Year XXXVII, 1995, Number 3 - Page 191
CITIZENSHIP IN THE EUROPEAN UNION
The concept of citizenship of the Union has a long pedigree. The Treaty of Rome (1957) talked of an “ever closer union among the peoples of Europe.” The key idea that underpins the gradual development of popular legitimacy for European integration is enshrined in Article 6 of the Treaty which outlaws discrimination on the grounds of nationality. Over the years this objective of the European Community has begun to be realised, and “European citizenship” has featured widely at least as a rhetorical device.
The process of economic integration and legal harmonisation has gone hand in hand with a gradual democratisation of the common institutions. Notable in this regard were the first direct elections by universal suffrage to the European Parliament in 1979. In the 1980s efforts were made to stimulate the notion of “a people’s Europe”, and several cultural projects, including the promotion of exchange between students and scholars, were launched by the Commission. Member state passports were given a common format and colour. More important, inevitably, was the wider public benefit of economic integration, and, in particular, the establishment of the ambitious programme to create a single market by the end of 1992 based on four freedoms of movement for goods, services, capital and also people. The combined effect of both EC primary legislation and judgments of the Court of Justice has been to make it possible for most people – workers, their families and students – to settle anywhere they like within the Union and to enjoy comparable social, economic and civic rights to natives.
Article 8 of the Treaty of Maastricht (1992) formally establishes citizenship of the Union for everyone holding the nationality of a member state. When the Treaty is fully implemented, EU citizens will enjoy rights and duties under the Treaty, which include the right to vote and stand in municipal and European Parliamentary elections wherever they live, common diplomatic and consular protection, and the right to petition the European Parliament and to appeal to its Ombudsman. The Treaty also enables the citizenship provisions to be developed by the Council acting unanimously on a proposal of the Commission (with the Parliament merely consulted).[1]
In addition, Maastricht prescribed that the Community should be run according to the federalist principle of subsidiarity – in other words, that action should only be taken at the EC level in areas of shared competence (i.e. most areas) where there are implications for more than one member state, where the scale of action is proportionate to that of the problem and where the results achieved corporately will be better than those that would otherwise be achieved unilaterally.[2] Subsidiarity was, rightly, taken to imply a tendency to decentralisation – a view that was reinforced by the preamble which declared that decisions in the Union should be taken “as close as possible to the citizen.”[3]
The Council of Europe.
The great achievement of the Council of Europe is to have established civil liberty first in Western Europe and, latterly, in Central Europe. This was the effect of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and its later Protocols. Unlike the European Union, the ECHR affects not just nationals of member states but all people, including foreigners, within its jurisdiction.
The ECHR is international law, under the jurisdiction of the European Court at Strasbourg, and therefore differs from EC law, whose arbiter, the Court of Justice at Luxembourg, has a federal supremacy over member state law. In so far as the EU member states are concerned, however, the two traditions of the Council of Europe and the European Community are closely associated. The Treaty of Maastricht recognised the EC.HR as forming the “general principles of Community law,”[4] and the work of the Court of Justice has always been informed by the European Convention. In the Intergovernmental Conference due to begin in 1996 there will be proposals for the European Community itself to sign up to the ECHR, on the grounds that justice and fair play are dispatched more directly and speedily by the Court of Justice at Luxembourg than by the European Court of Human Rights at Strasbourg.
Civil rights in Europe have grown incrementally, with the EC and the Council of Europe working in parallel.[5] The main effect of the Council is to set human rights standards and to extend those rights to a wider category of people than nationals of EU member states; the main effect of the EU is to enforce the direct and uniform application of the rule of law.
Neither jurisdiction, however, is without exceptions and derogations. For example, the EC’s general employment rights do not apply to the civil services of the member states; freedom to own property under the terms of the ECHR is restricted by five EU member states; EC law on freedom to exercise a profession is impeded by restrictions in no less than eight member states; and so on.[6] Although there are moves towards agreeing a common visa policy with regard to third countries, the European Union itself is far from being a passport union. Examples of free travel areas within the Union are limited and imperfect – for example, between the UK and Ireland, and, now, within a hard core of the member states of the non-EU Schengen Agreement. Above all, each member state still has different rules about immigration, asylum, deportation and extradition. The right to acquire nationality and to be deprived of it firmly remains the unilateral decision of the individual states. Virtually the only civil duties which are fully portable between one member state and another are the obligation to obey the law and pay taxes.
Cooperation in Justice and Home Affairs.
The Treaty of Maastricht built into the Union a “third pillar” to cover cooperation in the field of justice and interior affairs, in which the following are regarded as matters of “common interest”: asylum, immigration, drug trafficking, international fraud, judicial cooperation in both civil and criminal matters, and customs and police cooperation.[7] These sensitive issues are dealt with behind closed doors by intergovernmental methods, and they largely escape both parliamentary scrutiny and judicial review. The ambitious presumption behind the third pillar is that it will be possible for member state governments to agree unanimously on the equitable sharing of burdens and on mutual reliance on one another’s diverse regimes of “law and order.”
Progress in cooperation has been tortuously slow. “Europol” has been blocked by a disagreement about judicial control; the Convention on the Crossing of External Borders is blocked by the question of Gibraltar. The Schengen Agreement is an unsatisfactory compromise, only partially operational, which might end up pleasing nobody but dividing the Union.
At the 1996 IGC there is a very strong case for bringing the whole third pillar, which (unlike the second pillar on Common Foreign and Security Policy) involves legislation, under the auspices of the European Community institutions. Then the development of a genuine free travel area across the whole territory of the Union could be made a reality.[8]
Social Policy.
The social dimension of EU citizenship is more widely accepted than its civil aspects. Over the years, a number of important essential standards have been set down in EC directives to advance gender equality and to protect across the Union the health and safety of workers and their dependents. It was clearly recognised in the single market programme that measures were needed to prevent “social dumping.” Latterly, however, the tendency towards liberalisation and competition in the European economies, combined with demographic trends, have led to measures designed to ensure labour market flexibility. It is now clear that the “cradle to grave” welfare state with which Western Europe has been comfortably familiar since about 1950 will not be replicated at the level of the European Union. The emphasis has switched away from social policy at both EU and national levels. The forthcoming transition to Stage Three of Economic and Monetary Union forces member state governments to tackle structural unemployment at home and to prepare national industry for the rigours of European and global competition. EMU also requires under-developed and peripheral regions of the Union to use to the full their comparative advantage in terms of unit labour costs. As mobility of labour throughout the Union is a relatively insignificant factor, there is unlikely to be much significant concerted pressure for the abolition of wage differentials within the EU.[9]
Nevertheless, it is to be hoped that the regulatory framework will soon be put in place to enable the European citizen of the future to settle wherever he or she wishes in the Union with a truly portable pension, health and social insurance and even mortgage.
What Next for the European Citizen?
In this brief discussion of the current state of European citizenship, we have noted that there is unlikely to be much development at the EU level of the social dimension of citizenship. We have also observed that, in the interests of enhanced civil liberty, there is much need for progress at the institutional and legal level to improve the way in which the European Union deals with citizenship issues such as immigration. The signs are, however, that the IGC of 1996 will be unsuccessful in incorporating Justice and Home Affairs within the European Community Treaty, with the result that the Commission’s role will continue to be very weak, and the Court of Justice and the European Parliament will continue to be almost totally excluded. The IGC will also fail to respond positively to the proposals of the Spanish government and the European Parliament, among others, to write into the Treaty a Charter of the European Citizen or Bill of Rights.
It is not immediately clear, therefore, where the evolution of European Union citizenship will now take us. The skeletal European Citizen of Maastricht might well remain as a ghost in the cupboard to haunt us. Are there other ways to put flesh on the bones?
The Federal Trust, among many others, has suggested that electoral reform of the European Parliament is a crucial next step in building popular legitimation for the Union – especially if the uniform electoral procedure has a strong regional foundation at the bottom and some supranational, EU-level list at the top. This, we argue, would encourage the development of genuine European political parties with the ability to articulate the anxieties and aspirations of the European citizen.
A growing number of politicians seem to be enthusiastic for more referenda, either at the national or at the EU level, in order to legitimate constitutional reform of the Union. Others have suggested that the next President of the Commission should be directly elected by universal suffrage.
Pressures for decentralisation within the Union, especially inside the big, old, centralised states, continue to grow and should, therefore, be encouraged to do so firmly within the perspective of the European dimension – especially in places, such as Northern Ireland and Gibraltar, where national citizenship is contested. The method of appointment of the Committee of the Regions should be changed to elevate the autonomous role of regional and local authorities.
The European Commission itself appears to place more emphasis on information, education and culture as fruitful areas for the development of European citizenship. The birth of the information society in Europe, indeed, raises many questions about the role of the citizen in the European public space. Contemporary Europe will be a knowledge-based political society, with access to information, distance learning and entertainment of such a vast scope that it is difficult to envisage and encapsulate. The information technology revolution will transform the way our children learn, shop, receive services such as healthcare, enjoy themselves, and do their business and politics. The medium of the broadband superhighway will change the way people regard themselves and communicate with one another.[10] Already, the relatively old-fashioned and slow Internet has created a new, global and interdependent community of “cyberspace” certainly very different from Athens in 4th Century BC, but a real community nevertheless.
In a more traditional mode, Robert Toulemon of the French section of TEPSA (Trans-european Policy Studies Association) makes the bold proposal for the establishment of a voluntary Service Civique Européen for young people.[11]
In that the Maastricht Treaty opened up an enhanced role for the Community in education and culture, intelligent ideas in the field of civic education for European citizenship are badly needed.[12] The Federal Trust is engaged in just such a project in the perspective of the next European Parliamentary elections in 1999.
In many European countries the imminent millenium festivities are inducing ambitious and imaginative cultural projects concerning the citizen.
It is in this rich context that the new Europe must soon go forward to achieve a federal constitutional settlement of states and peoples so that the citizens know how they are governed, by whom and from where.
Andrew Duff
[1] For a fuller examination of the Treaty of Maastricht, see Andrew Duff, John Pinder and Roy Pryce (eds), Maastricht and Beyond: building the European Union, London, Routledge for the Federal Trust, 1994.
[2] Article 3b.
[3] Article A.
[4] Article F.
[5] See for example, the Council’s 1992 Convention on the Participation of Foreigners in Public Life at Local Level.
[6] For a full analysis of the then 12 members states of the EU, see J.P. Gardner (ed.), Hallmarks of Citizenship: a Green Paper, London, The Institute for Citizenship Studies and the British Institute of International and Comparative Law, 1994.
[7] Article K.1.
[8] See the Federal Trust Papers No.1, State of the Union, London, Federal Trust, February and June 1995, respectively.
[9] For the further development of this discussion, see Federal Trust Paper No. 2, Towards the Single Currency, London, Federal Trust, May 1995.
[10] See a forthcoming Federal Trust Report, Network Europe and the Information Society, London, Federal Trust, July 1995.
[11] Project for a European civilian service. Objectives. To develop the European spirit and a sense of belonging to Europe among young people. To provide some examples of real European achievements which involve the general public. Methods and procedures. Freely-concluded conventions among the states under the aegis of the European Union. These conventions may initially be drawn up among a limited number of countries and subsequently among all the Union’s member states or candidates for entry. Each country will appoint a ministry to negotiate the conventions and take part in their administration. The European Union will take part in the financing and administration of the project. Contents. Voluntary civilian service which will be open to young people of both sexes. The minimum period of service may alter from country to country. The service will take place within a multinational team, if possible outside the home country. Participants will receive a modest salary. The service will facilitate the learning of a foreign language. Participants will be exempted from military service in their own countries, where this is obligatory. Options. Five options will be offered to the young volunteers: a) social and humanitarian option (deprived inner-city areas, assistance to young people in difficulty, work in countries stricken by catastrophe or war); b) environmental option (work useful for the rural and urban environments); c) public heritage option (restoration workshops and the recuperation of monuments and historical sites); d) central and eastern Europe option (activities of general interest in the countries of central and eastern Europe); e) development option (co-operation activities for the development of the countries of the South of the world). Training. Training will be entrusted to non-governmental organisations or associations which establish a convention with the Community. This will ensure, in agreement with the home state, the payment of training courses, to be carried out by recognised professionals.
[12] See especially Article 126.
