the material scope too, as the two are directly connected.Footnote ³⁰⁰ Consequently, the Court is now discovering a new paradigm of EU integration,Footnote ³⁰¹ where EU citizenship logic can potentially replace, at least in some cases, the ideology of cross-border effects, undermining the dogmatism of cross-border situation thinking. In other words, EU citizenship plays a fundamental role in the framing of the scope of EU law. This, however, caused a number of problems, as legal certainty is not always taken absolutely seriously in the process:Footnote ³⁰² many questions concerning the vertical delimitation of powers in the Union remain.

These can theoretically be addressed via a reform of the ECJ's jurisdiction tests. This is the third most important aspect of EU citizenship's influence on the federal nature of the Union. EU citizenship came to play a role as an activator of EU law even in the context where no cross-border situation is invoked, as we have seen in Rottmann and Ruiz Zambrano.Footnote ³⁰³ This, notwithstanding the apparent limitations of this approach in Dereci, means a dawn of a new Union, where not the economic cross-border considerations, but the respect of fundamental rights plays a crucial role in the activation of the supranational law.Footnote ³⁰⁴ The new approach has been rightly criticized for its vagueness,Footnote ³⁰⁵ however, as it seemingly poses more questions than it provides answers.Footnote ³⁰⁶

C. EU Citizenship and Ordinary Lives: Three Main Conclusions

Most importantly, however, EU citizenship directly affects all the holders of this status, as it offers Europeans a radically broadened horizon of opportunities and in this sense seriously contributes to liberty in the Union through empowering individuals. Literature analysis of EU citizenship's influence on ordinary lives allows, first, dismissing the claims that it negatively affects social solidarity within the national contexts of the Member States, as social rights build on the idea of social citizenship which is not directly connected to the status of Member State nationality as such.Footnote ³⁰⁷ This finding is further reinforced by the fact that a direct link between social solidarity and the State is not obvious either.Footnote ³⁰⁸ Moreover, any ‘shielding’ of national social solidarity systems from EU citizenship's influence exacerbates the unequal distribution of wealth around the Union, thus benefiting only the richest Member StatesFootnote ³⁰⁹ and is based on a bluntly unsound presumption that what is being shielded is better than any possible alternative, undermining possible reforms which can benefit all.Footnote ³¹⁰ Given that no ‘race to the bottom’ is actually observable in the EU,Footnote ³¹¹ much of the literature on the negative effects of EU citizenship on social solidarity seems largely conceptually empty.

Secondly, literature analysis allows dispelling the myth that EU citizenship is merely a legalistic status that does not affect the identity of the nationals of the Member States. Of course it does, and it does so by releasing them from the ‘suffocating bonds’Footnote ³¹² by protecting them from the Member StatesFootnote ³¹³—an approach which is particularly clear in the light of the new vision of the activation of EU law, where cross-border situations are not required and the protection of rights plays a key role. In this sense, the EU is to be praised for not trying to emulate nation-states.Footnote ³¹⁴

This leads us, thirdly, to a more fundamental question: if the EU citizenship's main strength is to undermine the Member States’ grip on their nationals, thus de facto undermining the states as such, is it capable of supplying something positive to compensate for shattering the national foundations, which are also generally perceived as the foundations of democracy, equality and justice?Footnote ³¹⁵ This is where the main drawback of EU citizenship, ie the absence of a value basis and conceptual foundation comes again to the fore. Although to state that Member States would perish under its pressure would be stretching it too far, thus toning down the immediate relevance of the question posed, it will be necessary to deal with the fundamental conceptual void at the basis of EU citizenship sooner, rather than later. As EU citizenship develops, however, this drawback can also solve itself in the process: let us wait and see.