Turning Aliens into Members:Globalisation, Immigration, and Citizenship in the Union of States

Tatjana Evas , LL.M (ta_ev@uni-bremen.de; evas@policy.hu)Prof. Dr. Ulrike Liebert (liebert@uni-bremen.de)

Jean Monnet Centre for European StudiesUniversity of Bremen, Germany

Paper prepared for IPSA Panel MT02 - 378 “Globalization, Migration and Changes of Citizenship in Different Regional Contexts”

21st World Congress of Political Science, Santiago de Chile, July 12th – 16th, 2009

- Draft in progress: Please do not cite without permission from the authors -

Abstract: In the European Union, over the past two decades trends towards a new kind of citizenship regime have emerged. It is one that has neither remained an empty shell reducing aliens, possibly denizens and may be also citizens to functional commodities of the single market. Nor has it turned into a Pandora’s Box with an ever expanding catalogue of supranational citizenship regulations, triggering harmonization across the 27 member states. In this paper we seek to develop and provide evidence for the claim that Union citizenship is a novel construction that cannot be grasped by the traditional terms of a supranational rights’ catalogue, as the application of T.H. Marshall’s framework to the EU might suggest. Citizenship of the EU has gone beyond the traditional dualism of a plurality of mutually exclusive national citizenships – a model some wanted to retain –versus the supremacy of a supranational citizenship regime – that others were hoping to achieve. In practice, a third way has emerged that allows aliens to turn into citizens. The social construction of this regime rests on two different elements: a normative framework and social agency from below. The normative framework rests on universal principles (such as freedom of movement), the principle of mutual recognition (of different member states’ provisions, such as access to national citizenship) and the principle of non-discrimination (between non-nationals and nationals, and between different categories of nationals). The social agency that helps enforce these principles in the context of 27 member states with their highly diverse citizenship regimes, are cross-border mobile non-nationals bringing litigation cases to national courts which these refer for preliminary rulings to the European Court of Justice. We argue that a new kind of citizenship has emerged from these dynamics that can be depicted as a regime of mutually inclusive citizenships committed to “recognising the rights of others”, as Seyla Benhabib has coined it.

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Turning Aliens into Members:Globalisation, Immigration, and Citizenship in the Union of States1

1. Introduction

How can a union of states develop a joint citizenship and what are the conditions that allow this status to achieve legitimacy amidst the diversity of the union’s component citizenship regimes? The project of a regional European citizenship2 – perhaps triggering a European collective identity - neither has historical antecedents nor does it enjoy historical guarantees3. But because of its “more inclusive, multilayered and multicultural conception”, it has been depicted as a “prototype for institutional experimentation on citizenship on a global scale”.4 In order to “writ[e] the future” (id.) in this way, a range of questions about Union citizenship still needs to be answered. For more than a decade now, the question of how to explain the unprecedented dynamics of European Union citizenship has been a focus of political science and institutionalist scholarship on citizenship, preoccupying constitutionalists and legal analysts of European integration.5 Moreover, normative citizenship theorists have been struggling with how to theorise the legitimacy of the 1992 Maastricht Treaty’s innovative establishment of Union citizenship in accordance with global, cosmopolitan or post-national norms of citizenship.6 By contrast, others have

1 This paper draws on the Bremen based research projects “Constitutionalisation and Citizenship: Transforming the Public Sphere in the Integration of Eastern & Western Europe“ (funded by Volkswagen Foundation, 2005-8) and “Reconstituting Democracy in Europe” (RECON, funded in the 6th EU-RFP, and coordinated by ARENA/University of Oslo). The authors gratefully acknowledge Rachel Magshamhraim’s English language editing assistance. 2 In this article we use the terms ‘Union citizenship’,‘European citizenship’ and ‘European Union Citizenship’ interchangeably as denoting the same phenomenon, if not provided otherwise.3 John Keane, European Citizenship? Historical Foundations, New Departures, p. 18. Centre for the Study of Democracy, London & WZB, Berlin (2005).4 Dora Kostakopoulou, European Union Citizenship: Writing the Future, 13 (5) ELJ 623 (2007) at p. 623.5 See Antje Wiener, European’ Citizenship Practice. Boulder/Oxford: Westview Press (1998); Joseph H.H. Weiler, To be a European Citizen – Eros and Civilization, 1 (2) CES Working Paper (1998); Norbert Reich, Bürgerrechte in der Europäischen Union (1999); Elizabeth Meehan, Europeanization and Citizenship of the European Union, in Harmsen, Robert and Thomas M. Wilson (eds.) Europeanization: Institutions, Identities and Citizenship. Yearbook of European Studies 14. Amsterdam/Atlanta: Rodopi, pp. 157-177 (2000); Klaus Eder and Bernhard Giesen (eds.), European Citizenship between National Legacies and Postnational Projects (2001); Ulrich Preuss et al., Traditions of Citizenship in the European Union, 7 (1) Citizenship Studies 3 (2003); Richard Bellamy et.al (eds.), Making European Citizens: Civic Inclusion in a Transnational Context (2006); Jo Shaw, The Transformation of Citizenship in the European Union: Electoral Rights and the Restructuring of Political Space, Cambridge: Cambridge University Press (2008).

6 See Jürgen Habermas, Citizenship and National Identity: Some Reflections on theFuture of Europe, 12 (1) Praxis International 1 (1992); Jürgen Habermas, The European Nation-state: On the Past and Future of Sovereignty and Citizenship, 10 (2) Public Culture 397 (1998); Yasemin Nuhoğlu Soysal, Limits of Citizenship – Migrants and Postnational Membership in Europe (1994); Rainer Bauböck, Transnational Citizenship. Membership and Rights in International Migration, Edward Elgar, Aldershot (1994); Daniele Archibugi et.al. (eds), Re-Imagining Political Community: Studies in Cosmopolitan Citizenship (1998); Gerard Delanty, Citizenship in a global age. Society, culture, politics (2000); Seyla Benhabib, The Rights of Others. Aliens, Residents and Citizens (2004); Bellamy 2005; Samantha Besson and André Utzinger, Introduction: Future Challenges of European Citizenship – Facing a Wide-Open Pandora’s Box, 13 (5) ELJ 573 (2007); Liebert, Ulrike, The European Citizenship Paradox: Renegotiating Equality and Diversity

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challenged European Union citizenship, seeing it as a supranational construction that conflicts with cosmopolitan, national, democratic or gender norms.7

This paper takes an interdisciplinary approach to the innovative regional citizenship of a union of states that has emerged in the context of globalisation and migration. Our aim is to challenge some of the conventional wisdoms about European citizenship transmitted by legal and institutional theorists of integration. “Globalization” in relation to citizenship refers here to trans-border interactions, including not only the economic and institutional but also the cultural realm, with the promotion of individual human and civic rights. “Immigration”, on the other hand, refers to processes of human trans-border mobility, changing populations and increasing ethnic diversity, reshaping issues of trust, identity, social ties and civic engagement. As Robert Putnam has put it: While immigration is “a strong engine of economic growth and injects creativity and energy into receiving countries and communities”, in the short-term, our discomfort with diversity challenges our community bonds and cohesion”.8 Unlike the way in which ethnic diversity is subsumed into mainstream culture in the United States, European citizenship establishes a framework for recognizing the diversity of member states’ citizenship regimes while at the same time reconciling them with unity. We will explore how it seeks to create a bridge between “modern nation state citizenship” and “post-national” approaches to supranational citizenship. For this we will draw on competing citizenship models, asking to what extent they help understand the impact of the European Court of Justice (ECJ) through interpreting the legal rules and norms of European citizenship in its judicial dialogue with national courts and other actors.

Our two-fold argument in a nutshell suggests that after the Maastricht Treaty introduced “Citizenship of the European Union” in 1993, its dynamics could no longer be seen as the intended or unintended consequences of choices taken by supranational bureaucratic and political elites. Neither do we see European citizenship as a legal construction from above, allegedly driven by the ECJ single-mindedly pursuing ever more unity and harmonization between members.9 Instead we propose that the story of European citizenship needs to be told differently, in terms of social practices. This story is actually, we contend, being staged from below, and moved forward by a different set of actors: namely cross-border mobile citizens, migrant denizens, non-national Union citizens, and third-country nationals who make use of the rights conferred to them, and bring cases to national courts. In terms of formal legal norms, the story of European citizenship is also written by a second set of “authors”: judges from national courts who refer cases to the ECJ through preliminary references procedure; ECJ judges who in turn give preliminary rulings on the issues of interpretation of the EU law for national courts; national judges and legislators who then apply that law to the factual situations underlying the main proceedings. In short, the institutionalisation of Union citizenship practices depends on social actors - third country migrants, long term residents or mobile citizens of the Union residing in another Member

in the New Europe, in Siim, Birte, J. Squires, Contesting Citizenship. Routledge, 2008.7 Etienne Balibar We, the People of Europe? Reflections on Transnational Citizenship, (2004); Dominique Rousseau, Citizenship in Abeyance, 1 EuConst 44 ( 2005).8 Robert Putnam, Speech at New York City Commission on Human Rights, Newsletter 2008, no. 1.9 E.g. Kay Hailbronner, Die Unionsbürgerschaft und das Ende rationaler Jurisprudenz durch den EuGH? 31 NJW 2185 (2004).

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State - and the willingness of national courts to refer cases to the ECJ. Its normative pattern will result from the interplay of legal “authors” and political actors at national and EU level.

Regarding the second question of how regional citizenship in a union of diverse sovereign states can hope to achieve legitimacy, we argue that modern citizenship conceived as a list of rights conferred by the state to individuals - or the notion of a community linked by nationality - is not sufficient for understanding the new practices in normative terms. Looked at superficially, European citizenship provides only a thin layer of rights; yet it is intensely contested on the grounds of national democratic autonomy and state sovereignty on the one hand, and principles of supranational unity and conformity on the other hand. To tell the story of European citizenship after 1993 properly – namely in light of subsequent European citizenship ECJ case law - the issue of “reconciliation” must be centre stage. Reconciliation refers to safeguarding norms of EU unity while at the same time recognizing the diversity of national citizenship regimes.

This argument will be developed in three steps. First, we provide an overview of immigration stocks and flows and access to citizenship across the EU 27. Second, we will map the legal construction of the European citizenship framework, demonstrating the importance of case law and the agency of litigants from the different categories of citizen, non-national, migrant, or resident. Third, we review the normative models of citizenship for subsequently assessing the normative structure of ECJ citizenship judgements in select cases. The final section will summarize our findings, reflecting on how they can be appropriately conceptualized. In the course of the current international citizenship debate, a great many innovative conceptions have been put forth. Arguably, none of these seems to accommodate the evolving practices in European citizenship more satisfactorily than the conception of a republican federalist citizenship that establishes interconnections across the local, the national, and the global.10

2. Immigration, asylum and naturalization trends in the enlarged EU

After its most recent 2007 enlargement, the European Union has become home to nearly 500 million citizens across 27 member states. Recent demographic and migration trends in the enlarged European Union indicate that, mainly thanks to immigration, the population of the EU 27 is not in decline despite demographic shrinkage. Overall trends show that citizens of the EU27 are becoming ever more mobile – in the form of labour migration, but also independently from the labour market - while the EU itself remains attractive to non-EU citizens.

(1) Immigration and intra-EU mobility11 Overall immigration in the EU increased over the period 2002-2007 by nearly 25%, with an annual increase of more than 100,000. In 2006, about 3.5 million persons settled in a new country of residence in the EU-27. Differentiated

10 With this notion we follow Benhabib , id. n. 6 ; Seyla Benhabib, Twilight of Sovereignty or the Emergence of Cosmopolitan Norms? Rethinking Citizenship in Volatile Times. 11 (1) Citizenship Studies 19 (2007).11 European Commission, Eurostat, Statistics in focus 98/2008 (2008).

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by nationals, citizens of other EU-27 and non-EU citizens, the analysis of the figures shows different patterns of immigration in the Member States. Compared by country of origin and host country, the biggest increase was registered in Ireland (doubling from 2002- 2006) and Spain (registering the biggest boost of 350,000 more immigrants in 2006 than five years earlier). In total 40% of immigrants in the EU27 in 2006 were citizens of EU27 Member States. Over the five year period, the number of EU27 citizens migrating to member states other than their own country of citizenship increased by 10% each year. Another focus of the European migration research agenda is irregular migration. Difficult to measure, according to various estimates the level of irregular immigration in the EU is between 4-8 million people, with proportions of the immigrant population varying between 2% (Sweden) and up to 15% (Germany). Annually, around 300,000 thousand people are prevented from illegally entering EU territory, this represents around 0.1% of all international arrivals.12

(2) Asylum applications Around 20,000 asylum applicants are registered each month in EU 27; in 2008 in total nearly 240,000 registered in the EU 27. The main countries of origin were Iraq, Russia, Somalia, Serbia and Afghanistan. The highest numbers of applicants per inhabitant were recorded in Malta and Cyprus, and the highest overall numbers were registered in France (41,800), the UK (30,500), Germany (26,900) and Sweden (24,900).13

(3) Access to nationality (acquisition of citizenship) in EU Member States In 2006, EU27 granted citizenship to 735,000 persons, compared with 722,000 in 2005, 647,000 in 2003 and 483,000 in 1998. In terms of citizenships acquired per 1000 inhabitants, the highest numbers were registered in Sweden (5.7), the UK (2.5), with mid-level figures in Germany (1.5), and the lowest numbers in Hungary (0.6) and Poland (0.0)14. Measured by the “access to nationality index”, acquisition of citizenship regulations vary largely, ranging from the most liberal in Sweden, Belgium, Portugal (Canada), the UK and Ireland (values between 62-71 index points), to the least liberal, including Denmark, Greece and Austria (ranging from 33 to 22 index points), with Germany positioned at the lower end (38). 15

Citizenship - a status conferring a set of exclusive rights in a given political community - necessarily excludes those who do not qualify for inclusion. However, due to the development of human rights instruments and as a consequence of migration and globalization, these lines of exclusion/inclusion become increasingly blurred. In the contemporary European context, traditional norms, forms and practices of citizenship have come under pressures of change.

12 Cf. Erik Berggren, Branka Likic-Brboric, Gülay Tokzös and Nicos Trimikliniotis (eds), Irregular Migration, Informal Labour and Community in Europe, Maastricht: Shaker Verlag; Franck Düvell, Transit, Migration and Politics: Trends and Constructions on the Fringes of Europe. EU Network on International Migration, Integration and Social Cohesion (IMISCOE), 2008. 13 Eurostat news release 174/2008, 10. December 2008.14 Id. n. 1315 MIPEX measures policies designed to integrate migrants in 25 EU Member States and three non-EU countries (Canada, Switzerland, Norway), covering six policy areas “which shape a migrant’s journey to full citizenship”: labour market access, family reunion, long-term residence, political participation, access to nationality, anti-discrimination. See Migrant Integration Policy Index (MIPEX), available at www.integrationindex.eu [last accessed on 26.05.2009].

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3. The institutionalisation of “Citizenship of the Union”: patterns and dynamics

The question how a union of states such as the European Union can develop a joint regional citizenship and what precisely this entails for citizenship status and rights16 shall be addressed in the following three steps: First, by mapping the legal provisions that constitute European citizenship; second, by identifying patterns of implementation of European citizenship in the Member States; third, by exploring litigation as a form of participatory citizenship practice and key to the dynamics of citizenship change in the EU; and fourth by analysing the interaction of national courts and ECJ through the “preliminary ruling” procedure.

3.1 From the “free movement” Rome Treaty provision to the Citizenship Directive

For mapping the patterns and dynamics of “Citizenship of the Union”, we make two assumptions: First, in order to assess the inclusiveness/exclusiveness of citizenship in the EU context it is necessary to analyze the legal framework that is shaping and being shaped by the political context. The provision on free movement of persons was part of the European Community Treaty at its foundation in 1957. Against the prevailing ‘common market’ logic, the scope was initially limited to salaried workers. This was subsequently expanded to include self-employed persons and service providers as well as the family members of eligible citizens. However it was not until the early 90’s that the right to free movement of persons was extended to economically inactive individuals. The extension of the scope of the right to free movement to encompass all categories of citizens was brought about amongst other things by the adoption of three directives guaranteeing the right of residence to retired persons, students and inactive people and most importantly the introduction by the Maastricht Treaty of the concept of citizenship of the European Union (now Article 17 EC Treaty).17

EC Treaty provisions (primary law) on the citizenship of the Union are further elaborated by secondary legislation. Compared to earlier, mostly group-specific directives, Directive 2004/38/EC on the right of the EU citizens and their family members to move and reside freely within the territory of the Member States (the Citizenship Directive) is a legislative attempt to consolidate and extend further the rights of all citizens and their family members associated with the exercise of the right of free movement and residence in the EU.18

16 Christian Joppke, Transformation of Citizenship: Status, Rights, Identity, 11 (1) Citizenship Studies 37 (2007).17 The Amsterdam Treaty (1999) further strengthened the rights linked to European citizenship by integrating the Schengen Convention into the Treaty. The Treaty of Nice (2003) introduced qualified majority voting in the field of free movement and residence that has simplified the legislative process.18 The Directive brings together all secondary law provisions associated with the exercise of the right of free movement and residence in the MS under one legal framework. It replaces all previous EC legislation in this field: Regulation 1612/68 and Directive 64/221/EEC, 68/360/EEC, 72/194/EEC (on the free movement of workers) 73/148/EC, 75/34/EEC, 75/35/EEC (establishment and provision of services); 90/364/EEC (Residence directive); 90/365/EEC and 93/96/EEC (Students).9 The Directive reconfirms the general right of EU citizens to move and reside in the EU (and thus replaced the ‘categorization’ scheme of previous legislative acts); streamlines the conditions and administrative formalities associated with the exercise of the right; introduces the right of permanent residence for EU citizens after five years of continuous residence as well as facilitating the movement of family members.

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Table 1. EU law concerning EU citizens and third country long term residents19 .EU citizens TCN long term residents

European Citizenship Art. 17 (1)Right to free movement Art 18 (1)

Dir. 2004/3820Dir. 2003/10921

Dir. 2004/11422 Right to family reunification Dir. 2003/86/EC Dir. 2003/86/EC23

Prohibition from discrimination based on nationality

Art 12 EC Treaty

Right not to be discriminated on the basis of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

Article 13Dir. 2000/43/EC

Article 13Dir. 2000/43/EC

Note: TCN = third country national

The right to move and reside freely within the territory of the MS was further extended beyond the citizens of the MS through the adoption of Directive 2003/109/EC, which concerns the status of third-country nationals who are long-term residents, and Directive 2003/86/EC on the right to family reunification. Students and researchers from third countries intending to enter academic institution of the EU MS additionally benefit from the more specific directives that allow for simplified conditions of admission for this category of individuals. Table 1 (above) summarizes the main primary and secondary EU law provisions and ECJ judgments related to access to citizenship/residence and citizenship related rights.

3.2 Implementing “Citizenship of the Union” in the Member States

As will be analyzed in detail in this section, the institutionalisation of “Citizenship of the Union” established by the Maastricht Treaty in 199224 has an instrumental role in changing the legislative and political environment of national citizenship regimes. It has created

19 This table does not include asylum seekers and refugees, individuals residing in the EU on the basis of humanitarian status. It also does not include special provisions for TCNs with whom special agreements are concluded, i.e. for example EU-Turkey Accession Agreements, Agreements with Mediterranean countries20 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.21 EU long-term resident status - The Council Directive 2003/109/EC of 25 November 2003 on a long-term resident status for third country nationals who have legally resided for five years in the territory of a Member State entered into force on 23 January 2004. Member States legislation had to comply with this Directive by 23 January 2006 at the latest. 22 Students - A Directive on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service was adopted by the Council on 13 December 2004 (Directive 2004/114). It entered into force on 12 January 2005. Member States’ legislation must comply with the Directive by 12 January 2007. 23 Family reunification – The Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification entered into force on 3 October 2003. Member States’ legislation had to comply with this Directive not later than 3 October 2005.

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more inclusive communities, primarily, of course for all citizens of the European union, but also and increasingly so for third-country nationals.

Table 2. National Implementation of EU directives25

Dir. 2003/86(family reunification)

Dir. 2004/38(right to free movement)

Dir. 2003/109(long term residence status)

Art. 17 – 19 EC Treaty (Union Citizenship)

NM26 ECJ NM ECJ NM ECJ ECJ27 Austria 2 77 1 85 2Belgium 12 33 41 7Bulgaria 3 1 2Czech Rep. 14 52 53Denmark 5 1Finland 2 4 9 2Germany 5 4 2 3 1 15Estonia 4 5 1Ireland 0 1 8 1 0 1Greece 2 2 2Spain 6 8 1 1France 4 13 1 3Italy 2 9 1 2Cyprus 2 2 2Latvia 2 4 4Lithuania 8 40 26Luxemburg 1 1 2 1 1 1Hungary 19 72 40Malta 1 5 1Netherlands 1 2 3 2 7Poland 9 7 13 2Portugal 9 1 4 1 1Romania 7 9 1 5 1Slovenia 23 19 27Slovakia 3 6 3Sweden 3 10 7 2UK - 9 1 4EU27 149 2 405 11 335 4 47

To understand the full potential of the principle of European citizenship and its far-reaching implications both for EU citizens and third-country nationals it is not sufficient to refer only to the legislative framework, but also necessary to analyze the key players in the implementation of EU citizenship: national governments, national Courts, the European Court of Justice, and national as well as non-national citizens and residents.

24 The Treaty Establishing the European Community currently in force also includes in Part II ‘Citizenship of the Union’ in addition to the concept of citizenship of the European Union (Article 17) a catalog of rights and duties that European citizenship entails (Articles 18-21). 25 For list of cases, see Table 3.26 National provisions communicated by the MS concerning national execution measures on Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification.27 This includes cases submitted by national courts through preliminary reference procedure where either national court or ECJ have relied on Article 17, 18 or 19 and cases brought by the European Commission against the MS for failure to fulfill obligations.

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Table 2 (above) summarizes by country the number of different national measures communicated to the EC, including court cases litigated in the ECJ, that were necessary at national level to give effect to the EU secondary legislation. These measures include new acts or amendments to existing national legal acts on three main directives 28 as well as ECJ citizenship litigation on Art. 17-19 EC Treaty.

The construction of a legal framework for “Citizenship of the Union” is not limited to formally binding legal rules. It also includes the case law issued by national courts and the ECJ. Thus, it would be misleading to reduce it to a formal catalogue of rights and duties. Instead, in the following we will highlight the legal and especially social agency for explaining the dynamics of institutionalising European citizenship.

3.3 Litigation as participatory citizenship practice

Citizenship as formal status or residence status gives access to rights that in turn allow participation in a given political community. Participation in a political community is conventionally exercised through participation in elections, active citizenship practices like petitioning, demonstrations, etc.; membership and participation in civic/social movements and NGOs. It is less evident that participation in a given political community may also be exercised though litigation. Participation in a given political community can, however, also take the less obvious form of litigation, for example in the field of freedom of information. The ‘right to information’ contributes to the democratic formation of opinion. Based on transparent access to public information and decision making individuals arguably can make reasoned decisions and participate in the political process. However access to and availability of information and resulting increased awareness of the applicable formal rules and procedures may also contribute to the increased contestation of these rules and procedures. Therefore, the right to information not only implies the ‘right to know’ but also to the ‘right to contest’.

The right to contest, in other words the right to use judicial resources to challenge in a law court existing formal rules that mediate an individual’s relation to the state or other individuals creates a public ‘deliberative space’. In the context of the EU, this ‘deliberative space’ framed by national and supranational legislation is multilayered in nature. The linkage mechanism connecting the different layers in the European court system is defined by the so called “preliminary reference procedure” (see below).

Litigation cases may occur in a given societal or political context in case that 1) a legal regulation is lacking or insufficient 2) of conflicting legal provisions3) of unclear or imprecise provisions.

28 Source own compilation on the basis of information provided on the official web page of the European Union, www.eur-lex.eu, under National Implementation Measures for each above-mentioned directive.

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In the EU context, the primary law of the Treaty provides rights and competences, while secondary law elaborates in more detail its practical procedures implications. Litigation is therefore a legal instrument for contesting legislative boundaries with the aim of either extending or limiting the existing legislative regulation. In other words, court cases deal with issues where at a given time given boundaries (in substantive or procedural terms) of a given policy or regulation are at stake. They may (but must not) trigger political processes leading to formal legislative codification (regulation) or changes.

Hence, citizens’ claims vis-à-vis the state regarding the application of certain EC norms and principles are always adjudicated by national legal forums. These national courts have, however, the option (or sometimes obligation) of seeking assistance from the ‘supranational legal forum’ of the ECJ.

3.4 Interaction of national courts and the European Court of Justice (ECJ) through the preliminary ruling procedure

While the sui generis nature of the EU may not illuminate the concept of citizenship in theoretical terms (Olsen 2008), it is necessary for understanding the exercise of citizenship through the courts system. However, it is a common misconception characteristic of political science literature to take a ‘top-down’ approach to depicting ECJ jurisprudence, whereby the ECJ is assigned the role of gendarme dictating what Member States should do regardless of their will.29 Legal scholarship on ECJ jurisprudence and the judges themselves, on the other hand, tend to emphasize the dialogical and horizontal nature of the EU’s judicial system.30 It is a misleading oversimplification to consider ECJ judgments only as formal dicta issued on the supranational level by a supranational institution, with national courts and citizens only the ultimate recipients of EU integration and policy making. The link between the national level and the ECJ is considerably more nuanced.

In our view, litigation is one of the institutionalized forms of acting out citizenship rights within a given political community. This right is currently limited primarily to national courts, with individuals being generally unable to bring claims directly to the ECJ.31

29 The ECJ is a judicial institution composed of one judge from each MS. It is vested with the authority to adjudicate issues within the competence of the EC Treaty. 30 “Moreover, the system of references for a preliminary ruling is based on a dialogue between one court and another, the initiation of which depends entirely on the national court’s assessment of whether a reference is appropriate and necessary” (see Case C-2/06 Kempter [2008] ECR I-0000, paragraph 42). 31 In very limited cases natural and legal persons can bring direct actions to the ECJ, however, as a general rule this right is limited to the preliminary reference procedure through national courts. See: Norbert Reich, Union Citizenship – Metaphor or Source of Rights, 4 EL Rev (2001).

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Figure 1. EU preliminary reference mechanism

In studying ECJ case law, specific references of cases by the national courts to the ECJ requesting a preliminary ruling, provide an indication of the degree of mutual interaction between the MS and EU levels.32

In fact, the ECJ may take up the case only if the national court submits the request for preliminary ruling. Thus, it depends on the national court whether the preliminary reference is submitted or not (in some cases obligation exists).

Any national court - even from the lower levels - has the right to request a preliminary reference ruling. In the ECJ’s preparation of a preliminary ruling, Member States and other parties have the opportunity to submit their observations. The ECJ judgment is then communicated back to national courts. On the basis of this interpretation of EU norms provided by the ECJ, the national court has to adjudicate the concrete facts of the case under consideration. It is the national court that ultimately issues a legally binding judgment. The legal enforcement of the judgment also occurs at national level.

3.5 Dynamics of European citizenship case law

During the period from 1994 – 2008, the ECJ has issued in total 57 preliminary rulings in European citizenship litigation cases, that is with an average of four cases per year. While the number of cases per year has been very limited up until the year 2000, from 2001 on it has increased, reaching a high in 2005, with ten cases, and then decreasing again (see figure 1).

32 Federico Mancini, Democracy and Constitutionalism in the European Union (2000).

Individual

National Court(binding decision)

ECJ(preliminary reference)

EU Institutions

MS government

Other EU MSs

2

3

1

4

Advocate General Opinion

11

Figure 2. European citizenship, by case law and year (1994 – 2008) 33

The majority of these cases – in total 15 - have been brought to the ECJ by German courts (see Table 3 and list of all cases in the Appendix).

Table 3. EU citizenship cases brought to the ECJ, by courts from the member states34 Directive 2003/8635

Directive2004/38

Directive 2003/109

No. of cases, referring to Art. 17 – 19 EC Treaty (Union Citizenship)

Austria Sahin 2: Sahin; HosseBelgium 7: Eckelkamp et al.; Wallon Govmt; De

Cuyper; Comm. v. Belgium; Ioannidis; My; Trojani; Avello

Finland 2: Turpeinen; LindorsGermany Huber

PolatDerin 15: Huber; Zablocka-Weyhermüller;

Grunkin and Paul; Comm. v. Germany; Habelt, Moser and Wachter; Morgan and Düran; Comm v Germany; Schwarz and Gootjes-Schwarz; ITC; Niebüll; Comm v. Germany; Schempp; Pusa; Orfanopoulos and Oliveri; Gaumain-Cerri

Ireland Metock Metock 1: MetockSpain F 1: Spain v. UK and IrelandFrance Mayeur 0Italy 2: Pignataro; MarianoLuxemburg F F FNetherlands Förster

F, F7: Förster; F; Eind; Hndrix; Tas Hagen and Tas; N; Eman and Sevinger

Poland 2: Rüffler, NerkowskaPortugal F 1: FRomania Jipa 1: Jipa

33 The judgments for the year 2007-2009 are indicative – not all pending cases submitted from 2007 have yet been adjudicated by the ECJ.34 Member States without any cases on the topic are not included in the table.35 National provisions communicated by the MS concerning national execution measures on Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification

Nr. of cases in the ECJ (by year when proceedings started)

0

2

4

6

810

12

1994

1995

1996

1997

1998

1999

2000

2001

200

2 2003

2004

2005

2006

2007

2008

year

Nu

mb

er o

f ca

ses

12

Sweden 2: Comm v. Sweden; ÖbergUnited Kingdom

Bidar 4: Bidar; Zhu and Chen; Kaba; Baumbast

EU Davis

In view of this contested field of citizenship construction, what are the conditions necessary for institutionalizing a common citizenship framework that can achieve stability and legitimacy despite the diversity of the member state citizenship regimes on which this Union relies?

4. Turning aliens into members: Three models of citizenship in a union of states

In answer to such questions of legitimacy, normative theoretical EU citizenship scholarship has put forth contrasting propositions, from post-national republican state citizenship, through cosmopolitan forms of citizenship, to republican federalist and transnational conceptions of citizenship, with nation state citizenship advocates being critical of all these models.

In the normative debate on citizenship in general and in the context of the EU in particular, three competing normative models of “European citizenship” have been put forward: I. Citizenship in a Union of States that is founded on a plurality of citizenship regimes from member states, with differing sets of civic, political and social rights; II. Union citizenship designed according to a model of supranational citizenship, founded on the principle of equality of civic freedoms, political, social and cultural rights of all members of the European community; and III. Union citizenship modeled after the conception of a transnational and republican-federal citizenship, premised on the recognition of particular national citizenships, but reconciling diversity with unity by cosmopolitan principles of non-discrimination; this model of inclusion applies equally to nationals, non-nationals, citizens and residents.

Each of these models is conceptualized within the framework of competing models of democracy in Europe36: a Europe of national democratic states delegating competences to the EU (model 1); A European Union designed as a supranational democratic state (model 2) and a federal Europe with cosmopolitan imprints (model 3).37 Moreover, these citizenship models are informed by different understandings of inclusion and exclusion, which in turn determines implications for how and to what degree aliens can become members of the citizenship community. In the following, after having will established these three “models of citizenship in Europe” we will map the key principles and legal provisions that can be taken as preconditions for

36 Erik.O.Eriksen and John E. Fossum , RECON Working Paper, April 200737 See also “Reconstituting Democracy in Europe” (RECON) Integrated Project in the EU 6th framework research program, coordinated by ARENA, Oslo (2007 – 2011).

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supporting one or the other of these models. In the subsequent section 5, we will then use this normative map for assessing the citizenship rulings issued by the ECJ over the past decade.

4.1 Member State citizenships: diversity of national citizenship regimes

The modern notion of citizenship had been conceived of as a repertoire of civic, political and social rights conferred by the state to individuals. In Europe, the distinctively modern conception of citizenship has emerged in the wake of the political and socio-economical transformations of the American and French Revolutions and the Industrial Revolution. The rise of the nation state, based on the rule of law and democracy, has promoted rights, national identities and political participation as the key components of modern citizenship.38 As a bearer of these rights, the citizen can turn into a political subject. The nation state defines the individual’s membership in a political community by linking citizenship to nationality. In the various nation states, different conceptions of citizenship have been constructed39: the liberal conception, with a focus on citizenship in terms of individual rights; the communitarian conception, building on the notion of citizenship as belonging to a national community, implying a national identity, a common set of values, civic culture; the republican conception, premised on citizenship as full and equal member participation within the economy and polity.

Vis-à-vis these nationally entrenched traditions, a legally created European citizenship appears questionable and its civilizing principles in tension with the “Eros” of national identifications.40 Given Europe’s coexisting, but diverging citizenships, citizenship in a Union of States cannot but be premised on a historically-formed plurality of national citizenship regimes, with differing configurations of rights, meanings and practices.41 As a consequence, a viable citizenship in the European Union cannot be founded on the Union but only the Member States. Only nationals of a Member State can be Union citizens. From this position, a statist hold on a Union citizenship is necessary, and Union citizenship must be additional to nationality and cannot replace it.

In the contemporary globalizing world, this model of nationally-confined exclusionary state citizenships has become challenged by increased mobility and migration. As a consequence, de-liberalisation and re-ethnicisation of national citizenship have become a last refuge and bulwark against the impacts of globalization. But rather than protecting

38 Richard Bellamy et.al. (eds.), Lineages of European Citizenship. Rights, Belonging and Participation in Eleven Nation-States (2004) p. 6-7.39 Will Kymlicka, Citizenship Theory. in id., Contemporary Political Philosophy. An Introduction (2nd ed. 2002); Bellamy, id. n. 38, p. 7ff.40 Weiler, J.H.H, To be a European Citizen – Eros and Civilization, CES Working Paper, Vol. 1, no. 2, 1998. 1 (2) Center for European Studies Working Paper Series in European Studies, University of Wisconsin (1998), available at http://uw-madison-ces.org/papers/weiler.pdf .41 For a study of the different national “Traditions of Citizenship in the European Union”, including five EU member states – Germany, France, Italy, Belgium and the UK -, see Ulrich K. Preuss, Michelle Everson, Mathias Koenig-Archibugi and Edwige Lefebvre, Citizenship Studies, Vol. 7, No. 1, 2003.

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against incoming aliens, arguably exclusionary citizenship boundaries will fuel the ‘clash of cultures’.42

4.2. Supranational European citizenship: Unity of rights, membership and practices

As an alternative, European Union citizenship is envisaged as part of an elitist project of supranational nation- and state-building43 that is meant to overcome the excesses of nationalist conflict. Accordingly, “European citizenship” would be conceived in terms of an autonomous constitutional category, with individual access to membership, sets of rights, and the ECJ, independent from the component states. It would not be anchored in past nation state traditions but rather venture into a new future of Europe.

“What future? No doubt it is as yet difficult to conceive of citizenship, i.e., the status of political subject, in dissociation from nationality. But surely it was equally difficult to imagine, in the eighteenth century, the status of political subject dissociated from the body of the King or from the three orders.” 44

However, adopting a supranational perspective, the EU’s constitutional reforms thus far is criticized for keeping “citizenship in abeyance”. The weak treaty base of “Citizenship of the Union” jeopardizes the Constitutional Treaty’s otherwise ambitious rhetorical aspirations:

“Union citizenship is not made an autonomous legal category, foundational or better, self-foundational. It remains a category without roots in the political space which it designates, rooted in another space – that of the Member States. In fact it remains in dependency, under tutelage, of the nation states. It is linked to the national statist logic and does not inaugurate, at least not in its foundation, a supranational logic.” 45

Moreover, as Lisa Conant has demonstrated in her examination of the Europeanization of citizenship rights before courts, the ECJ, too, has been ambitious in pushing the limits of existing legal texts both to enforce and expand European social rights. However, given that “most European social rights are mere corollaries of economic rights, and, because they regulate access to national social rights” she sees them as “vulnerable to domestic retrenchment”. Therefore, one is safe to conclude that “the prospects for developing European social solidarity through legal venues remain slim”.46

4.3 Citizenship of a republican federal Union of states: Reconciling diversity with unity

Compared to the ambitions of a supranational citizenship modeled after but independent from nation state citizenship, European citizenship is conceived differently from the

42 Cf. Samuel. P. Huntington, The Clash of Cvilizations and the Remaking of World Order (1996).43 Bellamy, supra n. 38, p.19.44 Rousseau, supra n. 745 id.46 Lisa Conant, Individuals, Courts, and the Development of European Social Rights, Comparative Political Studies 39.1, pp. 76-100 (2006).

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vantage point of migration.47 From the perspective of citizens’ freedom rights of moving to, seeking an education or employment or settling in another state of the Union than their own, national citizenship should be aimed at offering opportunities for inclusion, independently from nationality. National citizenship regimes in the Union should offer such rights and entitlements to each other on a reciprocal basis. For the sake of cosmopolitan principles they should not only provide non-national EU citizens but also third country denizens or long term residents with such opportunities for inclusion into the political community. Moreover, in exchange for maximizing their own inclusiveness and assuring mutual recognition among themselves, member state citizenship regimes should enjoy the protection of their autonomy and, namely, their diversity. Applied to the case of the EU, citizenship in the Union would be designed as a “federal-republican citizenship” regime, with cosmopolitan principles, hence premised on recognizing “the rights of others” from within as well as from outside the EU.48 Making a case for this model in her book The Rights of Others, Aliens, Residents and Citizens, Seyla Benhabib has claimed that throughout the EU “a decoupling of national and cultural origin from the privileges of political membership” has become visible, since European Union citizenship made it ‘possible to vote, run for, and hold office in local as well as union-wide elections for all EU citizens’.49 In particular, she points to the fact that third-country nationals can participate in local and regional elections in Denmark, Sweden, Finland and the Netherlands, in Ireland at local level, and in the UK Commonwealth citizens can vote in national elections too.50

To describe these evolving practices, Benhabib suggests the term ‘cosmopolitan’ or ‘republican federalism’. Cosmopolitan because it is premised on the emergence of cosmopolitan norms, such as universal human rights, crimes against humanity as well as refugee, immigrant and asylum status.51 It is republican, because it is conceived as doing justice to the republican principle of democratic self-governance as much as to the principle of ‘rights of others’, namely of aliens and residents without national citizenship. ‘Cosmopolitan (republican) federalism’ would help reconcile ‘the republican ideal of public autonomy, namely, the principle that those who are subject to the law should also be its authors’, with ‘unity of the demos … to be understood not as if it were a harmonious given, but rather as a process of self-constitution, through more or less conscious struggles of inclusion and exclusion’.52

These three models of a Union of nation state citizenships, of a supranational citizenship and of a cosmopolitan-republican citizenship have differing implications for the question as to how and to what extent aliens may turn into members. They also differ in terms of the legal preconditions for access to rights, membership and practices.

47 Bryan S. Turner, Review Essay: Citizenship and Political Globalization, 4 (1) Citizenship Studies 81 (2000). Turner in his extensive critique of the legacy of T. H. Marshall, is one of the first to point out that the future of citizenship studies was going to revolve around the theme of globalization.48 Benhabib 2004, supra n. 7.49 Id, p. 155).50 Id, p. 155; for a most comprehensive and recent analysis, see Shaw (2008). 51 Benhabib (2007), supra n. 10.52 Benhabib (2004), supra n. 7, p. 216.

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4.4 Legal preconditions of the models of Union citizenship

Our assessment of the directions that the ‘reconstitution’ of citizenship in Europe has taken takes its starting point in the three models of citizenship. The following table 4 summarizes the conditions to satisfy the requirements of each of these modes of citizenship in a Union of states.

Table 4: Indicators of three models of citizenship in a Union of states

Model 1Diversity of nation state citizenships

Model 2Equal citizenship in a federal state

Model 3Reconciling unity with diversity

(1) EU institutional form

EU international organization of sovereign states

EU Federal State EU non-state, but enjoying legal personality; accession to ECHR53

(2) Access to citizenship status and rights

Citizenship rights and procedures regulating access to citizenship defined exclusively on national level

Citizenship rights and procedures defined on EU level. - Full catalog of rights and procedures in addition to national rights and procedures- Social rights and social solidarity

Citizenship rights based - on universal principles defined on EU level (non-discrimination, etc) - recognition of national constitutional autonomy- reconciliation of unity and diversity

(3) Exercise of citizenship rights through litigation

No individual standing before ECJ, neither direct nor indirect

Individuals have direct standing in the ECJ, i.e. can directly bring claims to ECJ

Individuals have indirect standing in ECJ, via national courts

5. Legitimacy of Union citizenship in the face of nation state diversity? Reviewing litigation practices in light of normative models of citizenship in a regional Union

After having identified competing principles that can be taken as preconditions supporting the three competing models of citizenship introduced above, in this section we will use

53 European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe.

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these lenses for reviewing the ECJ citizenship rulings. For this purpose we select a number of key cases on European citizenship where these competing principles of national, supranational vs. federal citizenship conceptions are at stake. For these cases, we will analyze the judges’ normative justifications of which of these principles they support and why. Our findings are based on an analysis of the European Union legislative provisions and 1994-2009 jurisprudence on citizenship and residence rights from the European Court of Justice. Our aim is to identify the normative patterns underlying the constitutionalisation of citizenship in the European Union.

5.1 Acknowledging the diversity of national citizenship regimes

Access to the formal status of citizenship in the European Union can be granted exclusively by national state institutions: According to Article 17 (1) of the EC-Treaty it is up to every Member State to regulate the conditions of naturalization, and thus nationals’ access to European citizenship. Therefore, the setting of criteria for determining nationality and naturalization are within the sovereign competence of the MS.54 The ECJ has consistently ruled that it lacks jurisdictions in cases related to national rules regulating access to nationality or purely national situations that do not fall under the scope of the European Union law. Moreover the ECJ has acknowledged that free movement provisions and residence rights of EU nationals and TCNs residing in host MS may be legitimately limited by host MS on grounds of public policy, public security and public health.

Accordingly, as regarding access to nationality, the ECJ has consistently refused to challenge the fundamental competence of the MS to determine nationality laws.

In Micheletti, the ECJ held that “[u]nder international law, it is for each Member State, having due regard to community law, to lay down conditions for the acquisition and loss of nationality.”

C-369/90, Mario Vicente Micheletti and others v Delegación del Gobierno en Cantabria [1992] ECR I-4239, para 10.

Similarly ten years later ECJ confirms,

In Zhu and Chen, that “[u]nder international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality (see, in particular, Case C-369/90 Micheletti and Others [1992] ECR I-4329, paragraph 10, and Case C-192/99 Kaur [2001] ECR I-1237, paragraph 19)

54 In 1923 (The dispute arose between France and Great Britain as to the Nationality Decrees issued in Tunis and Morocco. Para 38 PCIJ, Nationality decrees issues in Tunis and Morocco, Advisory Opinion, PCIJ Rep. 1923, Ser. B, No.4) the Permanent Court of International Justice (PCIJ) found that at the stage of development of international law questions of nationality are “solely within the domestic jurisdiction” of states. Remarkably, but 80 years later and even in the context of the European Union this finding seemingly remains the leading legal dogma. Interestingly, however, it seems that long before EU has emerged the PCIJ has already anticipated that the exclusive jurisdiction of member states over issues of nationality may be restricted in accordance with the law if states undertake obligations vis-à-vis other states. “The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations.” (para 38)

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C-200/02, Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department, [2004] ECR I-9925, para 37.

Another guiding principle that ECJ has developed in its case law related to citizenship provides that totally ‘internal’ citations fall outside of the ECJ jurisdiction. Thus, in recent Italian reference Pigantaro the ECJ has refused to consider case in substance on the basis that factual situation falls within the jurisdiction of national courts.

Ms. Pigantaro an Italian citizen residing in Italy was excluded from a list of election candidates for the Sicilian Regional Assembly on the grounds that she did not fulfill the requirement that a candidate reside in the territory of that region at the time of submission of application. Ms. Pigantaro brought a legal action in the Italian courts arguing that her exclusion from the list of candidates violates inter alia Articles 17 and 18 of the EC Treaty. She argued that free movement of persons of EU citizens should also apply to the inter-region movements. Moreover she argued that elections in Regional Assembly are of importance not only to Italian nationals but also to EU nationals, therefore the provisions on free movement of persons under EU law should apply. However, the European Court of Justice did not accept this line of arguments.

Ruling on these provisions, the Court has repeatedly stated that Union citizenship does not aim to extend the scope ratione materiae of the Treaty to internal situations with no link with Community law (see, in particular, 1 April 2008, Case C-212/06, Government of the French Community and Walloon Government ECR. I-1683, paragraph 39 and cases cited).”

C-535/08 Pigantaro (order of 26 March 2009), para 14.

Similarly in another recent Italian case Ms. Mariano, an Italian citizen, claimed that she had suffered discrimination based on nationality that is prohibited under Articles 12 and 13 of the EC. In her case, her partner, Italian national, had had a fatal job accident in Italy. The Italian state denied a widower pension to her because they have lived in not registered partnership. She argued that if she had lived in concubinage with a national of any Member State other than Italy she would have been entitled to a pension granted in case of accident, and his child would also have benefited from this annuity. She said that in different Member States, the unmarried partner as well as the spouse, both benefit from protection. For example, the French and Dutch systems recognize unmarried partners as spouses and their children, with the effect that both benefit from compensation upon the death of the beneficiary. However ECJ again rejected consideration of the case in substance on the basis that factual situation of the case is purely internal.

“22 It is important to stress that it is clear from the case that the citizenship of the Union under Article 17 EC, does not seek to extend the scope of the Treaty to internal situations which have no link with Community law (judgments of 5 June 1997, Uecker and Jacquet, C-64/96 and C-65/96, Rec. p. I-3171, paragraph 23; Garcia Avello, paragraph 26, and Schempp, supra, paragraph 20).”

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Mariano C-217/08 (order of 17 March 2009)

Finally regarding the limitations to the right of residence to TCNs the ECJ uphold a right of MS to issue expulsion order to the TCN’s on ground of public policy. Notable, in determining the permissibility of the expulsion order the Turkish national from the territory of the MS, ECJ has relied on the well established jurisprudence related to the scope of permissible limitations applied to free movement of workers and services of EU nationals.

In Polat judgment55 the Court has reviewed the decision taken by a member state to determine the conditions under which the right of residency of a third-country national can be restricted. In this case, an adult child, Turkish national, who was no longer dependent on his parents had committed numerous criminal convictions. The ECJ confirmed the lawfulness of an expulsion order.

… [t]he reservations contained in Articles 39 EC and 46 EC permit Member States to adopt, with respect to nationals of other Member States, and in particular on grounds of public policy, measures which they cannot apply to their own nationals, inasmuch as they have no authority to expel the latter from the territory or to deny them access thereto (Case 41/74 van Duyn [1974] ECR 1337, paragraphs 22 and 23; Joined Cases 115/81 and 116/81 Adoui and Cornualille [1982] ECR 1665, paragraph 7; Calfa , paragraph 20; and Case C-100/01 Oteiza Olazabal [2002] ECR I-10981, paragraph 40). … [Thus, EEC-Turkey Association Agreement] must be interpreted as not precluding the taking of an expulsion measure against a Turkish national who has been the subject of several criminal convictions, provided that his behaviour constitutes a genuine and sufficiently serious threat to a fundamental interest of society. It is for the national court to determine whether that is the case in the main proceedings.

Case C-349/06, Murat Polat v Stadt Rüsselsheim, paras 38-39

Returning to the question of turning aliens into citizens, it might be argued that formal citizenship status is neither sufficient nor increasingly necessary, given the principles of unity enforced by the EU.

5.2 Principles of unity in European citizenship

Political science literature on the subject has critically analyzed the ‘catalogue’ and development of rights provided by the EU law.56 But, European citizenship not only provides for additional substantive rights like the right to vote in EU elections, access to information, etc. but importantly increases safeguards protecting Union citizens against a nationally-biased and arbitrary exercise of national rights in the European context through national courts (!). In institutional and democratic terms it increases transparency and accountability.

55 The case involved interpretation of the EEC-Turkey Association Agreement. In that sense it may be argued that TCNs of Turkish nationality have a more preferential treatment that TCNs form states with which EU does not have Association Agreements. 56 Dora Kostakopoulou , Citizenship, identity and immigration in the European Union. Between past and future (2001).

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Returning to the ECJ case law in its very recent Rüffler judgement the Court advanced its well known line of reasoning and stated

…[t]he status of citizen of the European Union is destined to be the fundamental status of nationals of the Member States, enabling those among such nationals who find themselves in the same situation to receive the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for in that regard (see, in particular, Case C-224/02 Pusa [2004] ECR I-5763, paragraph 16; Case C-76/05 Schwarz and Gootjes-Schwarz [2007] ECR I-6849, paragraph 86; and Case C-524/06 Huber [2008] ECR I-0000, paragraph 69). Situations falling within the scope of Community law include those involving the exercise of the fundament al freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 18 EC ( Pusa , paragraph 17, and Schwarz and Gootjes-Schwarz , paragraph 87). Inasmuch as a citizen of the Union must be granted, in all Member States, the same treatment in law as that accorded to nationals of those Member States who find themselves in the same situation, …

C- 544/07, Uwe Rüffler v Dyrektor Izby Skarbowej we Wrocławiu Ośrodek Zamiejscowy w Wałbrzychu, Judgment of the Court (Third Chamber) of 23 April 2009, nyr.

The emerging concept of citizenship does in fact provide ‘additional’ rights that are – at least compared to national citizenships - quite modest. But above all it entails a general guarantee. Specifically, this ‘guarantee’ function of European citizenship makes an exact quantification of the catalogue of rights available to European citizen unimportant. In fact as it now stands, the so-called catalogue of rights available to a European citizen will depend on national legislation in the host state and in some cases also in the home state. EU law provides a guarantee that a particular citizen will not be unjustifiably treated differently either at home or in a host MS. This legal framework rests on the Treaty and has been catalyzed by the ECJ. It allows for a plurality of national citizenships while at the same time ensuring that member states do not unjustifiably disadvantage citizens of other member states who are exercising their personal right to freedom of movement.

Recent ECJ cases increasingly involve situations that fall under areas where a competence of the EU is very limited such as, for example, income taxation (Rüffler), determination of survivors benefits (Zablocka-Weyhermüller), issues of the double taxation (Block).

Community law, in the current stage of its development and in a situation such as that in the main proceedings, does not lay down any general criteria for the attribution of areas of competence between the Member States in relation to the elimination of double taxation within the European Community. … [t]he Member States enjoy a certain autonomy in this area provided they comply with Community law, and are not obliged therefore to adapt their own tax systems to the different systems of tax of the other Member States in order, inter alia, to eliminate the double taxation arising from the exercise in parallel by those Member States of their fiscal sovereignty …

C-67/08, Margarete Block v. Finanzamt Kaufbeuren, judgment of 12 February 2009, para 30-31.

Similarly,

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[i]t is to be noted that, as Community law now stands, a benefit such as that in issue in the main proceedings, which is intended to compensate surviving spouses of victims of war, falls within the competence of the Member States (see, to that effect, Tas-Hagen and Tas , paragraph 21, and Nerkowska , paragraph 23). However, Member States must exercise that competence in accordance with Community law, in particular with the Treaty provisions concerning the freedom accorded to every citizen of the Union to move and reside freely within the territory of the Member States ( Tas-Hagen and Tas , paragraph 22, and Nerkowska , point 24).

C-221/07 Krystyna Zablocka-Weyhermüller v Land Baden-Württemberg, 4 December 2008

Nevertheless this does not preclude the ECJ to find that exercise of this right under certain conditions may be in violation of the EU law (Rüffler, Zablocka-Weyhermüller). Thus, in Zablocka-Weyhermüller a Polish national was able to rely on EU law against German authorities to protect her right not to be discriminated in entitlement to the benefits that are determined solely by the national law.

Mrs Zablocka-Weyhermüller was a Polish national married to Mr Weyhermüller a German national who received a German pension as a victim of war. The couple resided in Germany. Following the death of Mr. Weyhermüller Mrs Zablocka-Weyhermüller applied for the full surviving dependant’s pension as a war widow and indicated that she intends to move her residency to Poland. German national agency refused to pay full benefits to Mrs Zablocka-Weyhermüller as a surviving spouse of a victim of war solely for the reason that she moved her domicile to the territory of another MS. Mrs Zablocka-Weyhermüller challenged this decision.

The ECJ first acknowledged that Zablocka-Weyhermüller as a Polish citizen may rely on the protection provided by the EC treaty, specifically articles 17 and 18 of the EC Treaty. Then ECJ has confirmed that, per se, the subject matter of the litigation, survivor pension falls within the competence of the MS. However exercise of this right vis-à-vis Union citizens is subject to scrutiny under EU law non-discrimination ‘guarantee’.

Thus, although acknowledging the competence of the MS in this area ECJ nevertheless has stated that

National legislation which places certain Community nationals at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State is a restriction on the freedoms conferred by Article 18(1) EC on every citizen of the Union (see, to that effect, Case C-406/04 De Cuyper [2006] ECR I-6947, paragraph 39; Tas-Hagen and Tas , paragraph 31; and Nerkowska , paragraph 32).

C-221/07 Krystyna Zablocka-Weyhermüller v Land Baden-Württemberg, 4 December 2008, para 35.

In another case, Rüffler, concerning the claim by a German citizen against Polish authorities regarding national law regulating eligible deductibles from income tax, the ECJ similarly found, that German citizen may rely on protection of the EU law against national

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provision even though income tax provisions are within the scope of national member states.

Mr. Rüffler was German national who after retirement in Germany moved with his spouse to Poland. His only income came from two pensions (invalidity and occupational) paid in Germany. Invalidity pension was taxed in Germany where Mr. Rüffler also paied health insurance contributions. However, occupational pension was taxed in Poland. According to national Polish law health insurance contributions are eligible deductible from the amount of income tax that is due. Mr. Rüffler applied to Polish authorities for the reduction of the income tax by the amount of health insurance contributions paid in Germany but his application was rejected. In his claim against the negative decision of the Polish authorities, Mr. Rüffler, argued that the tax authorities had exhibited selective treatment with regard to Polish tax law and had infringed Community law.

Inasmuch as a citizen of the Union must be granted, in all Member States, the same treatment in law as that accorded to nationals of those Member States who find themselves in the same situation, it would be incompatible with the right to freedom of movement were a citizen to receive, in the host Member State, treatment less favourable than that which he would enjoy if he had not availed himself of the opportunities offered by the Treaty in relation to freedom of movement (see, by analogy, on treatment in the Member State of which the citizen of the Union is a national, Pusa , paragraph 18; Schwarz and Gootjes-Schwarz , paragraph 88; and Case C-318/05 Commission v Germany [2007] ECR I-6957, paragraph 127).

C- 544/07, Uwe Rüffler v Dyrektor Izby Skarbowej we Wrocławiu Ośrodek Zamiejscowy w Wałbrzychu, Judgment of the Court (Third Chamber) of 23 April 2009, nyr.

However, not all national rules that potentially may impact on the free movement of citizens contribute to the violation of the EU law. Thus, for example in Block, ECJ has stated

[…] according to the settled case-law of the Court, the Treaty offers no guarantee to a citizen of the Union that transferring his residence to a Member State other than that in which he previously resided will be neutral as regards taxation. Given the disparities in the tax legislation of the Member States, such a transfer may be to the citizen’s advantage or not, according to circumstances (see, to that effect, Case C-365/02 Lindfors [2004] ECR I-7183, paragraph 34, and Case C-403/03 Schempp [2005] ECR I-6421, paragraph 45).

C-67/08, Margarete Block v. Finanzamt Kaufbeuren, judgment of 12 February 2009, para 35.

Additionally, as it has been discussed above (see Polat) MS are also may restrict free movement of persons by relying on the derogations of public security, public health or public policy.

The derogation on the ground of public security was recently addressed in Jipa. Mr Jipa, Romanian citizen, left Romania on 10 September 2006 to travel to Belgium. On account of his ‘illegal residence’ in Belgium, he was repatriated to Romania on 26 November 2006 under the terms of the Readmission Agreement. On 11 January 2007 Romanian authorities

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applied to the Tribunalul Dâmboviţa for a measure prohibiting Mr Jipa from travelling to Belgium for a period of up to three years.

In this regard ECJ has restated its traditional line of reasoning providing that although certain derogation to the fundamental freedom or principle are permissible those derogations must be nevertheless interpreted narrowly and strictly

In that respect, the Court has always pointed out that, while Member States essentially retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another, the fact still remains that, in the Community context and particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the Community institutions (see, to that effect, Case 36/75 Rutili [1975] ECR 1219, paragraphs 26 and 27; Case 30/77 Bouchereau [1977] ECR 1999, paragraphs 33 and 34; Case C-54/99 Église de scientologie [2000] ECR I-1335, paragraph 17; and Case C-36/02 Omega [2004] ECR I-9609, paragraphs 30 and 31).

C-33/07 Ministerul Administraţiei şi Internelor - Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa, Judgement of of 10 July 2008.

Thus, in case of Mr. Jipa the Court has concluded that

[primary and secondary law] do not preclude national legislation that allows the right of a national of a Member State to travel to another Member State to be restricted, in particular on the ground that he has previously been repatriated from the latter Member State on account of his ‘illegal residence’ there, provided that the personal conduct of that national constitutes a genuine, present and sufficiently serious threat to one of the fundamental interests of society and that the restrictive measure envisaged is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it

C-33/07 Ministerul Administraţiei şi Internelor - Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa, Judgement of of 10 July 2008.

Furthermore, for example, Article 23 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States57 does not preclude a Member State from restricting the right of free movement under certain conditions. In particular, the Member State may refuse to allow a national from a non-Member State, who is married to a Community national who has not exercised his right to freedom of movement, to rely on Community rules, for instance relating to the mutual recognition of diplomas and the freedom of establishment.

Yet European citizenship does not by any means make the EU a fully inclusive homogeneous society of equal citizens. It differentiates between four different categories of individuals: First, citizens of the EU residing in their home country (static EU citizens); second, citizens of the EU residing in one of the EU MS other than their country of

57 European Parliament and Council Directive No 2004/38, Art. 23, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.

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nationality (mobile EU citizens); third, citizens of non-EU MS permanently residing on the territory of one of the EU MS (holders of a permanent residency permit); fourth, citizens of the non-EU MS temporarily residing on the territory of one of the EU member states.

5.3 Transnational principles for reconciling diversity with unity

Due to the situatedness of litigation cases where general principles need to be reconciled with the recognition of diversity, EU citizenship is an intrinsically evolving institution. It is neither limited to a catalogue of formal rights nor does it constitute a legal bond on a given political community. Instead, it establishes a set of guarantees that ensure that the general principles to which member states have committed themselves will be enforced. These guarantees may be at odds with MS practices and in certain situations these commonly-agreed principles may be violated. It links EU and national jurisdictions, driving forward the evolution of EU citizenship through an interaction between national and EU institutions. In this process, courts provide a legal-institutional open space for public contestation.

From a legal citizenship perspective, the interdependence of levels of citizenship makes it difficult to trace cause/effect relationships between them. This flexibility sits uneasily with existing traditional notions of citizenship. Although EU citizenship does not de jure put pressure on existing citizenship regimes (which in principle remain unchanged), the new dimension introduced by the EU (safeguard) may lead to a de facto fundamental reshaping of existing institutional practices, especially if the number of EU citizens availing themselves of the free movement provisions expands. 58

By its reasoning in Zhu and Chen the ECJ has clarified what ‘having due regard to community law’ means. One of the key questions addressed in the Zhu and Chen case was whether apparent circumvention of the nationality rules of the UK may lead to the right of the UK not to recognize duly acquired Irish nationality and thus rights following from European citizenship. The ECJ has stated that if the legislation of Ireland provides for the jus soli principle of acquisition of its nationality then the UK cannot refuse to recognize Irish nationality even if an individual has intentionally moved from UK to Ireland and back with the sole purpose of acquiring European citizenship (and consequently the right to reside in UK).

6. Summary and Conclusions

Summarizing our findings, we argue that the main ‘innovation’ brought about by developments in EU citizenship lies in its transcending nature that allows for the enhancement of EU citizens’ protection and rights while at the same time respecting the autonomy of national citizenship regimes. As demonstrated by the empirical analysis of ECJ jurisprudence, the construction of EU citizenship is following a normative pattern that

58 The “… legislation adopting Article 13 has the potential to take the Union at least one step beyond a concept of citizenship based on nationality, and thus exclusion, …”, see Barnard, C: “Article 13: Through the Looking Glass of Union Citizenship”, in O’Keeffe and Twomey (eds.), Legal Issues of the Amsterdam Treaty, p. 393.

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can best be characterized by a model of a citizenship that in normative terms can be conceived as “republican federalist” model of reconstituting citizenship with a “cosmopolitan” imprint. And in analytical terms “Citizenship of the Union” can be explained as “multilayered” and “transnational” as its dynamics relies on cross-border mobility by citizens and denizens59 on the one hand, and political and judicial dialogue between different layers of governance. Regarding the patterns of regional citizenship of a Union of states that emerge from our findings, we advance five more specific arguments:

First, access to Union citizenship status is conditional on naturalization procedures that are autonomously regulated by the Member States. However, formal citizen status has become less important as a mechanism of inclusion vs. exclusion from rights, since it is counter-balanced by principles of non-discrimination in relation to non-national residents.

Second, in the EU’s legal framework of citizenship and residency, citizenship rights may be unified if they pertain under the scope of EU competences, they may be differentiated by member states, if they depend on member state authority, or they may be shared by both.

Third, the pattern of interdependency between different levels of the EU’s multilayered - national, European and international - legal citizenship regime is not a hierarchical one, but it is determined by the specific kinds of situations where individuals find themselves unlawfully discriminated against.

Fourth, in the EU’s citizenship regime, individuals enjoy differential access to rights, depending not only on the fixed categories of citizen/non-national/resident etc., but primarily determined by whether an individual is mobile across national borders – and thus falls under the protection of the “free movement” provision of non-discrimination on grounds of nationality - or whether she stays at home, and thus can claim protection against discrimination on grounds such as gender, ethnicity, language, disability, age, etc.

Fifth, the multi-layered construction of the Union’s citizenship regime is not static but evolving rapidly, driven by processes of migration and increasing mobility, and catalyzed by litigation cases taken by individuals in national courts and by national courts to the ECJ, leading to a growing body of case law.

In the European Union, over the past two decades a new kind of citizenship regime has emerged, one that has not, however, remained an empty shell at the disposal of sovereign member states and reduced citizens to functional commodities of the single market. We are facing the challenge of a “wide-open Pandora’s Box”,60 but this has not produced an ever expanding catalogue of supranational citizenship rights, triggering harmonization across the 27 member states. In this paper we provide evidence for and develop the claim that Union citizenship is an innovative construction that cannot be grasped within the traditional terms of a supranational rights’ catalogue, contrary to what the application of T.H. Marshall’s framework to the EU might suggest.

59 Neil Walker, Denizenship and the Deterritorialization in the EU, EUI Working Papers LAW No. 2008/08 (2008).

60 Besson & Utzinger, supra n. 6.

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Within the approach taken by this paper, we are contributing to a growing multidisciplinary body of literature assessing European citizenship as a post-traditional case of regional citizenship in a union of states. On a theoretical level, we have sought to establish to what extent competing normative conceptions of European citizenship are connected to the ‘reconstitution’ of citizenship in European social and legal practices. Synthesizing our findings, we identify a normatively realistic concept of citizenship that however does not point in the direction of cosmopolitan citizenship.61 Rather, in EU jurisprudence we find evidence for the emergence of a regional European variety of a republican-federalist citizenship with cosmopolitan features.

Table 5: ECJ support for models of Citizenship in Union of States

I. Citzenship diversity II. Union citizenship III. Unity in Diversity(1) Access to Union Citizenship status

- Statist control of Union citizenship, coupled to nationality of at least one MS;- Exclusive competence of MS’s to determine conditions and procedures

- No community regulation of access to citizenship

- Obligation of MS’s to recognize effects of nationality granted by other MS’s; - Obligation not to restrict effects of the nationality granted by other MS

(2) Scope of Union Citizenship rights

MS, in policy areas of exclusive national competences

Authority to revoke right of residence of third country nationals

EU, in policy areas of EU competences; - Right to free movement and residence within EU territory (Art. 18 (1) EC Treaty), independent from labor market; - EU catalogue of additional citizenship rights (including political participation in EP elections and local elections in host state; EU Ombudsman);

MS’s and EU, in policy areas of shared competences;- Mutual recognition: Obligation of MS’s not to discriminate in exercise of national citizenship rights mobile EU citizens legally residing in host MS (except for national elections); - Reconciliation of unity and diversity, subject to derogations provided by legislation and within the scope of the Treaty competences

(3)enforcement of citizenship rights

Direct access to national courts

Indirect access to European Court of Justice (through national courts);

Preliminary ruling procedure

Our paper develops the body of integrated research on EU citizenship politics and law for advancing our understanding of the dynamics of the multilevel nature of the European Union in the context of citizenship research. Instead of pitting one model of citizenship in Europe against another (EU citizenship as a collection of mutually exclusive national citizenships versus integrated supranational citizenship) we argue that, in practice, the EU has created a third way for aliens who want to become citizens. The social construction of this regime rests on two elements: a normative framework and social agency from below. The normative framework couples universal principles (such as the freedom of movement), 61 Jürgen Neyer, Normative Realism and the Practice of Cosmopolitan Citizenship, Mimeo (2009) .

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the principle of mutual recognition (of different member states’ provisions, such as access to national citizenship) and the principle of non-discrimination (of non-nationals compared to nationals, and of different categories of nationals). The social actors that can bring these principles to bear in the 27 member states with their highly diverse citizenship regimes, include cross-border mobile nationals from different member states, non-EU third-country nationals, bringing litigation cases to national courts which in turn submit requests for preliminary rulings to the European Court of Justice. The type of Union citizenship regime that has emerged as a result from these two dynamics can be seen as a republican-federal framework based on cosmopolitan norms for mutually inclusive national citizenships that are committed to “recognising the rights of others” (see table 5, above).

It is not clear whether this model of cosmopolitan-regional citizenship can contribute to constituting a pan-European collective identity. Thus far, in two cases, Italian citizens have brought their claims to national courts arguing that national citizenship in fact puts them at a disadvantage compared to mobile citizens. Protecting access to national rights from such discrimination could have a considerable impact on ordinary citizens’ perception of the EU and, thus, might transform their sense of belonging, membership and identity. It seems safe to assume that depending on increasing cross-border mobility, the framework of a federal-republican citizenship of he Union will enhance self-identification as Union citizens. The EC’s legal framework guaranteeing the mobility of citizens provides a safeguard to the hazards of mobility, in many respects.

Can the legal construction of a federal republican citizenship be also instrumental in addressing the so-called ‘democratic deficit’ of the EU facing the pressures of global market dynamics? Will it constitute if not a European demos a federal constituency that can help preventing further institutional crises caused by EU treaty reforms, such as the recent ratification failures of the “Treaty establishing a Constitution for Europe? First of all, fostering a multiplicity of more inclusive forms of belonging will further the democratic quality of the member states. As Benhabib as argued: “Although both cosmopolitan norms and deterritorialized law challenge the nation-state and threaten to escape control by democratic legislatures, cosmopolitan norms enhance popular sovereignty while many other forms of global law undermine it.”62 In any case, citizenship in the Union will constitute a necessary albeit not sufficient condition for a legitimate European order, to the extent it fosters transnational linkages across the internal as much as across external regional boundaries.

62 Seyla Benhabib, Twilight of Sovereignty or the Emergence of Cosmopolitan Norms? Rethinking Citizenship in Volatile Times. Citizenship Studies, 1469-3593, Volume 11, Issue 1, pp. 19 – 36 (2007).

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Annex 1: European Court of Justice judgements on citizenship provisions of the EC Treaty (Articles 17 and 18), and Directives 2003/86/EC, 2004/38/EC and 2003/109/EC

year of submission

year of judgement

abbreviated and full name of the case

C-193/94 1994 1996 Skanavi and ChryssanthakopoulosCriminal proceedings against Sofia Skanavi and Konstantin Chryssanthakopoulos

C-85/96 1996 1997 Martínez Sala, María Martínez Sala v Freistaat Bayern

C-64/96 1996 1997 Uecker, Land Nordrhein-Westfalen v Kari Uecker and Vera Jacquet v Land Nordrhein-Westfalen

C-274/96 1996 1998 Bickel and Franz, Criminal proceedings against Horst Otto Bickel and Ulrich Franz.

C-378/97 1997 1999 Wijsenbeek, Criminal proceedings against Florus Ariël Wijsenbeek

C-356/98 1998 2000 Kaba, Arben Kaba v Secretary of State for the Home Department

C-184/99 1999 2001 Crzelchik, Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve

C-224/98 1998 2002 d'Hoop, Marie-Nathalie D'Hoop v Office national de l'emploi

C-413/99 1999 2002 Baumbast, Baumbast and R v Secretary of State for the Home Department

C-28/00 2000 2002 Kauer, Liselotte Kauer v Pensionsversicherungsanstalt der Angestellten

C-466/00 2000 2003 Kaba 2, Arben Kaba v Secretary of State for the Home Department

C-148/02 2002 2003 Avello, Carlos Garcia Avello v Belgian State

C-482/01 2001 2004 Orfanopoulus, Georgios Orfanopoulos and Others (C-482/01) and Raffaele Oliveri (C-493/01) v Land Baden-Württemberg

C-387/01 2001 2004 Weigel, Harald Weigel and Ingrid Weigel v Finanzlandesdirektion für Vorarlberg

C-502/01 2001 2004 Gaumain-Cerri, Silke Gaumain-Cerri v Kaufmännische Krankenkasse - Pflegekasse and Maria Barth v Landesversicherungsanstalt Rheinprovinz

C-200/02 2002 2004 Zhu and Chen, Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department

C-456/02 2002 2004 Trojani, Michel Trojani v Centre public d'aide sociale de Bruxelles (CPAS)

C-224/02 2002 2004 Pusa, Heikki Antero Pusa v Osuuspankkien Keskinäinen Vakuutusyhtiö

C-365/02 2002 2004 Lindfors, Marie Lindfors

C-138/02 2002 2004 Collins, Brian Francis Collins v Secretary of State for Work and Pensions

C-293/03 2003 2004 My, Gregorio My v Office national des pensions (ONP)

C-403/03 2003 2005 Schempp, Egon Schempp v Finanzamt München V

C-147/03 2003 2005 Commission v Austria, Commission of the European Communities v Republic of Austria

C-209/03 2003 2005 Bidar, The Queen, on the application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills

C-258/04 2004 2005 Ioannidis, Office national de l'emploi v Ioannis Ioannidis

C-408/03 2003 2006 Commission v Belgium, Commission of the European Communities v Kingdom of Belgium

C-286/03 2003 2006 Hosse, Silvia Hosse v Land Salzburg

C-300/04 2004 2006 Eman and Sevinger, M. G. Eman and O. B. Sevinger v College van burgemeester en wethouders van Den Haag

C-406/04 2004 2006 De Cuyper, Gérald De Cuyper v Office national de l'emploi

C-520/04 2004 2006 Turpeinen, Pirkko Marjatta Turpeinen

C-470/04 2004 2006 N, N v Inspecteur van de Belastingdienst Oost/kantoor Almelo

C-145/04 2004 2006 Spain v.UK, Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland

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C-185/04 2004 2006 Öberg, Ulf Öberg v Försäkringskassan, länskontoret Stockholm

C-192/05 2005 2006 Tas-Hagen, K. Tas-Hagen and R. A. Tas v Raadskamer WUBO van de Pensioen- en Uitkeringsraad

C-345/05 2005 2006 Commission v. Portugal, Commission of the European Communities v Portuguese Republic

C-522/04 2004 2007 Commission v Belgium, Commission of the European Communities v Kingdom of Belgium

C-318/05 2005 2007 Commission v. Germany, Commission of the European Communities v Federal Republic of Germany

C-76/05 2005 2007 Schwarz, Herbert Schwarz and Marga Gootjes-Schwarz v Finanzamt Bergisch Gladbach

C-291/05 2005 2007 Eind, Minister voor Vreemdelingenzaken en Integratie v R. N. G. Eind

C-208/05 2005 2007 ITC, ITC Innovative Technology Center GmbH v Bundesagentur für Arbeit

C-392/05 2005 2007 Alevizos, Georgios Alevizos v Ypourgos Oikonomikon

C-287/05 2005 2007 Hendrix, D. P. W. Hendrix v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen

C-370/05 2005 2007 Festersen, Criminal proceedings against Uwe Kay Festersen

C-325/05 2005 2007 Derin, Ismail Derin v Landkreis Darmstadt-Dieburg

C-11/06 2006 2007 Morgan, Rhiannon Morgan v Bezirksregierung Köln (C-11/06) and Iris Bucher v Landrat des Kreises Düren (C-12/06).

C-50/06 2006 2007 Comm. vs. NL, Commission of the European Communities v Kingdom of the Netherlands

C-104/06 2006 2007 Commission v Sweden, Commission of the European Communities v Kingdom of Sweden

F-54/06 2006 2007 Davis, John Davis and Others v Council of the European Union

C-349/06 2006 2007 Polat, Murat Polat v Stadt Rüsselsheim

C-152/05 2005 2008 Commission v Germany, Commission of the European Communities v Federal Republic of Germany

C-398/06 2006 2008 Commission vs. NL, Commission of the European Communities v Kingdom of the Netherlands

C-524/06 2006 2008 Huber, Heinz Huber v Bundesrepublik Deutschland

C-499/06 2006 2008 Nerkowska, Halina Nerkowska v Zakład Ubezpieczeń Społecznych Oddział w Koszalinie

C-353/06 2006 2008 Grunkin and Paul, Stefan Grunkin and Dorothee Regina Paul

C-212/06 2006 2008 Wallon Government, Government of Communauté française and Gouvernement wallon v Gouvernement flamand

C-158/07 2007 2008 Förster, Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep

C-33/07 2007 2008 Jipa, Ministerul Administraţiei şi Internelor - Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa

C-221/07 2007 2008 Zablocka, Krystyna Zablocka-Weyhermüller v Land Baden-Württemberg

C-164/07 2007 2008 Wood, James Wood v Fonds de garantie des victimes des actes de terrorisme et d’autres infractions

C-551/07 2007 2008 Sahin, Deniz Sahin v Bundesminister für Inneres

C-11/07 2007 2008 Eckelkamp, Hans Eckelkamp and Others v Belgische Staat

C-229/07 2007 2008 Mayeur, Diana Mayeur v Ministère de la Santé et des Solidarités

C-127/08 2008 2008 Metock, Blaise Baheten Metock and Others v Minister for Justice, Equality and Law Reform

C-544/07 2007 2009 Rüffler, Uwe Rüffler v Dyrektor Izby Skarbowej we Wrocławiu Ośrodek Zamiejscowy w Wałbrzychu

C-67/08 2008 2009 Block, Margarete Block v Finanzamt Kaufbeuren

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