Constructing the Person in EU Law: Rights, Roles, Identities 9781782259336, 9781782259367, 9781782259343

Table of contents :
Contents
List of Contributors
Part I: Introduction
Being a Person in the European Union
I. Person and Action
II. Person as Agent
III. Person and Integration
IV. Poor Self
V. Personhood as Status
Part II: Potential and Limits of EU Legal Individualism
1. Emancipation Through Law?
I. Emancipation as a Negative Space for Freedom
II. Emancipation Through EU Law
III. EU Law and the Ambiguities of Emancipation
IV. Conclusion
2. Alienation, Despair and Social Freedom
I. Introduction
II. The Dead Among the Living
III. Economic Power
IV. Moneymaking
V. Self-alienation and Alienation from Others
VI. The Community in Alienated Form
VII. Essentialism?
VIII. From Alienation to Despair
IX. Beyond the Legal Relation
X. Social Freedom
XI. Conclusion
3. The Subjectification of the Citizen in European Public Law
I. Introduction
II. Subjectification, European Public Law and Citizenship
III. The Affirmation of the Constitutional Subject in the Social State Era
IV. The Transformation of the Constitutional Subject in the Transition Towards 'Advanced Liberalism'
V. The Twilight of the Constitutional Subject During the Financial Crisis
VI. Conclusion
4. The Persona of EU Law
I. Introduction
II. Authority, Alignment and the Making of the EU Legal Persona
III. The Qualities of the European Union Persona
IV. Somova: A Case Study in Responsible Citizenship
V. Conclusion: The Unsteady Gait of the EU Persona
Part III: Reconstructing Personhood in EU Law
5. Ambiguities of Personhood, Citizenship, Migration and Fundamental Rights in EU Law
I. Introduction
II. Personhood and Human Rights
III. The Individual in EU Law
IV. The Citizenship-Foreigner-Cleavage
V. Conclusion
6. Neo-mediaeval Permutations of Personhood in the European Union
I. Introduction: The Usefulness of Amusing Tales
II. Mediaevalism and the Change of the Paradigm of Personhood in Law
III. The Official EU Story Today: The Law of As If
IV. EU's Quasi Neo-Mediaevalism: The Law As Is
V. Conclusion
7. The 'Enlisted Terrorist': Institutionalising Personhood in EU Law
I. Introduction
II. EU Personhood Complexity: 'Enlisted Terrorists', Incorporated Objects of International Law
III. EU Personhood Identity: 'Enlisted Terrorists', Institutionalised Subjects of EU Law
Part IV: Person and Integration
8. The Integrated Person in EU Law
I. The Rise of Integration in EU Law
II. When the Logic of Integration Infiltrates EU Law
III. The Birth of a New Figure
IV. The Promise of Integration
V. Lost in Integration?
VI. Conclusion
9. The European Individual as Part of Collective Entities (Market, Family, Society)
I. Introduction
II. The Trans-institutional Individual
III. Personal Implications
IV. A Fragile Construction
10. Union Citizenship, Social Integration and Crime: Duties Through Crime
I. The Social Integration Paradigm
II. The EU Criminal Citizen and Social Integration Paradigm
III. Criminal Justice and Social Integration
IV. Criminal Justice and Social Integration: Qualitative Integration and the Duty of Respect
11. The Roma Population: A Borderline Case
I. Roma in EU Anti-discrimination Law: The (Quasi) Invisible Persons
II. Roma in the Light of Free Movement Law: Neutral Rights Against Racial Prejudices
III. In Guise of Conclusion: Protection of Mobile Citizens as Members of Vulnerable Minorities: A Realistic Objective for EU Law of Persons?
Part V: Personhood, Identity and Status
12. Human Embryos as Persons in EU Law
I. Introduction
II. The Mechanical Production of the 'Life Entangled'
III. The Axiological Production of Life Itself
IV. Conclusion
13. Civil Registration Through the Prism of Gender: Revealing Discriminations
I. Introduction
II. Is it Possible to Surpass Binary Gender Differentiation: Civil Registration and Trans-identity?
III. Civil Status and Discrimination Related to Sexual Orientation
IV. Gender Identity and the Effects of Gender-based Domination
14. The Legal Subject, Social Class and Identity-based Rights
I. Back to the Future?
II. The Legal Subject-Production, Consumption, Nation States and the EU
III. Rene Demogue's Legal Subject and the Social Challenge
IV. Duncan Kennedy's Identity-based Rights
V. The European Legal Subject-Mandataire and Identity-based Fundamental Rights Holder
VI. (No) Conclusions
15. A Family Status for the European Citizen?
I. Introduction
II. Citizenship, Private International Law and Family Law
III. Surnames
IV. Civil Status
V. Conclusion
Index

Citation preview

CONSTRUCTING THE PERSON IN EU LAW The European Union places the ‘individual’ or person, ‘at the heart of its activities’. It is a central concept in all of EU economics, politics, society and ­ethics. The 15 chapters in this innovative edited collection argue that EU law has had a transformative effect on this concept. The collection looks at the mechanisms used when ‘constructing the person’ in EU law. It goes beyond traditional literature on ‘Europe and the Individual’, exploring the question of personhood through ­critical and contextual perspectives. Constructing the Person in EU Law: Rights, Roles, Identities brings together contributions and debates from experts around Europe to this key question.

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Constructing the Person in EU Law Rights, Roles, Identities

Edited by

Loïc Azoulai Ségolène Barbou des Places and Etienne Pataut

OXFORD AND PORTLAND, OREGON 2016

Hart Publishing An imprint of Bloomsbury Publishing plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2016 © The editors The editors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives. gov.uk/doc/open-government-licence/version/3) excepted where otherwise stated. All Eur-lex materials used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2015. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-78225-933-6 ePDF: 978-1-78225-934-3 ePub: 978-1-78225-935-0 Library of Congress Cataloging-in-Publication Data Names: Azoulai, Loïc, 1971– editor.  |  Places, Ségolène Barbou des, editor  |  Pataut, Etienne, editor Title: Constructing the person in EU law rights, roles, identities / edited by Loïc Azoulai, Ségolène Barbou des Places and Etienne Pataut. Description: Oxford ; Portland, Or. : Hart Publishing Plc, An imprint of Bloomsbury Publishing Plc, 2016.  |  Includes bibliographical references and index. Identifiers: LCCN 2016011348 (print)  |  LCCN 2016011740 (ebook)  |  ISBN 9781782259336 (hardback : alk. paper)  |  ISBN 9781782259350 (Epub) Subjects: LCSH: Persons (Law)—European Union countries.  |  Civil rights—European Union countries.  |  Citizenship—European Union countries. Classification: LCC KJE5132 .C66 2016 (print)  |  LCC KJE5132 (ebook)  |  DDC 346.2401/2—dc23 LC record available at http://lccn.loc.gov/2016011348 Typeset by Compuscript Ltd, Shannon

CONTENTS

List of Contributors�������������������������������������������������������������������������������������������������� vii

Part I: Introduction Being a Person in the European Union���������������������������������������������������������������������3 Loïc Azoulai, Ségolène Barbou des Places and Etienne Pataut Part II: Potential and Limits of EU Legal Individualism 1. Emancipation Through Law?���������������������������������������������������������������������������15 Floris de Witte 2. Alienation, Despair and Social Freedom���������������������������������������������������������35 Alexander Somek 3. The Subjectification of the Citizen in European Public Law��������������������������55 Marco Dani 4. The Persona of EU Law������������������������������������������������������������������������������������89 Damian Chalmers Part III: Reconstructing Personhood in EU Law 5. Ambiguities of Personhood, Citizenship, Migration and Fundamental Rights in EU Law��������������������������������������������������������������111 Daniel Thym 6. Neo-mediaeval Permutations of Personhood in the European Union�����������������������������������������������������������������������������������133 Dimitry Kochenov 7. The ‘Enlisted Terrorist’: Institutionalising Personhood in EU Law�����������������������������������������������������������������������������������159 Charlotte Beaucillon Part IV: Person and Integration 8. The Integrated Person in EU Law������������������������������������������������������������������179 Ségolène Barbou des Places

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Contents

  9. The European Individual as Part of Collective Entities (Market, Family, Society)������������������������������������������������������������������������������203 Loïc Azoulai 10. Union Citizenship, Social Integration and Crime: Duties Through Crime����������������������������������������������������������������������������������225 Stephen Coutts 11. The Roma Population: A Borderline Case���������������������������������������������������241 Sophie Robin-Olivier Part V: Personhood, Identity and Status 12. Human Embryos as Persons in EU Law�������������������������������������������������������259 Stéphanie Hennette-Vauchez 13. Civil Registration Through the Prism of Gender: Revealing Discriminations���������������������������������������������������������������������������������������������275 Anne-Marie Leroyer 14. The Legal Subject, Social Class and Identity-based Rights�������������������������285 Hans-W Micklitz 15. A Family Status for the European Citizen?��������������������������������������������������311 Etienne Pataut

Index�����������������������������������������������������������������������������������������������������������������������323

LIST OF CONTRIBUTORS

Loïc Azoulai is Professor of Law at Sciences Po Law School (Paris). He curently holds the Excellence Chair of Sorbonne Paris Cité on European Law and Forms of Life. He serves as an editor of the Common Market Law Review. His recent publications include ‘Integration Through Law and Us’ (2016) International Journal of Constitutional Law, and ‘Structural Principles in EU Law: Internal and External’ in M Cremona (ed) Structural Principles in EU External Law (2016). Ségolène Barbou des Places is Professor of Public and EU Law at the Sorbonne Law School, Paris 1 Panthéon Sorbonne University. Her research in EU law mostly focuses on internal market law, European citizenship and the Area of Freedom, Security and Justice. She has written and co-edited several books, including Droit de la nationalité et des étrangers (2015), Protectionnisme et droit de l’Union européenne (2014) and Aux marges du traité. Déclarations, protocoles et annexes aux traités européens (2011). Charlotte Beaucillon is Assistant Professor in Public Law at the Sorbonne Law School, Paris 1 Panthéon Sorbonne University. She is a member of the Sorbonne Research Institute for International and European Law. She recently published Les mesures restrictives de l’Union européenne (2014). Damian Chalmers is Professor of EU Law at the National University of Singapore and the London School of Economics and Political Science. He was co-editor of the European Law Review and was Head of the European Institute at the LSE. He is co-author of European Union Law (2014) and co-editor of Oxford Handbook of EU Law (2015) and End of the Eurocrats’ Dream: Adjusting to European Diversity (2016). Stephen Coutts is a Lecturer in Law at Dublin City University, Ireland. His research interests in EU law include citizenship, criminal law, constitutional law, the Charter of Fundamental Rights and immigration and asylum law. He is a member of the Irish Society for European Law, a former senior member of the European Journal for Legal Studies editorial board and a member of the editorial staff for European Papers. He recently published ‘Union citizenship as probationary citizenship: Onuekwere’ (2015) Common Market Law Review. Marco Dani is Lecturer in Comparative Public Law at the Faculty of Law, University of Trento. He was Emile Nöel Fellow at the Jean Monnet Center of the NYU School of Law (2004–5) and Fellow at the European Institute of the

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List of Contributors

London School of Economics (2009–14). He published Il diritto pubblico europeo nella prospettiva dei conflitti (2013), a monograph on the role of conflicts in ­European public law, and is currently working on a book on the transformation of subjectivity throughout the process of European integration. Floris de Witte is Assistant Professor in the Law Department of the London School of Economics and Political Science. His research focuses on the interaction between law and political theory, focusing on questions of justice, free movement, and the Euro-crisis. Floris sits on the board of editors of the German Law Journal and the European Law Journal. He recently published Justice in the EU: The Emergence of Transnational Solidarity (2015). Stéphanie Hennette-Vauchez is a Professor of Law at the Université Paris Ouest Nanterre La Défense. Her research interests lie mostly in the field of bioethics and religious freedom. Recent publications include: L’Affaire Baby Loup ou la Nouvelle Laïcité (with V Valentin, 2014), ‘SPUC v. Grogan (ECJ, 1991): rereading the case, retelling the story of reproductive rights in Europe’, in F Nicola, B Davies (eds) EU Law Stories (2016),‘More women, but which women? The Rule and Politics of Gender Balance at the European Court of Human Rights’ (2015) European Journal of International Law, and ‘EU Law and Bioethics’, in M Cremona (ed) EU Law and New Technologies (2016). Dimitry Kochenov is Visiting Professor and Martin and Kathleen Crane Fellow in Law and Public Affairs at the Woodrow Wilson School, Princeton University (2015–2016). He holds a Chair of EU Constitutional Law in Groningen (The Netherlands) and is a Visiting Professor at the College of Europe, Natolin (Poland). His latest edited volumes include EU Citizenship and Federalism: The Role of Rights (2016); Reinforcing Rule of Law Oversight in the European Union (with C Closa, 2016); Europe’s Justice Deficit? (with G de Búrca and A Williams, 2015). Anne-Marie Leroyer is Professor of Private Law at the Sorbonne Law School (University Paris 1) and Head of the Family Law Department of the Institut de Recherche Juridique de la Sorbonne (IRJS). She is a family law specialist with particular interests in gender and equality issues. She is the author of Droit des successions (2014) and co-author of Filiation, Origine, Parentalité (2014). Hans-W Micklitz is Professor of Economic Law at the European University Institute. His research focuses on European private law, European and transnational law, amd legal theory. Among his recent publications: Constitutionalisation of European Private Law (2014); Private Law in the External Dimension of the EU (with M Cremona, 2016); The Transformation of Enforcement in Europe (with A Wechsler, 2016). Etienne Pataut is Professor of Private Law at the Sorbonne Law School (University of Paris 1). He is a private international law and EU law specialist, and takes particular interest in matters of free movement, international litigation

List of Contributors

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and International and European Labour Law. Recently, he co-edited La citoyenneté européenne (2011), Les nouvelles de formes de coordination des justices étatiques en Europe (2013) and published La nationalité en déclin (2014). Sophie Robin-Olivier is Professor of Law at the Sorbonne Law School, University of Paris I and a member of the Research institute in European and International Law (IREDIES). Her recent publications include Les contrats de ­travail flexibles, une comparaison internationale (2015), Reasonable Accommodation for Religion, and Other Motives, in French Labour Law: Testing the Possibility of a Legal Transplant (2016), ‘The Evolution of direct effect in the EU: Stocktaking, problems, projections’ (2014) International Journal of Constitutional Law. Alexander Somek is Professor of Legal Philosophy at the University of Vienna. He has worked extensively on the foundations of European Union Law and transformations of public law. His more recent books include The Cosmopolitan C ­ onstitution (2014), Engineering Equality: An Essay on European ­Anti-­Discrimination Law (2011), and Individualism: An Essay on the Authority of the European Union (2008). Daniel Thym holds the Jean Monnet Chair of European, International and Public Law at University of Konstanz and is the co-director of the Research Centre Immigration & Asylum Law at the same university. He serves as an editor of the European Law Journal. His recent publications include ‘EU Migration Policy and its Constitutional Rationale. A Cosmopolitan Outlook’ (2013) Common Market Law Review and EU Immigration and Asylum Law. Commentary (2016).

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Part I

Introduction

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Being a Person in the European Union LOÏC AZOULAI, SÉGOLÈNE BARBOU DES PLACES AND ETIENNE PATAUT

On our intellectual journey in the preparation of this book we encountered a whole host of issues related to the notion of person as grasped by EU law. In this ­introduction we propose to select a number of those pivotal themes, rather than setting out the arguments developed in each of the individual chapters of the book. These have their own rationale, dynamics and complexity and we would not do justice to them by presenting them summarily. In each of these chapters, the reader will find original ideas, rich developments and paths to further research. The best we can hope to do here is to try to briefly address the main points advanced in the book by making explicit reference to the authors of individual chapters in the text (with the authors’ names in brackets). Even such an erratic approach should at least evoke something of the commonality which brought the authors of this book together. It should say something about the centrality of the question of the person in ­European integration’s current context.

I.  Person and Action ‘The Union places the individual at the heart of its activities’ states the preamble of the Charter of Fundamental Rights of the European Union. This statement reads differently in the different official languages of the Union. The French, Italian and Spanish versions read: ‘The Union places the person at the heart of its action’. The Dutch, German, Portuguese and Swedish versions read instead: ‘The Union places the human being at the heart of its action’. But these different versions share, in fact, the same conception. This conception is common in Western legal texts and points back to the Christian tradition. It refers to an individual endowed with moral ­significance and legal protection. In a famous lecture given in London in 1938 and which appears to be his last published text, Marcel Mauss argued that, in European society, the ‘person’ is a ‘fundamental form of thought and action’. By comparing Western society to other societies, he aimed to demonstrate that the reference to a human being possessing

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Loïc Azoulai, Ségolène Barbou des Places and Etienne Pataut

moral value is specific to our society, solidly embedded in the system of social and legal relations.1 Writing in 1938 faced with a collapsing Europe, he reminds his contemporaries, however, that ‘with us the idea could disappear’. It is against the backdrop of the collapse of Europe and its ‘legacies of injustice and fear’ that the Universal Declaration of Human Rights, 1948, forcefully stated that the human being is to be considered as a person, master of herself and of her acts, who has a right to be recognised and to be respected.2 The Charter of Fundamental Rights, 2007, clearly endorses this conception. From the whole text emerges the notion that the European individual is vested with dignity, self-determination, a capacity to enjoy rights and to hold values, and a corresponding sense of responsibility. Note, however, that the EU Charter does not only refer to the recognition of the individual as a human being/person. Its actual phrasing is deliberately more sophisticated. It suggests a place for the individual. The stress lies as heavy on individual/person/human being as it does on Union’s activities/action. The Charter makes salient that individuals are granted rights, roles and responsibilities within the Union. It intimates that the Union invests in individuals. This investment goes hand in hand with the development of common policies and institutional p ­ rojects. In other words, individuals as framed by EU law play a role in EU’s ­institutional projects.

II.  Person as Agent The first and still dominant European project is the establishment of the Internal Market. It is defined in Article 3(3) TEU (Treaty on the European Union) as an impersonal area in which factors of production circulate without restriction. However, in practical terms, it is individuals who engage in the European market, who develop transnational activities and who trigger cross-border exchanges. Therefore, to make this project real and effective, the Union has relied on the technique of granting subjective rights to individuals. This technique emerged in the landmark Van Gend en Loos decision of the Court of Justice of the European Union.3 Whereas the European construction was originally seen and shaped as an institutional phenomenon, concerned with establishing a special type of relationship between the Member States through mechanisms of cooperation and transfer

1  M Mauss, ‘Une catégorie de l’esprit humain: la notion de personne, celle de “moi”’ (1938) Journal of the Royal Anthropological Institute. For an English translation see ‘A Category of the Human Mind: the Notion of Person; the Notion of Self ’ in M Carrithers, S Collins and S Lukes (eds), The Category of the Person. Anthropology, Philosophy, History (Cambridge, Cambridge University Press, 1985). 2  K Günther, ‘The Legacies of Injustice and Fear: A European Approach to Human Rights and their Effects on Political Culture’ in P Alston (ed), The EU and Human Rights (Oxford, Oxford University Press, 1999) 127. 3  Case C-26/62 Van Gend en Loos EU:C:1963:1.

Being a Person in the European Union

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of powers, the Court made clear that the Internal Market comprises not just the Member States but also the nationals of those States acting as traders, workers or consumers. This statement upset the traditional principle of the international legal order according to which the action of the states entirely conditions that of their citizens. It mirrored a general commitment to market integration that was broadly agreed amongst Member States, even though in individual cases it ­conflicted with Member States’ self-interest. Internal market law was therefore clearly intended to elaborate on rights of individuals as market participants as well as on the social and personal conditions that structure and foster the ­development of interstate trade. As a result of Van Gend en Loos and the subsequent case-law, individuals are given an autonomous space of legal action to match the transnational space of economic transactions that the Union strives to make real. As originally conceived, this legal space has two main features. First, it is a space based on Member States’ obligations. The rights conferred on individual mainly arise, as stated by the Court, ‘by reason of obligations which the Treaty imposes upon the Member States’.4 These are rights to initiate legal proceedings before a national court to enforce States’ obligations. The remedial aspect is central. Second, it is a purposive space. The rights are conferred for the purpose of making the Internal Market function properly. Whilst being an agent moved by selfish ends, the individual remains committed to an institutional project. As aptly captured by Judge Lecourt sitting in the Van Gend en Loos Court’s formation, ‘when an individual appears before the judge to defend the rights he derives from the Treaties, that individual does not only act in his own interest, he immediately becomes an auxiliary agent of the Community.’5 Starting from this rather limited construction EU law grants individual capacities of action across national jurisdiction boundaries in ever wider fields of economic and social life. Individuals enjoy different rights depending on their classification as trader, employer or employee, worker, producer or consumer, farmer, service provider or service recipient, patient, student, taxpayer, family member, care-taker or job seeker, to take but a few classic labels. EU law constructs and differentiates various categories of individuals. It organises a great variety of activities to which correspond various regimes of individual action and different sets of rights. It creates a distinctive form of agency based on a series of roles. As a result, a single individual may be endowed with different legal roles6 or the other way around, ie two entities may be treated as a single person for the purpose of the application of a specific set of rules.7 This technique of classification of persons

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ibid, at 12. R Lecourt, L’Europe des juges (Bruxelles, Bruylant, 1976) 260. 6  On the juxtaposition of ‘worker’ and ‘student’ classifications in a single case see eg Case C-46/12 LN EU:C:2013:97. 7  On the case of two legal persons seen as the same company for the purpose of EU law see Case C-378/10 VALE Epítési EU:C:2012:440. 5 

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is present, of course, in any sophisticated legal system (Micklitz). What is distinct in the EU law’s construction, however, is that these persons are all participating in the building of a new socio-economic order. EU law is not about the creation or reproduction of social order but about the transformation of pre-established domestic socio-economic orders. It is about the shifting of both governments’ and individuals’ preferences for the purpose of establishing a new transnational concrete order. To fully account for the operation of EU law, the terms of the Charter’s formula should therefore be adjusted and reversed: EU law places the (many) Union’s activities at the heart of the construction of the individual. The traditional literature on ‘European Law and the Individual’ has been too much focused on the limited role of individual within the supranational institutional sphere and issues of the legal protection of private parties.8 The EU law’s concept of person is not reducible to the informed natural or legal person initiating judicial proceedings that we saw emerging in Van Gend en Loos. It involves specific forms of agency and it implies different sets of personal dispositions, be it an active producer engaged in cross-border transactions, a vulnerable consumer making a purchase in non-transparent conditions or an individual able to develop emotional or social ties in family context. The first purpose of this book is to restore some of EU law’s complexity in the construction of the category of the person.

III.  Person and Integration It is fair to say that the Internal Market was never conceived merely as an ­impersonal area. Besides the circulation of goods and entrepeneurship was provided the free movement of labour and persons. In the social area, EU law has granted the ­individual a ‘position which begins to resemble a constitutional ­position’.9 The regulation on freedom of workers within the Community of 15 October 1968 refers to ‘freedom and dignity’ as preconditions to exercise the right to free ­movement.10 The notion of the person, in this context, denotes a certain moral and social content to EU law and policies and thus offers a means

8  See among a vast literature M Torrelli, L’individu et le droit de la Communauté européenne (Montréal, Presses Universitaires de Montréal, 1970); FG Jacobs (ed), European Law and the Individual (Amsterdam, North-Holland Company, 1976); FIDE, The Individual and European Law (Luxembourg, FIDE VII, 1977); HG Schermers and D Waelbroeck, Judicial Protection in the European Union (The Hague, Kluwer Law International, 2001). 9  M Cappelletti, M Seccombe and JHH Weiler, ‘Integration Through Law: Europe and the American Federal Experience’ in M Cappelletti, M Seccombe & JHH Weiler (eds), Integration Through Law Vol 1, Book 1 (Berlin, de Gruyter, 1986) 60. 10  Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, OJ (1968) 475.

Being a Person in the European Union

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of developing a constitutional reading of European integration. In the Court of Justice’s case-law, the dignity of the person is used not as a direct source of rights but as a justificatory value which serves as a basis for broadening the scope of the provisions on free movement of workers but also for giving a strict reading of the limitations on free movement.11 The migrant worker who is a national of a Member State is treated as a person provided with basic conditions (a social and family status including, for example, the right to social benefits granted by host Member States and the preservation of the integrity of family life) in order to be able to move and integrate in any other Member State. The re-interpretation of EU law with a view to secure the ‘corollaries’ and ‘conditions’ required to enjoy free movement rights eventually went beyond the domain of the free movement of workers.12 As a result of this development, Internal Market law generates a different form of agency from that deriving from the circulation of goods and factors of production.13 Inextricably linked to the development of ‘non-trade’ areas of EU law, ie social law and fundamental rights, it requires a minimum social and moral protection for those who are exercising their freedom of movement.14 This development materialised with the emergence of family reunification law, Union citizenship law and, to a lesser extent, EU immigration law (Thym). In this context, a new figure emerges: the integrable person. The focus shifts from cross-border action to social integration (Barbou des Places; Coutts). Typical is the role of the principle of non-discrimination in this context. It takes on a new, positive meaning: it is conceived of not just as a prohibition on discrimination against non-nationals on their territory but further as a rule encouraging the Member States to allow individuals to integrate into different parts (marketplace, family, profession, educational or healthcare system) and groups (social, cultural or ethnic groups) within society (Azoulai; Robin-Olivier). Beyond granting an autonomous space of action to categories of individuals, EU law widens the traditional struggle for recognition of persons beyond the boundaries of the Member States. It provides new anchors for personal identity. The package of capacities typical of a person integrated into society—making choices, making life plans,

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Case C-36/76 Rutili EU:C:1975:137. Case C-186/87 Cowan [1989] ECR 195; Case C-60/00 Carpenter [2002] ECR I-6279. 13  A Favell, ‘The Fourth Freedom: Theories of Migration and Mobilities in “Neo-Liberal” Europe’ (2014) 17(3) European Journal of Social Theory 275. 14  On this development see E Spaventa, ‘From Gebhard to Carpenter: Towards a (Non-)Economic European Constitution’ (2004) 41 Common Market Law Review 743; N nic Shuibhne, ‘The Outer ­Limits of EU Citizenship: Displacing Economic Free Movement Rights’ in C Barnard and O Odudu (eds), The Outer Limits of European Union Law (Oxford, Hart Publishing, 2009) 168; J Snell, ‘And then There Were Two: Products and Citizens in Community Law’ in T Tridimas and P Nebbia (eds) European Union Law for the Twenty-First Century: Internal Market and Free Movement Community Policies vol 2 (Oxford, Hart Publishing, 2004) 49; P Caro de Sousa, ‘Catch Me if You Can? The Market Freedoms’ Ever-Expanding Outer Limits’ (2011) 4(2) European Journal of Legal Studies 162. 12 

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holding responsibilities, making ties—may be considerably affected by this broadening of her legal space (De Witte). Of course, there remain limits and conditions to this integration and certain categories of persons may be excluded from it (Coutts; Kochenov; Robin-Olivier). With the new construction, Member States lose exclusive control over the composition of the society whilst they cannot expect, as with the establishment of the Internal Market, any direct benefit. This construction has met and still faces fierce resistance. This may result in the main European players, ie Member States and European institutions, retreating back from this ambitious construction.15 The book proceeds to account for both this shift in EU law agency form—from ‘market agency’ to ‘identity recognition’—and its ambivalent effects in terms of inclusion and exclusion.

IV.  Poor Self One way to engage in this account is to critically assess the effects of this development (Somek). If we seek to analyse further the concept of a person equipped with broad capacities and invested with many social roles, it is almost inevitable that we inquire into the social and structural background of this construction, the kind of profile it favours, the form of personal identification it entails, the communities it concerns and the public structures it affects (Kochenov). This is the puzzle with which different chapters in this book engage. Looked at this way, EU law is about recognition or misrecognition of personal identities of aliens, solidarity with nonnationals, or lack of it, and re-affirmation or structural transformation of States and local communities. Whilst being strong in its assertion of the individual as a ‘constitutional subject’, in particular when confronted with external systems suggesting less protective visions (Beaucillon), the Union remains poor in its way of providing an institutional, financial, political and cultural background to support this affirmation (Chalmers; Dani). The Union lacks any capacity to support, not to say frame, a genuine political community (De Witte). It is unable to articulate principles of justice applicable to all Member States and to every individual living on the ­European territory. It suffers a lack of moral and political credit with real ­individuals engaged in concrete lives (Chalmers). This may result in what Axel Honneth has called ‘pathologies of individual freedom’.16 Rather than a rational

15  An excellent example is provided by Case C-333/13 Dano EU:C:2014:2358 and Case C-67/14 Alimanovic EU:C:2015:597 referred to in Azoulai’s, Barbou des Places’ and De Witte’s contribution in this volume. 16 A Honneth, Pathologies of Individual Freedom: Hegel’s Social Theory (Princeton, Princeton ­University Press, 2010).

Being a Person in the European Union

 9

and self-organised individual, capable of integrating in society, EU is likely to produce ‘de-socialised’ individuals experiencing a form of ‘indetermination’, encouraged to evade any kind of obligations and subject to broader forces, especially market forces (Dani). This may negatively affect the tissue of social relations and forms of life in European societies (Somek) and might even lead to some form of historical regression (Kochenov). An essential part of this book is concerned with the argument that EU law’s ­actualisation of the notion of person militates against the values of dignity, ­freedom, responsibility and sociability enshrined in EU law’s discourse and in particular in its Charter of Fundamental Rights.17 It intends to deepen this capital ambiguity. But it also proceeds further towards a reconstruction of personhood in EU law.

V.  Personhood as Status Personhood lies beyond the traditional reach of EU law. EU law has a regulative and not a constitutive role. Its main job is to facilitate transnational activities and to regulate the conduct of public authorities and private parties concerned with the building of a new economic and social order. It is not meant to constitute its own legal subjects. EU law still heavily relies on the States’ definition of ­identity (Leroyer). As repeatedly stated by the Court of Justice, the constitution of legal persons as well as the nationality of natural persons as a precondition to be granted EU rights is a matter of national law.18 Union law is functional and not ontological. This may be one of its inherent flaws. What we see emerging in EU law, however, is the surfacing of a frame whereby issues of identity are brought to the fore. The book describes cases in which EU law goes beyond agency and the realm of regulative rules. This concerns the case where individuals or communities are anxious to secure their place in situations of ­disaffiliation, multi-affiliation or vulnerability. This applies for instance to a Member Sate’s national who has exercised her rights to free movement who has committed crime in the host society (Coutts), children of Union citizens who ­present multiple social and family connections within the Union (Pataut) or else an irregular immigrant who has made the Union the centre of his social, personal and moral life (Azoulai). This also concerns matters of life as in the case of the definition of the human embryo (Hennette-Vauchez). In these cases, the situations at hand are framed as being at once economic, social and moral facts. What

17  See similarly JHH Weiler, ‘On the Distinction Between Values and Virtues in the Process of ­European Integration’ (2010) Institute for International Law and Justice (unpublished). 18  As recalled by the Court in Case C-210/06 Cartesio EU:C:2008:723 para 109.

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Loïc Azoulai, Ségolène Barbou des Places and Etienne Pataut

is original in this construction is that these facts are not only part of the context but they are used to define the legal position of the individuals concerned. As a result, their position is not reduced to their predetermined role and rights. The Court of Justice contemplates them in terms of personal identity and its potential deprivation.19 Through the legal qualification of life or the apprehension of socially contested or morally troubling cases, issues regarding the concrete modes of being of individuals are tackled. This does not exactly amount to what is traditionally referred to as ‘personhood’. In Western civil law, personhood is seen as an exclusive attribute of the state, which has the power to constitute individuals or entities as legal subjects. In international human rights law, it is seen as an inherent attribute of the human being (Thym). In EU law, instead, the reference is to a concrete mode of living and being within society while complying with the values attached to life and society. Traces of biological or social existence are evaluated and then turned into legal forms of individual existence. As a result, issues of identity or responsibility toward society arise and become central (Azoulai; Barbou des Places; Coutts). This is perhaps to be seen in the context of a profound distrust of individuals in the EU institutional system and more broadly in the destabilisation of any institutional projection. In the absence of the likelihood of a possible identification to institutional Europe or to any other form of community, EU law offers its resources to help individuals to re-appraise their position within society. They may get from EU law a sense of the unity of their lives, a form of personal integrity and continuity in a highly fragmented and de-institutionalised social context (Pataut). What we see emerging is that EU law is engaged in the production of statuses. Status does not refer here to the pre-modern concept of an individual inextricably attached to a particular community, ie the ‘feudal subject’ (Micklitz). It also goes beyond the mere attribution of functional roles. Status is something which makes the exercise of individual rights possible, an ‘underlying idea’ of what it means to be a citizen, a student or a child in relation to others within society.20 Such idea informs the legal regimes of these individuals. When producing statuses, EU law does not only fashion agents. It creates identities carrying with them ideas about modes of being-in-society. This involves the production of axiological assessments on what it means to live a life of dignity in Europe and a decent life within society.

19  It should be noted that this construction by affecting the distribution of powers within the Union and raising ontological issues about identity of people remains fragile. The Ruiz Zambrano saga is illustrative of this. After an audacious move (Case C-34/09 Ruiz Zambrano EU:C:2011:124), the Court of Justice has taken a step back bringing the ‘identity’ construction down to a conventional rights construction (see for instance Case C-434/09 McCarthy [2011] ECR I-3375; Case C-40/11 Iida, judgment of 8 November 2012; Case C-86/12 Alokpa, judgment of 10 October 2013). 20  On this notion of status see J Waldron, ‘Is Dignity the Foundation of Human Rights?’ (2013) NYU School of Law, Public Law Research Paper No 12-73, emphasis added.

Being a Person in the European Union

 11

As a result, values are entered in EU law’s discourse.21 This may lead, of course, to forms of social control and instances of excessive moralism (Hennette-Vauchez).22 This form of intervention which goes beyond the mere granting of individuals’ rights and roles can only be a partial solution to a much broader problem, the problem of a ‘just society’ and the possibility of forging a collective project beyond the nation-state. However, in view of the multifaceted character of the profound crisis afflicting Europe, which affects not only the economic stability and the social structures of the Member States but also the political dynamics and the moral setting of many European peoples, we would hope that this book will manage to draw attention to legal techniques, concepts and visions which have the potential to contribute to the establishment of a ‘decent European society’.23

21  F de Witte, ‘Sex, Drugs & EU Law: The Recognition of Moral and Ethical Diversity in EU Law’ (2013) 50 Common Market Law Review 1545. 22  See eg Case C-34/10 Brüstle [2011] ECR I-2821; Case C-348/09 PI, EU:C:2012:300. 23  A Margalit, The Decent Society (Cambridge MA, Harvard University Press, 1996).

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Part II

Potential and Limits of EU Legal Individualism

14 

1 Emancipation Through Law? FLORIS DE WITTE*

The role of law in the process of European integration has recently become a ­subject of great interest for scholars. Thirty years ago, the research group involved in the ‘integration through law’ project already highlighted that law plays a ­particular function in the process of integration—being both an agent and object of integration.1 Now, increasingly, scholars are looking at the normative implications of this role of EU law; that is, to what extent it lies at the root of instances of (in)justice, democracy, authority or freedom that the EU generates.2 It is no longer taken for granted that EU law simply translates the preferences of the ­political ­institutions in the EU. Rather, scholars are articulating how systemic biases, ­institutional asymmetries and judicial decisions have created a very particular role for law in the integration process, and how that role has significant normative implications. This article looks at the emancipatory potential of EU law. Emancipation is a slippery term. At its most abstract level, emancipation suggests the individual’s release from external domination. This, of course, only begs the question what domination exactly entails, and how it is to be remedied: are negative freedoms sufficient to prevent instances of (political) domination, or does it also require vast processes of (economic) redistribution? As I will discuss below, it seems that at the very basic level emancipation requires a negative space of freedom (not a space of negative freedom!), either as a precondition for, or as a means to, ­articulate the individual’s own desires, expectations and dreams. Approaching EU law from the perspective of emancipation exposes its ambiguities. As such, EU law is at the same time structurally committed to emancipation and deeply suspicious of the national processes that allow for emancipation. This ambivalence has led to the fragmentation of the individual—with new avenues for

*  Assistant Professor, Law Department, LSE. Many thanks to Sarah Trotter, Michèle Finck and Loïc Azoulai for their insightful comments on a previous draft. The usual disclaimer applies. 1  See generally the collected edition Integration Through Law Revisited: The Making of the European Polity, edited by D Augenstein (Farnham, Ashgate, 2012), and of course M Cappelletti, M Seccombe and J Weiler (eds), Integration through Law (Berlin, De Gruyter, 1986). 2  See Editorial Comments: ‘The Critical Turn in EU Legal Studies’ (2015) 52 CMLR 881.

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emancipation being highlighted and old problems of domination re-emerging. All in all, it seems, EU law can be understood as an emancipatory project in so far as it offers the individual more possible realisations of him or herself; as it includes ever more categories of citizens within domestic emancipatory structures; and as it problematises a source of domination that the nation state cannot challenge: the nation state itself. The way in which EU law articulates and entrenches its emancipatory potential, however, through the release of the individual from communitarian constraints, is not without problems. On the one hand, EU law is not consistent in the way it problematises instances of domination. On the other hand, this focus on instances of individual domination obscures the ways in which communitarian obligations serve emancipatory goals themselves. EU law, it seems, struggles to come to terms with its own potential for domination. This chapter will first briefly discuss what is to be understood by emancipation (section I); discuss how EU law can be seen as a process of emancipation— understood as emancipation through law and from law (section II)—and highlight the normative paradoxes and ambiguities that are exposed by thinking through EU law from the perspective of emancipation (section III).

I.  Emancipation as a Negative Space for Freedom The emancipation of the individual seems to describe the progressive tearing down of structures of domination—which hamper the individual in her pursuit of her authentic desires and aspirations. A perfect state of emancipation suggests the absence of any sort of domination. This, of course, is not only about the absence of imposed obligations, but also about the capacity (or autonomy) to determine what matters to the individual (privately) and to act upon those choices (publically).3 It requires, in other words, a space of freedom in which the individual can retreat to discover herself, and an institutional environment in which the results of that process can be pursued. Domination can take place in either of these settings—it can emerge due to the absence of the material conditions for the process of discovery, or due to the lack of recognition of the value of a person’s aspirations or personality.4 Historically, the process of emancipation is associated with the struggle of labour forces in the period of industrialisation, and the struggle for equal civil and political rights of marginalised groups such as women, racial, ethnic or sexual minorities. Taking a wider perspective, Welzel suggests that the process of e­ mancipation

3  See C Welzel, Freedom Rising: Human Empowerment and the Quest for Emancipation (Cambridge, Cambridge University Press, 2013) 30–45. 4 See, generally, the exchange between Fraser and Honneth in: Redistribution of Recognition: a Political-philosophical Exchange (New York, Verso, 2003).

Emancipation Through Law?

 17

can be explained in evolutionary terms—as the progressive liberation of people’s agency from domination.5 In his argument, once material security is guaranteed, human socialisation processes automatically problematise domination and reconfigure the normative authority so that it institutionalises ever more emancipation. In other words, ‘life transforms from a source of threats into a source of opportunities’6 as receding existential constraints liberate people from their dependence on narrow, uniform, and closed support groups that they have not chosen. Thereby, individualization frees people to affiliate with communities as wide, diverse, and open as they like them. Individualism is this understanding bestows civic agency: the capacity to shape one’s social environment in voluntary cooperation with others. Hence, individualization does not undermine society but transforms it, shifting the mode of affiliation from imposed to chosen loyalties.7

What Welzel alludes to is perhaps the most intractable conceptual problem with the quest for emancipation: the relationship between emancipation and ­institutions—be it political, religious, social, cultural or economic. Those institutions can be the source of significant instances of domination. Historically, for example, emancipation can be understood to resist the domination of economic (market) institutions. As such, it seeks to extricate the individual from the necessities, brutality and randomness of life. It seeks to lift human existence beyond the need to work, the debilitating effect of injury, disability or diseases on the individual’s dignity and autonomy, and to create for the individuals a space wherein other ­priorities—social, emotional, cultural—can manifest themselves. As such, the project of economic emancipation attempts to protect the individual from commodification, seeks to foster avenues for social integration, and is about the prevention of economic domination. Its liberating promise lies in the commitment to self-determination: once liberated from the necessities of the market, the individual is able to articulate other preferences and is able to live life in accordance to his own personal priorities—rather than those dictated by market structures. Political institutions, of course, are also sites of domination—and the emancipatory project has often problematised this role. In this sense, it does not seek to challenge economic domination, but political domination, that is, the exclusion of particular strata, minorities or groups in society from the processes that inform the normative structure of society, the range of permissive behaviour in society, and that structure the coercive capacity of the state. The struggle for political emancipation can be understood as two-fold. On the one hand, it is procedural— it is about recognition as a member of society, about a political articulation of a range of values that include traditionally less represented groups in society, such

5 

Welzel (n 3) 33. ibid 407. 7  ibid 194. 6 

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as women, LBGT, ethnic or religious minority groups.8 On the other hand, it is substantive—it is about the representation of the interests, life experiences and expectations that might be specific to a strata, minority or particular group in society. The emancipatory (or liberating) element here is that both recognition of, and representation of, the diverse social, cultural or economic sensitivities of such groups rationalises the exercise of public power and prevents cultural, social or political domination. It makes the state (and its coercive machinery) sensitive to the different ways of life that exist within its borders—and the different priorities, histories, struggles that distinct groups in society engage with. As such, the project of political emancipation commits public authority to the creation of a space of civicity that allows for the communication and interaction between different members,9 and protects their capacity to articulate their individual and unique expectations, dreams and struggles. While institutions can thus be sites of significant domination—they are also indispensable in the pursuit of emancipation—and, crucially, it seems that the capacity to allow for emancipation is also central to the legitimacy of the modern state. In Honneth’s account, for example, the enhancement of an individual’s autonomy (or emancipation) presupposes the existence of strong social, cultural and democratic institutions.10 The reason for the necessity of institutions is that the exercise of authentically uncovering one’s own desires, and then acting upon those desires requires the ‘inter-subjective mutual recognition’ of other citizens’ possibility to do so.11 In other words, structures of political, social and cultural communication, as well as legal institutions, are a prerequisite for the individual’s capacity of both having the possibility of uncovering what it is that we aspire to (be) privately, and for the possibility of exercising this aspiration publically. As Honneth puts it, institutional structures and legal authority then become a fundamental part of the process of emancipation, even if they can only ever be an instrument rather than an objective: although freedom can ultimately only be realized in spheres of action that go beyond legal relations, the prerequisite for freely participating in these spheres is an entirely different category of freedom. In modern liberal societies, there has always been widespread agreement that individuals can only view themselves as independent persons with their own individual will if they enjoy subjective rights guaranteed by the state, which grant them a space in which they can explore their preferences and intentions.12

8  C Taylor, ‘The Politics of Recognition’ in A Gutman (ed), Multiculturalism (Chicago, University of Chicago Press, 1994) 25. 9  D Chalmers, ‘European Restatements of Sovereignty’ in R Rawlings, P Leyland and A Young, Sovereignty and the Law: Domestic, European and International Perspectives (Oxford, Oxford University Press, 2013) 186. 10  A Honneth, Freedom’s Right: The Social Foundations of Democratic Life (Cambridge, Polity, 2014). 11  ibid 40–45. 12  ibid 71.

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 19

While Honneth suggests that institutions are conceptually prior to emancipation or the problematisation of instances of domination; for Welzel emancipation ­precedes its institutionalisation. He suggests that emancipation is self-reinforcing: [E]mancipative values favour intrinsic well-being priorities over extrinsic ones [and] when people begin to focus on their own impulses and encourage others to do the same, command systems in every domain—from economic to politics to religion— lose control over people. … The intrinsic impetus of emancipative values overcomes ­collective action dilemmas because the impetus strengthens people’s motivation to voice shared concern, to initiate and join social movement activities, and to confront power holders.13

For Welzel, then, emancipation is a private process, the public expression of which serves to institutionalise its values, for example through the establishment of a redistributive regime, or the judicial and political change in attitudes to minorities. In simple terms, while for Honneth strong institutions are a prerequisite for emancipation, for Welzel they result from emancipation. In both Honneth’s and Welzel’s account of emancipation, legal authority and judicial institutions play a central role. The last 60 years or so, we have seen what is essentially the juridification or codification of the commitments to equality and autonomy—understood in economic, cultural or political terms—that is central in the pursuit of emancipation.14 The modern constitutional state commits the polity to the political equality of all (national) citizens, which can be seen as the completion of the project of political emancipation; and lays down a (less or more ambitious) range of fundamental entitlements that prevent both political domination by social or cultural majorities, as well as prevents economic domination by market forces. Finally, the increasing recourse to litigation in securing structures for recognition of linguistic, religious, ethnic and sexual minorities suggests that law plays an instrumental role in the progressive tearing down of new (or old) structures of domination. Constitutionalism, with its commitment to ­liberal-democratic values, the rule of law, independent judicial oversight and fundamental rights can thus be seen as creating a model that systemically entrenches the emancipatory project, and prevents the possibility of backsliding into instances of domination. Legal norms serve to ensure, at once, that individuals have a space in which to retreat in order to think through their concerns, hopes and aspirations; and a public space in which to articulate and act upon these values. But legal norms alone, as Honneth points out, do not suffice for the emancipatory project. Both phases of this project—the internal, private part as well as the external, public element—require the availability of positive rights.15 Without

13 

Welzel (n 3) 189, backed up by large amounts of data. in similar vein S Benhabib, Another Cosmopolitanism (Oxford, Oxford University Press, 2006) 71. 15  Honneth (n 10) 71. 14 See

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such rights, we are stuck with a very impoverished vision of emancipation; one where absence of outside obligations constitutes a form of pure emancipation. It is not difficult to think of examples that demonstrate the flaw of this logic: ­individuals living in slums might be under very few obligations, be it in political, judicial or administrative terms; but surely we cannot speak of a meaningful process of emancipation. Emancipation, in other words, is not about a space of negative freedom, but it is about creating a negative space for freedom—a space in which choices can be internalised privately and freely expressed or acted upon publically without the risk of domination. If emancipation requires the availability of positive rights, it also presupposes a support cast of political institutions, civil society and structures for institutional mediation, communication and legitimacy.16 Historically, this process (much like the project of emancipation more generally) has taken place within the structure of the nation state. As Honneth points out, the various functions required for creating, implementing, and enforcing positive rights can only be fulfilled if the state manages to obtain a new source of legitimacy in the ­unified will of all the citizens affected by its actions. The emergence of a new system of subjective freedom was thus accompanied, in a unique historical parallel, by the rise of the democratic constitutional state, under whose rule the addressees of these positive rights could view themselves as their common authors.17

Importantly, however, while the inextricable link between the project of ­emancipation and institutions appears to be conceptual; the link between that project and the nation state appears only historically contingent. This distinction, as we will see, is central in understanding how EU law relates to the project of emancipation. Most accounts of emancipation are presented in chronological fashion—as the subsequent problematisation of instances of economic, political and cultural domination. What this chronological account suggests, perhaps, is that the process of emancipation reacts against specific instances of domination, which emerge in a particular time and a particular place, and whose nature and immediacy generate the potential for the domination of the individual’s capacity to retreat and assess her life’s choices and aspirations, or her capacity to publically live by those values. Such instances of domination generate resistance—which problematise existing structures and push for the reconfiguration of cultural, social, economic or political institutions. Emancipation, in very general terms, then, is about the rationalisation of structures of (private or public) power. It suggests that such power should not affect the space that individuals require in order to elaborate and articulate personal, social or cultural sensitivities, desires, expectations and dreams.

16  17 

See, generally, S Bartolini, Restructuring Europe (Oxford, Oxford University Press, 2007). Honneth (n 10) 72.

Emancipation Through Law?

 21

II.  Emancipation Through EU Law It is not obvious how the European Union could be understood as an emancipatory project. It is difficult to see how it challenges processes of economic domination, political exclusion or misrecognition. As many have highlighted, it seems to lack the competences, expressive capacity, institutional resources or sophistication to serve this purpose.18 At best, the EU can be framed as furthering the political emancipation of specific groups in society (its non-discrimination legislation and emphasis on fiscal discipline can be read as such),19 and at worst as inhibiting Member States from furthering or sustaining the projects of human and ­political emancipation.20 I will not dispute these readings, and elaborate some of these ­elements in the following section. Here, however, I would like to argue that EU law can, nevertheless, be understood as an instrument for emancipation. This is for three reasons. First, EU law amplifies the capacity of individual citizens to publically realise their private aspirations and ambitions. Second, EU law guarantees the availability of positive rights—that are crucial in the process of emancipation—to an increasing number of individuals. That is, it includes more and more individuals within emancipatory structures. Third, EU law problematises a structure of domination that the nation state cannot: the nation state itself, which reduces the increasingly complex, transnational and fragmented modern pluralist societies into a totalising narrative of ethnic or territorial belonging.

A. Realisation The first way in which EU law can be understood to serve emancipatory purposes is by its capacity to amplify the realisations of life that are available to its citizens. As we discussed above, emancipation implies the absence of domination in the private reflection and public articulation of an individual’s innermost desires and aspirations. EU law, and in particular the free movement provisions, facilitates this process by making available to citizens not only choices that exist on the territory of her own State, but also those available in 27 other States. Or, conversely: EU law prevents States from limiting the available realisations of life for its ­citizens to those that are sanctioned domestically. EU free movement law

18  G Davies, ‘Social Legitimacy and Purposive Power: The End, the Means and the Consent of the People’ in D Kochenov, G de Búrca and A Williams (eds), Europe’s Justice Deficit? (Oxford, Hart ­Publishing 2015) 259. 19 D Chalmers, ‘Democratic Self-Government in Europe’ (2013) Policy Network Paper 8; R Cichowski, The European Court and Civil Society: Litigation, Mobilization and Governance ­(Cambridge, Cambridge University Press, 2007) 7–25. 20  See below, section III. See, generally, A Somek, ‘Europe: From Emancipation to Empowerment’ (2013) LSE Europe in Question Series 60; A Menendez, ‘The Existential Crisis of the European Union’ (2013) German Law Journal 453; Davies (n 18) 259.

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offers its c­ itizens a legal right to ‘exit’ their home polity and ‘enter’ other ­Member States. Any restriction by States trying to prevent their citizens from leaving (even indirectly) and any attempt by States trying to prevent non-national citizens from entering the host State are not allowed. This means, in essence, that EU law functions as a ‘trampoline’: it allows citizens to vault over normative, administrative, economic or cultural values imposed within their own State—which may not reflect the authentic aspirations or dreams of the citizen.21 It might be that a Belgian citizen wishes to move to another Member State because his own State does not ­possess certain endogenous properties that he prefers: a certain climate, disposition, language, cuisine, lifestyle, family or culture. It might be, however, that that citizen wishes to move because his own State cannot cater for a specific normative preference, such as (perceived) limits to permissive behaviour (such as the tolerance relating to sexuality, drugs, religion, euthanasia, abortion, minorities), or the availability or quality of public services (housing, schooling or healthcare, costs of public t­ ransport, levels of taxation). In offering the possibility of free movement, EU law serves an emancipatory purpose by enlarging the capacity of citizens to actually realise (publically) their innermost and private aspirations and dreams, without the domination exercised by the economic, cultural or political environment in which the person happened to be born.22 Instead, EU law reorients the citizens’ view outwards: towards the other possible realisations of society and of the individual’s own life, as possible in other Member States. EU law, as such, is agnostic: it suggests that individuals should prioritise whichever element is most crucial to them, be it the location of family, a specific job, a more or less progressive culture, or the weather. It might be that the possibility of movement as such is the objective of emancipatory desires. Remember, for example, Candide and Cacambo, who, after having suffered injustices in about every place they had visited, end up in El Dorado—a place more just, more beautiful, and happier than they could have even imagined. The realisation that they would never have it better, however, did not prevent them from moving on: ‘the desire for freedom of movement, to cut a figure amongst their own people, and to tell their travellers’ tales, induced these fortunate beings to forsake their good fortunes’.23 This insight from social choice theory, which stresses the importance of allowing individuals to rank available realisations in reference to their own priorities, suggests that EU free movement law serves emancipatory purposes by enhancing the capacity of individuals to actually, publically, live their lives in accordance to their private desires and priorities. In essence, what EU law does is increase the elements of a person’s personality and desires that are recognised as

21  J Weiler and N Lockhart, ‘“Taking Right’s Seriously” Seriously: The European Court of Justice and its Fundamental Rights Jurisprudence’ (1995) 32 CMLR 604. 22  See J Kristeva, Nations without Nationalism (New York, Columbia University Press, 1993); A Sen, The Idea of Justice (London, Penguin, 2010) 246–47. 23 Voltaire, Candide, ou L’Optimistme (London, Penguin, 2001) 52.

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 23

valuable. In Honneth’s terms, EU law is an instrument to enhance the moral quality of social integration.24 The importance of the extension of choices through EU law for the project of emancipation lies, however, not only in the increased capacity of individuals to actually live a life that best suits their aspirations. It also has a reflexive element. The simple fact that multiple realisations of life become attainable, makes the ­individual’s private determination of her authentic aspirations both more salient conceptually and relevant practically. To put it in simple terms: EU free movement law strengthens the importance of the private element of uncovering one’s ­aspirations by amplifying the possibility of its actual realisation.

B. Inclusion Another way of furthering the emancipatory project is not by increasing the ­‘recognised’ or ‘realisable’ parts of one’s personality, but rather by including more citizens in the conditions that allow for emancipation.25 As we saw above, emancipation requires the availability of a range of positive rights—whether to ­protect against economic domination, political exclusion or cultural marginalisation. Such rights serve to carve out a negative space of freedom into which the ­individual can retreat and authentically discover her preferences (without fear of economic, political or cultural punishment) and to aid the individual in living by the preferences thus discovered. EU law, and in particular the obligation of non-discrimination based on nationality, can be understood as a process of gradual inclusion of non-nationals within domestic structures of positive rights. From the start of the integration project, migrant workers have always received access to welfare benefits in their host State. This inclusion was alternatively justified by reference to the worker’s contribution to the host state economy, the necessity to incentivise free movement for macroeconomic purposes, and to stimulate the worker’s integration in the host State society. Clearly, however, whatever the logic, the extension of positive w ­ elfare rights to migrant workers (and the family of the worker) suggests their inclusion into domestic structures of emancipation. Since the mid 1990s, this process has been extended to also include migrant EU citizens who are not economically active. On the basis of EU citizenship, welfare rights in education, social assistance, or social security have been extended to include such citizens. In other words, EU law forces States to extend access to the structural preconditions for emancipation to include more and more citizens. This extension is, however, not unconditional, but assessed in a contextual manner taking into account the conditions of integration of the individual in the host State.26 Nor is it complete: the recent judgment 24 

Fraser and Honneth (n 4) 185.

26 

See the contribution by Barbou des Places in this collection.

25 ibid.

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in Dano, and the much more limited rights of third-country nationals suggest that more categories of citizens need to be included.27 This obligation to ensure access to the positive rights that liberate i­ndividuals from the chains of survival, and allows them the negative space for freedom, is even enforced against the home State of the individual. In cases such as Petru, Elchinov and Watts, the Court has argued that a state’s inability to offer its own citizens adequate healthcare without undue delay is such an egregious violation of its obligations vis-à-vis its own nationals, that those citizens are allowed to seek healthcare abroad and demand that their home State pay for it.28 In other words, EU law ensures that the structures for emancipation (ie not risking your life or your physical health because of a State’s inability to run a healthcare service) are accessible for citizens, even when the State fails to deliver them. As such, EU law serves to extend the positive rights that form the basis of the emancipatory project to include those citizens who, either on account of their movement, or on account of the inadequacies of their home State, are left to fend for their own devices. At the same time, this far-reaching inclusion of non-nationals into emancipatory structures serves to remedy (in part) the fact that they are excluded from the main instrument of political emancipation.29 Migrant EU citizens do not have the right to vote in general elections in their host State. This potentially causes a significant instance of domination: they have no say in the rules that bind them, and, in consequence, their views, experiences, aspirations and problems are not included in the process of political mediation. Granting such citizens access to welfare benefits serves, then, to overcome this: their experiences may not be reflected in the political process (even virtually), but they are offered the same space of negative freedom that nationals are offered. As Somek has identified, this practice produces significant externalities,30 not in the least in so far that it assumes that migrants share the same aspirations, problems and experiences as nationals—something that is entirely nonsensical in light of the authenticity that must be at the heart of any effort of emancipation.

C.  Problematising the Nation State The third way in which EU law can be seen as an instantiation of emancipation is because it functions as a discursive process for the problematisation and rationalisation of (the limits of) public power. When worker’s movements discussed human

27 

Case C-333/13, Dano [2014] ECR I-2358. C-268/13, Petru [2014] ECR I-2271, Case C-173/09, Elchinov [2010] ECR I-8889; Case C-372/04, Watts [2006] ECR I-4325. 29  L Azoulai, ‘The Court of Justice and the Social Market Economy: The Emergence of an Ideal and the Conditions for its Realisation’ (2008) 45 CMLR 1342–43. 30  A Somek, ‘The Argument from Transnational Effect: Representing Outsiders through Free Movement’ (2010) 16 European Law Journal 315. 28  Case

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emancipation, the main threat of domination came from the economic structures of the incipient capitalist market economy. Political emancipation can be understood only in light of the potential for domination through the strongly exclusionary political systems of the twentieth century, and the struggles for r­ ecognition by sexual, ethnic or racial minorities only with reference to the ­cultural hegemony of majoritarian views. What type of (private or public) power; and what type of domination, however, does EU law militate against? What are we attempting to liberate ourselves from? EU law, on this view, problematises the domination that results from a source that the nation State cannot tackle: the nation State itself. The story that EU law tells can be read as one that argues that societies have become too pluralist and complex to be governed by traditional political systems. As Fraser puts it, civil society and democratic institutions within the nation State are very good at ­articulating and respecting the different identities and preferences of people, due to the emergence of a ‘broad range of nonmarketized institutions—legal, political, cultural, educational, associational, religious, familial, aesthetic, administrative, professional, intellectual’ which all acquire some autonomy.31 At the same time, however, globalization is destabilizing the modern Westphalian state system. The cumulative weight of transnational processes is calling into question an underlying premise of the system, the premise of exclusive, indivisible citizenship, determined by nationality and/ or territorial residence. The result is to reproblematise a matter that had previously seemed settled, at least in principle: the sources and boundaries of political membership. More generally, globalization is decentering the national frame that previously delimited most struggles for justice, whether focused on status or class.32

In other words, the nation State’s logic of understanding the individual ultimately reduces her into a one-dimensional being, rather than reflecting the increasingly diverse, complex and transnational nature of the individual. On this view, the nation State—with its edified political systems, cleavages and modes of communication—is not sufficiently sensitive, prescient, flexible, patient and articulate to allow individuals to make sense of the world around them. The method of the nation State, focusing on social integration and social mobility, still primarily understands the citizen as a political subject. This can lead to domination in two ways. First, it is a narrative that structurally juxtaposes nationals with ‘the other’, rather than understanding them as equals. As Kristeva has argued, this not only leads to instances of domination of outsiders, but also precludes insiders from having to face the ‘stranger within themselves’, that is, understand themselves in more precise and authentic terms than their biological or territorial origin.33

31 

Fraser and Honneth (n 4) 58. ibid 91. 33  Kristeva (n 22) 50–51. 32 

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It appears, as Welzel has also identified, that individuals need to internalise the dissociation of dominant narratives before the emancipatory project can proceed. In other words, we must forget that we are nationals before we can overcome the domination that it exerts on our self-identification: [I]f we interpret emancipation as a process by which people dissociate from external authority in order to internalize authority over their lives, the dissociation process that is manifest in all secular values appears to be a necessary condition for the internalization process that advances with emancipative values.34

The first manner in which the nation State can be a force of domination, then, is that it prevents the process of self-reflection and the authentic uncovering of more complex sides to our personality. The second, and more interesting, manner in which the nation State dominates and prevents emancipation is not by limiting our internal process of self-­identification, but by limiting our public expression of other sides of our personality. Kristeva points to the totalising nature of the nation state’s understanding of the individual: the fact of belonging to a set is a matter of choice. Beyond the origins that have assigned to us biological identity papers and a linguistic, religious, social, political, historical place, the freedom of contemporary individuals may be gauged according to their ability to choose their membership, while the democratic capability of a nation and social group is revealed by the right it affords individuals to exercise their choice.35

In other words, emancipation requires an institutional structure that allows ­citizens to articulate and express themselves in whichever fashion they prefer. Citizens understand themselves as participants to many different processes, of which the normative reiteration of the nation State is but one. The increasing decrease of barriers to movement, communication, information and choice (in both legal and practical terms),36 have created increasingly pluralist and complex societies, wherein nationality is an increasingly unimportant element of the interpersonal relationships between citizens, and the understanding of self of those citizens. Citizens may understand themselves as a national, but may also understand themselves on the basis of their gender, sexual orientation, taste in music or food, favourite football team, neighbourhood of residence, or occupation. Likewise, patterns of socialisation might be based on nationality, but they might also be based on a shared city, a taste in music, a language, supermarket, favorite pub or sport, a profession or religion, or cycle route.

34 

Welzel (n 3) 103. ibid 15–16. 36  I am not convinced by the argument that free movement is an elitist instrument. The mobile elite might have been at the forefront of free movement, and its choices are particularly salient as national political systems are very sensitive to their properties (wealth, factors of production, knowledge)—but (perhaps as a consequence of the crisis) that narrative needs more nuances. Welfare scroungers and low-skilled workers (of which the British complain) are hardly your mobile elite. 35 

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 27

Simply put, what EU law suggests is that if emancipation is about uncovering one’s aspirations and dreams authentically, and then living life by the maxims thus uncovered, the individual’s choices are a better reflection of their self-understanding than their nationality or political allegiances. In pluralist, complex societies with endless possibilities of communication and mobility, then, the centrality of the political process, with its conception of identity as being related to nationality alone, becomes increasingly problematic. This is the exact domination that EU law challenges. It liberates the individual from the oppression and domination of ‘the political’ and ‘the national’; and forces the rationalisation of the public power accorded to those narratives. EU law, then, problematises the nation State and its conception of the individual as being first and foremost a national. As Sen explains: [A] person belongs to many different groups (related to gender, class, language group, profession, nationality, community, race, religion and so on), and to see them merely as a member of just one particular group would be a major denial of each person to decide how exactly to see himself or herself. The increasing tendency towards seeing people in terms of one dominant ‘identity’ … is not only an imposition of an external and arbitrary priority, but also the denial of an important liberty of a person who can decide on their respective loyalties to different groups.37

EU law, then, can be seen as an emancipatory mechanism as it rationalises the narrative of the nation State, prevents the domination of the individual’s selfunderstanding by that narrative and as such carves out a negative space for the individual in which her preferences, dreams, hopes and ambitions can be more freely uncovered and articulated.

III.  EU Law and the Ambiguities of Emancipation Even though EU law indisputably reflects certain emancipatory traits, it would be rash to claim that it is an emancipatory project. At least two distinct criticisms can be made of the above account. First, it overestimates the power of emancipatory values and underestimates the importance of institutional structures. As Honneth has argued, strong institutional structures are not a result of, but a prerequisite for emancipation. The exact same legal norms that were argued in the previous section to reflect the emancipatory nature of the EU can be argued to destabilise national projects of economic and political emancipation. Second, the above account glosses over the structures of domination that the EU itself perpetuates. These result from judicial decisions, political compromises or simply from the role

37 

Sen (n 22) 246–47.

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that law plays in the process of integration. Problematically, the EU has not come to terms with the instances of domination that it itself generates, and is wrongly suspicious of sites of resistance against such instances. Rather than quelling such sites, the EU’s legitimacy (not only as a project of emancipation) requires that it be more sensitive to its own forms of domination.

A.  The Institutions for Emancipation Welzel suggests that institutions are the result of, and not a precondition for, the process of emancipation. In his research, he uses empirical data to demonstrate that the increase in individual freedom (or, conversely, the decrease in domination) fosters a ‘pro-civic’ individualism, whereby individuals have strong incentives to get together with like-minded spirits and entrench the new opportunities generated.38 On this view, it might appear that the Union’s incomplete and poorly-developed institutional setting is not necessarily a problem: after all, the new opportunities for individual choice generated through EU law will foster new transnational allegiances, networks and—in the longer run—institutional ­patterns of socialisation and politicisation. However, the complexity of the EU’s legal and institutional set-up would counsel against such an optimistic view. The Union’s tiered legal order disrupts this picture of self-reinforcing autonomy—moving from the exercise of private autonomy to its institutionalisation in public form—as it suggests that newly emerging transnational dynamics, which may well in the long term establish new ­institutionalised forms of emancipation, disrupt already existing emancipatory institutions on the national level. In this sense, whether we agree with Welzel, or with Honneth (who suggests that thick institutional patterns of communication are vital for, and prior to, the project of emancipation), it is clear that the EU needs to carefully u­nderstand how it affects domestic institutional structures. It seems that the EU faces two problems. First, the exact same legal norms (free movement and non-discrimination based on nationality) that can be understood to express emancipatory values in EU law, destabilise the two most important institutional structures that do so on the national level: the welfare state (which guards against economic domination) and the political process (which ensures political emancipation). In very simple terms, it can be argued that EU law d ­ estabilises the welfare state because it does not take sufficient account of the conditions of reciprocity that sustain redistributive programmes.39 Likewise, it can be argued that EU law introduces a bias in the domestic political system, making it more sensitive to the interests of mobile actors, which are often the very same (that is,

38 

Welzel (n 3) 193–95. more in depth F De Witte, Justice in the EU: The Emergence of Transnational Solidarity (Oxford, Oxford University Press, 2015) 70–74. 39 See

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 29

capital) whose dominance the political system historically was meant to tame!40 In other words, EU law might problematise the domination of the nation State and its one-dimensional understanding of the individual, but in doing so it must be careful not to disrupt the domestic structures that entrench prior emancipatory movements, and prevent the re-emergence of structures of economic and political domination. Second, the Union’s dependence on law as an instrument and object of ­integration41 leads to an impoverished and thin version of emancipation. On the one hand, it means that the EU struggles to conceptually make sense of those aspects of a personality that cannot easily be articulated in terms of legal rights, and that EU law focuses too narrowly on functional and economic properties of the individual and society.42 On the other hand, as Honneth has convincingly argued, legal freedom without institutionalised systems of socialisation and communication does not lead to emancipation, but to a retreat by the individuals away from the public space (in which choices are to be expressed and exercised) towards the private space where such choices are discovered. Honneth calls this the ­pathology of law, which essentially invokes the function of legal freedom as a model for the increasingly difficult endeavor to find one’s own identity. In these cases, the idea of temporarily freeing oneself from intersubjective obligations with the aid of individual rights loses its temporary character and becomes the general point of reference for our own relation-to-self. Here the epitome of individual freedom is no longer defined in terms of subjective rights, but in terms of its essence as a suspension of obligations, turning the means of freedom into an ideal of life.43

This warning rings true in EU law, which has been understood as offering the individual exactly this: the capacity to suspend any obligations incurred as a ­public individual.44 Solving this problem does not necessarily require a fully-fledged politicisation of the EU. But the EU needs to become sensitive to the complex ­public patterns of socialisation and communication that accompany the new forms of individualism that it produces.45 To sum up, while the EU successfully problematises the nation State’s dominance over the individual’s self-understanding and expression; it risks allowing for the re-emergence of older forms of economic and political domination, as

40 

See more in depth Bartolini (n 16) 11, 337. J Weiler, ‘Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy’ (2014) 12 International Journal of Constitutional Law 94. 42  Somek (n 20) 60; C O’Brien, ‘I Trade, Therefore I Am: Legal Personhood in the European Union’ (2013) 50 CMLR 1; N Nic Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47 CMLR 1597. 43  Honneth (n 10) 88. 44  See D Kochenov, ‘EU Citizenship without Duties’ (2014) 20 European Law Journal 482 and its critique by R Bellamy, ‘A Duty-Free Europe? What’s Wrong with Kochenov’s Account of EU C ­ itizenship Rights’ (2015) 21 European Law Journal 558. See also R Bellamy, ‘The Liberty of the Post-Moderns: Market and Civic Freedom within the EU’ (2009) 1 LSE Europe in Question Series. 45  See also the contribution by Azoulai in this collection. 41 

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well as generating an impoverished transnational vision of emancipation whereby ­individuals retreat from the public space, rather than use it as a place for its expression and progressive institutionalisation.

B.  EU Law as a Site of Domination At the same time as challenging the stability of older forms of emancipation, the EU struggles to make sense of the instances of domination that it itself produces. These emerge from different sites: the over-bearing dependence on individual rights as a source of legitimacy for the EU, the incoherent case law of the Court, and the constitutional recalibration of the EU since the Euro-Crisis. These all produce instances of domination—in the sense that they decrease the capacity of individual citizens to live their public lives in accordance to their authentically uncovered private aspirations. The problem, however, is not so much the existence of domination. Any institutional system must make sense of how to square individual with communal objectives. The problem in the EU is that the EU itself does not allow for the problematisation of such instances of domination. It cannot, simply put, accommodate such views, whether institutionally or conceptually. Let me briefly point to different potential sources of domination in EU law. Instances of domination can, first of all, be found in the case law of the Court. Its case law is at times incoherent, and while it often (as described above) liberates individuals from certain constraints imposed on them by States; it sometimes also enforced or even creates new instances of domination. The cases of Viking, Laval and Ruffert are good examples of situations where the Court mandates economic domination.46 Likewise, cases such as Josemans or Brustle suggest that the Court is uncomfortable in embracing the value plurality that an emancipatory process automatically generates.47 Finally, in Dano and Onuekwere the Court seems to condition access to the emancipatory potential of EU law to a very specific functional understanding of the individual, which evidently produces strong instances of domination.48 A second site for the emergence of domination in the EU is its policies. Both in the management of the Euro-Crisis and the migration crisis, the institutional structure of the EU generates significant instances of domination, either by subjecting whole swathes of the EU citizens to roll-backs in the ­positive rights and political rights that are central to the emancipatory process;49 or by subjecting non-EU citizens to stringent detention, administrative and return

46 

Somek (n 20) 60, and A Somek, Engineering Equality (Oxford, Oxford University Press, 2011). See F De Witte, ‘Sex, Drugs and EU Law: The Recognition of Moral and Ethical Diversity in EU Law’ (2013) 50 CMLR 1545. 48  See also the contribution by Azoulai in this collection. 49  M Wilkinson, ‘The Euro is Irreversible, or is it? On OMT, Austerity, and the Threat of Grexit’ (2015) 16 German Law Journal 1049; M Dawson and F De Witte, ‘Constitutional Balance in the EU after the Euro-Crisis’ (2013) 76 MLR 817. 47 

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­policies.50 Equally, the European Arrest Warrant subjects EU citizens to a ­cross-border v­ ariant of the most invasive physical element of a state’s domination.51 One might argue that these instances of domination are justified in order to guarantee communal objectives—be they of public order, welfare sustainability or fiscal stability. This leads us to the heart of the EU’s problem: it does not dispose of the institutional resources that can legitimise such instances of domination in the name of a common good.52 The Union’s dependence on law (rather than the mediating force of political conflict) as the method and object of integration means that it cannot make sense of the resistance against the domination that it produces. Such resistance can not only be traced in the rise of Syriza and other parties on the extreme left and right—which, even when in power, seem unable to problematise the Union method or the governance of the crisis;53 but also in the references of several constitutional courts, which highlighted alternatively the dominance that the EU exerts over national distributive choices,54 over national workers,55 or over defendants in criminal processes.56 In none of these cases has the EU understood its own capacity for dominance. Structural side-effects of the use of law in the integration process, such as the curtailing of certain (more ­generous) welfare models,57 or the increased inroads into national autonomy on matters ­falling ­outside the scope of EU competences,58 are not problematised either. The EU’s problematisation of the nation state by granting individuals certain rights—from which it derives much of its legitimacy—thus comes with a price. It not only destabilises domestic emancipatory processes, but also generates new instances of domination, which are very difficult to problematise in absence of a communicative space of mediation traditionally afforded by political institutions. It appears that the EU must come to terms with its own capacity for domination, and must allow for the emergence of sites of resistance against its own role in the

50  cf S Benhabib, Rights of Others (Cambridge, Cambridge University Press, 2004) 177, where she essentially argues that movement is an inter-subjective claim for emancipation. 51  S Lavenex, ‘Mutual Recognition and the Monopoly of Force: Limits of the Single Market Analogy’ (2007) 14 Journal of European Public Policy 762. 52  C Offe, ‘Whose Good is the Common Good?’ (2012) 38 Philosophy and Social Criticism 665. 53  Wilkinson (n 49) 54 See OMT, BverfG, 2 BvR 2728/13 (14 Jan 2014), and Lisbon, BverfG, 2 be 2/08 (30 Jun 2009). 55  See the dismissal by Order of Cases C-128/12, Sindicato dos Bancários do Norte, Case C-264/12, Sindicato Nacional dos Profissionais de Seguros e Afins; Case C-566/13, Jorge Ítalo Assis dos Santos v Banco de Portugal; Case C-665/13, Sindicato Nacional dos Profissionais de Seguros e Afins. See g­ enerally, R Cisotta and D Gallo, ‘The Portuguese Constitutional court Case Law on Austerity Measures: A ­Reappraisal’ in B De Witte and C Kilpatrick (eds), Social Rights in Times of Crisis in the Eurozone (EUI Working Paper 2014/05). 56  See eg the reference by the Spanish Constitutional Court in Case C-399/11, Melloni [2013] ECR I-107. 57  F Scharpf, ‘The Asymmetry of European Integration, or: why the EU cannot be a “Social Market Economy”’ (2010) 1 Socio-economic Review 211. 58 G Davies, ‘Democracy and Legitimacy in the Shadow of Purposive Competence’ (2015) 21 ­European Law Journal 2.

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process of ‘ever further’ emancipation, rather than structurally and institutionally precluding such challenges.59

IV. Conclusion Emancipation can be defined as the release from domination in the i­ndividual’s (private) process of discovering her authentic and innermost hopes, fears, and aspirations; and the release from domination in the individual’s (public) ­realisation of those hopes, fears or aspirations. EU law, as has been argued, can be understood as an instrument for the ever further emancipation of its citizenry. It allows citizens to access more realisations of themselves, offers ever greater numbers of citizens access to the positive rights that are indispensable in the process of emancipation, and, in doing so, problematises one of the sites of domination that has until recently been overlooked: the nation State. All in all, EU law suggests that the totalising nature of the nation State dominates the individuals’ self-­understanding, to the detriment of more authentic sexual, spiritual, associational, affective or functional understandings of the self. At the same time, the manner in which the role of the nation State has been problematised raises certain significant problems. The need for the EU to rely on law for its authority (in the absence of a sufficiently robust institutional sphere) potentially brings back forms of (economic and political) domination that the nation State had tamed more or less successfully, it is not sufficiently institutionally embedded to offer more than an impoverished and deeply private understanding of emancipation, and it generates instances of domination itself that are hard to challenge. At this point, two different routes are available. Either the EU and EU law continue to challenge the authority of the nation state and its institutions in the name of the apolitical associations and identities that its citizens are f­orming;60 in the hope that—as Welzel suggests—emancipatory values themselves c­ reate the social capital required to reform(ulate) processes of social and political c­ ommunication. On this view, we would see a progressive re-orientation of individual identities, socialisation and political allegiance from the nation State towards the transnational sphere.61 The alternative is that we devise a way to better ­coordinate

59  See M Dawson and F De Witte, ‘From Balance to Conflict: A New Constitution for Europe’ (2016) 22 European Law Journal (forthcoming). 60  The concept of ‘empowerment’ offers a great start in thinking this through—see Somek (n 20) 60. 61  Which Haas already alluded to (and later retraced) in 1961: E Haas, ‘International Integration: The European and the Universal Process’ (1961) 15 International Organization 367. See for a more recent restatement of the importance of this process for the legitimacy of the EU: J Habermas, The Lure of Technocracy (Cambridge, Polity, 2015) 37.

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between the new and important ways in which the EU enhances the project of emancipation, while guarding against its own instances of domination. This could take many forms. It could be the development of a more sophisticated ­supranational institutional structure,62 the articulation of forms of transnational justice or solidarity that solidifies communitarian structures while allowing for the transnational realisation of the individual’s life; or the mere recalibration of certain pivotal judicial decisions.63 Another example could be the recreation of a range of basic positive rights on the European level that offer the negative space for freedom that is central to the project of emancipation, and which the EU threatens both by its austerity drive and by its case law on transboundary access to welfare benefits. Such a process seems dependent on the Union’s political actors (and the Commission in fact appears interested in relaunching its social agenda), in ­particular given the Court’s off-hand dismissal of the possibility of insulating basic welfare rights from the Union’s austerity drive in the reference by the ­Portuguese constitutional court.64

62 

Dawson and De Witte (n 59). also F De Witte, ‘EU Law, Politics and the Social Question’ (2013) 14 German Law Journal 607–10. 64  See the dismissal by Order of Cases C-128/12, Sindicato dos Bancários do Norte, Case C-264/12, Sindicato Nacional dos Profissionais de Seguros e Afins; Case C-566/13, Jorge Ítalo Assis dos Santos v Banco de Portugal, Case C-665/13, Sindicato Nacional dos Profissionais de Seguros e Afins and also C Kilpatrick, ‘Are the Bailouts Immune to EU Social Challenge because they are not EU Law?’ (2014) 10 European Constitutional Law Review 393. 63  See

34 

2 Alienation, Despair and Social Freedom ALEXANDER SOMEK

I. Introduction This chapter accepts as its premise that both Marx and Hegel were right in believing that free individual self-realisation is fully possible only within structures of interaction in which the free agency of one is (mutually) conducive to the free agency of others.1 It is, as Marx famously put it, under this condition that individuals experience their own individual powers and abilities as social powers and abilities.2 Contractual cooperation among market participants poses an obstacle to the realisation of such social freedom. The reason is that this form of cooperation necessarily turns into a struggle for economic power. From this struggle results the experience of self-alienation. The early Marx analysed succinctly that self-alienation is the experience of a lack or loss of free agency.3 Alienation is the emotional recognition that the free agency is unavailable that is possible under conditions of social freedom.4 Remarkably, this emotional recognition can be further spelled out with an eye to what Kierkegaard described as despair. In two of the forms sketched in his work, despair indicates that the self falsely rationalises the conditions of human agency. Since false rationalisations are likely to happen after full agency has been lost, despair can indeed be a symptom of alienation. Symptoms are attempts to resolve a problem. They give rise to another problem.

1  See F Neuhouser, ‘Marx (und Hegel) zur Philosophie der Freiheit’ (trans B Löschenkohl and N Sieverding), in R Jaeggi and D Loick (eds) Nach Marx (Berlin, Suhrkamp, 2013) 25–47. 2  See K Marx, On the Jewish Question, https://www.marxists.org/archive/marx/works/download/ pdf/On%20The%20Jewish%20Question.pdf. 3 For an excellent phenomenological account, see R Jaeggi, Entfremdung: Zur Aktualität eines ­Sozialphilosophischen Problems (Frankfurt aM, Campus, 2005) 73–90. 4 For a more recent account of alienation that—in spite of its focus on processes of social ­acceleration—also focuses on the loss of agency, see H Rosa, Alienation and Acceleration: Towards a Critical Theory of Late-Modern Temporality (Aarhus, NSU Press, 2010) 82–83.

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Embracing social freedom is the way out of alienation and despair. It remains an open question, however, whether structures of social freedom are part of the ethos of the European Union and of its law. The European Union puts the individual at its centre and rests her hope in the wealth that accrues from competition. The rights that it protects are ‘the rights of the egoistic man, of man separated from other men and from the community’.5 Their exercise does not give rise to that social solidarity which is conducive to universal individual self-realisation.

II.  The Dead Among the Living The locus classicus of Marx’s elaboration of alienation are the philosophical-­ economic manuscripts of 1844.6 The topic can be most easily introduced on the basis of a brief and somewhat improvised contemplation of one of Marx’s most famous statements. It reads in German (and in my own English translation) as follows: Der Gegenstand, den die Arbeit produziert, ihr Produkt, tritt ihr als ein fremdes Wesen, als eine von d[em] Produzenten unabhängige Macht gegenüber. The object produced by labour, its product, appears vis-à-vis labour as an alien being, as a power that is independent of the producer.7

If read somewhat outside of Marx’s own theoretical framework, this sentence ­captures the gist of the overall situation of labour to this day. It has not changed even after people have been told that work offers opportunities for self-realisation.8 First, the product is alien to the producer. In a very elementary sense, this means that, paradoxically speaking, it is essential to the product to have an inessential nexus to the producer. It is in the nature of the commodities to be the output of potentially anyone. If the product is such that it does not matter who has produced it, it is alien to the producer. It is, indeed, alien to all producers alike. All producers encounter in their work something that could have been produced by anyone else. They encounter their own powers and skills as alien powers because these powers do not belong to themselves in particular. Second, and more disturbingly, while a piece of work is actually the work of someone in particular—for example, an appellate brief authored by a law firm associate—it is simultaneously only potentially the work of that particular

5  Marx (n 2). Neuhouser (n 1) 35, points out correctly that even though rights do not necessarily entail action on egotistic motives they are compatible with it. 6 I have used the excellent edition that has been prepared by Michael Quante. See K Marx, ­Ökonomisch-philosophische Manuskripte (Frankfurt aM, Suhrkamp, 2009). 7  Marx (n 6) 84. 8  See F ‘Bifo’ Berardi, The Soul at Work: From Alienation to Autonomy (trans F Cadel and G Mecchia, Cambridge, MA, MIT Press, 2009).

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­ erson because it could equally well be the product of someone else. The actual p ­relation between product and producer is essentially potential. Severing the tie to a p ­ articular producer is essential to the product. Thus understood, the ‘made in’ label attached to clothes signifies their indifference to the place and person of ­production. It symbolises the substitutability and dispensability of particular producers. ‘Made in’ says that it may as well have been made somewhere else and by someone else. Indeed, it is quite inessential to products that a particular producer is alive. Assuming that labour lends expression of the ‘life energy’ of the producers (is a Lebensäußerung as Marx would have put it), then the producers encounter in the product their own death.9 Or, put differently, they perceive the society of ­producers as a society that is composed of the undead. Everyone is too dispensable to see her life energy expressed in a product (and, hence, not really alive) and yet too busy to be already defunct and deceased. Finally, the product appears alien because it appears as a power that is independent of the producer. The producers have to adjust to demand, for otherwise they would have nothing with which to engage in trade or barter. Aggregate demand, in turn, is not of human design. It is the side effect of countless individual choices. It is a by-product, not planned. Nevertheless, it exercises power over human life because producers have to adjust to supply and demand. Ideally, they are pricetakers. The operation of the market does not take heed of individual plans. It is a power that is independent of the producers. They have to surrender to a machinery that is not driven by human purposes.10 It is a Naturzusammenhang. This is the situation of labour under the condition of the division of labour. Whatever is done by someone could equally well be done by someone else. Some get to do the job only because they were lucky enough to secure a job, even though this job itself could have easily gone to someone else. Jobs are created in the context of managing tasks with an eye to demand. In the large scale of things, every job occupies a special niche, which is, again, not of human design. The experience of alienation is an experience of individual disempowerment and also of disillusionment. The illusion that is thereby unmasked is the belief acquired as a result of familial love that one matters to others as well as to oneself. The experience of alienation reveals, by contrast, that the sphere of production and consumption is indifferent to individual lives. We are as abstract as the labour that goes into products. Experiencing alienation, however, is a mode of recognising this bitter truth. It is insight in emotional form. What is more, it represents how society reflects on itself because people feel alienated inasmuch as they are members of society. The feelings of being detached from what one does, of not mattering to the world in general, and of being driven by forces that, even though of human origin, are not of human design, have cognitive import. The social situation recognises itself

9 

10 

See, eg, Marx (n 6) 207. ibid 151.

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objectively by giving rise to certain ‘subjective’ feelings: emptiness, betrayal and a sense of profound disempowerment.

III.  Economic Power The above sketch seeks to capture a situation that emerges from more elementary relations among persons. Marx’s analysis of these relations is nothing short of masterful. It begins with the legal relation. The relation between and among ­producers is one of property-owning persons. They enjoy freedom of contract. The use of brute force aside, property ownership and freedom of contract are indispensable for building economic power. Such power would not exist if it were not for these institutions. The person who owns what you want has power over you because your respect for the person’s private property forces you to produce what that person wants and to trade your product for hers on the basis of contractual dealings. The economic power of the property-owning person is derivative of her legal position. The legally-constituted control of one’s property and the legal power to agree to a transfer constitute economic power over others as long as these others want to have what one owns. Freedom of choice is essential to economic power because it requires the freedom to abstain from exchanges. Against this background, a situation can arise in which the property-owning class is free to coerce the ‘propertyless’ class. This coercion is effected by forbearance from entering into agreements.11 The effect of the omission is deprivation and ultimately death by starvation. The propertyless class cannot act as though they were free to pick and choose transactions in the manner in which the ­property-owners can. Since all they possess is their human resource, they have to adjust their labour power to the demand of the employment market. Strategically, they have to give the property-owners an incentive to enter into an exchange of labour in return for wages. This incentive represents their modicum of economic power. While other property-owners among themselves produce commodities in order to mutually whet their appetite for stuff, members of the propertyless class have to resort to ‘self-improvement’ for their subsistence. The remainder of the story is straightforward with regard to the effects that the economy has on the human life. The propertyless have to transform their life into a mere means to sustain life.12 That which is potentially superior to mere ­self-preservation—a productive life—is effectively subordinated to the reproduction of bare life. This is an inversion of the teleology of human self-realisation.

11  See RL Hale, ‘Coercion and Distribution in a Supposedly Non-Coercive State’ (1923) 38 Political Science Quarterly 470–94. 12  See Marx (n 6) 90.

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IV. Moneymaking While the focus of Marx’s analysis undoubtedly rests on labour, it would be mistaken to conclude that alienation only affects the propertyless class. On the contrary, Marx ingeniously demonstrates that alienation is inherent in economic exchanges that are conducted in the shadow of economic power. The root cause of alienation is that it is inherent in economic power to transform all economic relations into struggles over economic power. If you, as a property-owning individual, strategically contemplate exchanges with another property-owning individual, you thereby recognise this person’s property and freedom of contract.13 You recognise this person as a p ­ erson in abstracto, namely as someone who is entitled to act on desires that happen to affect her. Marx will later come to call the resulting relation as one between and among ‘character masks’.14 The important point is that the (mutual) recognition does not extend to human beings and their needs directly. It only extends to persons in the Hegelian sense. Indeed, people who only have needs, but no property, and are not considered to be a valuable human resource, do not even appear on the scene of commerce. They are kindly referred to as ‘the needy’. Quite possibly, they are deemed eligible to handouts on moral grounds. Of course, for those who engage in trade and barter the demand for commodities indicates needs.15 But the recognition of needs is conditional upon the ­recognition of exchange value and, indeed, quite inessential for the determination of the latter. If you produce no commodities or if your commodities do not exercise any economic power over me, your need for products remains utterly irrelevant to me. Your need of my commodity is of value—and has ‘dignity’—only inasmuch as I regard your product as the equivalent of my product.16 Our mutual value is the value of our commodities: Also ist der Mensch selbst uns wechselseitig werthlos. Hence, the human being itself is mutually of no value to us.17

Property-owners who need or want what others produce have to come up with what these others want and to induce them to trade. This implies that the r­ ecognition of the needs of property-owners depends on their building up of economic power. Marx states that the mutual recognition of needs is mediated by the mutual power

13 

See ibid 190. For a valuable analysis, see G Lohmann, Indifferenz und Gesellschaft: Eine kritische Auseinandersetzung mit Marx (Frankfurt aM, Suhrkamp, 1991) 259. For the original reference, see Karl Marx, Das Kapital: Kritik der politischen Ökonomie, vol 1 (available in Marx and Engels, Werke, vol 23 (Berlin, Dietz 1973)) at 100. 15  See Marx (n 6) 197. 16  See ibid 205–06. 17  ibid 206. 14 

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exercised by commodities.18 From this follows, in turn, that property-owners only seemingly produce their own commodities. Their products are only a token used in order to receive what they want in return. In a sense, their products are merely the money they use in order to obtain other things. Thus understood, everyone is a money-maker.19 Commodities are the alternates of themselves.20 Your commodity is merely the sensual shroud (sinnliche Hülle) of my commodity because your production of your commodity means and ‘wishes to express’ the acquisition of mine.21 Under conditions of reciprocity, every producer makes himself into that which his counterpart perceives in him.22 He transforms himself into a means to an end. The end is to build up economic power, for it provides access to goods. In order to attain that objective, producers have to serve as the instruments of their ­commodities. They have to organise the competence and skill requisite for its ­production. The shoemaker is the instrument of shoes that allow him to wield economic power just as the attorney is the instrument of the claims that he files in a court of law. Marx goes so far as to say that producers become the servants of their commodities, by which he indeed suggests a relation of intrapersonal servitude.23 It is manifest in working towards distant rewards, postponing the satisfaction of wants and doing work that is indifferent to who you are and what you want.24 Like a slave, the producer is working to satisfy the wants of others in order to stay alive or even to prosper.

V.  Self-alienation and Alienation from Others This explains why Marx can claim that we become the property of our property.25 If you have to use your property in order to generate economic power, then the commodity is yours only inasmuch as it is a means that allows you to wield c­ ontrol over others. This means, according to Marx, that you are excluded from ‘true ­property’ qua enjoyment of things and true production qua self-­realisation for its own sake (including the realisation, as we shall see, of your species-being).26

18 

See ibid 204. See ibid 201. See ibid 198–99. 21  See ibid 206. 22 ibid. 23 ibid. 24  See Lohmann (n 14) 310–15. 25  See Marx (n 6) 94. 26  See ibid 87–88. 19  20 

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At this point, Marx points to the nexus between self-alienation and the ­alienation from others:27 Wir selbst sind von dem wahren Eigentum ausgeschlossen, weil unser Eigentum den anderen Menschen ausschließt. We ourselves are excluded from true property because our property excludes the other human being.28

While Marx’s analysis seems to suggest that the alienation from others follows from self-alienation, the relation between ground and consequence is actually the reverse. Alienation from others is the root of self-alienation.29 Only if everyone is indifferent to the needs of others—that is, does not focus on these directly— everyone has to aim at generating economic power for the purpose of exchange. One has to produce exactly that which makes one relatively powerful in relation to others. Since this is determined by the anonymous mechanism of the market, the pursuit of economic power forces one to be indifferent to one’s own needs, ­abilities or desire for self-realisation. The alienation from others logically precedes the alienation from the self. Since the point of economic activity is the generation of economic power, it is essential that one takes advantage of others. If producing for exchange necessarily entails maximising your economic power, then ripping off others is a maxim of prudent behaviour. In a like manner, every good produced and sold is an investment in one’s own market position. Every professional achievement is an entry in the scoreboard of the ‘résumé’. Yet, what counts as an achievement is determined by circumstances beyond individual control.

VI.  The Community in Alienated Form Under the conditions of the struggle for economic power, human beings are not the subjects of their life, neither individually nor collectively. They do not lead it. The interactions driven by the struggle over economic power come first, and human beings simply adapt to the resulting constellation of forces without ever rising above it. Yet, even under this condition we realise what Marx calls, following Ludwig ­Feuerbach, our ‘species-being’.30 It is manifest in any acts in which we implicitly recognise that we live among—and with—others.31 Buying and selling are 27 

Marx, ibid 288. property’ in Marx’s analysis is the use of material to realise one’s individual potential. This is how I, at any rate, read his remarks on p 207. 29  But see Marx (n 6) 92. 30  See L Feuerbach, Das Wesen des Christentums (1841), published in Werke in sechs Bänden, vol 5 (ed, E Thies, Frankfurt aM, Suhrkamp, 1968) 18. 31  See Marx (n 6) 195. 28  ‘True

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such acts. Were we to take cognisance of our social existence explicitly, each of us would view herself as one human being with needs among equal others. We would realise that our social nature—our mutual dependence and complementation—­ represents what is universal about us.32 Through our explicit embrace of our sociality the true community (das wahre Gemeinwesen) would appear before us in virtue of reflective insight. But this is not how the community—qua relations of interdependence— is ­actually brought about. The community is not constituted in acts involving the mutual recognition of our humanity but, rather, on the basis of a mutual ­recognition of our abstract personhood. As Marx puts it, the community appears on the ground of the need (Not) and egoism of individuals, that is, from the midst of their competitive struggle for economic power. The bases of recognition are ­private property and freedom of contract. Hence, buying and selling are indeed acts with which we realise and implicitly recognise our species-being (qua being among equal others); but we do so in a manner that does not involve the direct recognition of needs. With these acts we realise the community in alienated form. What appears, thus is the ‘Gemeinwesen unter der Form der Entfremdung’.33 The community in alienated form is a ‘caricature’34 of the true community, not least because its constitution involves the inversion of the true human speciesbeing.35 Activity turns out to be suffering. The own creation is experienced as an alien power and the affluence of society means poverty for most. What is more, the essential bond among human beings is considered to be quite inessential to humans. Living separately from others is espoused as being part of human nature. Living as such is taken to involve sacrificing the enjoyment of life. In a word, living a life means having no life. Marx contrasts this constitution of community with how the community would appear if people acted upon the mutual recognition of their species being. First, from the perspective of individual agents labour would be experienced as a manifestation of their very own powers and capabilities. Work would be, as Marx puts it, a free expression of life and not the alienation of life (Lebensäußerung in lieu of Lebensentäußerung).36 Second, if the individual agent works for the satisfaction of her own needs, she experiences the work as serving its purpose. Third, if others enjoy the product, the agent realises that she has actualised the sociality of human beings, which consists of benefitting others (and to be benefitted by them). From this follows, forth, that the agent understands that the people who are benefitted by her regard her existence as a complement of their own. They could not be who they are if the agent’s work were not an integral component 32 

ibid 207. ibid 195. 34  ibid 196. 35 It should be noted that Marx uses the term Gemeinwesen deliberately both in literal and ­metaphorical form. Gemeinwesen stands for the community, but also for the essence of human beings inasmuch as it involves living among others. Every human being is communal in the sense of having or being a Gemeinwesen. 36  See Marx (n 6) 207. 33 

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of their lives. Marx captures this last manifestation of the species being in the ­following poetic image: Unsere Productionen wären eben so viele Spiegel, woraus unser Wesen sich entgegen leuchtete. Our productions would amount to as many mirrors out of which our essence shone towards itself.37

Less exuberantly stated, our species-being is manifest in intentional actions in the sphere of production and reproduction, that is, when people engage in production and exchange in recognition and anticipation of the needs of others. Clearly, the intentions of the species-being must reflect love of humanity. This explains why such a being must appear to be out of place in civil society. The mutual recognition of needs in the context of designing social arrangements was, however, a prominent theme of John Rawls’ theory of justice. Rawls ­characterised society as a system of co-operation for the benefit of all.38 The ­subject of social justice is the distribution of ‘primary goods’.39 These were ­understood to be, at least in Rawls’ later works, legitimate representations of human needs.40 From this angle, which is undoubtedly not Marxian, it is possible to contrast the horizon of the species-being with the mind-set of the species-being in what would be the ‘caricature’ of a system of cooperation. In the first case, people would use their sense of justice in order to design arrangements leading to a just distribution of primary goods. In the second case, they pursue their self-interest in a competitive economy, which is a community in alienated form. In a community of that kind, the generation of universally beneficial social output is not a common aim. The species being is not realised directly because people do not transact for the sake of satisfying the needs of others. Actually, a market economy demotes the pursuit of this social objective to the level of a by-product. What could potentially be controlled becomes a side-effect of operations that, in the aggregate, are deemed to be beyond human control. Society becomes alien to its members. The theologians of this alienated form of existence call it ‘catallaxy’ and profess belief that this Être suprême is superior to anything of human design.41

VII. Essentialism? The above analysis suggests strongly that Marx’s reference to the ‘species-being’ invokes an essence that provides the criterion for any finding of alienation. Hence, the belief in alienation seems to presuppose some form of ‘essentialism’. 37 

Marx (n 6) at 207. See John Rawls, A Theory of Justice (Cambridge, MA, Harvard University Press, 1971) 4. 39  ibid 62. 40  See J Rawls, Political Liberalism (New York, Columbia University Press, 1991) 187–90. 41  See FA Hayek, Law, Legislation and Liberty, vol 3 (Chicago, Chicago University Press, 1979). 38 

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This point may even have to be conceded inasmuch as a certain structure of interaction is deemed appropriate to human flourishing. But it does not entail the belief that individuals are the owners of some inner essence that becomes eclipsed by forms of system integration. The experience of alienation is not epitomised by the person who was born to be a concert pianist and ends up preparing tax returns for others. Alienation is above all a sentiment. It is by virtue of this sentiment that ­individuals become aware of the false realisation of human sociality. Moreover, it is through alienation that social cooperation on markets becomes conscious of itself in the medium of an emotional state or Befindlichkeit. Society thereby recognises its false actualisation within something that itself gives rise to a cluster of social phenomena such as widespread boredom, absenteeism, paresse, shallow consumerism, drug abuse etc. Whoever experiences alienation therefore already rises above the mere interplay of economic power and perceives it—internally— from the outside. Thus understood, the sentiment is a proto-political act.42 Rising above mere interdependence is what common action is all about. Hence, experiencing alienation is already an epiphany of emancipation. But it does not amount to action; or rather, it is action only in a state of being inhibited by the powerlessness that is emotionally recognised. This explains why the recognition of alienation does not, contrary to its appearance, presuppose an essence, perhaps not even the species-being. It merely requires recognition that one’s own agency is really not what it appears to be.43 It is not agency of the self. Marx describes this situation in quite drastic terms. Doing is experienced as suffering, strength as impotence and procreation as ­castration.44 It is the experience of passivity, that is, of being an onlooker of one’s own life.45 Viewed from this angle, the experience of alienation can be reconstructed as reflecting unconscious self-determination. It is self-determination of a reflexive kind, namely a determination of what counts as one’s own action. It sets the social norm on the ground of which everyone can judge whether she can find herself in her actions or is, instead, a pinball tossed around by economic circumstance. More precisely, the experience of alienation involves a critique of an understanding of collective self-determination that is inherent in the horizontal transactions of abstract persons. Assuming that the decentralised operation of the market can

42  One needs to be particularly circumspect at this point. Remarks of this type are darlings of an aesthetically enchanted left that is easily disposed to mistake feelings for a political action. It is important, therefore, to stress the proto-political nature of emotional social self-knowledge. 43  See Marx (n 6) 88. 44  ibid 89. 45  On the contemplative character of the self-relation of the subject under capitalism, see already, G Lukács, Geschichte und Klassenbewusstsein: Studien über marxistische Dialektik 10th edn (Neuwied, Luchterhand, 1988) 191.

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count as a form of collective private self-determination the outcome of market transactions represent the volonté de tous of the community in alienated form.46 This form of self-determination is challenged through the anticipation of a community in non-alienated form. What collective self-determination would have to amount to in its case is notoriously difficult to pin down. Historically, at any rate, its demands have been articulated by establishing negative liberty from collective private self-determination through various forms of de-commodification.

VIII.  From Alienation to Despair At this juncture, a remarkable convergence can be observed in the relation of the two grand alternatives of post-Hegelian philosophy.47 Marx’s account of alienation and Kierkegaard’s analyses of despair reflect the same situation, however from different angles. Marx reconstructs the social causes of a widespread sense of disempowerment, while Kierkegaard can be read as examining how the ­disempowered self rationalises this effect by developing two alternative outlooks on life. These rationalisations—which can be called, loosely speaking, ‘aesthetic’ and ‘ethical’—lend expression to impoverished understandings of human agency. The social prevalence of these understandings is integral to the community in alienated form. That is, the understandings are manifest in maxims that people act upon. Despair is a symptom of alienation in the sense that it arises from the attempt to restore the power of agency. This attempt must fail because all power of agency is falsely supposed to be vested in the individual self. Assuming that Michelle Kosch’s fresh interpretation of Kierkegaard’s pseudonymous writings is correct, then, the two conscious forms of despair identified by Kierkegaard are vain attempts to restore the power of individual agency.48 They are unpromising, for their view of agency is mistaken.49 Read against a Marxian background, this suggests that the false relation towards others, epitomised by the horizontal realisation of the legal relation, carries over into the relationship of the self towards itself. Not by accident, the falsity of the conceptions of agency lies precisely in what is at stake in alienation, namely, the experience of not acting oneself, that is, of being acted upon while purportedly acting. The false conception of agency reflects this experience in the attempt to conceive of oneself as an agent.

46 See A Somek, The Cosmopolitan Constitution (Oxford, Oxford University Press, 2014) 32, 159, 162. 47 See K Löwith, Von Hegel zu Nietzsche: Der revolutionäre Bruch im Denken des neunzehnten ­Jahrhunderts (Stuttgart, Kohlhammer, 1950) 162–68. 48  See M Kosch, Freedom and Reason in Kant, Schelling, and Kierkegaard (Oxford, Oxford University Press, 2006). 49  See ibid 143, 154, 204.

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The first conscious form of despair that Kierkegaard identifies in The Sickness unto Death concerns ‘not wanting to be oneself ’.50 Whatever the deeper ramifications of such an attitude of self-rejection might be, it is consistent with an alienated life in which one experiences one’s accidental make-up and ‘natural endowments’ as constituting a risk to well-being or success.51 Your abilities and inabilities may turn out to be obstacles, paradoxically, either to your wellbeing or to what society requires in order to create a presence for yourself.52 It is best for you to be what is most conducive to the satisfaction of wants or what passes as socially apposite. But even if you do not succeed at transforming yourself into who you are not, you at least have to be adept at playing some role that carries the promise of success. This infuses agency—the agency that you observe in yourself as well as in others—with theatricality. This is of relevance for the socially generalised conception of agency. It posits that the self has no substance and is, in its relation to itself, not dependent on relations to others. The self has to conceive of itself as capable of taking on any shape that is conducive to the satisfaction of wants and the successful projection of a persona. It is immaterial what the self might be outside of the roles that it performs. This irrelevance is the core of not wanting to be oneself. The conception of agency is, however, flawed. The self is driven by two forces, namely, the desires that the self happens to be thrown into, on the one hand, and the anonymous mechanisms for the allocation of social esteem, on the other.53 The self does not choose itself; it has itself chosen by the circumstances of wantsatisfaction and recognition. It is drifting through life.54 The self finds itself in what it does as if it were genuinely present in its acts even though this presence is in fact the work of heedless yielding to impulses and appetites. There is no selfdetermination and, therefore, no sensible way to establish the self ’s responsibility for action. The other form of conscious ‘Kierkegaardian’ despair arises from the attempt to restore self-determination. Hence, it results from wanting to be oneself. Being oneself vis-à-vis wants and conventions of social recognition presupposes that one rise above fleeting affections.55 Over and above various drives and wants

50  See S Kierkegaard, The Sickness unto Death: A Christian Psychological Exposition for Upbuilding and Awakening (ed and trans HV Hong and EH Hong, Princeton, Princeton University Press, 1980) 49. 51  See R Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA, Harvard University Press, 2001). 52  From a ‘Rousseauian’ perspective, we are clearly confronted in this case with a more pathological manifestation of amour-propre. For an illuminating commentary, see F Neuhouser, Rousseau’s Theodicy of Self-Love: Evil, Rationality, and the Drive for Recognition (Oxford, Oxford University Press, 2008) 74–75. 53  It is a Hegelian critique of Romantic irony that is repeated in Kierkegaard’s work. See J ­Rebentisch, Die Kunst der Freiheit: Zur Dialektik demokratischer Existenz (Berlin, Suhrkamp, 2012) 156–60. 54  See Kosch (n 48) 149. 55 See generally, CM Korsgaard, Self-Constitution: Agency, Identity, and Integrity (Cambridge, ­Cambridge University Press, 2009).

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resides, supposedly, a self-legislating being. Selfhood is possible only in virtue of ­autonomy.56 An idea of who one is and ought to be in order to be true to oneself— a conception of one’s character—represents the law that the self is to itself. This idea informs and guides particular choices. Such autonomy would not be satisfactorily grounded if the self found itself thrown into a particular character without being able to change it. The self can count as autonomous only if it is able to transcend itself and to recalibrate its character ‘from above’. In other words, it must partake of universal selfhood in virtue of which it is capable to rise above heteronomous forces.57 This accounts for its moral existence.58 The self can be true to itself if it respects the moral law, which is nothing but the law that the self is to itself inasmuch as it rises above all particular desires and characteristics. Rising above such heteronomous forces is the effect of a cause that is not mired in the necessity of nature. In order to enact this causality the self must strive to overcome its dependence on mere nature and to control impulses and inclinations in the face of objectives.59 It is through the control of urges and enticements that the self can realise itself as a self-determining being. In marked contrast to the ‘aesthetic’ attitude with which the first despairing self surrenders itself to pleasure and convention, its second, ‘ethical’, counterpart aspires to take total control of itself because this is what it believes to be required in order to be true to itself.60 The form of despair that emerges from this ambition is a relative of the paradox of autonomy.61 The law that the self is supposedly to itself is revealed only in the control of inclinations and impulses. The transcendence of impulses, however, also exhausts what the self is. The self lacks substance. It is pure negativity. Since, by stipulation, no substance is within the self, any substantive determination of the self can only originate from the outside. Consequently, in order to stay true to itself, the self constantly has to reinvent itself.62 Such a conception of the self is, however, literally self-defeating.63 In any moment in which the self controls one impulse or inclination it has to suspect itself of being vulnerable to the influence of another. Exercising control in one respect involves relinquishing it in another. Since the self is substantively empty, it is systematically vulnerable to external determination, which it must try to shed in the next act.

56  See, in particular, JG Fichte, Das System der Sittenlehre nach den Prinzipien der Wissenschaftslehre (1st edn 1798, ed H Verweyen, Hamburg, 1995) 49. 57  See Kierkegaard (n 50) 67–68. 58  See Fichte (n 56) 55. 59  See I Kant, Kritik der reinen Vernunft (ed H Klemme, Hamburg, Meiner, 1998) 622 (A 534/B 562). 60  See Kosch (n 48) 204. 61  On the paradox that the self-given law appears to be given by a lawless self, see the helpful ­introduction by T Khurana, ‘Paradoxien der Autonomie’ in T Kurana and C Menke (eds), Paradoxien der Autonomie: Freiheit und Gesetz I (Berlin, August Verlag, 2011) 7–23. 62  See RM Unger, Passion: An Essay on Personality (New York, Free Press, 1984). 63  On forms of despair as self-defeating constructions of human agency, see Kosch (n 48) 154, 204.

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What one arrives at, in the end, is a strangely heteronomous form of a­ utonomy, the social face of which is well-known. Many ascetic selves take their cue from social norms that target various dangerous dependencies. They quit smoking cigarettes. They ingest fat-free yoghurt and drink non-alcoholic beer. They f­ollow social norms while patting themselves on their backs and taking pride in a willpower that flatters their self-love.64 Asceticism is a form of narcissism.65 ­Substantively, however, it may be entirely conventional. This demonstrates that wanting to be oneself is eventually subsumed under not wanting to be oneself. Self-control can be a technique mastered by a self living entirely outside of itself. The second form of despair falsely suggests self-mastery. Any self that is consumed by this idea must mistake its own self as the epiphany of the universal self. But since it cannot rise above particularity and heteronomy in virtue of its substantive emptiness, it turns out to be an embodiment of evil.66 Kierkegaard attributes the second misconstrual of agency to a false sense of independence. The self does not realise that the relation that it entertains to itself is established by something outside of itself.67 As a religious thinker, Kierkegaard conceives of this dependence of the relation that relates to itself as recognition of external normative authority that is revealed to human beings. Even though religious belief is irrational—it cannot be deduced on theoretical or practical grounds—Kierkegaard believed that it ‘fits’ the situation of human agency better than any aesthetic or ethic attempt to break away from it.

IX.  Beyond the Legal Relation Kierkegaard’s conclusions concerning the dependent nature of free agency do not necessarily entail a move towards religion. They merely recognise that individual self-determination depends on something outside of itself and that it cannot be accounted for so long as it is spelled out only formally, either as ‘weak’ role-play or as obsessive permanent re-invention.68 The dependence, of course, has to be adequate to self-determining agency. Hence, only another free agency can be a candidate for what the self depends on.69

64  See S Freud, ‘On Narcissism: An Introduction’ in S Freud, Complete Psychological Works, vol 14 (J Strachey trans, London, Hogarth Press, 1957) 73–102, 74–75. 65 See R Pfaller, Die Illusionen der anderen: Über das Lustprinzip in der Kultur (Frankfurt aM, Suhrkamp, 2002). 66  See Kosch (n 48) 212–14. 67  See Kierkegaard (n 50) 79. 68  Kierkegaard also called the first form of despair ‘despair in weakness’. See n 50 at 49. 69  This is, at any rate, the lesson that can be drawn from Fichte’s Aufforderung qua summons to engage in free activity. See JG Fichte, Grundlage des Naturrechts nach Prinzipien der Wissenschaftslehre, in his Werke: Auswahl in sechs Bänden vol 2 (ed F Medicus, Leipzig, Meiner, 1912) 36–37. Fichte’s work has been recently discovered for analytical moral philosophy by Darwall. See S Darwall,

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Otherwise, the relation of dependence would not generate another free agent. The dependence of freedom has to be a dependence on freedom. Stated differently, dependence is the equivalent of independence if every dependent agent embraces the free selfhood of others on which his particular selfhood depends. This dependence is not merely formal. It is substantive. One discovers who one is only in interactions with others. It is written into a historically defined structure of interdependence. This is how we can share our particularity and attain the i­ndependence—the universality—that is unattainable for anyone considered in isolation.70 We began with various analyses by Marx that have helped us realise that alienation is first and foremost about the loss of individual agency. The most elementary point of Marx’s observations was that the struggle for economic power demotes work to working for a living (Erwerbsarbeit) and human life into a means of its own subsistence. The coercive force of economic power, even though backed up by law, resides in the broader situation of action. One is forced to transform oneself into the human resource that the market requires one to be. One ends up doing what one does following the dictates of self-preservation. All actions are acts of yielding. They are basically passive and, in a sense, forms of suffering. Kierkegaard’ hermeneutics of despair can be read as rationalisations of how the self relates to itself as an agent under conditions of a lack of agency. The self is then cast as either capable of enacting a role or as firmly controlling its impulses. In both cases, however, the substantive emptiness of the self indicates that agency exists only in a highly diminished way. While both conceptions suggest empowerment, the requisite power is that of someone who merely adapts to the circumstances that drive him. True agency, by contrast, would have to overcome two dimensions of indifference that prevail in the situation of alienation and its reflexive coping in despair. The Second-Person Standpoint: Morality, Respect and Accountability (Cambridge, MA, Harvard ­University Press, 2006) 246–47 and, most recently, his ‘Why Fichte’s Second-Personal Foundations can Provide a More Adequate Account of the Relation of Right than Kant’s’ in Grazer Philosophische S­ tudien (forthcoming, 2016). Darwall’s reading of Fichte appears to be often entirely correct, in particular when he emphasises that the Aufforderung (‘summons’) invites a person to regard herself as being seen as a free and rational being. See S Darwall, ‘Because I Want It’ in his Morality, Authority, and Law: Essays in Second-Personal Ethics I (Oxford, Oxford University Press, 2013) 93–113 at 108–09. Yet, at times Darwall seems to assimilate the ‘invitation to free effective activity’ implicit in the making of secondpersonal demands. This is too specific. Rather, Fichte has one paradigm for the Aufforderung, namely, acts of education that are presupposed to elicit the autonomous insight on the part of the pupil. See, for example, L Siep, ‘Naturrecht und Wissenschaftslehre’ in Fichtes Lehre vom Rechtsverhältnis: Die Deduktion der §§ 1-4 der Grundlage des Naturrechts (ed M Kahlo et al, Frankfurt aM, Klostermann, 1992) 71–91, 84. Honneth is of course right in concluding that the Aufforderung is implicit in every speech act that expects a rational reply by the addressee. Hence, the Aufforderung is one attempt to explain subjectivity on the basis of intersubjectivity. See A Honneth, ‘Die transzendentale Notwendigkeit von Intersubjektivität (Zweiter Lehrsatz: § 3)’ in Johann Gottlieb Fichte: Grundlage des Naturrechts (ed J-C Merle, Berlin, Akademie Verlag, 2001) 63–80, 76. 70  We need, in a sense, to embody the particularity of all others in our own life. And this is possible within a structure of social action in which we mutually share our particularity with others. What this means is the great riddle of political philosophy.

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First, there is indifference towards what could be our own life. Put in ­Marxian terms (anticipating Harry Frankfurt), people follow outer rather than inner ­necessity.71 Self-realisation is indefinitely postponed. This indifference is a systemic, but not a necessary, feature of market relations. It is a systemic feature because its emergence is inherent in the operation of markets as such. At the same time, it does not necessarily arise. It is conceivable that market relations actually involve a mutual interest in the free self-realisation of others. The latter is quite consistent with our ‘species-being’. Whether or not self-realisation is possible, is left to chance. It is not systemically induced.72 Second, alienation bespeaks indifference towards what could be achieved through common action. The experience of alienation teaches actually that you cannot be free if you are left to your own devices. You cannot by yourself rise to the level at which you are capable of controlling your circumstances and rise above the level at which the dictates of self-preservation force you into certain choices. You cannot, in other words, lift yourself up to the level where you no longer live the life of a slave. Real freedom is a common achievement, something that human beings have to bring about together. If, therefore, alienation is about a loss of individuality in one’s action, the key to its transcendence has to be sought in a form of individuality that is inherently social or, put differently, in a form of personal self-realisation that is reciprocally concerned with others.

X.  Social Freedom There are at least two conceivable ways to overcome alienation. The first requires that humans collectively rise above markets and control their social cooperation on the basis of an interpretative assessment and determination of their needs. ­Economic power is thereby superseded by establishing common control. We ­associate this step with socialism or communism. Both have had a bad press since 1989, and we do not need to enter into a discussion of the requisite failed projects here. There is, however, one presupposition of the communist project that has been contested, surprisingly, by critical theorists. It is the presupposition that the common coordination and control of production and distribution reconciles people with what they do. If that were the case, drudgery would lose its alienating character as long as it were carried out with the awareness that it is for the good of others

71 

See Marx (n 6) 207. is an intriguing fact, of course, that an alienated life offers an equivalent to self-realisation, namely the ‘career’. The social psychology of the career is intricate, not least because it is deeply entangled with amour-propre. It is about being by means of shining in the eyes of others. Perhaps the career is the interface at which the analysis of alienation has to yield to the analysis of ‘Kierkegaardian’ despair. 72  It

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whom one thereby benefits. A communist society would in and of itself offer good work for everyone. There is reason to be sceptical that the alienation of labour can ever be overcome. It explains, for example, why Habermas shifted the emphasis of a critical theory from labour to the creation of less dominated structures of communication.73 From a different angle, Menke perceives an enduring tragic conflict between the right and the good, which also provides a profound challenge to any communist project.74 For even if it were possible to create a world in which tasks, resources and goods were allocated justly, there would still be no guarantee that people could lead lives that they regarded as authentically their own. The tragic conflict between family loyalty and loyalty to the polity, which is a topic of antiquity, is thus replicated within a polity that supposedly reconciles this conflict through a social contract. Yet, the conflict is replicated in the relation between the legitimate demands of the community and the aspiration of individual self-realisation. There is, however, a second way of addressing the predicament of alienation. It is essentially conservative, not only because it leaves the market principally in place, but because it looks back to traditions of de-commodified human dealings. It aims at protecting parcels of social freedom against erosion. Authors of different persuasion have opted for it under different name, most famously Michael Walzer under the heading of ‘Spheres of Justice’.75 Keen interpreters of Hegel’s social philosophy, such as Frederick Neuhouser and Axel Honneth, have recently reinvigorated the category of ‘social freedom’.76 This freedom is, essentially, not only about having a choice but also about being present in activities and goods that one cares about. Simply put, it concerns not the possibility (‘choice’), but the actuality of freedom. Arguably, the presence of persons in their own doings depends on two conditions. The first condition has made Hegel’s philosophy of law perennially controversial even though Hegel began with a relatively uncontroversial premise. One is not really free—or, one is only formally free while substantially alienated from oneself—if one’s status or action is experienced as resigning oneself to a foreign force or will. People can through their own choices relinquish themselves to fate. This is not terribly controversial. Hegel’s views become divisive when we are told that individuals can overcome a state in which they are detached or alienated from their own lives by reconciling themselves with traditional social roles. The explanation for this proposition, which must smack of conformism, is that individual freedom can be ‘actual’ only if it fits into an already existing social world.

73 

See J Habermas, Technik und Wissenschaft als ‘Ideologie’ (Frankfurt aM, Suhrkamp, 1968) 46. C Menke, Tragödie im Sittlichen: Gerechtigkeit und Freiheit nach Hegel (Frankfurt aM, Suhrkamp, 1996). 75  See M Walzer, Spheres of Justice: A Defence of Pluralism and Equality (Oxford, Blackwell, 1983). 76 See F Neuhouser, Foundations of Hegel’s Social Theory: Actualizing Freedom (Cambridge, MA, Harvard University Press, 2000) 33–37; A Honneth, Das Recht der Freiheit: Grundriss einer demokratischen Sittlichkeit (Berlin, Suhrkamp, 2011) 81–110. 74 See

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Hegel had at least one reason for his belief. The freedom of moral self-­legislation may result in aloof detachment. For example, it is perfectly consistent with the categorical imperative to live without private property since it would not be immoral to have a socialist society. If one were to choose to live on the basis of this maxim, however, one can scarcely establish a connection with others whose lives are calibrated to a property-owning world. Therefore, individuals can live among others only if they identify with a social role. But not just any social role: the role has to be coherent with the role and interests of others. If they did not so identify, they would, as some utilitarians and Kantians undoubtedly do, live in a moral fantasy world. Freedom has to have ‘substance’, in Hegel’s words. This is not to say, however, that the slave is expected to identify with his status. Relationships of social freedom are constituted by a mutuality that serves as a test for the adequacy of roles. If whatever one is or does is of value to others, it has to be reciprocated by doings or attitudes that are of value for oneself and must leave one with a set of valuable options. The second condition of social freedom says that the participants in such an institutional setting recognise their mutual dependence and embrace it either affectionately or in a spirit of loyalty and solidarity. Their relationship would be altered profoundly if it became asymmetrical and one person took advantage of the weakness and vulnerability of others. The attitude of this one person towards others would no longer be that of a genuine appreciation of what these others are or what they do; he would rather use them and their needs as mere tools for his own advantage. The whole relationship would change, for those who fall victim to extortion or exploitation would no longer be fully invested in what they do. They would grudgingly yield to demands. Remarkably, the beneficiary’s freedom would no longer be extended into the freedom of another. In Hegel’s terms, the beneficiary would no longer encounter someone like himself, but an unfree person, in the others who serve him.

XI. Conclusion The European Union has put the individual at the centre. It empowers those who are agile and adaptable and relieves them from dependence on received social bonds and hierarchies.77 It provides European citizens with access to services and benefits even if the factors connecting them with the relevant national social ­system are tenuous. Most remarkably, European Union law recognizes solidarity only inasmuch as it gives rise to transfer payments or cross-subsidisation.

77  See A Somek, ‘The Individualisation of Liberty: Europe’s Move from Emancipation to Empowerment’ (2013) 4 Transnational Legal Theory 258–82.

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S­ olidarity is treated as a resource to be tapped by individuals. European Union law turns a blind eye to the link between individual agency and its facilitating social conditions. From the perspective of Union law, the chief means for the realisation of ­individual liberty is freedom of contract. This concerns, at its core, the freedom to engage in trade and barter. But it extends also to the freedom to accept employment anywhere in the Union; the freedom to buy an apartment and to spend the retirement years outside of your home country or, even the freedom to have the braces for your daughter prepared by an orthodontist established in another Member State. The moral horizon of European Union law is freedom of choice unhampered by obstacles directly or indirectly linked to national borders. The Union’s endorsement of freedom of choice, however, has always been accompanied by a vague Durkheimian hope. Émile Durkheim famously claimed that the economic benefits that accrue from an intensified division of labour are merely the surface manifestation of an inner state of solidarity.78 The means to bring about this ‘organic’ form of solidarity are contacts and contracts. Arguably, for many decades European market integration has been carried out with the confidence that it will create what Schuman enigmatically called ‘de facto solidarity’. Europe is supposed to grow together on the basis of market transactions. Durkheim was aware, however, that the organic solidarity that results from ­contractual dealings cannot be brought about simply by creating the ‘most competitive’ market economy.79 A highly complex moral matter becomes trivialised if one assumes that removing obstacles to commerce and market liberalisation create the ‘altruism’ that Durkheim took as a signal that individuals are sufficiently attached to their fellow beings. The loyalty towards others from which the a­ ltruism supposedly grows presupposes certain types of social experience. The experience conducive to solidarity is not that of cut-throat competition but rather that of making a meaningful contribution to a larger whole that rewards contributions in proportion to their merit. Growing social inequality does not create the ­impression that people are given their due. Mutual independence will be experienced as ­liberating if people understand that they mutually enable one another to accomplish great things. This experience will not be made if people feel that they are simply pushed around by anonymous forces. It will breed hostility, which, according to Durkheim, is an anomie of the division of labour.80 While it may be conceded that the personal experiences of alienation and despair are not of direct relevance to European Union law, their existence r­ epresents how the larger European society experiences itself within the consciousness of its ­individual members. Law is the means to integration. If its operation does not give rise to social solidarity, integration will flounder.

78 

See É Durkheim, The Division of Labour in Society (trans WD Halls, New York, Free Press, 2014) 50. ibid 97. 80  See ibid 280–83. 79 

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We have lost faith in the greatness that comes from common action. Sadly, this is exactly the faith that Europe would need. The solidarity that prevents ­disintegration can only come from embracing the libertarian nemesis of statehood. Through the exercise of political power the people can get their relations in order. But nobody seems to care and nobody seems to dare. As a result, Europe will continue to be the continent where the cool bourgeois disparagement of politics is accompanied by desperate forms of ascetic empowerment.

3 The Subjectification of the Citizen in European Public Law MARCO DANI*

I. Introduction The condition of individuals is a key concern for both national constitutional democracies and supranational law, the legal and political orders constituting European public law.1 Yet, the relationships between individuals and those ­governmental projects appear only at a superficial level similar. Despite their common acceptance of human dignity, fundamental rights, rule of law and democracy as founding values,2 supranational law and constitutional democracies conceive of and govern the individual from remarkably different perspectives. Due to their institutional and ideological specificities, those projects recognise in subjects different capacities, interests and aspirations and, critically, exert on them similarly different defining pressures. This chapter analyses these processes of subjectification by taking as a focal point the individual qua citizen. It first spells out in more detail the notion of subjectification and its peculiar manifestation in the context of European public law (section II). Then, it offers an excursus on the subjectification of the citizen by examining its main constitutive dimensions: belonging, rights and participation. The excursus examines three distinct phases of the evolution of European integration. First, it explores the ‘social state era’ and the affirmation of the constitutional subject, a type of citizen devised essentially within national constitutional democracies with supranational law offering only additional rights for the economically

*  Faculty of Law, University of Trento. This chapter was presented at the conference ‘The Category of the Person in EU Law’ held at the European University Institute in Florence in November 2014. I am grateful to the discussants and the participants for their comments. I am also grateful to Luisa ­Antoniolli, Jan Komárek and Leonardo Pierdomenici for comments and suggestions on an early draft of this chapter. All errors are mine. 1  I have investigated the composite nature of European public law in Il diritto pubblico europeo nella prospettiva dei conflitti (Padova, Cedam, 2013). 2  Art 2 TEU.

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active (section III). Secondly, it explores the transformation of the constitutional subject prompted by the expansion of supranational law and the emergence of the ‘advanced liberalism’ agenda (section IV). Finally, the chapter evaluates the condition of the citizen during the financial crisis, a stage that probably witnesses the twilight of the constitutional subject as conceived of in the social state era (section V). The upshot of this excursus contradicts more conventional accounts of subjectivity in the EU emphasising a civic turn in the understanding of the individual: if the relationships between individuals and the governmental projects constituting European public law are considered, the evolution of European integration is paralleled by an involution of citizenship; or, at least, of the idea of citizenship imagined in national constitutional democracies in post-World War II (section VI).

II.  Subjectification, European Public Law and Citizenship Liberal and democratic legal orders are premised on the idea that government should conform to the nature of those governed.3 Accordingly, the relationship between the individual and the legal and political order is usually construed in terms of recognition: to live up to their liberal and democratic credentials, governments are expected to reflect in their structures and policies individuals’ values, aspirations and interests. Yet, the process through which this alignment occurs is, in fact, more interactive. Nikolas Rose, for instance, claims that policies and institutional arrangements do not simply recognise individuals’ preferences.4 The relationship between government and those subject to its rule involves also a different and opposite vector: individuals are acted upon by government and, thus, it is their preferences which are also shaped by government’s projects.5 Put differently, besides being recognised in our autonomy as subjects, we are also targets of regulatory strategies exerting defining pressures on us.6 According to this process— with Rose, we may call it ‘subjectification’7—the alignment between government and governed ensues from a more circular dynamic based on both the recognition of individuals’ nature and its shaping by government operation.

3 N Rose, Inventing Our Selves—Psychology, Power and Personhood (Cambridge, Cambridge ­University Press, 1996) 119. 4 ibid. 5  ibid, 121–22, where it is observed how, most of the time, alignment of individuals’ preferences with the goals of government is the product not of imposition of politically determined standards, but of free choice and rational persuasion. 6  ibid, 152. 7  ibid, 10.

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When observed in the context of current European institutional setting, subjectification plays out in a rather peculiar way. It appears, first of all, as a complex process. Owing to the composite structure of European public law and, namely, its articulation in supranational law and national constitutional democracies, individuals are often situated at the intersection of multiple governmental strategies with distinct and not necessarily coherent policy goals, rationales and ideologies. If this exposes them, in principle, to both the promises and biases of each governmental project, their actual subjectification results from a more complicated equation including also structural and temporal variables. The structural element goes to the pluralist configuration of European public law.8 Given that neither of its constitutive components boasts exclusive authority on individuals, European public law generates fragmented subjectivities reflective of both governmental strategies. The quality and strength of the pressures effectively exerted is temporally dependent. It is thus because, first, the nature of both supranational law and national constitutional democracies has known markedly different seasons, all registered in their currently stratified identity. Secondly, the relationships between those governmental projects has evolved over time, alternating phases of peaceful coexistence with more turbulent phases of competition. As a result, a study of subjectivity in contemporary Europe must first trace the variety of defining pressures exerted over time on individuals by both national constitutional democracies and supranational law. Moreover, it is also to the varying relationships between the latter that one must look: it is by examining their particular combinations that the actual defining pressures exerted on the individual in a given period can be decoded. A useful focal point to test these propositions is offered by citizenship,9 the ­distinctive legal status and political ideal10 regarding the condition of an individual in a polity.11 To understand the subjectification of the citizen in European public law, it is not sufficient to focus on how its core ideal of civic equality12 is developed in, respectively, supranational law and national constitutional democracies. To account for the recognition and shaping of citizens’ qualities in Europe a broader perspective must be embraced including the three defining dimensions of citizenship.13 Belonging is the first aspect requiring investigation. In this

8  N MacCormick, ‘The Maastricht-Urteil: Sovereignty Now’ (1995) 1 European Law Journal 264. On pluralist paradigms, see N Krisch, Beyond Constitutionalism—The Pluralist Structure of Postnational Law (Oxford, Oxford University Press, 2010) 71–78. 9  Alternative subjective characterisations may be equally valid and illuminating. On the subjectification of the consumer, see my ‘Assembling the Fractured European Consumer’ (2010) 36 European Law Review 362. 10  J Shaw, ‘Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism’ in P Craig & G de Bùrca (eds), The Evolution of EU Law (Oxford, Oxford University Press, 2011) 575. 11  On citizenship as a status distinct from other types of political affiliation and social relationships see R Bellamy, Citizenship: A Very Short Introduction (Oxford, Oxford University Press, 2008) 2–3. 12  ibid, 17. 13  ibid, 12–17.

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regard, analysis is expected to ascertain who the citizen is with a view to possible grounds of internal (gender, ethnicity, class) or external (nationality) exclusions. The detection of the locus and degree of collective identification of individuals with a particular political community also pertains to this dimension. The second constitutive dimension of citizenship relates to the rights associated with membership of a polity. In this field, analysis indicates the set of entitlements and provisions viewed as necessary to consider each individual member worthy of equal respect and concern. Of particular importance within this set of rights are those enabling individuals to voice their interests and aspirations in the public sphere. This goes to the third dimension of citizenship, that of participation, a field which can be broadened to encompass also the institutional infrastructures employed to mediate the conflicts generated by participation and to translate collective selfdetermination into policy.

III.  The Affirmation of the Constitutional Subject in the Social State Era The first period reviewed in our excursus is that extending from the end of World War II to the entry into force of the Single European Act (1987). It is the period in which both governmental projects constituting European public law are defined in their distinctive characteristics. On the one hand, national constitutional democracies institutionalise the social question by establishing legal and political orders grounded on representative democracy and the protection of fundamental rights. On the other hand, supranational law is the vehicle for a regulatory project promoting market efficiency through the protection of economic freedoms and executive policy-making. Throughout the social state era, European public law gravitates mainly towards national constitutional democracies,14 with supranational law performing a complementary function. A division of labour is established between the regulatory structure of supranational law and the redistributive mechanisms incorporated in national constitutional democracies.15 It is precisely by keeping distinct the material domains of its constitutive governmental projects that European public law eschews conflicts of legal authority and secures its overall stability.16 14 CJ Bickerton, European Integration. From Nation-States to Member States (Oxford, Oxford University Press, 2012) 89–90. 15  M Ferrera, The Boundaries of Welfare. European Integration and the New Spatial Politics of Social Protection (Oxford, Oxford University Press, 2005) 90–95. This division of labour found some recognition also in the case-law of the Court of Justice (see eg Case C-263/86, Belgian State v René Humbel and Marie-Thérèse Edel [1988] ECR I-5365). 16  Both the Court of Justice (Case C-6/64, Flaminio Costa v ENEL [1964] ECR 585) and national constitutional courts (see eg Italian Constitutional Court, sent 183/1973 (Frontini) [1974] CMLR 372) conditioned the primacy of EU law to its limited remit.

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A. Constitutional Subjects in Re-founded National Political Communities The years immediately following the end of World War II are rightly remembered as a period of intense reconstruction and enlightened political activity in Europe. Among the many political achievements of the time, the affirmation of the constitutional subject is one of the most telling because it has inspired legal and political thinking on citizenship up until today. The affirmation of the constitutional subject is closely related to the re-foundation of national political communities. In the last years of the war the idea of elevating individuals’ collective identification to the European level had a certain appeal only in a restricted circle of politicians and intellectuals.17 Thus, after the end of the war, priority was generally given to the re-foundation of national polities.18 Crudely put, no individual had died for a united Europe. The sacrifices of the war had been essentially made on behalf of nation states and, critically, often against other European countries. National diversities and conflicts were too tangible a reality to fall into oblivion,19 so much so that uniting Europe became an ideal and a challenge assigned to the generations to come. The main task for the post-World War II generation was to re-establish national political communities. In several European countries the idea of belonging required to be re-imagined. The experience of the war had shown the dangers of building collective identification on organic factors such as ethnicity, a common ­language, culture and history. More efforts in legal and political imagination were required also to address the social question, a divisive issue that well before the war had disintegrated European polities.20 To deal with both of these concerns the breakthrough came by considering the unity of the polity as a vehicle through which more social goals could be attained, rather than emphasising the polity as a prerequisite of legal and political organisation.21 Governmental resources were employed in educational and cultural projects aimed at reinforcing or re-establishing on more civilised bases the sense of national belonging.22 The main catalysts for collective identification, however, were democratic constitutions and the welfare state. Democratic constitutions came to be seen as the main political achievement of a people, the catalogue of its aspirations but also of the legal and

17  See eg A Spinelli and E Rossi, Il Manifesto di Ventotene—Per un’Europa Libera e Unita [1944] (Istituto di studi federalisti ‘Altiero Spinelli’, 1991). 18  AD Smith, ‘National Identity and the Idea of European Unity’ (1992) 68 International Affairs 62. 19  On the importance of sacrifice and oblivion in polity building, see M Loughlin, Sword & Scales— An Examination of the Relationship Between Law & Politics (Oxford, Hart Publishing, 2000) 142. 20 R Dahrendorf, The Modern Social Conflict—An Essay on the Politics of Liberty (London, ­Weidenfeld & Nicolson, 1988) 97, noting that equality had been the ‘hidden agenda of the second Thirty Years’ War’. 21  G Zagrebelsky, Il diritto mite (Turin, Einaudi, 1992) 47–49. 22  Bellamy (n 11) 46. See also JW Müller, Constitutional Patriotism (Princeton, Princeton University Press, 2007) ch 1.

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political tensions of modernity.23 The welfare state, instead, was the institution that made tangible the promises of national membership and offered the material quid pro quo for citizens’ loyalty.24 The combined effect of democratic constitutions and the welfare state overcame the internal exclusions that had tainted citizenship under liberal constitutions. By entrenching civic equality and fundamental rights as founding principles, democratic constitutions outlawed race, gender and census discriminations. Redistributive mechanisms, interventionist industrial policy and welfare programmes improved social cohesion and enabled individuals to become fully-fledged political subjects.25 But the re-foundation of national political communities did not entail only the social-democratic redefinition of national sites of government and a corresponding transformation of citizenship. Inbuilt in democratic constitutions was also the ambition of challenging the external exclusions inherent in the idea of ­nationality.26 National constituents were aware of the insufficiencies and dangers inherent in the latter; thus, in rehabilitating one moderate version of it, they laid also the ground for its further relativisation. Democratic constitutions contained norms referring to international law that soon were deployed to legitimise supranational law,27 a constitutive task of which was to challenge external exclusions.28 It is widely known that since its very beginning supranational law cultivated its particular approach to the subject. Much ink has been spilled stressing how the European Court of Justice in Van Gend en Loos29 placed the individual at the centre of supranational law30 and, by doing so, laid the ground for the creation of a transnational political community.31 To a large extent that is an overstated and questionable claim grounded only in the loftiest passages of that judgment.32 However, even for those who subscribe to such a reading, it may be interesting to

23  P Costa, ‘Cittadinanza sociale e diritto del lavoro nell’Italia repubblicana’ (2009) XXIII Lavoro e diritto 48–49. 24  TH Marshall, Citizenship and Social Class (Cambridge, Cambridge University Press, 1950) 47. 25  ibid 47–48. 26 AJ Menéndez, ‘Which Citizenship? Whose Europe?—The Many Paradoxes of European ­Citizenship’ (2014) 15 German Law Journal 911–12. 27  F Palermo, La forma di stato dell’Unione europea. Per una teoria costituzionale dell’integrazione sovranazionale (Padova, Cedam, 2005) 179. 28  JHH Weiler, The Constitution of Europe (Cambridge, Cambridge University Press, 1999) 250–52. 29 Case C-26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v ­Netherlands Inland Revenue Administration [1963] ECR 1. 30  See D Halberstam, ‘The Bride of Messina: Constitutionalism and Democracy in Europe’ (2005) 30 European Law Review 775 and JHH Weiler, ‘Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy’ (2014) 12 International Journal of Constitutional Law 103. 31  W Maas, ‘The Origins, Evolution, and Political Objectives of EU Citizenship’ (2014) 14 German Law Journal 798–801. 32  By looking at art 48 TEU, for instance, one could persuasively argue that, despite Van Gend en Loos, the heart of EU law is still occupied by national governments.

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dwell on the characteristics of the individual postulated by early supranational law and on the reasons justifying her centrality.33 It may be observed that in Van Gend en Loos, the Court of Justice brackets the national affiliation of individuals. Those who in national quarters are considered constitutional subjects, are for supranational purposes considered European individuals. In this capacity, however, they do not constitute a people.34 This is motivated, in part, by the fact that the European Communities could not boast the same degree of collective identification attached to national democratic constitutions. Yet, this is also a consequence of the particular approach to the individual taken by supranational law. Early supranational law shows no interest in the political qualities of individuals for it conceives them as factors of production. As such, Europeans are the points of imputation of a distinct catalogue of rights, but they cannot claim the same type of centrality assigned to them by democratic constitutions. The latter celebrate individuals as ends-in-themselves.35 Supranational law, by contrast, looks at them essentially in instrumental terms.36 They are reached by Community norms to legitimise the Community as a system of governance.37 They are empowered by the Court of Justice to promote the private enforcement of supranational norms against Member States.38 Their rights are protected essentially if coincident to supranational policy goals.39 Conceived for these purposes, the engagement of supranational law with individuals generates only a multitude with a common interest in peace and prosperity,40 a legal community grounded on the European tradition of freedom,41 where the economic potential of individuals is enhanced, while their political capacity remains unexpressed. It will be shown how more recently this original mark has developed corroding the qualities of the constitutional subject.42 Yet, in the context of the ­re-foundation of national political communities, economic subjectivity offers a valuable contribution to the construction of the latter. By means of economics freedoms, supranational law introduces powerful legal constraints on the capacity of Member States to exclude or discriminate non-nationals.43 The result is

33  A Somek, ‘The Individualisation of Liberty: Europe’s Move from Emancipation to Empowerment’ (2013) 4 Transnational Legal Theory 272–74. 34  This is evident already in the preamble of the Treaty of Rome establishing the goal of ‘lay[ing] the foundations of an ever closer union between the peoples of Europe’ (emphasis added). See Weiler (n 28) 327. 35  See below section III.B. 36  M Everson, ‘The Legacy of the Market Citizen’ in J Shaw and G Moore (eds), New Legal Dynamics of European Union (Oxford, Clarendon Press, 1995) 86. 37  Weiler (n 30) 98. 38  P Craig, ‘Once Upon a Time in the West: Direct Effect and Federalization of EEC Law’ (1992) 12 Oxford Journal of Legal Studies 453. 39  D Chalmers and L Barroso, ‘What Van Gend en Loos Stands for’ (2014) 12 International Journal of Constitutional Law 120–22. 40  Weiler (n 28) 241–46. 41  Chalmers and Barroso (n 39) 108–09. 42  See below sections IV and V. 43  See below section III.B.

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not the complete overcoming of external exclusions; yet, a discipline of openness towards foreigners is instilled in national political communities.44 This is probably the most ­distinctive contribution to citizenship by supranational law in the social state era: rather than competing with national constitutional democracies for collective identification, it is meant essentially to lessen the disabilities of alienage.45

B. Human Dignity, Social Rights and Economic Freedoms in Industrial Society The overcoming of internal exclusions as well as the challenge to external ones ­testify to the deep moral commitment inspiring the re-foundation of national ­polities. These achievements are certainly rooted in the particular biography of each national legal and political order, but they can also be ascribed to the normative turn of international law occurring in the same years.46 The democratic constitutions approved immediately after the war find a common source of inspiration in the Universal Declaration of Human Rights and its underlying political culture. National constitutions incorporate the concept of human dignity47 as their foundational principle.48 Most importantly, they infuse into their legal orders its more profound normative claim: human beings are to be regarded as the last-order purposes of human intentions and actions; thus, any sort of objectification and instrumentalisation is prohibited.49 All this is well known and largely uncontested. But to grasp the real nature of the normative recalibration of national constitutionalism, the discourse on human dignity requires some specification. In democratic constitutions the emerging awareness of the centrality of the individual and her rights comes in a new form. Locke’s vision of the individual in a state of nature detached from reality is ­questioned.50 The concern of the emerging legal and political order is the homme situé, the individual bound to the complex and dense net of political, social and economic relations typical of the industrial society.51 Within this framework, human dignity is filled of material content and contributes to the goal

44  JHH Weiler, ‘In Defence of the Status Quo: Europe’s Constitutional Sonderweg’ in JHH Weiler and M Wind (eds), European Constitutionalism Beyond the State (Cambridge, Cambridge University Press, 2003) 21–23. 45  Everson (n 36) 76. 46  A Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’ (2000) 54 International Organization 217. 47  M Mahlmann, ‘Human Dignity and Autonomy in Modern Constitutional Orders’ in M Rosenfeld and A Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford, Oxford University Press, 2013) 371. 48  See, eg: art 1 of the German Constitution and, subsequently, art 10 of the Spanish Constitution. 49  Mahlmann (n 47) 377. 50  Costa (n 23) 38. 51  G Burdeau, La democrazia [1956] (Milan, Edizioni di Comunità, 1964) 25–41.

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of taming the markets inherent in democratic constitutions.52 In other words, human dignity is established as a principle extending not only to the political, but also to the economic and social spheres.53 It is against a similar normative background that the promise of social citizenship inherent in the constitutional subject becomes evident. To enable participation in the economic and cultural heritage of society,54 democratic constitutions comprise catalogues of fundamental rights enriched with economic and social principles.55 Precisely the promise of these documents to secure the attainment of this type of economic and social goods marks their rupture with previous undemocratic regimes.56 Of particular significance is the key role assigned to the right to work and its corollaries,57 premised on the idea that in the industrial society it is essentially through work that individuals achieve effective inclusion in the ­polity.58 In the ethos of the social state, work is not just instrumental to income but is vested with more profound private and public meanings. At a private level, work is the most tangible way through which individuals express their p ­ ersonality.59 At a public one, work is viewed as the source of the sacrifices through which individuals contribute to the welfare of the society and, ultimately, may claim their fair share of it.60 The critical role of work is not confined to national democratic constitutions. Work occupies a central place also in the set of individual rights conferred by supranational law, although in this context it develops along a trajectory ­alternative to that of national democratic constitutions. In supranational law workers’ rights are not about redistribution and social justice but about transnational mobility.61 They are not meant to protect the individual from the risks of markets, but they offer to individuals opportunities to express themselves through markets.

52 

G Amato, ‘Il mercato nella Costituzione’ (1992) XII Quaderni Costituzionali 8. Ewing, ‘Economic Rights’ in M Rosenfeld (n 47) 1039–40. This idea had already emerged in art 151 of the Weimar constitution, referring the concept of human dignity to the economic sphere. 54  Costa (n 23) 38. 55  Eloquent in this regard is the preamble of the French Constitution of 1946: ‘Il réaffirme solennellement les droits et libertés de l‘homme et du citoyen consacrés par la Déclaration des droits de 1789 et les principes fondamentaux reconnus par les lois de la République. Il proclame, en outre, comme particulièrement nécessaires à notre temps, les principes politiques, économiques et sociaux ci-après …’ (emphasis added) [‘They solemnly reaffirm the rights and freedoms of man and the citizen enshrined in the Declaration of Rights of 1789 and the fundamental principles acknowledged in the laws of the Republic. They further proclaim, as being especially necessary to our times, the political, economic and social principles enumerated below’]. 56  See, eg: M Brito-Vieira and F Carreira da Silva, ‘Getting Rights Right: Explaining Social Rights Constitutionalization in Revolutionary Portugal’ (2013) 11 International Journal of Constitutional Law 902–04. 57  On the individual and collective dimensions of the right to work see Ewing (n 53) 1043–47. 58  Costa (n 23) 43. 59  C Mortati, ‘Il lavoro nella costituzione’ (1954) XXVIII Diritto del lavoro 149–56. 60  ibid 152. 61  The main labour law and social security instruments developed at supranational level revolve around mobility and equal treatment, see reg 1612/1968 and reg 1408/1971. 53  K

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In supranational law, therefore, workers are conceived as agents of market integration. The current commodification of workers can certainly be traced back to this original trait of supranational law.62 Yet, when examined against their historical background, the mobility rights conferred to workers contribute to their emancipation. The period following the end of World War II is one of intense and close control of the movement of persons.63 In its effort to challenge external exclusions, supranational law introduces detailed norms which contrast with the key obstacles encountered by those willing to migrate to other European ­countries.64 Entry permissions, discrimination concerning the terms of payment and working conditions, hurdles to accessing social security and the welfare state are all targets of prima facie prohibitions.65 It is through their enforcement that the Court of Justice makes more inclusive national welfare states.66 For this purpose, the Court interprets generously individuals’ economic qualifications in both their personal and objective scope.67 The notion of worker is a case in point68 in that it reaches prospective69 and former workers,70 their family members71 and extends equal treatment well beyond the working environment.72 This generosity in interpretation, however, does not imply a break of supranational law with its foundational market paradigm. To qualify as a point of imputation of rights and duties, an individual is always required to prove her economic characterisation.73 Also, in this respect, the key role of work (or other equivalent economic qualifications) is noticeable: underpinning this early approach to free movement is the notion that access and equal treatment can be accorded insofar as migrants prove their contribution to the economic welfare of the host state.74

62 

See below section IV.B. Menéndez, ‘European Citizenship after Martínez Sala and Baumbast: Has European Law Become More Human But Less Social?’ in M Maduro and L Azoulai (eds), The Past and the Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford, Hart Publishing, 2010) 365–66. 64  ibid 366. 65  See art 45(2) TFEU and arts 7, 9 and 12 of reg 1612/1968. 66  See above section III.A. 67  Shaw (n 10) 584, defines these judgments as ‘proto-citizenship’ case-law. 68  But see also the broad interpretation of the notion of ‘service recipient’ in joined cases C-286/82 and 26/83, Graziana Luisi and Giuseppe Carbone v Ministero del Tesoro [1984] ECR 322, and Case C-186/87 Ian William Cowan v Trésor Public [1989] ECR 195. 69  See also Case C-293/83, Françoise Gravier v City of Liège [1985] ECR 593 and Case C-39/86, Sylvie Lair v Universität Hannover [1988] ECR 3161. 70  See reg 1408/1971. 71  See art 10 of reg 1612/1968. 72 See, eg: Case C-137/84, Criminal Proceeding against Robert Heinrich Maria Mutsch [1985] ECR 2681. 73  See, eg: Case C-168/91, Christos Konstantinidis v Stadt Altensteig [1993] ECR I-1191. 74  F Wollenschläger, ‘A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration’ (2011) 17 European Law Journal 6. 63 AJ

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C.  The Political Profile of the Constitutional Subject The portrait of the constitutional subject in the social state era would be incomplete without an insight into her capacity to participate and shape the pattern of social and political life. In this regard, democratic constitutions experiment with innovative solutions. To deal with the conflicts of the industrial society, democratic constitutions opt resolutely for the institutionalisation of the social ­question.75 Through their composite catalogues of fundamental rights, they legitimate opposing normative and political claims.76 Through enfranchisement, they convert the institutions of representative democracy from the protection of property-holders to the mediation of conflicts.77 As a result, the idea of freedom postulated by ­democratic constitutions becomes entangled with the idea of participation: citizens are not simply protected from governmental encroachments into their private lives, but they are also individually and collectively involved in decisions on the direction taken by governmental policy.78 Coherent with this idea is the broad political latitude allowed by democratic constitutions to constitutional subjects and political decision-makers. To be sure, democratic constitutions establish principles constraining political institutions to protect fundamental rights.79 Yet, seldom do such limitations compromise the freedom of action of national governments and legislatures. Fundamental rights operate essentially as presumptive shields permitting justifiable limitations,80 and also constitutional courts tend to interpret their task as implying a corrective rather than a steering function.81 Democratic constitutions, indeed, do not mandate a particular economic model or specific policy directions.82 Their role is to outlaw extreme economic models that would undermine their social and political basis.83 But aside from that, they only dictate that governments and legislatures pursue social justice, an open-ended goal compatible with broad political freedom and a wide spectrum of policy options. Given their commitment to civic participation and political mediation of conflicts, democratic constitutions enhance parliaments as their main political venue. In the social state era, parliamentary assemblies receive broad legislative

75 

R Bin, ‘Che cos’è la Costituzione?’ (2007) XXVII Quaderni Costituzionali 19–21. Costa (n 23) 49. Kelsen, ‘Essenza e valore della democrazia’ [1929] in H Kelsen, La democrazia (Bologna, il Mulino, 2010) 68–69. 78  ibid 50–52. 79  Loughlin (n 19) 3. 80 S Gardbaum, ‘Human Rights and International Constitutionalism’ in JL Dunoff and JP ­Trachtmann (eds), Ruling the World? Constitutionalism, International Law and Global Governance (New York, Cambridge University Press, 2009) 236. 81  R Bin, Capire la costituzione (Rome, Laterza, 2002) 97. 82  See eg BVerfGE 4, 7 (Investitionshilfe). 83  Both pure laissez-faire and socialism are economic models probably incompatible with democratic constitutions. 76 

77 H

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mandates and extensive powers to hold executives accountable.84 For the purposes of our analysis, however, an extremely important task fulfilled by parliaments in this period is that of representing and integrating society. It is essentially through this function that democratic constitutions shape the political profile of constitutional subjects. The infrastructures devised by democratic constitutions are certainly expected to recognise the plurality of political preferences existing in a ­society.85 But democratic constitutions pursue a more ambitious notion of political ­pluralism: by legitimating the interests and aspirations of a party, they explicitly invite its opponents to engage with them and recognise their legitimacy. Democratic constitutions, in other words, are not simply frameworks legitimating the interests of factions impermeable to the claims of their opponents. Democratic constitutions instil in political subjects of all inclinations a discipline of recognition and, by doing so, they transform factious individuals into partisans, ie political subjects that, in formulating and pursuing their particular version of the public good, take into account the vital interests of their opponents.86 The contribution of supranational law to the political profile of the constitutional subject, instead, is much less conspicuous.87 The notion of participation suffers from important limitations evident first of all in the disenfranchised condition of migrants in host states. As has been stated, supranational law secures them access and equal treatment to the welfare system of the host States but, critically, no chance of participating in its political determination. More restrictions of political rights emerge in the structure of supranational decision-making. Unlike national governments in constitutional democracies, supranational political institutions enjoy a reduced political latitude. This is in part a consequence of the administrative ethos surrounding supranational ­policy-making,88 in part of the more assertive definition of regulatory strategies in the treaties. For a long time supranational political institutions will exercise their discretion in the interstices of the treaty, often codifying or articulating regulatory solutions only half-backed by courts.89 Other structural elements make political participation less significant in supranational decision-making. The reduced political capacity deriving from unanimity voting is a major obstacle to supranational policy-making and political ­mobilisation.90 But so too the mediated legitimacy of supranational ­political 84  P Lindseth, Power and Legitimacy. Reconciling Europe and the Nation-state (New York, Oxford University Press, 2010) 76–78. 85  Kelsen (n 77) 106–10. 86  On the distinction between partisanship and factionalism, see J White and L Ypi, ‘On Partisan Political Justification’ (2011) 105 American Political Science Review 381. 87  EDH Olsen, ‘The Origins of European Citizenship in the First two Decades of European Integration’ (2008) 15 Journal of European Public Policy 49. 88  Lindseth (n 84) 3. 89  P Craig, ‘The Evolution of the Single Market’ in C Barnard and J Scott (eds), The Law of the Single European Market. Unpacking the Premises (Oxford, Hart Publishing, 2002) 4. 90  FW Scharpf, Governing in Europe. Effective and Democratic? (Oxford, Oxford University Press, 1999) 71.

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i­nstitutions that contributes to their scarce appeal.91 In the period reviewed policy-making is dominated by executives which, at best, can ensure only some degree of indirect representation to the interests of national political majorities. National political minorities, instead, are offered only the opportunity of an indirect and weak involvement through the European Parliament. In the circumstances, it is difficult to expect from a similar institutional framework the type of social integration experienced in national parliaments. In supranational policymaking, the prevalent ethos is one of negotiation, where the dynamics of partisanship are replaced by intergovernmental bargaining.92 Nevertheless, it would be unfair to supranational law to disqualify entirely its participatory qualities. At least in one field—judicial politics—supranational law reveals a significant capacity for mobilisation. The enforcement of market freedoms appeals to a selected legal community interested in the reformation of the state.93 Yet, if it is difficult to deny the civilising function of many of the judgments resulting from this litigation,94 it is easy also to note that the type of participation implied by this process contradicts the political profile of the constitutional subject as shaped by national democratic constitutions. For all its merit in constraining the protectionist excesses of the States, therefore, judicial politics poses also a permanent challenge to the genuine exercise of political rights.

D. European Citizenship as the Synergy Between the Constitutional Subject and Economic Subjectivity In the social state era the subjectification of the citizen in European public law gravitates towards the constitutional subject, the subjectivity defined by national constitutional democracies. This subjectivity thrives in an institutional framework providing ample resources for collective identification, a rich set of fundamental rights and extensive opportunities of political engagement. In the same period, supranational law generates a complimentary strategy of subjectification centred on the economic qualities of individuals. In all the relevant dimensions of belonging, rights and participation, economic subjectivity defies the identity of the constitutional subject: it fails to generate a collective sense of belongingness, its right endowment is restricted to free movement and equal treatment, its political profile is negligible. Yet, despite all these incongruences, European public law benefits from the synergy between its constitutive governmental projects. This is ensured by the separation of competences between supranational law and constitutional

91 

Lindseth (n 84) 12. Everling, ‘The European Union Between Community and National Policies and Legal Orders’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law (Oxford, Hart ­Publishing, 2007) 690–91. 93  Chalmers and Barroso (n 39) 127–28. 94  Weiler (n 28) 341–42. 92 U

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democracies which minimises the episodes of conflict. Within its limited scope, supranational law increases the inclusiveness of national constitutional democracies and reduces their vulnerability to economic interdependence.95 Economic subjectivity, therefore, complements the constitutional subject96 without obscuring its symbolical prevalence.97

IV.  The Transformation of the Constitutional Subject in the Transition Towards ‘Advanced Liberalism’ In the period from the ratification of the Single European Act to the entry into force of the Lisbon Treaty, European public law experiences profound changes mainly related to the evolution of its supranational component. First, the Union is enlarged to include 28 Member States. To strengthen its political capacity, qualified majority voting in the Council is introduced and later generalised, rendering the Union a much more effective source of governance. Secondly, successive waves of treaty amendment expand the range of EU policy objectives, extending supranational integration towards more salient policy fields such as monetary, economic and social policy.98 Although in the newly acquired competences the Union is expected essentially to sustain99 or coordinate100 national policies,101 the proliferation of objectives reconfigures its original market identity and challenges the separation of competences on which the relationship between supranational law and constitutional democracies had previously rested. Thirdly, European ­public law experiments a new form of equilibrium resulting from the convergence between its constitutive components. Constitutional symbolism and democratic institutional formulas are appropriated by supranational law; market principles and executive law-making find their way within national constitutional orders. The common direction of these changes is the ‘advanced liberalism’ agenda,102 an ambitious programme of welfare state reform aiming at strengthening the ­competitiveness of national economies.103 The embrace of advanced liberalism 95  M Maduro, ‘Europe and the Constitution: What if This is as Good as it Gets?’ in Weiler (n 44) 83–86. 96  Menéndez (n 63) 912. 97  M Ferrera, ‘Solidarity in Europe after the Crisis’ (2014) 21 Constellations 225–26. 98  A Stone Sweet and WA Sandholtz, ‘European Integration and Supranational Governance’ (1997) 4 Journal of European Public Policy 297. 99  See eg art 153 TFEU on social policy. 100  See eg arts 120–21 TFEU on economic policy and art 145 TFEU on employment. 101  The exclusive competence on monetary policy for the member states participating in the Euro is the notable exception (art 3(1)c) TFEU). 102 N Rose, Powers of Freedom. Reframing Political Thought (Cambridge, Cambridge University Press, 1999) ch 4. 103  The role of the Union as vehiculo externo for fiscal discipline and administrative reform is illustrated in Bickerton (n 14) 131–36.

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and convergence, however, are gradual processes in which the original identities of supranational law and constitutional democracy reveal ‘sticky’. The transition from the social state to advanced liberalism takes place more through stratification than replacement of paradigms.104 This causes persisting divergences between those governmental projects and a sense of unsettledness and potential conflict characterising European public law in this phase.

A.  The European Reframing of National Political Communities Among the changes in supranational law impinging upon subjectivity, the appropriation of the concept of citizenship stands as the most prominent. It is through citizenship that the ambition to politicise the Union finds one of its clearest expressions;105 most of all, it is through that concept that the Union manifests the aspiration to transform its governmental pressures on individuals: from economic individuals to constitutional subjects, from privileged migrants to citizens dictating the patterns of social and political life in the Union.106 Within this mindset, each national is viewed as affiliated with multiple polities, and the Union imagined as a would-be supranational constitutional democracy capable of nourishing a sense of collective identification.107 The impact of citizenship on the original structures of supranational law has produced more uncertain results. Already its legal definition108 is ambiguous as to its actual political nature when it prioritises free movement and residence over political rights.109 EU citizenship, indeed, provides elements in support of goals as disparate as building a supranational political community existing alongside national polities and strengthening the protection of migrants in host Member States regardless of their economic qualification.110 More than 20 years after its introduction, it can safely be said that EU citizenship explicates its potential more as an integrative than a constitutive tool.111 Legislation has defined it ‘the fundamental status of nationals of the member states when they exercise their right of free ­movement and residence’.112 The Court of Justice has employed it as an

104 

Rose (n 102) 142. Menéndez (n 26) 913–16. 106  Everson (n 36) 76. 107  The argument whereby the Union is citizenship-capable is developed in N Nic Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47 Common Market Law Review 1601. 108  Art 20 TFEU. 109  Everson (n 36) 73–74. It is telling that what is commonly known as the ‘Citizenship directive’ (Dir 2004/38) is concerned with freedom of movement and residence in other Member States rather than political participation. 110  ibid 76–77. 111  Shaw (n 10) 609. See also P Magnette, ‘How can one be European? Reflections on the Pillars of European Civic Identity’ (2007) 13 European Law Journal 669–70. 112  Dir 2004/38, recital 3. 105 

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a­ utonomous source of rights,113 stretching the protection of EU law towards situations and subjects previously outside the remit of economic freedoms.114 EU citizenship has extended both the subjective115 and the objective116 scope of equal treatment obligations, including in national welfare states also economically inactive non-nationals insofar as they do not become an unreasonable burden.117 If we move to its constitutive potential, the record of EU citizenship is far less impressive. Since its introduction EU citizenship has neither triggered a shift in collective identification towards Europe118 nor rivalled national citizenship as a form of belonging.119 This has emerged in the elaboration of the Constitutional Treaty, the most daring attempt to adopt constitutionalism as the EU form of power.120 As widely known, a similar undertaking had been promoted to strengthen the legitimacy of the Union before the enlargement to Central-Eastern­Europe.121 Constitutionalism was expected to legitimise a more majoritarian institutional setting and secure loyalty to EU law.122 The Constitutional Treaty was the vehicle to promote the transition from an intergovernmental to a genuinely constitutional political community conceived in political and civic rather than ethno-cultural terms.123 It is telling, however, that even that document and the whole constitutional undertaking were never intended as the products of a true pouvoir constituant exercised in the name of a single European people.124 In other words, the Constitutional Treaty was never meant to challenge national political communities as it was

113  Case C-85/96 María Martinez Sala v Freistaat Bayern [1998] ECR I-2691 and Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091. 114  Menéndez (n 63) 386–88, arguing that the EU citizenship case-law is a logical extension of ­pre-Maastricht case-law. 115  See, eg: Case C-456/02 Michel Trojani v Centre public d’aide sociale de Bruxelles [2004] ECR I-7573. 116  See, eg: Case C-184/99, Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-laNeuve [2001] ECR I-6193. 117  Dir 2004/78, arts 14 and 24. See Case C-140/12, Pensionsversicherungsanstalt v Peter Brey, nyr, and Case C-333/13, Elisabeta Dano and Florin Dano v Jobcenter Leipzig, nyr. See also F de Witte, ‘­Transnational Solidarity and the Mediation of Conflicts of Justice in Europe’ (2012) 18 European Law Journal 706–07, claiming the emergence of a type of ‘community solidarity’. 118  The point that EU citizenship has not succeeded in generating an identity going beyond market participation is made by Nic Shuibhne (n 107) 1624–25. 119  In the period 2010–12, for instance, those seeing themselves as only nationals were 38–46% of Europeans, those seeing themselves as nationals (mainly) and Europeans 41–49%, those mainly ­Europeans and nationals 6–7% and those only Europeans 3%. See Standard Eurobarometer 77/2012 (European citizenship), available at ec.europa.eu/public_opinion/achives/eb/eb77/eb77_citizen_ en.pdf. On the EU attempts at polity building, see C Offe and UK Preuss, ‘The Problem of Legitimacy in the European Polity. Is Democratization the Answer?’ ConWEB No 6/2006, 16–18. 120  M Maduro, ‘The Importance of being called a Constitution: Constitutional Authority and the Authority of Constitutionalism’ (2005) 2–3 International Journal of Constitutional Law 332. 121 Presidency Conclusions of the European Council, 14–15 December 2001, Annex I (Laeken ­Declaration on the Future of the European Union). 122  Maduro (n 120) 345–351. 123  ibid 333. 124  The final version of the Constitutional Treaty was negotiated in an intergovernmental conference and the resulting text required national ratifications exactly as previous treaty amendments.

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undisputed that constitutional authority resided in the Member States.125 Had the Constitutional Treaty been ratified by all Member States, however, the EU would have expressed an uneven and truncated form of constitutionalism.126 The constitutional adventure proved once more that the Union does not ­possess a single political community,127 and that in contemporary Europe national demoi are entrenched and dominant.128 Yet, European citizens constitute more than a disaggregated multitude incapable of collective self-determination. The Union can be viewed as a demoicracy, ie a polity of multiple demoi129 developing a distinct and discrete model of democracy antithetic to both the supranational and national versions of a single demos.130 National political communities give rise no longer to self-serving constitutional democracies; they are joined together in a collective transnational political undertaking. In this perspective, EU treaties can be reconceptualised and regarded as social contracts between European peoples.131 The constitutional function of Union citizenship, therefore, is not that of merging European individuals in an indistinct supranational polity. Union citizenship changes the understanding of national membership:132 while it leaves intact the conditions for national membership, it transforms its substantive and political substance.133 In this light, EU citizenship is not ontologically independent from nationality; it becomes a constitutive element of it and contributes to its European reframing.134 The notion and function of EU citizenship are echoed in a number of national constitutions, particularly those which have introduced integration clauses135 devoted specifically to EU membership.136 Such norms codify the specific status and operative properties of EU law, they interface national institutional settings with the most salient aspects of EU decision-making and they dictate the conditions under which EU membership is legitimate.137 Most importantly, ­integration clauses certify that EU membership is not the product of contingent political

125 

Maduro (n 120) 353. N Walker, ‘Reframing EU Constitutionalism’ in Dunoff (n 80) 162. 127  D Grimm, ‘Does Europe Need a Constitution?’ (1995) 1 European Law Journal 290–91. 128  F Cheneval and F Schimmelfennig, ‘The Case for Demoicracy in the European Union’ (2013) 51 Journal of Common Market Studies 337–38, observing that the EU polity is fragmented in terms of collective identity, public spheres and intermediary political structures. 129  ibid 343–46. 130  K Nicolaïdis, ‘European Demoicracy and Its Crisis’ (2013) 51 Journal of Common Market Studies 352–53. 131  Weiler (n 28) 346. 132  ibid 328. 133  See below sections IV.B and IV.C. 134  Magnette (n 111) 668. See also S Besson and A Utzinger, ‘Toward European Citizenship’ (2008) 39 Journal of Social Philosophy 196. 135  See eg art 23 of the German Constitution, art 88-1 of the French Constitution and art 7(6) of the Portuguese constitution. 136  Palermo (n 27) 180, referring to these norms as ‘second generation clauses’. 137 M Claes, ‘Constitutionalizing Europe at its Source: The “European Clauses” in National ­Constitutions: Evolution and Typology’ (2005) 24 Yearbook of European Law 81. 126 

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majorities, but is a more structural decision widely shared by a national polity.138 Conceived in this way, integration clauses lay the ground for an EU-oriented re-definition of national constitutional frameworks and for a corresponding transformation of the contents and political significance of the constitutional subject.

B.  The Market Metamorphosis of National Welfare States From a substantive standpoint, reframing the constitutional subject in an EU light entails a set of transformational pressures on national welfare states enhancing the economic qualities of the individual. The degree of transformation achieved depends on the varying intensity of EU policy measures and their actual implementation by the Member States. Nonetheless, the main trajectories of this process can be explored by looking at the policy goals and style of intervention by the Union in a range of welfare sectors.139 Before delving into a more detailed examination, a few words are needed to clarify the relationship of the Union to the social domain. As has been stated, in the period reviewed the Union expands towards the social sphere,140 but it does so without establishing a supranational welfare state system.141 The Union lacks the possibility to raise significant revenues through direct taxation and redistribute them as services or benefits. With a small budget (at least if compared to national ones),142 the Union approaches the social sphere through a peculiar set of tools. Initially, EU social measures are designed simply to flank the single market project.143 Next, the Union enters into more salient policy fields appealing to constituencies interested in welfare reform according to a new ideological paradigm termed ‘advanced liberalism’.144 The focal point of the new policy agenda is governing through the entrepreneurship of individuals.145 In the pursuit of this objective, advanced liberalism does not promote the dismantlement of the welfare state and a return to laissez-faire; social policies are re-oriented to create the conditions for entrepreneurship and competitiveness.146 This implies several

138 

Re Ratification of the Treaty of Lisbon (2 BvE 2/08) (2010) CMLR 13, s 225. On the unravelling of the post-war class compromise and transformation of national corporatist state see Bickerton (n 14) 92–110. 140  It must be remembered that even before social policy measures had been sporadically adopted, see C Barnard, ‘EU “Social” Policy: from Employment Law to Labour Market Reform’ in Craig (eds) (n 10) 642–47. 141  ibid 660. 142  In the multiannual financial framework 2014–20 the EU budget represents around 1% of EU-28 GDP, whereas Member States’ budgets account for 44% GDP on average, see http://ec.europa.eu/ budget/explained/myths/myths_en.cfm. 143  G Majone, ‘The European Community between Social Policy and Social Regulation’ (1993) 31 Journal of Common Market Studies 153. 144  Rose (n 102) 137. 145  ibid 139–40. 146  ibid 144. See also Bickerton (n 14) 105–06. 139 

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initiatives such as policies enabling a market to exist and function without disproportionate hurdles and an efficiency-driven reorganisation of social government. Most importantly, governmental resources are employed to prompt an anthropological turn with respect to the individual, increasingly pressured to envision herself as an entrepreneur.147 At least in principle, the strongest traction towards welfare reform derives from the Economic and Monetary Union (EMU) and the ensuing constraints on national budgets. Within the EMU, supranational rules are established to prevent excessive deficits and reduce public debt.148 The goal of sound finances inspires policies of fiscal retrenchment favouring higher taxation and lower levels of social expenditure. But because of free movement and tax competition, higher taxes apply in particular to immobile factors of production.149 Thus, it is unsurprising that overall these policies contribute to increased inequality within national societies.150 The ‘market metamorphosis’ of national welfare states is also the product of a broader enforcement of market freedoms.151 Under EU law influence, the state monopoly on public services is challenged and private provision encouraged.152 The extension of market freedoms towards national social measures is premised on the need for national administration to control more strictly welfare expenditures. This leads to a more accurate determination of the price of any single social provision, which in the logic of the single market amounts to services ­remuneration.153 Once market freedoms are triggered, individuals begin to feel entitled to an invisible welfare voucher,154 to be used in other Member States or with private providers.155 Hence, a market of social services emerges in which the ­constitutional subject is converted into a welfare consumer.156 Within a similar

147 

Rose (n 102)141–42. Art 119 TFEU. See Eurostat, ‘Taxation Trends in the European Union. Data for the EU member states, ­Iceland and Norway’, http://ec.europa.eu/taxation_customs/resources/documents/taxation/gen_info/economic_ analysis/tax_structures/2014/report.pdf. Labour is the largest source of tax revenues (51%), with taxation on capital and consumption accounting respectively for 21% and 28%. The top corporate income tax rate was on average 35% in 1995, while in 2013 was around 21%. 150 See European Commission, ‘Why socio-economic inequalities increase? Facts and policy responses in Europe’, available at . 151  And of citizenship norms, on which see above s IV.A. 152  G Davies, ‘The Process and Side-Effects of Harmonisation of European Welfare States’ Jean ­Monnet Working-Paper No 2/06 18–21. 153  Case C-158/96 Raymond Kohll v Union de caisses de maladie [1998] ECR I-1931. 154 See eg Case C-368/98 Abdon Van Braeckel and others v Alliance Nationale de mutualités ­chrétiennes  (ANMC) [2001] ECR I-5363 and Case C-318/05 Commission v Germany (‘Deductibility of School fees’) [2007] ECR I-6957. 155  G Davies, ‘Health and Efficiency: Community Law and National Health Systems in the light of Müller-Fauré’ (2004) 67 Modern Law Review 105. 156  J Baldock, ‘On being a Welfare Consumer in a Consumer Society’ (2003) 2 Social Policy and Society 65. 148  149 

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context an alternative idea of self-determination is cultivated: while in the social state the potential of the individual was mainly channelled towards voice and collective political action, in the market of welfare services self-determination is expressed mainly through individual choice and portability of benefits.157 If the EMU and the single market constrain, respectively the size and structure of welfare states, their reorientation towards competitiveness and entrepreneurship is sought through EU social policy. To improve the competitiveness of national economies, EU social policy urges national social government to encourage the participation of individuals in the economy.158 Empowerment emerges as the overriding goal of welfare reform,159 exposing individuals to increasing demands160 of becoming well-functioning participants of the competitive market society in the making.161 According to this logic, social policies are mobilised to assist the individual in a ceaseless task of training and re-training, enhancing her career credentials and the continuous economic capitalisation of the self required by advanced liberalism.162 Labour law and industrial relations are the privileged fields wherein experiments in the agenda of advanced liberalism occurs.163 While in the social state these branches of social organisation contributed to the overall function of redistributing power and economic resources, in the new governmental landscape they are expected to contribute to competitiveness and economic performance.164 The discrediting of social conflict and the emphasising of social cooperation are the side-effects of this policy recalibration.165 The role of social rights undergoes a complete redefinition: if social rights in the social state were both guarantees and achievements of social conflict, in advanced liberalism they are re-shaped to f­acilitate market performance.166 Thus, anti-discriminatory measures are

157  de Witte (n 117) 699–700. Mobility seems also the most immediate response of the Union to the malfunction of national welfare states, see Case C-268/13 Elena Petru v Casa Județeană de Asigurări de Sănătate Sibiu,Casa Națională de Asigurări de Sănătate, nyr. 158  W Streeck, ‘Competitive Solidarity: Rethinking the “European Social Model”’ Max Planck Institut für Gesellschaftsforschung Working Paper 99/8 6. 159  Art 145 TFEU. 160  Rose (n 102) 145, notes that within this paradigm entrepreneurship and the pursuit of economic well-being are not only opportunities but achieve a status comparable to that of patriotic duties. 161 Somek (n 33) 274–75. See also S Deakin, ‘The “Capability” Concept and the Evolution of ­European Social Policy’ in M Dougan and E Spaventa (eds), Social Welfare and EU Law (Oxford, Hart Publishing, 2005) 6–8. 162  Rose (n 102) 161. 163  See Presidency Conclusions, Lisbon European Council, para 24. See also European Commission, ‘Towards Common Principles of Flexicurity: More and Better Jobs through Flexibility and Security’ COM(2007) 359 final. 164  H Collins, ‘Is there a Third Way in Labour Law?’ in J Conaghan, RM Fischl and K Klare (eds), Labour Law in an Era of Globalisation. Transformative Practices and Possibilities (Oxford, Oxford ­University Press, 2002) 450. 165  ibid 457. 166  ibid 463.

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c­onceived not simply in contrast to conduct that is per se despicable, but to purify the market from state measures or private behaviour that may negatively affect human capital.167 This process of latent commodification marks also the restructuring of education,168 and even security and public order are reframed to reassure the consumer society from the uneasiness generated by terrorism and migration.169 Yet, the departure of EU social policy from the original tenet of the social state, namely of emancipating individuals, is most evident in the field of social ­exclusion. Combating social exclusion in the social state era entailed creating a negative freedom from the market170 and striving for the inclusion of individuals in a complex web of political, economic and social relations.171 In the new context, instead, what is sought falls short of full human emancipation. Advanced liberalism, rather, tackles social exclusion essentially by bringing marginalised individuals back into the market. EU social policies may well re-situate individuals in this environment,172 but they leave unaffected the competitive situation.173 In advanced liberalism, therefore, social policy does not correct or limit the ­market;174 it continues to be functional to its efficient operation.175

C.  The Corrosion of Political Citizenship The image of individuals more active in the market while less involved in civic life is confirmed by the gradual corrosion of the political profile of the constitutional subject. The expansion of EU competences empowers national executives vis-àvis national parliaments and restricts room for the unfettered exercise of national political rights.176 In the newly acquired policy areas national governments retain considerable control over Union decision-making.177 Only rarely does this result

167 A Somek, ‘From Workers to Migrants, from Distributive Justice to Inclusion: Exploring the Changing Social Democratic Imagination’ (2012) 18 European Law Journal 711. 168  S Garben, ‘The Future of Higher Education in Europe: the Case for a Stronger Base in EU Law’, LEQS Paper No 50/2012 24–26. 169  D Chalmers, ‘Political Rights and Political Reason in European Union Law in Times of Stress’ in W Sadurski (ed), Political Rights Under Stress in 21st Century Europe (Oxford, Oxford University Press, 2006) 66–67. 170  Somek (n 33) 281. 171  See above s III.B. 172  Costa (n 23) 58–59. 173  Somek (n 33) 277. 174  On the difference between market making and market correcting, see Barnard (n 140) 645. 175 A Somek, ‘De-commodification Revisited: On the Absence of Emancipation in Europe’ ­University of Iowa Legal Studies Research Paper N 06-04 14–16. 176  Offe and Preuss (n 119) 4–6. 177 This is particularly true in the fields where the community method does not apply. See H ­ Wallace and W Wallace, ‘Overview: The European Union, Politics and Policy-Making’ in KE ­Jørgensen, MA Pollack and B Rosamond (eds), Handbook of European Union Politics (SAGE, ­London, 2007) 351–54, and CJ Bickerton, D Hodson and U Puetter, ‘The New Intergovernmentalism: European Integration in the Post-Maastricht Era’ (2015) 54(3) Journal of Common Market Studies 703.

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in complete pre-emption of national democratic spaces. More often, EU m ­ easures allow significant margins to national policy-makers to accommodate their ­content to their particular social and political context. The influence exercised by the Union, however, is by no means negligible: even in the softest of the coordinating processes specific policy directions are prescribed, enlisting national political processes in the structural changes undertaking.178 It could be contended that the erosion of national spaces of democratic deliberation is compensated by the politicisation of EU decision-making processes and the appropriation of constitutional symbolism. In other words, what the individual qua constitutional subject loses is regained by the individual qua EU citizen. Yet, it is doubtful that EU citizenship can make up for the losses of the constitutional subject. Notwithstanding their more pronounced involvement in the social life of the host state, EU citizens remain passive agents deprived of any meaningful political capacity.179 Critically, their actual democratic engagement with supranational decision-making can seriously be questioned. Admittedly, in the period reviewed the Union has not only strengthened its governmental capacity, but has made major progress by making its political process more accessible and contested. The idea of representative democracy as well as the state tradition of political rights have been appropriated leading to a profound restructuring of the EU institutional setting.180 From the first direct elections onwards the European Parliament has always grown in influence up to achieving equal standing with the Council.181 It plays a critical role in legislation,182 especially in amending legislative proposals,183 and it has induced a re-organisation of supranational political life along the left–right divide.184 But the democratic transformation of the Union has not been confined to the Parliament. The architecture of the legislative process resembles that of federal bicameral systems.185 The political profile of the Commission has also been strengthened,186 as d ­ emonstrated

178  This expansion of EU competences can be explained as a broader commitment of national g­ overnments to limit their own powers through supranational constraints in order to contain the political power of domestic populations, see Bickerton (n 14) 67–70. 179  EU citizenship only adds the right to vote in municipal elections in the host state (art 22(1) TFEU). 180  See art 10 TEU and arts 39–40 of the EU Charter of Fundamental Rights. 181  See arts 289 and 294 TFEU. 182  P Dann, ‘European Parliament and Executive Federalism: Approaching a Parliament in a SemiParliamentary Democracy’ (2004) 9 European Law Journal 549. 183  D Chalmers, G Davies and G Monti, European Union Law (Cambridge, Cambridge University Press, 2014) 119–20. 184  S Hix, A Noury and R Roland, ‘Power to the Parties: Cohesion and Competition in the European Parliament, 1979–2001’ (2005) 35 British Journal of Political Science 209. 185  R Dehousse, ‘European Institutional Architecture after Amsterdam: Parliamentary System or Regulatory Structure?’ (1998) 35 Common Market Law Review 603–06. 186  ibid 609–12.

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by the recent imitation of practices drawn from the parliamentary government ­tradition such as the indication of Spitzen-kandidaten.187 But for all this progress, the democratic substance of EU citizenship remains under-developed if compared to that of the constitutional subject. This is not merely because in areas as crucial as economic governance or foreign policy the influence of the European Parliament is feebler. Besides the formal deficiencies contained in the treaties, there are further crucial issues impairing the democratic qualities of supranational decision-making. There is, first of all, an issue of political latitude. Because of the purposive framing of many of its competences,188 EU law does not allow contestation for the direction of EU policies, but enables competition only over the means to reach pre-defined objectives.189 There is, then, a problem of evacuation of representative democracy.190 The enhanced democratic quality of legislative decision-making has been coupled by a broad delegation of regulatory powers to political administration or private law-making,191 circuits in which democratic engagement is notoriously more difficult. There is, finally, an issue of legislative culture. The practice of ‘trialogues’ and first-reading ­agreements192 has improved the productivity of the EU legislature,193 but it has also lowered its democratic quality. Because of the increased role of Committee of Permanent Representatives (COREPER), the accountability of national executives has diminished;194 the opacity of those processes and the reduced role of smaller political groups has also undermined the chances of meaningful political opposition.195 The evacuation of legislative decision-making, restricted political latitude and a consociational legislative culture are all elements that converge towards the ­narrowing down of the scope for political contestation and opposition.196 Within such a political environment, the conflictual but, in the end, integrative ­practices 187  JHH Weiler, ‘European Parliament Elections 2014: Europe’s Fateful Choice’ (2013) 24 European Journal of International Law 747 and JHH Weiler, ‘Fateful Elections? Investing in the Future of Europe’ (2014) 12 International Journal of Constitutional Law 273. 188 G Davies, ‘Democracy and Legitimacy in the Shadow of Purposive Competence’ (2015) 21 E ­ uropean Law Journal 2. 189  This is evident in the single market (arts 114–15 TFEU), employment (art 145 TFEU), monetary (art 127 TFEU) and industrial policy (art 173 TFEU). 190  R Dehousse, ‘Beyond Representative Democracy: Constitutionalism in a Polycentric Polity’ in Weiler (n 44) 135. 191  D Chalmers and M Chaves, ‘EU Law-Making and the State of European Democratic Agency’ in O Cramme and SB Hobolt (eds), Democratic Politics in a European Union Under Stress (Oxford, Oxford University Press, 2014). 192  See Joint Declaration on Practical Arrangements for the CoDecision Procedure (22 May 2007). 193  A Héritier and C Reh, ‘Codecision and its Discontents: Intra-Organizational Politics and Institutional Reform in the European Parliament’ (2012) 35 West European Politics 1136–37. 194 H Farrel and A Héritier, ‘Interorganizational Negotiation and Intraorganizational Power in Shared Decision Making: Early Agreements Under Codecision and their Impact on the European ­Parliament and the Council’ (2004) 37 Comparative Political Studies 1203–04. 195  ibid 1201–02. 196  Offe and Preuss (n 119) 9–13.

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associated with partisanship are made more difficult. The discontents of the ‘advanced liberalism’ agenda and, more in general, the ‘political other’ are viewed not as opponents bearing legitimate political claims, but as enemies obstructing or undermining the transformation promoted by the Union. Above the corrosion of the constitutional subject, therefore, looms the prospect of increased alienation and intractable antagonistic conflicts.197

D. The Transition Towards ‘Advanced Liberalism’: The Competition Between Economic and Constitutional Subjectivities As the Union expands its remit, national constitutional subjects are exposed to transformational pressures targeting national welfare states. The appropriation by the EU of constitutional concepts results more in their vulgarisation than in a genuine democratic conversion of supranational law. Yet, that appropriation fulfils more than a decorative function. Constitutional symbolism eases the transformation of the constitutional subject and, ultimately, sustains a competing notion of freedom and self-determination in European public law.198 Under EU influence, national citizenship is revisited and enhanced in its economic qualities. Although enabled through the market, individuals are disabled in the political sphere. The subjectivity brought about by the Union under advanced liberalism, therefore, may be successful in countering some deficiencies of the constitutional subject, but contains also an economic bias which may threaten values such as democracy and social justice. The transition from the social to the enabling state, however, takes place ­gradually and unevenly. It is marked by ambiguities inspiring opposite political narratives. The transformation of the constitutional subject can be presented either as its purification from its original biases or the undermining of its authentic commitment to social justice and political freedom. Likewise, resistances to transformation can be described either as the reaffirmation of fundamental human values against the decline of constitutional democracy or the entrenchment of the ­dysfunctions of the traditional welfare state. In this phase, European public law does not resolve these ambiguities. Rather, owing to its pluralist structure, it offers an institutional setting which, at least in principle, permits the r­epresentation, ­confrontation and mediation of the normative claims underlying the constitutional subject and her transformation. The resulting tension replaces the peaceful co-existence registered between the constitutional subject and economic subjectivity in the social state era. Yet it would be misleading to consider this competition 197  A Follesdal and S Hix, ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’ (2006) 44 Journal of Common Market Studies 548–49. 198  R Bellamy, ‘The Liberty of the Post-Moderns? Market and Civic Freedom within the EU’ LEQS Paper No 1/2009 17.

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as necessarily a source of disintegration. On the contrary, the tension between constitutional and economic subjectivities could operate as a promising antidote to resist their hegemonic temptations and counter their respective biases. However, this scenario will not be consolidated in the last evolutionary stage of European public law. Under the institutional setting developed to cope with the financial crisis, European public law begins to resolve its in-built ambiguities. Thus, most of the institutional resources will be more univocally addressed to the transformation of the constitutional subject, while the pursuit of rival claims will remain possible only in the form of unilateral reaffirmations of national constitutional identity.199

V.  The Twilight of the Constitutional Subject During the Financial Crisis The evolutionary trends registered in the affirmation of the advanced liberalism agenda come to a head with the institutional arrangements designed to cope with the ongoing financial crisis. Underpinning a similar development is a diagnosis whereby the crisis exposed structural weaknesses in national economies,200 especially in the countries that failed to implement the advanced liberalism agenda. Hence, institutional design and policy reactions are framed to embolden the transformational commitment of the Union: whereas in the short term financial stability at national level is promoted through plans of fiscal consolidation and measures of financial assistance,201 in the medium and long term advanced liberalism is regarded as the agenda to be inculcated in recalcitrant Member States through more stringent direction and control of national political economies.202 Justified as it may be on policy grounds, however, this strategy materialises the dangers and aggravates the biases already noted in European public law before the crisis. Looking in more detail at the changes introduced during the financial crisis, the restructuring of European public law entails, first of all, a further expansion of EU competences,203 in many cases beyond the limits established by the Lisbon 199 

Re Ratification of the Treaty of Lisbon (n 138) para 240 and paras 245–60. Commission, ‘Europe 2020—A strategy for smart, sustainable and inclusive growth’ COM(2010) 2020 final 7. 201  See, in particular, the Treaty establishing the European Stability Mechanism (ESM). F ­ inancial assistance has also been provided by the European Central Bank through the Securities Market ­Programme (see Decision 2010/5/ECB). 202  European Commission (n 200) 7. See also art 1(1) of the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG) and the ‘Euro Plus Pact—Stronger ­Economic Policy Coordination for Competitiveness and Convergence’, 13–15. 203  M Dawson and F de Witte, ‘Constitutional Balance in the EU after the Euro-Crisis’ (2013) 76 Modern Law Review 824–26. See also Bickerton (n 14) 141–50, explaining this process as the creation of more horizontal ties between national governments to shield macro-economic policy-making from the intrusion of mobilised and angry societies. 200  European

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Treaty.204 In expanding its scope, the Union abandons almost completely the lofty rhetoric employed before the crisis. Setting aside the constitutional register, the Union shows its crudest intergovernmental and technocratic profile by extending its regulatory style to even more salient policy fields to promote the degree of convergence of national economies required by a single monetary policy.205 As a result, national economic and social policies are subjected to more intensive policy coordination.206 Multilateral surveillance on national budgets is secured through stricter sanctions207 and structural reforms are encouraged by the promise of more relaxed fiscal discipline.208 The consequence of this institutional setting is that in the pursuit of economic convergence Member States follow different routes reflecting their particular financial and economic situations. As a reflection, the meaning of being a citizen in Europe varies considerably from state to state implying distinct collective efforts, but also different strategies of resistance and contestation.

A.  Towards National Post-political Communities Before the financial crisis it was reasonable to believe that only political events of considerable magnitude could induce European individuals to shift their prevalent national allegiance to a supranational political community. After more than five years of economic and political distress, it can safely be said that the financial crisis has neither awakened a European demos nor encouraged the establishment of robust solidarity ties between the peoples of Europe.209 European integration is certainly implicated in the enormous sacrifices imposed in the management of the crisis, but the Union has failed to provide a pan-European narrative i­ nspiring those efforts. Europeans continue to regard their national allegiances as predominant: they have made sacrifices on behalf of their national communities, and the only pan-European imperative forcing them to change has been economic necessity.210

204  Art 9 TSCG establishes policy coordination ‘in all the areas which are essential to the proper functioning of the euro area’. See also the ‘Euro Plus Pact’ (n 202) 14–15, dictating actions in areas where the competence lies with the Member States such as wage setting arrangements, education systems, pension, health and social assistance. In addition, art 4 of the reg 1176/2011 extends policy surveillance by supranational institutions towards private indebtedness, housing market and energy. Finally, the ‘Compact for Growth and Jobs’, 9, calls for reform in the field of public administration and justice. 205 D Chalmers, ‘The European Redistributive State and a European Law of Struggle’ (2012) 18 European Law Journal 685. 206  See ‘Euro Plus Pact’ (n 202) 13–15. 207 See the system of quasi-automatic approval of sanctions established by reg 1173/2011 and art 7 TSCG. 208  See, for instance, art 2a of reg 1466/97 as amended by reg 1175/2011. 209  Menéndez (n 26) 930–31. 210  M Wilkinson, ‘The Specter of Authoritarian Liberalism: Reflections on the Constitutional Crisis of the European Union’ (2013) 14 German Law Journal 551–52. See also Bickerton (n 14) 114.

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The incapacity of the financial crisis to prompt a shift in collective identification is easily explained by its very disparate impact on national economies. National political communities are experiencing the crisis in highly different ways. The strengths and shortcomings of the respective social models have been amplified; as a consequence, also the required degree of reform of state structures has been variable ranging from the negligible to the almost total. Thus, legal arrangements to cope with the crisis have been tailored to specific national situations with the result of deepening existing divides and generating new ones. The cleavage between those Member States participating and not participating in the Euro has widened. A more problematic divide has emerged between Member States at the supply and receiving ends of the newly introduced mechanisms of financial assistance. The strategy to cope with the financial crisis has not only weakened national collective identification; it has undermined the legitimacy of the Union itself. The legitimacy crisis of the Union was diagnosed well before the financial crisis. Already with the ratification of the Treaty of Maastricht it was felt that the appeal of the original ideals of peace and prosperity was declining and that the Union was becoming a source of social resentment.211 Disaffection was felt in particular by non-mobile citizens: in their eyes, the Union appeared as a class project dominated by a small and economically privileged cosmopolitan elite epitomising all the dangers threatening their way of life.212 Economic integration did not turn these individuals into Europeans, but instead reinforced their attachment to national and local political communities.213 As the financial crisis exposes the difficulties of the Union in both representing the European citizenry and delivering the promised economic and social goods,214 the ranks of this constituency have simply increased. As a result, the Union has ended up fueling more resentment: from being seen as a body helping constitutional democracies to live up to their ideals, it is increasingly viewed as an agent contributing to their dissolution. Even without subscribing to all the claims of the old and new discontents of European integration, it can be conceded that the institutional setting introduced in response to the financial crisis, by undermining both the welfare state and national democratic constitutions, degrades the environment which initially enabled the affirmation of the constitutional subject. Particularly in the hardest hit Member States, the transformation of the welfare state has been a synonym for increases in taxation and drastic cuts in healthcare services, pensions and social benefits.215 This has not only had the effect of lowering the level of social ­protection ensured to individuals by weakening welfare state structures, it has

211 

Weiler (n 28) 329–32. Fligstein, Euro-Clash. The EU, European Identity, and the Future of Europe (Oxford, Oxford University Press, 2008) 211–13. 213  ibid, 18. 214  Ferrera (n 97) 224. 215  Caritas Europa, ‘The Human Cost of Austerity—A Call for Fair Alternatives and Solutions’, ­available at www.caritas.eu/sites/default/files/caritascrisisreport_2014_en.pdf 80. 212  N

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also dangerously compromised their capacity for generating loyalty and collective identification.216 If it is possible, the impact of the new institutional arrangements on national democratic constitutions is even more alarming. Because of the expansion of EU competences, the scope of application of democratic constitutions is further reduced. As a consequence, increasing sectors of economic and social policy are subjected to the process of technocratic de-politicisation inherent in EU ­policy-making.217 This emerges by the degree of constraints imposed on national decision-making. Especially in the hardest hit Member States, policy directions are prescribed in such a detail as to pre-empt national parliaments of any meaningful role.218 Due to their incapacity to deliver on the advanced liberalism agenda, national peoples are increasingly treated as multitudes to be ruled rather than polities to be enhanced for their efforts in collective self-determination.219 This not only makes it more difficult for those resisting this policy agenda to identify with the Union, but it also erodes the legitimacy of national constitutional democracies. A case in point is the prioritisation by the Union of the goal of financial ­stability220 and, in particular, the mandated incorporation of balanced budget rules in national constitutions.221 Irrespective of its actual legal meaning, this obligation has been equated in public debates to the constitutionalisation of austerity,222 a divisive policy goal weakening the integration capacity traditionally associated with constitutional democracy. From being documents institutionalising the conflicts between opposing views of the public good, national constitutions are transformed into documents entrenching a single vision of it.223 Economic and social policy are no longer regarded as the ground where alternative political views compete for political consensus; they are transformed into a more arid terrain where targets are dictated and national policy performances are measured.224

216  L Beaudonnet, ‘A Threatening Horizon: The Impact of the Welfare State on Support for Europe’ (2015) 53(3) Journal of Common Market Studies 457. 217  Lindseth (n 84) 81–82. 218  See, eg: ‘Portugal—Memoranda of Understanding on Specific Economic Policy Conditionality’ requiring measures such as the reduction of the maximum duration of unemployment insurance benefits to no more than 18 months (4.1) and the reduction of costs in the area of education, with the aim of saving EUR 195 million by rationalising the school network by creating school clusters; lowering staff needs; centralising procurement; and reducing and rationalising transfers to private schools in association agreements (1.8). 219  Even a cursory glance at the texts of the Memoranda of Understanding applying to countries receiving financial assistance justifies the question of what is left of the principle of constitutional tolerance, see Weiler (n 44) 21. 220  Art 119(3) TEU. 221  Art 3(2) and 8 TSCG. 222  Dawson and de Witte (n 203) 826. 223  FW Scharpf, ‘Monetary Union, Fiscal Crisis and the Preemption of Democracy’, LEQS Paper No 36/2011 5–7. 224  See below section V.B.

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Under the public law of the financial crisis, the transformation of national political communities brought about by the Union acquires a post-political character.225 It ushers in a distinct ethos according to which partisan conflicts are regarded as a thing of the past and are silently replaced by a new common sense in which the political is played out in the moral register: in place of a struggle between right and left, post-politics unfolds as a struggle between right and wrong.226 The resulting legal and political order can hardly fit with the requirements of a democratic constitution. Post-politics, indeed, operates an inversion between the place of partisanship and the role of the constitution. The constitution is no longer the place for an open compromise between left and right; it is the locus in which what is right is uncompromisingly established. Within the postpolitical vision, therefore, room for legitimate political contestation is narrowed down, relegating politics (or what remains of it) essentially to the implementation of a pre-defined constitutional project. Opponents of this project are regarded as enemies and no longer adversaries for, in the new institutional environment, their claims are illegitimate and against the course of history.227 By drawing the political frontier in this way, however, the post-political vision is not conducive to a vibrant democratic life; it generates apathy on intractable antagonism between the institutional establishment and its marginalised opponents. What is worse, post-politics resurrects internal political exclusions and, by doing so, it gives up the promise of political freedom and collective identification inherent in the idea of constitutional democracy.

B. Fundamental Rights in the Shadow of Macroeconomic Indicators The impact of the public law of the crisis on the constitutional subject is visible also in her rights dimension. The most evident process taking place in this regard is the proliferation of macroeconomic indicators and the corresponding ­downscaling of fundamental rights.228 Admittedly, even before the crisis macroeconomic criteria and quantitative assessment of policy-making played a major role in supranational law-making. The public law of the crisis buttresses and generalises this trend. National legislative processes are wrapped up in a web of thresholds and ceilings, which are much more intricate the more critical the financial situation of a Member State is. This can be appreciated, for instance, in the discipline of national budgets. The reformed ‘Growth and Stability Pact’ establishes that each Member State defines every three years a medium-term

225 

C Mouffe, On the Political (London, Routledge, 2005). ibid, 1–5. ibid, 48–51. 228  A Morrone, ‘Teologia economica v Teologia Politica? Appunti su sovranità dello Stato e “diritto costituzionale globale”’ (2012) XXXII Quaderni Costituzionali 831. 226  227 

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balance objective (MTBO) to be attained in subsequent stability programmes.229 For Member States participating in the Euro, the lower limit of structural deficit is 0.5 per cent of the GDP (gross domestic product).230 In order to achieve their MTBO, Member States are required to improve annually their cyclically adjusted budget balance of 0.5 per cent or more.231 Member States whose public debt exceeds 60 per cent of the GDP have to reduce it at a pace of one twentieth per year.232 Further numerical criteria are laid down in the rules on the prevention and correction of macroeconomic imbalances, where a scoreboard to detect imbalances is established.233 The same quantitative approach is used to measure national performances in the competitiveness agenda,234 as if, in a Union unable to sustain the conflict between alternative policy options, the only available course of action is the calculation of the progress and delays of each Member State in an uncontroversial schedule. The rise of a hyper-specialised language and the thickening of legal constraints on political freedom are just the most evident consequences of the proliferation of macroeconomic indicators. More profound are the effects in the role and degree of protection of fundamental rights. As anticipated, the rise of macroeconomic indicators entails the marginalisation of fundamental rights. This is not just a matter of lexicon and institutional landscape, but it is a judicially certified reality. Unlike in other policy areas,235 when it comes to measures of macroeconomic adjustment, the Court of Justice shows no anxiety to expand the reach of the EU Charter of Fundamental Rights.236 In addition, the Commission seems reluctant to export the culture of fundamental rights to the coordination of e­conomic ­policies.237 Yet, replacing or downscaling fundamental rights comes at a high price going beyond the deterioration of the levels of protection. Renouncing rights means also renouncing their structural function of representing social tensions and legitimating alternative political responses to them.238 To be sure, in the vacuum of guarantees left by supranational institutions, some degree of social protection can be regained through national constitutional

229 

See art 2a of reg 1466/97 as amended by reg 1175/11. See art 3(1)(b) TSCG. art 5 of reg 1466/97 as amended by reg 1175/11. A higher improvement is required of the Member States whose public debt exceeds 60% of the GDP. 232  See art 4 TSCG. 233  See art 4(2)–(4) of reg 1176/2011. 234  See, for instance, ‘Europe 2020’ (n 200) 10–11. 235  Case C-617/10 Ǻklagaren v Hans Ǻkerberg Fransson, nyp. 236  Case C-370/12 Thomas Pringle v Government of Ireland, Ireland, The Attorney General, nyp, paras 179–80. See also Case C-128/12 Sindicato dos Bancários do Norte, do Centro, do Sul e Ilhas, Luís Miguel Rodrigues Teixeira de Melo v BPN—Banco Português de Negócios SA, nyp, and Case C-434/11 Corpul Naţional Poliţiştilor [2011] ECR I-196. 237  Tellingly, the last report on the application of the EU Charter of Fundamental Rights does not cover the impact of the measures of economic policy coordination on human rights. See European Commission, ‘2013 Report on the Application of the EU Charter of Fundamental Rights’ COM(2014) 224 final. 238  See above s III.B. 230 

231  See

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courts.239 Moreover, more recent pieces of macroeconomic legislation may have the effect of enlarging the protection of the Charter precisely to the areas neglected by the Court of Justice and the Commission.240 Yet, both forms of rehabilitation of fundamental rights entail only a minor recalibration of the dominant institutional culture. Even the most daring judgments of national constitutional courts do not oppose fiscal retrenchment as a legitimate policy objective,241 but they ensure a modicum of social protection against the most disproportionate legislative measures or those affecting the most vulnerable segments of the society. By re-embedding­fundamental rights in the new institutional environment, therefore, these attempts have a paradoxical effect: they make austerity more s­ ustainable242 and, ultimately, legitimate it as the exclusive policy direction.243

C.  The Demise of Political Citizenship Debilitated in the rights dimension, the constitutional subject suffers from strong restrictions also on her capacity to participate in political decisions. The deterioration of her political profile is certainly the result of the more assertive definition of policy targets and the proliferation of macroeconomic criteria. In addition, the procedures introduced to control and steer national economic and social policy add to her marginalisation. This emerges in the newly adopted system of multilateral supervision of national budgets. To ensure financial stability, EU legislation establishes a system of surveillance on the budget cycle through the European semester244 and, for the Member States participating in the Euro, the common budgetary timeline.245 According to these procedures, budgetary activities carried out in national parliaments are closely monitored by the Commission and the Economic and Financial Affairs Council configuration (ECOFIN) to secure fiscal discipline. Thus, in the event of significant deviations from the MTBO during the European semester, the C ­ ommission and the ECOFIN issue respectively a warning and a

239  Significant in this regard is the case-law of the Portuguese Constitutional Tribunal: see cases 187/2013, 474/2013; 602/2013; 862/2013 and 413/2014 available at http://www.tribunalconstitucional. pt/tc/acordaos/. 240  See art 7 of reg 472/2013. 241  See, for instance, 187/13, para 29. See also X Contiades and A Fotiadu, ‘Social Rights in the Age of Proportionality: Global Economic Crisis and Constitutional Litigation’ (2012) 10 International Journal of Constitutional Law 673. 242  See European Parliament, ‘Report on the Enquiry on the Role and Operations of the Troika (ECB, Commission and IMF) with regard to the Euro Area Programme Countries’, 13 March 2014, calling for more attention to national political self-determination and the protection of social rights. 243 M Dani, ‘Misure di aggiustamento macroeconomico e Tribunale costituzionale portoghese: il limitato potenziale contro-egemonico della dottrina dei controlimiti’ (2014) Rassegna di diritto ­pubblico europeo 113. 244  Art 2-a reg 1466/97 as amended by reg 1175/11. 245  Arts 4, 6 and 7 reg 473/2013.

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­recommendation.246 If the ­deviating Member State fails to take appropriate action, sanctions can be imposed.247 In the common budgetary timeline, the Commission contributes to the definition of the budget,248 to the extent that it competes with national ­parliaments in influencing the choices of national governments.249 Constitutional subjects experience more stringent constraints in case of complications in the financial situation of their Member States. Supranational law prescribes enhanced surveillance for Member States in financial difficulty,250 for those receiving financial assistance251 or experiencing macroeconomic imbalances.252 In all these circumstances, enhanced surveillance encourages Member States to address the causes of their difficulty.253 If needed, the Council recommends precautionary measures or specific programmes of macroeconomic adjustment.254 If their financial situation becomes unsustainable, Member States may even be asked to enter in specific programmes to correct their fiscal policy and recover economic capacity.255 The procedure leading to the adoption of these programmes is quite standardised: the relevant Member State formulates a proposal with the assistance of the Commission, the European Central Bank (ECB) and the International M ­ onetary Fund (IMF); on that basis, the Council establishes the guidelines of structural reform and the Member State at issue agrees to implement them under close surveillance of the Commission, the IMF and the ECB.256 Nowhere does supranational legislation require the approval of these programmes by national parliaments. What is worse, the Council can decide unilaterally on any change of the programme in case of a significant gap between macroeconomic forecasts and figures realised.257 As a result, particularly in countries subject to these programmes, citizens are de facto assigned a politically diminished status. The assumption is that they will regain full political capacity only with the complete implementation of the advanced liberalism agenda. In this way, full exercise of political rights becomes a ‘good’ to be deserved. In certain Member States, therefore, it can be safely said that national parliaments are in control of financial decisions.258 In other ones, owing to the constraints imposed by supranational law, similar statements would appear devoid of substance. 246 

Art 121(4) TFEU and arts 5–6 of reg 1466/97 as amended by reg 1175/11. Art 4 of reg 1173/2011. 248  Art 7(1) of reg 473/2013. 249  Chalmers (n 205) 686. 250  Art 2(1) of reg 472/2013. 251  Art 2(3) and (4) of reg 472/2013. 252  Art 5 of reg 1176/2011. 253  Art 3 reg 472/2013. 254  Art 3(7) reg 472/2013. 255  In case of request of financial assistance, Member States enter in a macroeconomic adjustment programme (art 7 of reg 472/2013), whereas in case of excessive macroeconomic imbalances, they sign a corrective plan (art 8 of reg 1176/2011). For Member States subject to excessive deficit procedure, economic partnership programmes are foreseen (art 9(2) of reg 473/2013). 256  See, eg: art 7 of reg 472/2013. 257  See art 7(5) of reg 472/2013. 258  BverfG, 2 BvR 987/10, para 124. 247 

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The diminished political role of the constitutional subject finds little compensation in supranational decision-making processes. The public law of the crisis strengthens the role of intergovernmental and technocratic institutions.259 The European Council is the focal point in the articulation of both the fi ­ nancial ­stability260 and competitiveness strategies.261 The Commission and ECOFIN are involved essentially for their expertise in monitoring and steering Member States’ action.262 In a similar context, ensuring parliamentary accountability and e­ xercising some form of political opposition is extremely difficult. The European Parliament is excluded from the decisions regarding financial assistance, while its role in policy coordination263 and the surveillance of national budgets264 is m ­ arginal.265 Finally, national parliaments are inadequately engaged in supranational decisionmaking, given that their only opportunity to interact with EU institutions is that of setting up hearings of those involved in multilateral surveillance.266

D.  Citizenship on the Wane: Transformation and Resistance For all its possible merits in fostering financial stability and competitiveness, the institutional setting devised in response to the financial crisis impairs the q ­ ualities of the constitutional subject. The core institutions generating national loyalty are weakened and no supranational substitute is offered. Fundamental rights are overshadowed by an uncompromising macroeconomic raison d’état and, in addition, participation is frustrated in the constrained spaces allowed by EU regulatory settings. As the post-political order promoted by supranational law becomes hegemonic, constitutional subjects are left with the dilemma of surrendering to the transformation or resisting it.267 Until now, acquiescence and political resignation have been the most widespread attitudes of those enduring the effects of the crisis and its management,268 although clear symptoms of hostility and antagonism against the Union and national political elites have emerged too.269 Compared with the previous evolutionary phase, however, the EU institutional setting is less ­amenable to internal resistance. To counter the corrosion of the constitutional subject, unilateral invocations of national constitutional identity inspired by 259 

Dawson and de Witte (n 203) 826. Art 121(2) TFEU. 261  ‘Europe 2020’ (n 200) 29. 262  Chalmers (n 205) 687–90. 263  Art 13 TSCG. 264  See, eg: art 2-ab of reg 1466/97 as amended by reg 1175/11. 265  C Fasone, ‘European Economic Governance and Parliamentary Representation. What Place for the European Parliament?’ (2014) 20 European Law Journal 164. 266  See, eg: art 7(3) of reg 473/13 or art 3(8) of reg 472/13. 267 There is, of course, the option of a complete political re-thinking of the normative claims of supranational law, but at the moment it seems rather unrealistic. On this see A Somek, ‘Europe: ­Political, Not Cosmopolitan’ (2014) 20 European Law Journal 162–63. 268  ibid 160. 269  For the view that populism and technocracy have become the dominant trends in contemporary European political life see Bickerton (n 14) 182–83. 260 

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an ethic of constitutional resistance have become more common. The social and democratic claims underlying the constitutional subject are increasingly voiced270 in order to erect ­barricades against technocratic encroachment.271 Outsiders to European ­integration have tried to enlist in this strategy national constitutional courts,272 even though these attempts have thus far produced only limited corrections to the predominant course of action.273 Thus, as supranational law proceeds almost unhindered towards consolidating its predominance, the chances of re-­ establishing a more balanced relationship between political citizenship and economic subjectivity appear on the decline.

VI. Conclusion The proposed excursus on the subjectification of the citizen in European public law contradicts conventional understandings portraying the evolution of EU ­citizenship as a progressive narrative.274 Changes in the relationships between supranational law and constitutional democracy have generated a trajectory in which the constitutional subject, from being predominant on economic subjectivity, has become subservient to it. It is difficult to predict whether and how this trend will be reversed. Perhaps we begin to realise that the constitutional ­subject is the product of particular historical circumstances and an institutional culture which in the current social, economic and political situation are difficult to replicate. The twilight of the constitutional subject might be the price to be paid to complete the transition from the social state to advanced liberalism. This outcome will be achieved when supranational law and constitutional democracy will align completely their governmental strategies and resolve the ambiguities and ­competition existing between economic and constitutional subjectivity. It is clear that, at the end of this journey, we should end up with a single and unequivocal notion of citizenship conforming to the advanced liberalism paradigm. What is less clear, however, is whether at that point European public law will still be able to provide the institutional resources to counter the biases and potential for exclusion of the dominant subjectivity. 270 

Menéndez (n 26) 933. Streeck, ‘Small-State Nostalgia? The Currency Union, Germany, and Europe: A Reply to ­Jürgen Habermas’ (2014) 21 Constellations 219. 272  J Komárek, ‘National Constitutional Courts in the European Constitutional Democracy’ (2014) 12 International Journal of Constitutional Law 539, 543, arguing that by opposing the products of EU economic governance national constitutional courts could unleash the existing potential for a ­European constitutional democracy. 273  Dani (n 243) 131–37. 274 See, for instance, Maas (n 31) 818 and D Sarmiento, ‘The EU’s Constitutional Core’ in A ­Saiz-Arnaiz and C Alcoberro Llivina (eds), National Constitutional Identity and European Integration (Cambridge, Intersentia, 2013) 179–83. 271 W

4 The Persona of EU Law DAMIAN CHALMERS*

I. Introduction The authority of EU law endows it with many hallmarks, notably its autonomy, primacy and its capacity to generate individual rights and duties.1 Such authority relies, however, on structures to enable it. These might be that EU law cuts a certain figure,2 is characterised by a particular style of reasoning,3 secures individual freedom,4 or a combination of all or any of these. Be this as it may, the bar is higher than in a unitary State where the choice is between legal authority and no law. Within the Union these structures must provide more reason for EU law having authority than national structures which already have quite deeply embedded authority. This begs questions as to the nature of these structures. They cannot be externally imposed goods or values which are then attributed to the EU as authority is rooted in the compliance of those subject to its claims, on the one hand, and in the representation that these subjects are obeying for reasons that free and rational individuals would accept, on the other.5 As such, it is a phenomenon centred on the practice of subjects and the disposition attributed to these. It is there that enquiry must focus.6

* 

London School of Economics and Political Science. Opinion 2/13 Accession to the European Convention on Human Rights, EU:C:2014:2454, paras 166–77. 2  R Sennett, Authority (Knopf, New York, 1980); A Kojève, La notion de l’autorité (Paris. Gallimard, 2004) 66–88. A Ronell, Loser Sons: Politics and Authority (Chicago, University of Illinois, 2012) ch 3. 3 M Weber, Economy and Society: Outline of a Theory of Sociology (Berkeley CA, University of ­California Press, 1978) 215–27. 4  J Raz, Between Authority and Interpretation (Oxford, Oxford University Press, 2009) 139; J Raz, ‘The Problem of Authority: Revisiting the Service Conception’ (2006) 90 Minnesota Law Review 1012. 5 S Darwall, Morality, Authority, and Law: Essays in Second-Personal Ethics I (Oxford, Oxford ­University Press, 2013) 110. 6  Authority has been seen, therefore, in terms of the capacity to make practical claims and the relations of accountability and responsibility which accompany this. S Darwall, The Second-Person Standpoint: Morality, Respect and Accountability (Cambridge MA, Harvard University Press, 2006) 11–15. 1 

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To have authority, it will be argued, EU law must have epistemic and regulatory plausibility. It must depict realities to which its subjects can relate, and it must present an image that it is both generally obeyed and effective at securing its goals. To secure this, a persona is represented in EU law. This persona embodies a synthesis of attributes of social norms and moral endeavour which is used to interpret and justify EU law. Through this, the EU persona secures plausibility for EU law by setting out a representation of what the EU subject is generally doing, ought to be doing and the traits she will possess in obeying EU law. It will also be claimed, taking the example of the Somova judgment, that this persona has certain characteristics. It is somebody committed to enabling the collective goods set out in EU law to be realised rather than satisfying their own desires, who has to bear significant responsibilities of a multifaceted nature and either has significant capabilities or is exercising capabilities that they have not habitually used. These characteristics stem from external constraints which shape the nature of EU law and, in turn, inform the style of the persona deployed to inform and justify it. The consequence is that individuals are represented in unforgiving, demanding and idealised ways by EU law with little time either for the contexts, beliefs, commitments and traditions which bestow meaning, authenticity and autonomy on individual life7 or for the geographies of power from whose abuses individuals need to be protected.

II.  Authority, Alignment and the Making of the EU Legal Persona If authority is rooted in the behaviour and disposition of its subjects, the alignment of these with EU law would seem central for it to have authority. There has to be a collective adjustment of their behaviour and dispositions which reflects the presence of this authority, and their responses have to be sufficiently ­similar that one can talk in a generalised manner about whether authority exists or not. Two forms of alignment are necessary: behavioural alignment and epistemic alignment.8 Behavioural alignment requires individuals to comply with EU law but the reasons for compliance can be independent ones. They may do X not because they know that EU law states X but for other reasons. Such alignment is all that can

7 Even liberal accounts see this as important, J Christman, The Politics of Persons: Individual ­Autonomy and Socio-Historical Selves (Oxford, Oxford University Press, 2011) 7 ff. 8  The distinction draws on one made by Raz between following the law and conformity with the law. Following the law goes to belief. Individuals act because they believe it to be the law. With the case of conformity, individuals may obey the law but for any number of other reasons. J Raz, From Normativity to Responsibility (Oxford, Oxford University Press, 2011) 41–58.

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be sought from most legal subjects by dint of their ignorance of the law. There is, thus, merely a correlation between behaviour and what EU law requires. This correlation is still important as it allows EU law to be associated with generalised patterns of activity across its territory. It is, however, insufficient for there to be authority as the latter presupposes not simply obedience but obedience that a free and rational agent might give. The most conventional accounts, positivist accounts, thus argue for the presence of an ‘internal perspective’ whereby law is viewed through the eyes of somebody who guides and evaluates her conduct in accordance with it.9 Epistemic alignment addresses this. It occurs where EU law both provides the reasons for subjects’ actions and informs their experience of the regulated activity. It bestows EU law with normativity as normativity endows action with a point and epistemic alignment emphasises the need for a direct causal relation between this point and the actions of subjects. They act and evaluate their actions in a particular way because EU law tells them to do this. Normativity is, in turn, central to legal authority because if subjects act only because there is a practice—as would be the case with behavioural alignment alone—problems would occur if there is deviation between the practice and the legal norm as subjects will follow the former, and a feature of a norm is that it should be the practice that is seen as deviant. However, what does doing something because it is required by EU law involve? It requires EU law having both epistemic and regulatory plausibility. Epistemic plausibility involves EU law depicting social reality sufficiently credibly that subjects can relate to it as both accurate and desirable. If subjects cannot relate what EU law is telling them about their worlds with the worlds that they understand and experience, it will simply be impossible for them to follow it. Regulatory plausibility involves EU law being set out in a sufficiently suggestive way that it not only induces obedience from subjects but also induces both a belief that others also follow EU law and that it is able to secure its ends. It induces subjects to follow the law not simply because it is so stipulated but also because they follow its claims that there is a generalised rule by law and that it is effective in what it pursues. Positivist accounts press too thin an account of epistemic plausibility. Focusing simply on the presence of conduct does not specify what doing something because it is stipulated by EU law means to the subject. Such meaning is central to identifying normatively guided action and can furthermore not be distilled down simply to interpreting the legal text. Neuroscientists have noted that human rule observance is most centrally rooted in comparison of experiences whereby any new situation is seen as an instance of some category that the subject already understands. This latter category will be based on accumulated experience and will include presumptive information about the wide range of features that any instance of an applied concept can typically be expected to display, about the wide range of relations it will

9 

S Shapiro, ‘What is the Internal Point of View?’ (2006) 75 Fordham Law Review 1157, 1158.

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t­ ypically bear to other things, about the ways in which it will typically unfold or behave over time, and about the ways in which it can typically be controlled or steered.10

Understandings of what EU law asks or requires will be garnered through a comparison between the demands associated with the law and a synthesis of other associations, commitments, symbols and experiences which allow these demands to be placed into pre-existing categories. To be epistemically plausible, law must, therefore, relate to these experiential sources of meaning.11 Regulatory plausibility is equally layered. Reasons provided in terms of abstract values or collective goods do not relate in a sufficiently stable or concrete way to subjects’ experiences, range of relations or existing commitments. Freedom of expression or protection of the environment may, thus, be laudable goals but they do not set out a reason why particular subjects should obey a particular obligation addressed from a particular official. The insights of psychology are helpful here as any claim to authority must be couched in terms that both express and lead to a disposition to obey. Drawing on child psychology, Heath has observed that humans have somatic desires, are reasoning actors and are social actors for whom issues of respect, trust and convention weigh heavily. Rule observance is secured by a coming together of how a person represents their own personal desires; a sense of the general good which derives from their capacity to reason, and peer values.12 Law exerts greatest leverage where it presents an image which ­amalgamates these three elements. It invites individuals to ponder what is being asked of them in terms of their own dispositions and desires.13 It describes a pattern of activity of how others behave, appealing to individuals’ desire to fit in. And, it sets out a vision of how we should live by presenting an image of what is good and right. All three elements must be combined to secure stable authority. One or a combination of two is insufficient. Furthermore, the relationship between the three is neither linear, stable nor discrete. When considering whether to trust an institution, individuals do not break their disposition down into self-interest, moral reasons and social reasons. There is a more heuristic and synthetic feel to it. A general disposition to authority will include all these elements, albeit not in a fully articulated or unambiguous way, with the exact balance varying according to context. It is here that the legal subject enters the frame. To secure epistemic and regulatory plausibility, preconditions for legal authority, a persona is set out which, on

10  P Churchland, ‘Rules: The Basis of Morality…?’ in T Metzinger and J Windt (eds), Open MIND (Frankfurt am Main, MIND Group, 2015) 1, 9; P Churchland, ‘Rules, Know-How, and the Future of Moral Cognition’ (2000) 29 Canadian Journal of Philosophy 291. 11  On how law shapes ideas of how people should look at each other in public see W Reisman, Law in Brief Encounters (New Haven, Yale University Press, 1999) 51–96. 12 J Heath, Following the Rules: Practical Reasoning and Deontic Constraint (Oxford, Oxford ­University Press, 2011) especially chs 3, 9 and Conclusion. 13  J Gloor, A Non-Instrumentalist Approach to Collective Intentionality, Practical Reason and the Self (Göttingen, V & R Press, 2014) 199–200.

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the one hand, embodies a claim as to how people are generally behaving and, on the other, represents how they ought to behave when obeying EU law. A norm is insufficient for this purpose. It does not set out the human qualities, dispositions, capacities or commitments that are necessary to create both a textured depiction of reality or set up a sufficiently plausible account of how others behave and ought to behave to induce obedience and secure the operation of the law. This persona is, of course, a representation which does not accurately restate what is taking place. It rather states a person following the law does not merely act in a particular way but also has certain qualities which allows her to reflect in an engaged manner with the law and to act these qualities out; a disposition not merely to formal observance of the law but to the wider principles informing it; an underlying commitment to the relations protected by the law, and the capacity to identify what is being asked of her by the law and to meet these demands. There are few individuals who, in practice, meet all aspects of this representation, and, like any imaginary, it is never made formally explicit. It is used to make sense of EU law. It relates an interpretation of EU law to a claim about what people are generally doing and their individual status, relations and responsibilities in these activities. It secures regulatory plausibility by setting out a vision of social conformity (‘this is what people do’) and, insofar as it claims that this is what they ought to do, a moral injunction as to how they are to behave. Furthermore, insofar as this persona might be granted certain rewards or recognised a certain status, it appeals to certain individuals’ sense of self-interest or self-worth. The Union is particularly reliant on this persona as it has few financial, infrastructural or coercive resources of its own relative to the tasks it sets out to achieve. It has rather to rely on the actions of its subjects. If they do not follow its prescriptions or, more importantly still, exercise the entitlements granted to them, then there will be no EU policy. Thus, there can be as many judgments as possible under Article 34 TFEU (Treaty on the Functioning of the European Union) and inexhaustible EU legislation adopted under Article 114 TFEU, the provisions on free movement of goods, but trade of goods will not take place across Member State borders unless private parties choose to transact in accordance with the legal framework set up by the Union. Furthermore, it is insufficient that subjects simply comply in a formalistic minimalist manner with EU law. As EU law is a central policy tool, it has to be applied with a view to the goals of the policy to which it is giving effect if it is to have the slightest chance of being effective as such a tool. This entails that subjects act out their obligations and entitlements accordingly.

III.  The Qualities of the European Union Persona If this persona is used to secure authority for EU law, it is also the case that it is, in turn, shaped by those features of EU law which contour its possibilities. It will be suggested that EU law is marked by three overarching features which distinguish

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it from many national legal orders. These are, first, that if it has a formal primacy it has a tempered wider authority. Secondly, it is part of a multilevel system of law in which it must compete for what it does. Finally, as a legal order constrained by the doctrine of conferred powers, EU law has a distinctive content insofar as it has been set up for a number of particular tasks. Each of these features is present across EU law and shape qualities of the EU legal persona. EU law’s tempered wider authority is due, in large part, to the presence of behavioural alignment being more obscure in EU law than in national law. There are a number of reasons for this. Very little EU law imposes obligations or responsibilities on private actors directly. There are a handful of Treaty provisions that do.14 Regulations can do this, formally, but, there are few examples where they are actually characterised in this form.15 Directives, other than in one or two isolated instances, cannot impose responsibilities on individuals directly.16 Furthermore, even if EU law may impose such obligations indirectly, most notably by requiring national law to be interpreted in its light,17 the amount of such law that has actually been invoked in courts in this way is very small, certainly less than one per cent of all EU law.18 As a consequence, EU law relies on an attenuated form of compliance. It requires that national decision-makers obey EU law and, then, that their subjects obey their laws obeying EU law. This progression is, in practice, highly disrupted. Correct transposition of EU laws is the most obvious way in which national law-makers have to obey EU law. In 2014, 67 Directives were due for transposition. The Commission launched 585 infringement proceedings for late transposition in 2014, which, if they were all for that year, would represent about one third of all transpositions due for that year.19 Furthermore, there is evidence of a permissive approach to enforcement. In 2014, the Court gave judgment in 44 infringement proceedings of which the

14  The only Treaty provisions having unfettered horizontal direct effect are Arts 101, 102 and 157 TFEU. There is a more attenuated horizontal direct effect in the case of the economic freedoms where private parties have either been granted a power to regulate market access or have collective rulemaking­powers, Case C-171/11 Fra.bo, EU:C:2012:453 and Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking, EU:C:2007:772 respectively. 15  Although Regs have horizontal direct effect, the number of cases in which this has been decided by the Court are rare, Case C-379/04 Dahms v Fränkischer Weinbauverband, EU:C:2005:609. There are a number of instances where Regs impose obligations on private parties but it is not particularly common. For examples see Reg 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, OJ 2002, L 31/1, arts 19 and 20; Reg 492/2011 on freedom of movement for workers within the Union, OJ 2011, L 141/1, art 7(1). 16  Case C-144/04 Mangold, EU:C:2005:709. 17  Case C-106/89 Marleasing, EU:C:1990:395. 18  On this see D Chalmers, ‘The Positioning of EU Judicial Politics within the United Kingdom’ (2000) 23 West European Politics 169; D Chalmers and M Chaves, ‘The Reference Points of EU Judicial Politics’ (2012) 19 Journal of European Public Policy 25. 19 European Commission, Monitoring the application of Union law: 2014 Annual Report, COM(2015) 329, 17.

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­ ommission won 41, a (not untypical) success rate of over 93 per cent.20 If one C assumes that most of these cases were registered in the EU Pilot programme in 2012, a sure sign that there was a case to answer, 1405 cases were entered into that system in that year.21 The judgments above would represent three per cent of that number with the Commission obtaining judgment in nearly all the cases. The only plausible explanation is that the Commission takes only the most extravagant breaches to Court, conceding on the rest. Furthermore, even in relation to EU law properly placed on the statute books, Member States are only required to secure modest levels of compliance from their citizens. To be sure, they are required to ‘take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties.’22 This has been interpreted to oblige them to ensure the ‘proper implementation’ of EU law unless this would lead to consequences for public order with which they would not be able to cope.23 This requirement is diluted, however, by infringement proceedings not being able to be brought for all administrative practices which breach EU law. Proceedings are only possible if the breach is of a sufficient gravity or sufficient consistency and generality.24 Many policing duties will simply not fall within these headings. It would have to be shown that a State is either regularly failing to police EU law or that it turned a blind eye to serious infringements.25 As the extent of non-compliance will often not be known, this will often be difficult to adduce.26 An image is presented of patchy general conformity with EU law most of the time. This sense of unsteadiness is exacerbated by a lack of information about practices across the different territories of the Union. This results in epistemic alignment having to do much of the heavy lifting to secure authority for EU law. If subjects have less awareness of the routines and conformities associated with EU law, then its authority can only be communicated by a much firmer and more explicit representation that people are actually carrying out certain activities because they are following EU law rather simply acting in accordance with it for whatever reason. The EU persona has, consequently, an insistent and quite salient presence within EU legal reasoning.

20 

Court of Justice of the European Union, Annual Report 2014 (2015, OOPEC, Luxembourg) 107. Commission enters a suspected infringement into EU Pilot if it believes there is a case to answer. On the statistics see European Commission, Monitoring the application of Union law: 2012 Annual Report, COM(2013) 726, 7. 22  Art 4(3) TEU. 23  Case C-63/14 Commission v France, EU:C:2015:458, para 52. 24 Case C-489/06 Commission v Greece, EU:C:2009:165, para 48; Case C-160/08 Commission v ­Germany, EU:C:2010:230, para 107. 25  eg Case C-265/95 Commission v France, EU:C:1997:595. 26  A good example is pregnancy discrimination in the United Kingdom, something which clearly violates EU law. It is estimated that 60000 women per year lose their jobs because of this but ­pending a government review, hard figures are difficult to come by, www.maternityaction.org.uk/wp/wp-­ content/uploads/2013/12/Overdue_Pregnancy_Discrimination_Maternity_Action.pdf. 21  The

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The insistence of this representation manifests itself in a number of ways. There is constant repetition of the ‘fundamental’ qualities of certain provisions, such as EU citizenship or the economic freedoms.27 Albeit leading to relatively few doctrinal consequences, the symbolic intention is clear. It is to elevate certain activities, be it trading or moving across borders, to a legally sacred practice which is so important to individual self-realisation that it must be protected from other legal claims. There is also the policing of Member States. This is not merely to ensure legal protection of the rights of EU legal subjects but there is also an additional duty to ensure that the rules in question are ‘fully effective’.28 As the first duty secures compliance with EU law, this second requirement can only mean that Member States must create an environment which also facilitates a wider following of EU law. Finally, the Court talks of the ‘enjoyment’ of many rights granted by EU law. These relate, in particular, to the provision of benefits or the use of property,29 but this terminology does not go to mere compliance with the law but rather to the person acting out a scenario established and secured by EU law. If EU law’s tempered authority gives the EU legal persona a slightly more insistent and salient presence, the second overarching feature, the competitive context within which EU law must operate, gives it a shrill and not wholly attractive feel. EU law has no taken-for-granted presence but always has to present reasons why it should have more authority than national law.30 To provide these, EU law has to claim to be able secure goods, be these individual or collective, or values which cannot be secured to the same degree by national law and that the benefits provided by this outweigh anything which can be provided by national law. It is ­usually insufficient, furthermore, merely to invoke the argument of scale, namely that it involves collective action comprising more parties and, therefore, the potential gains are greater. Even if this is notionally true, collective action theory indicates that the greater the number of parties the more likely it is that action will deviate from individual preferences.31 A bigger challenge is the institutional requirement of consensus within the Council. This requires that account be taken of the incidence of regulation. States with perceived higher standards which are valued as such will not see benefits from widespread use of a lower standard as the costs will

27  The cases are numerous but two recent ones at the time of writing are Case C-386/14 Steria, EU:C:2015:524; Case C-218/14 Singh, EU:C:2015:476. 28  Case C-268/06 Impact, EU:C:2008:223, para 42; Case C-177/10 Santana, EU:C:2011:557, para 52. 29 Case C-164/12 DMC Beteiligungsgesellschaft, EU:C:2014:20, para 66; Case C-81/13 United ­Kingdom & Ireland v Council, EU:C:2014:2449, para 52; Case C-118/13 Bollacke, EU:C:2014:1755, para 17. 30  G Morgan, ‘European Political Integration and the Need for Justification’ (2007) 14 Constellations 332. See also the distinction made between performance legitimacy and polity legitimacy in N Walker, ‘Constitutionalizing Enlargement, Enlarging Constitutionalism’ (2003) 9 European Law Journal 365, 368–70. 31 G Majone, ‘The Limits of Collective Action and Collective Leadership’ in D Chalmers, M ­Jachtenfuchs and C Joerges (eds), The End of the Eurocrats’ Dream: Adjusting to European Diversity (­Cambridge, Cambridge University Press, 2016).

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outweigh the benefits. They will rather push for a standard that proclaims itself at least equal to their own. To make a case for its authority, a Union standard must not merely show that it will have a wider remit than any national standard but that it can present a stronger normative case than these standards as well.32 As these tasks and standards must be discharged through the actions of private parties, this has implications for the EU persona. The high benchmark might be realised by large numbers of actors, greater than those which could be brought together by national law, with each performing relatively small things. An example might be laws to combat climate change. The Union asking everybody to do a little bit could still make a big difference. However, it would still be making demands of some actors which had not been made previously as otherwise it would not be effecting any significant change. Thus, a Commission review considering whether to discontinue the production of particularly ecologically damaging light bulbs, such as halogen light bulbs, prompted outrage from the British press precisely because it was seen as having a pervasive effect on the lives of the many.33 Such widespread responsibilities are challenged by the obscurity as to whether the relevant EU law is being practised more widely. The lack of awareness of a pan-Union practice amongst individual citizens generates the corollary sense that somehow they are being targeted by an external force. Such widespread responsibilities are, therefore, not the norm. Instead, in most fields, it is more common for EU law to target a more restricted number of subjects imposing more onerous duties on these on the grounds that either they have greater capacities to realise the tasks sought by the Union or that they pose a greater threat to discharge of these ­targets.34 Whilst there are many circumstances where this is manageable, in some circumstances, these tasks are extremely difficult to discharge35 and in others, the level 32  For greater detail on this, I took three of the most significant but different legislative proposals in the 2008 legislative package and showed how each sought to do this. D Chalmers, ‘Gauging the ­Cumbersomeness of EU Law’ (2009) 62 Current Legal Problems 405. 33  This was required by Commission Reg 244/2009 implementing Dir 2005/32/EC with regard to eco-design requirements for non-directional household lamps, OJ 2009, L 76/3, Preamble, alinea 21 and Article 7. On the reaction see J Delingpole, ‘Why the EU’s plan to ban halogen light bulbs should make you blow a fuse’ Daily Mail (London, 2 March 2015) www.dailymail.co.uk/debate/ article-2976692/Why-EU-s-plan-ban-halogen-light-bulbs-make-blow-fuse-JAMES-DELINGPOLE.html; ‘Now EU targets halogen bulbs: Brussels could BAN light used by millions by next year’ Daily Express (London, 2 March 2015) www.express.co.uk/news/uk/561403/European-Union-banhalogen-bulbs-2016; ‘EU could ban halogen bulbs as early as next year as part of energy-saving drive’ Daily Mirror (London, 2 March 2015) www.mirror.co.uk/news/uk-news/eu-could-ban-halogen-bulbs-5258413. For a contrary account, ‘LED lighting surge dimmed by halogen lamp reprieve in ­Brussels’ The Guardian (London, 25 November 2014) www.theguardian.com/environment/2014/ nov/25/led-lighting-surge-dimmed-by-halogen-lamp-reprieve-in-brussels. 34  On perfectionism in EU law see J Bomhoff, ‘Perfectionism in European Law’ (2012) 14 Cambridge Yearbook of European Legal Studies 75. 35  All manufacturers struggled to develop technology for the so-called ‘Euro 6’ test for ­nitrogen dioxide emissions with even the most ecologically friendly technology facing challenges, www. dieselcarmagazine.co.uk/features/euro-6-understanding-the-new-regulations/. The test is contained in Reg 715/2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information, OJ 2007, L 171/1.

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of responsibility is so onerous that it is unclear what is being demanded with the consequence that responsibilities have a heuristic feel to them.36 The EU legal persona is, thus, not only an insistent presence but also has a virtuous quality to it. She is committed to securing the collective good. Her commitment extends, furthermore, often to discharging significantly more responsibilities than she would otherwise do. Furthermore, she is envisaged as having significant capabilities which will often be tested. The third overarching feature of EU law goes to what it does. Much of it—be it labour, environmental, consumer, competition, financial services law—is what Ewald terms ‘social law’. With such law, the position of one party is secured at the expense of the position of the other. It is concerned, above all, with balancing the relationship between two or more social actors.37 Focus is therefore less upon a priori principles and more on the distribution of burdens and risks between actors and the balancing of values and goods. Such law poses an apparent challenge to the appeals to self-interest and ethics that must be made to secure authority for EU law. The need for mutual accommodation rubs up against the atavism of self-interest and value pluralism tempers the weight that can be assigned to any value by relativising its position vis-à-vis other values. This conundrum has been resolved by EU law according a similar normative weight to the collective goods realised by it in Articles 3 to 6 TFEU as to wider fundamental rights and freedoms. This is done most explicitly in Article 3 TEU (Treaty on European Union) where, in addition to a commitment to promote its values, there is also a commitment to promote the ‘well-being of its peoples’ with a long list of policies attached setting out what these are in the rest of the provision. Equally, emblematically, the TEU and TFEU are granted the same legal status as the European Union Charter on Fundamental Rights and Freedoms (EUCFR).38 At the micro-level, not only are EU legislative measures realising a collective good given considerable leeway from the trumping effects of these rights and freedoms,39 but many of the rights and freedoms set out in the EUCFR elide into collective goods so that many are only justiciable in interpreting secondary legislation which has given effect to them.40 Finally, EU fundamental rights are interpreted time and again in the light of these

36 

An example is the precautionary principle. Ewald, ‘A Concept of Social Law’ in G Teubner (ed), Dilemmas of Law in the Welfare State (­Berlin/New York, De Gruyter, 1986). 38  Art 6(1) TEU. 39  In some instances, this is done through arguing that the Union legislature has a margin of discretion in relation to these which other parties do not have, Case C-59/11 Kokopelli EU:C:2012:447. In others, it is through interpreting EU legislation to be compliant wherever possible with fundamental rights problems treated as challenges of poor implementation by national authorities, Case C-540/03 Parliament v Council, EU:C:2006:429. 40  This is the case with the so-called ‘principles’ in the Charter, Art 52(5) EUCFR. Case C-176/12 Association de Médiation Sociale, EU:C:2014:2. 37  F

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collective goods so that they only secure coherent meaning when viewed through the prism of the latter.41 The elevation of these collective goods to the status of ethical imperatives endows Union action with moral pretentions that it might not otherwise have, particularly as the Union can claim authorship over these goods as it either institutes or coordinates them. Identified by Weiler as political messianism, he notes ‘the justification for action and its mobilising force, derive not from “process”, as in classical democracy, or from “result and success”, but from the ideal pursued, the destiny to be achieved, the “Promised Land”’.42 It resolves the challenges for the Union’s authority in more nuanced ways. EU collective goods also act as containers for other values. The range of values required to be taken into account in all Union policies by the Treaties is considerable: equality between men and women; promotion of high levels of employment; the guarantee of adequate social protection and fighting against social exclusion; a high level of education, training; protection of human health; protection of the environment and the consumer; and the combatting of discrimination.43 In addition the impact of any proposed measure on the EUCFR has to be assessed.44 If the consequence is an ecumenical flavour to EU policies, most of these values are expressed in individualised terms as an individual right to health, inclusion, protection of the environment and so on. Union collective goods hold out, at the rhetorical level, a series of benefits for different individuals. Furthermore, their distributive effects are usually obscured so it is very difficult to evaluate overall winners or losers. Subsuming different values within an overarching narrative of a collective good also has a further effect. A balancing of values will still take place, but it is identified rhetorically at least with an overarching ethos: be it that of the single market, the environment, consumer protection or whatever the policy towards which the legislation is contributing. This shapes the final qualities of the European persona. She is multidimensional. She can be characterised as a market actor, an ecological actor and so on as this is the collective good to which she is contributing, but such a characterisation is too undifferentiated. She will also be represented as having multifaceted qualities. As a market actor, she may have to balance health, ecological and gender

41 In Mesopotamia and Brüstle, for example, the Court was required to interpret the limits of hate speech and when an embryo came into being in the limit of the rights to freedom of expression and the right to human dignity, respectively. In each case, it interpreted this through the prism of the s­ econdary legislation in question, the Audiovisual Services Directive and the Patenting of Biotechnology Directive, with the consequence that the right to freedom of expression and the right to human dignity were only intelligible if one had regard first to this legislation, Joined cases C-244/10 and C-245/10 ­Mesopotamia & Roy, EU:C:2011:607; Case C-34/10 Brüstle, EU:C:2011:669. 42 J Weiler, ‘Europe In Crisis—On “Political Messianism”, “Legitimacy” and the “Rule of Law”’ (2012) Singapore Journal of Legal Studies 248, 256. 43  Arts 8–12 TFEU. 44  European Commission, Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union, COM(2010) 573.

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considerations as well. How she balances these will often be represented in quite unspecified ways but it adds to the sense of her virtue, capacity and responsibility.

IV.  Somova: A Case Study in Responsible Citizenship To illustrate how this persona guides the interpretation of EU law and sustain its claims to authority, a counter-intuitive example will be taken, the EU citizen resident in another Member State who wishes to claim benefits. Such EU citizens have in recent years had a terrible press, much of it with unpleasant racist overtones, and this is notwithstanding the clear overall material benefits brought by these to their host States.45 Public perceptions across the Union that there is too much internal EU migration are both well entrenched and ill-informed insofar as there is significant over-estimation of its levels.46 Judgments by the Court of Justice have consequently taken a more restrictive tone.47 A climate, both institutionally and more broadly, has been established where these citizens are stigmatised unfairly as not having many of the qualities of multifaceted virtue, capacity and responsibility associated with the EU persona. This is not, however, what is represented or required of them in EU law. Somova was a Bulgarian pensioner who challenged a Bulgarian requirement disqualifying people from receiving a pension if they were still making contributions to a pension scheme on the day of the award of the pension.48 She had continued to work in Austria as a farmer, making contributions there, both on the day of award of her Bulgarian pension and subsequently. When the Bulgarian authorities became aware of this, they stopped her pension and sought repayment of previous disbursements. The central question went to whether the Bulgarian authorities could stop Somova’s pension because she was making social security contributions in another Member State. As these contributions were compulsory for those working or self-employed in many Member States, it went to whether a State could stop a pension because somebody was working or self-employed in another Member State. However, the Bulgarian authorities made the point that these contributions (and therefore the employment or self-employment) need only be stopped for one day, the day of the award.

45  C Dustmann and T Frattini, ‘The Fiscal Effects of Immigration to the UK’ (2014) 124 Economic Journal 563. 46  In 2014 43% of EU citizens thought internal EU migration was a concern with the number who thought there were too many immigrants within their country dropping by a third when told the actual statistics, Transatlantic Trends: Mobility, Migration and Integration (Washington DC, German Marshall Fund, 2014) Charts 4 and 2 respectively. 47  Case C-333/13 Dano, EU:C:2014:2358; Case C-67/14 Alimanovic, EU:C:2015:597. 48  Case C-103/13 Somova, EU:C:2014:2334.

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The question revolved around two provisions. There was a question, first, whether Bulgarian law breached Article 49 TFEU, the provision on freedom of establishment. The relevant parts state that ‘restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited’ and subsequently, ‘… freedom of establishment shall include the right to take up and pursue activities as self-employed persons.’ The second was article 94(2) of Regulation 1408/71, on the coordination of social security systems: All periods of insurance and, where appropriate, all periods of employment or residence completed under the legislation of a Member State before 1 October 1972 or before the date of its application in the territory of that Member State or in a part of the territory of that State shall be taken into consideration for the determination of rights acquired under the provisions of this Regulation.49

Neither the provisions themselves nor the recitation of orthodox case-law on both of these helped indicate whether the Bulgarian restriction was lawful or not. In relation to Article 49 TFEU the Court stated: … the provisions of the Treaty relating to freedom of movement of persons preclude any measure which, albeit applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by European Union nationals of the fundamental freedoms guaranteed by the Treaty (see, to that effect, judgments in ­ Government of the French Community and Walloon Government, C-212/06, EU:C:2008:178, paragraph 45, and Casteels, C-379/09, EU:C:2011:131, paragraph 22). It follows that the Bulgarian legislature has the power to determine, under its national law, the conditions for the grant of an old-age pension in so far as they are not discriminatory on the grounds of the nationality of the applicants and do not prevent or dissuade persons who are entitled to an old-age pension from exercising the fundamental freedoms guaranteed by the Treaty.50

A tension is set out between the discretion of the Bulgarian legislature and possible restrictions on freedom of establishment. This tension is stated rather than resolved. Miss Somova had not been personally restricted or deterred from ­moving to Austria, as she still lived there and her pension claim in Bulgaria had been brought by her daughter. The condition also did not prevent Bulgarians more generally from economic activities abroad when they reached pensionable age as they were not physically prevented from these or prosecuted in such cases. The only question was whether it deterred Bulgarians more generally from economic activities abroad. This might be the case, but then so might very large Bulgarian pensions which gave no financial incentive to work again or any system of set-off whereby income earned in Bulgaria or elsewhere would be subtracted from the pension sum paid. 49  This has been replaced by Reg 883/2004 on the coordination of social security systems, OJ 2004, L 166/1. 50  Case C-103/13 Somova, EU:C:2014:2334, paras 38 and 39.

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There is similar vagueness with regard to Article 94(2). Somova had become e­ligible for her Bulgarian pension in 2006, before Bulgaria acceded to the ­European Union. She argued that the normal principles on aggregation of pensions, taking account of contributions made in other States, did not apply at that time and she was free not to declare them. The Court stated: Its unequivocal wording, in particular the use of the words ‘shall be taken into consideration’ in the English version, clearly shows the mandatory nature of that provision. That is also apparent from the other language versions of Regulation No 1408/71, which do not give any grounds to doubt the binding nature of that provision. That literal interpretation of Article 94(2) of the regulation is corroborated by the settled case-law of the Court according to which the provisions of Regulation No 1408/71 determining the applicable legislation form a complete system of conflict rules the effect of which is to divest the national legislatures of the power to determine the ambit and the conditions for the application of their national legislation on the subject so far as concerns the persons who are subject thereto and the territory within which the national provisions take effect …51

This does not address the question whether the provision also binds individuals. The case can be made that these are different classes of actors with States having specific responsibilities to ensure that individuals are not disadvantaged with regard to their statutory pension entitlements by free movement. Individuals do not have these as they do not grant public pensions. The dispute and the more general relationship between public pension entitlements and free movement was resolved, consequently, through resort to the EU legal persona. This persona is, first, established as bearer of rights whose presence exists not merely for personal enjoyment but the creation of collective goods. The Court therefore presents three reasons why the Bulgarian requirement that contributions be discontinued in Austria were likely to dissuade Bulgarians from carrying out self-employment in other EU States, and therefore were caught by Article 49 TFEU. Such a discontinuance in the payment of contributions, as easy as it may be for a worker carrying out his activities in Bulgaria, may be difficult, even impossible, for a worker exercising his freedom of movement or of establishment by carrying out an occupational activity as an employee or as a self-employed worker in another Member State. In particular, the administrative steps liable to flow from that discontinuance in another Member State could lead or even require a worker placed in a situation similar to that of Ms Somova to cease his occupational activity for an unpredictable period of time, longer than the minimum one day required by Bulgarian legislation, in order to be granted an old-age pension pursuant to that legislation. That discontinuance could call into question the pursuit, by a self-employed person, of his occupational activity and make his professional circumstances precarious given that,

51 

Case C-103/13 Somova, EU:C:2014:2334, paras 53 and 54.

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following the discontinuance, he would have no guarantee of pursuing his employment or finding another. … that discontinuance could also have, following that worker’s return to work, negative consequences on pay, career progression and prospects of promotion, such as for example, a loss of the rights to paid leave and a reduction in grade or seniority.52

The persona is one who enables collective activities rather than satiates private desire, in this case the world of transnational occupational activity. As stated earlier, the reasoning made little sense in relation to the personal circumstances of Miss Somova as it did not dissuade her from living in Austria. More generally, most of the argument does not hold for the world of self-employment, covered by Article 49 TFEU, but rather for the world of employment. It is difficult to see how arguments about progression, paid leave and return to work affect the self-employed (paragraph 44). Equally, the possibility of losing employment or not finding renewed employment (paragraph 43) makes no sense for the selfemployed. The style of reasoning only makes sense if this persona is to facilitate occupational activities, both employment and self-employment, more generally. In such circumstances, the employed and self-employed can be treated interchangeably and can talk of measures which induce or de-incentivise patterns of activity more generally. The persons benefitting from the judgment, and therefore the persona at its c­ entre, are also more qualified than one generally disposed to transnational ­economic activity. It is, therefore, important to state what the judgment provides and does not. It does not provide that Bulgarians have a right to a pension. This is a matter for national law and if Bulgaria wished to abolish pensions this would be perfectly lawful, and this abolition could apply equally to the mobile and the immobile.53 It is not a right to continue working once you have reached pensionable age or are in receipt of a pension. EU law grants Member States considerable leeway over the imposition of compulsory retirement.54 Either Bulgaria or Austria could restrict Somova from working if this was applied equally, in the latter case, to other EU citizens. The commitment is more limited. It is rather that EU citizens have a right to work or be self-employed abroad once they have reached pensionable age in States which allow for this. The persona is, thus, one who has reached pensionable age and wishes to engage in transnational occupational activity in another Member State which allows such activity. This persona enjoys, furthermore, a pivotal and salient position. It is used to interpret Article 49 TFEU. A restriction only exists if the provision is viewed through the lens of there being such a notional collective subject. It is also used to claim authority for EU law. EU law grants an autonomy and opportunity to such

52 

Case C-103/13 Somova, EU:C:2014:2334, paras 42–44. This is set out very clearly in paras 33 and 34 of the judgment. 54  Case C-45/09 Rosenbladt, EU:C:2010:601; Case C-286/12 Commission v Hungary EU:C:2012:687. 53 

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people that national law cannot offer either because it allows them either to work abroad or, in some cases, to work at all and also embodies a certain paternalistic image. EU law is offering to take care of a pensioner by providing the opportunity for a living which may not be offered to her by her home State—indeed, there would be little incentive to move otherwise. This persona also sets out and embodies a series of responsibilities which are present in the interpretation of article 94(2). The Court holds that the reasons that the EU citizen cannot opt-out of the system of aggregation established by Regulation 1408/71 are two-fold. 55 Since the conflict rules … are thus mandatory for the Member States, a fortiori it cannot be accepted that insured persons falling within the scope of those rules can counteract their effects by being able to elect to withdraw from their application. The application of the system of conflict rules established by the regulation depends solely on the objective situation of the worker concerned … … 61 It follows, as Ireland argued in its written observations, that the applicant for social security benefits is not entitled to present a fragmentary narrative of his employment or insurance history so as to secure financial advantage.55

The policy reasons preventing opt-out are, first, that it could destabilise the balance between national regimes for determining which is responsible for the EU citizen. If an EU citizen could somehow opt-out of a system requiring their home State to pay for their welfare, this would place the host State in a difficult situation if the citizen suddenly fell on hard times. Secondly, it is to prevent the EU citizen gaming the system and acquiring undue financial advantages. In this instance, Bulgarian law allowed its citizens to have additional earnings and benefits without affecting their pension entitlements. However, Regulation 1408/71/EC allows States to offset income or other social benefits against their pensions, and for these to be correspondingly reduced.56 If this had been the case with Bulgaria and Somova had been able to argue that she was not covered by the Regulation, she would have been able to secure benefits not available to Bulgarians in Bulgaria. A figure has to be attached to this, however, which translates these general arguments into a series of individual responsibilities which are to be sustained and consistent over time. The method of securing these policy goals is to be through individual self-policing and action. This is done very explicitly in paragraph 61 above where the Court talks of the EU citizen having to present a full and accurate narrative of their employment and insurance history. Just as taxpayers have to present a full account of their earnings to secure equity between themselves and other tax payers and enable the fiscal system to operate, so the EU citizen is required to provide a parallel account of their occupational life history to secure equity

55  56 

Case C-103/13 Somova, EU:C:2014:2334, paras 55 and 61. This is in art 12(2) of the Reg.

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between themselves and other recipients of benefits and to enable the operation of the EU system of aggregation of benefits. They are never, thus, just a market actor but rather they act to secure a wider system of welfare capitalism in which they are not only concerned to be productive and competitive but to contribute also to an effective distribution of welfare. There is a paradox, furthermore, as this responsibility is far more onerous than that of the immobile taxpayer carrying out occupational activities in their home State. The latter is required to present a history of their income but not of their employment or social insurance history. This would be something done centrally by the administration or by the insurance company. This paradox is heightened by the complications of presenting a full narrative for somebody who has worked or been self-employed in more than one Member State as it will involve different authorities operating different systems. Bringing this all together, a persona is presented in Somova of somebody who seeks to secure collective transnational occupational activity for pensioners. This persona will be somebody who is competitive enough to secure employment or demand for their services in another market but who also has the responsibilities and capacities to keep a full record of their occupational and insurance history from the moment they started working until past their pensionable age and to be able to present this to the authorities when necessary. The persona is, moreover, sufficiently virtuous to see occupational activities as a reward in themselves rather than a route for self-enrichment as Member States can deduct income earned from pension entitlements with the result that the EU citizen can actually be working for free if their income is totally offset by their reduction in pension entitlements. This persona, it must be restated, is central to both the interpretation of EU law and the reasons provided for its authority. Without it, it is impossible to arrive at the reasoning used by the Court, and it is central to projecting an image of authority which both mediates the interests of the mobile EU citizen and national welfare systems.

V.  Conclusion: The Unsteady Gait of the EU Persona A feature of authority is that it does not have to be reclaimed in every instance where it is asserted. To that end, it is worth noting that Somova was just illustrative of the image EU law projects to justify and assert its authority more generally. These features—the salient presence of a persona who is ‘responsibilised’, capable, virtuous and oriented to realising collective goods and who is presented in quite generalised terms—can be found across EU law, albeit how these qualities will be translated will vary across context. The centrality of this persona to the authority and legitimation of EU law illustrates some of the challenges encountered by the latter. First, it is poorly projected. This might seem contradictory in light of the earlier comments about its salience and shrillness within EU law. Law lost some time ago, however, its hegemony over

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the depiction of social realities, as other tools, most notably statistics and the mass media, emerged to replace it.57 If the latter are not present in the same way at a pan-Union level as they are at a national level, it does not mean that law somehow returns to its pedestal. EU law is also contaminated by a generalised mistrust of official accounts of Union realities. Studies of the European Union public sphere have found EU affairs to be relatively widely reported but the positions of national governments are more central to the reporting than would be the case within a purely national context. This leads to a mistrust of this reporting both insofar as there is political mistrust of national government and insofar as citizens perceive that other narratives, particularly non-official ones, are not being presented.58 Insofar as EU law sets out an institutionalised language for the EU and account of what it does, this mistrust spreads to it. Alternate accounts depicting vibrant, mischievous, meaningful life-worlds rooted in domestic societies as counterpoints to the Union do so as much in relation to EU law as they do in relation to the EU institutions. Secondly, the persona offers a highly stylised image. This necessarily jars with individual experiences of what takes place when EU law is invoked. In part, this is because no private actor matches up to the persona set up by EU law. Their attributes are invariably more complex and contradictory than of the EU legal persona. More importantly, this persona will only capture some of the issues at stake. Thus, it is all very well the Union justifying its authority through its enabling an individual to seek opportunities towards the end of their career which would otherwise be denied. However, the reality is likely to be most often where individuals have insufficient means for a decent old age. The new political economy suggests that, in such circumstances, they should spend that old age migrating to another State, possibly away from their family and social networks, to secure a decent living. It is not a happy economic geography. Equally, this persona has little to say about distributive conflicts. Older people migrating to work in another State concerned about their pensions are unlikely to be from the high earning demographic. They may put downward pressure on wages, prevent opportunities being opened up for local younger people, and generate expensive health care costs. This is not to argue against their having such a right to move, but merely to observe that many of the implications of this mobility for national citizenship entitlements within the host State are simply not addressed. Thirdly, there is the malleability of this persona. This goes to who narrates its features in any particular instance. Most EU law does not generate rights to be presented by private actors before courts setting out an image of the individual which offers something to them: be it the discriminated employee, the asylum seeker or

57 W Murphy, The Oldest Social Science? Configurations of Law and Modernity (Oxford, Oxford ­University Press, 1997) 114 ff. 58  R Koopmans, ‘How Advanced is the Europeanization of Public Spheres? Comparing German and European Structures of Political Communication’ in T Risse (ed), European Public Spheres: Politics is Back (Cambridge, Cambridge University Press, 2015).

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the poorly treated EU citizen. In the majority of instances—be it single m ­ arket law, financial services law, environmental law, agricultural and fisheries law or ICT law—EU law will set out an array of mutual commitments, be these between administrations and private parties or between private parties, which either do not generate justiciable rights or generate rights which are rarely going to be enforced. In such circumstances, the different elements of the EU persona become subject to a field of forces in which each party will interpret them to their advantage and will seek to impose them on the other. This struggle is necessarily obscure and is likely to benefit the more powerful. Indeed, in certain cases, the asymmetry of power is so great that it is not possible to talk of a struggle between two parties but rather one of party imposing its will on the other. This chapter will finish by providing two examples that of carbon dioxide ­emissions by cars and that of equal pay for work of equal value for men and women. The first concerns the Volkswagen scandal and its use of technology to give misleading readings on diesel cars on their carbon dioxide emissions. The scandal is widespread and shocking, affecting up to 11 million cars. It was, in part, a response to regulatory demands which, as noted, have become extremely demanding.59 This regulatory schema fitted that of the Union persona described earlier. It imagined a private party with considerable capacities and ability to meet these demands, who was able to meet both competitive and ecological demands, and was oriented to discharging these responsibilities in a manner in which the central assumption was one of trust. These responsibilities were developed within the institutional framework of Whole Vehicle Type Approval.60 This procedure required approval by national authorities of a vehicle type who had to check that it met an exacting list of EU law requirements. There were no requirements on this authority to be capable or independent. Procedural requirements involving transparency, due process or rights for third parties were non-existent. There is not a single reported instance of any case ever being brought to court. It is difficult to think of a less transparent relationship nor one that was more susceptible to capture, particularly as national authorities would be keenly aware of the importance of the car industry to more general national economic performance. It was neither surprising, therefore, that the tests were evaded, massaged and concealed nor that this was brought to light not through official processes but by journalists. With regard to equal pay for work of equal value, as shocking as evidence of widespread non-compliance is the manner in which this principle can be manipulated by employers. This is because the notion of ‘value’ sitting at the heart of this principle is highly malleable. Regard is had to ‘the nature of the work and

59  The cheating began in 2009 which coincided with the transposition date of Dir 2007/46/EC which allowed for virtual testing and testing of unrepresentative vehicles in approval of vehicle types, Dir 2007/46/EC, establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, OJ 2007, L 263/1, art 11. 60  This is now set out in the 2007 Dir but has been around since 1970.

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t­ raining and working conditions’ to determine this value.61 Workers doing identical work can be paid differently on the grounds that their training is different even if the money brought to the company by each is the same.62 More pernicious is the notion of the ‘nature’ of the work. It does not require the employer to have regard to the value of the employee either in terms of what they bring to the organisation relative to other employees or what they generate in terms of value. It is, instead, a heuristic term that allows employers to follow conventional highly gendered assumptions about the relative status of different roles. The worker, to secure equal pay, has, thus, to show herself committed not merely to the organisation and its success but to accepting the status of these roles and acting out her career accordingly. Expressed as a right, equal pay for work of equal value becomes, instead, predominantly a management tool which can be used to discipline workers not to become more efficient or generate more value for the company but rather to follow the hierarchies set out by the management. And this brings us to the final challenge of the European Union persona. If it commits EU law’s subjects to an often quite stringent ethos of virtue, capacity, responsibility and orientation towards the collective good, the opaque manner in which it is deployed allows those most able to discharge this ethos to shirk it. This is because all too often, there is too little accountability for ensuring that these meet their responsibilities. Instead, the EU legal persona becomes something which can be exerted all too rigorously against the small man and woman. Insofar as this happens, it allows a perception to arise that the European Union is uninterested in that central foundation of the rule of law and political community, namely a community of equals.

61  Dir 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, OJ 2006, L 204/23, Preamble, para 9. 62  Case C-427/11 Kenny, EU: C: 2013:122.

Part III

Reconstructing Personhood in EU Law

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5 Ambiguities of Personhood, Citizenship, Migration and Fundamental Rights in EU Law DANIEL THYM*

I. Introduction Both ‘personhood’ and ‘human rights’ are basic categories of law with a long ­tradition in (Western) thought. Historically, not all human beings were considered equal persons before the law, although most jurisdictions in Europe moved towards the principled recognition of legal personality, within domestic legal orders at least, during the nineteenth century. Against this background, it does not come as a surprise that the human right to equal personhood before the law enshrined in Article 16 International Covenant on Civil and Political Rights and Article 6 Universal Declaration of Human Rights finds no equivalent in the ­European Convention on Human Rights and the EU Charter of Fundamental Rights and has little practical impact in the EU legal order. As an abstract category, the human right to legal personality may not have much relevance, although a reminder of historic debates in civil law jurisdictions shows striking similarities to contemporary debates about migration. From today’s perspective, the delineation of fundamental rights and citizenship reveals a surprising ambiguity over the role of the individual underlying basic concepts of Union law. This chapter will focus on the category of the right-bearer in terms of groups of subjects endowed with individual rights as a heuristic device to reconstruct different conceptions of personhood in Union law. This undertaking concentrates on fundamental rights of individuals in the EU Treaties covering both human rights sensu stricto and the classic guarantees to transnational free movement, which lie at the heart of the single market. Closer inspection shows that there

*  Professor of Public, European and International Law and Managing Director of the Research Centre Immigration & Asylum Law at the University of Konstanz.

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is no ­uniform category of the right-bearer in Union law and that subjects that may invoke ­fundamental guarantees changed over time. The argument will start with an explanation of the historical background of legal personhood and related human rights guarantees (see below II) and explore the status of the individual in EU law thereafter (see below III). On this basis, it will present what I call the ‘citizenship-personhood-cleavage’ defining the interplay between Union citizenship and rules on immigration and asylum together with a proposal of how to reconstruct the distinction from a constitutional perspective (see below IV).

II.  Personhood and Human Rights In international human rights law, legal personhood is considered a fundamental right enshrined in Article 16 International Covenant on Civil and Political Rights (ICCPR) and Article 6 Universal Declaration of Human Rights (UDHR) which both state: ‘Everyone shall have the right to recognition everywhere as a person before the law’. Closer inspection of the historical and conceptual background explains why the guarantee has no equivalent at European level: it was considered self-evident. At the same time, the history of private law in the continental ­European tradition based on Roman law reveals that abstract notions, such as ‘personhood’, have mostly had a theoretical significance, while legal practice was primarily concerned with degrees of rights attached to a certain ‘status’ (see below A). This resonates with contemporary Union law where rights of individuals are multifaceted, although abstract debates on legal personality can be ­relevant in borderline scenarios, such as extraterritorial application or the definition of the beginning or termination of human life (see below B).

A.  Historical and Conceptual Background Historically, not all human beings were considered persons before the law. Roman law famously assumed that slaves were not persona and categorised them as res (objects) instead1—mirroring the nineteenth century controversy about the constitutional status of slaves in the US.2 One should be careful, however, to not read too much into the use of the term ‘person’ in legal texts during antiquity and the Middle Ages, since it can be argued that Roman jurists employed the term without much legal substance and conceptual depth but as a rather mundane ­description

1  See S Drescher, ‘Slavery’ in B Fassbender and A Peters (eds), The Oxford Handbook of the History of International Law (Oxford, Oxford University Press, 2012) 890–916. 2  cf US Supreme Court, Dred Scott v Sandford [1857] 60 US 393 which, technically, concerned the notion of citizenship under Art III s 2(1) US Constitution.

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of a generic legal category.3 If that was correct, Roman law should be remembered ­primarily for having focused on the status (or rather stati)4 of a person, thereby emphasising the potential for differentiation, for instance in relation to the status libertatis about degrees of slavery.5 This status-oriented approach was taken up by civil law jurisdictions in continental Europe to describe various distinct categories of legal relations between members of society such as different degrees of servitude among peasants in medieval Europe or the special status of Jews which complemented grades of personhood and legal capacity in the feudal system.6 In short, there seems to have been no deep concept of personhood, whose use rather mirrored the etymological origin of the term ‘persona’ designating theatrical masks for different roles or characters performed by an actor.7 A more substantive concept of personhood, upon which today’s understanding can be built, was developed during the early modern era by natural lawyers and moral philosophers.8 They advanced the abstract category of the ‘person’ as a self-reliant moral actor and legal subject that cannot be deprived of his character as a right-bearer inherent in any human being in their legal writing,9 while Immanuel Kant is probably the best-known champion of a philosophical notion of ­personhood.10 Notwithstanding differences among the positions put forward and the context in which they were voiced, such approaches resonate with basic notions of human dignity which underlie contemporary conceptions of human rights as unalienable entitlements.11 Along these lines, this chapter refers to human

3  Arguably, the reconstruction of Roman legal materials by private lawyers during the 19th century in the tradition of the German historical school and the more positivist jurisprudence of concepts (Begriffsjurisprudenz) over-interpreted historical sources by applying their own methodological preconception; see H Coing, Europäisches Privatrecht, Bd 1. Älteres Gemeines Recht (1500–1800) (Munich, CH Beck, 1985) 167–68. 4  The use of the plural indicates that an individual could have different stati in Roman law, such as the famous distinction between the status libertatis, civitatis and familiae; see H Coing, Zur Geschichte des Privatrechtsystems (Frankfurt/Main, Klostermann, 1962) 195–224. 5  See Coing (n 3) 168–69. 6  See Coing (n 4) 204–19. 7  See M Mauss, ‘Une catégorie de l‘esprit humain: La notion de personne, celle de “moi”’ (1938) 68 Journal of the Royal Anthropological Institute 263, 274–77. 8  It remains disputed as to whether Greek and Roman philosophy had a clear concept of personhood; see S Moyn, ‘Plural Cosmopolitanisms and the Origins of Human Rights’ in C Douzinas and C Gearty (eds), The Meanings of Rights. The Philosophy and Social Theory of Human Rights (Cambridge, Cambridge University Press, 2014) 193, 193–97. 9  On early modern legal thinkers such as Súarez, Pufendorf or Wolff, see C Hattenhauer, ‘“Der Mensch als solcher ist rechtsfähig”—Von der Person zur Rechtsperson’ in E Klein and C Menke (eds), Gewaltenteilung und Menschenrechte (Berlin, BWV, 2006) 39, 41–50; and M Lutz-Bachmann, ‘Der Mensch als Person. Überlegungen zur Geschichte des Begriffs der “moralischen Person” und der ­Rechtsperson’ in ibid 109, 114–17. 10  On Kant’s notion of personhood, see G Mohr, ‘Person, Recht und Menschenrecht bei Kant’ in Klein and Menke (n 9) 17–38. 11  There is certainly no uniform idea about the theoretical foundation of human rights; on the ­plurality of positions, see JW Nickel, ‘Human Rights’ (2013) Stanford Encyclopedia of Philosophy, online at http://plato.stanford.edu/entries/rights-human.

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rights as norms to which all human beings are inherently entitled irrespective of nationality, legal status, etc, thereby defining their personhood. Such a simplified starting-point is sufficient for our legal analysis.12 Against the background of the history of civil law described above with its tradition of diverse statuses in Roman antiquity and medieval feudalism, we understand why it was not self-evident that the French code civil of 1804 emphasised that there should be equal personhood and civil rights for citizens and many foreigners13 ­mirroring similar provisions in other codifications at the time.14 Fifty years later, the mort civil, which continued the legal tradition of the ‘outlaw’ and entailed the loss of civil rights, was formally abolished in France and beyond.15 Hence, most continental E ­ uropean jurisdictions had moved towards the recognition of equal legal personhood by the end of the nineteenth century,16 although the distinctions between degrees of legal personhood were often retained in the colonies.17 By way of example section 1 Bürgerliches Gesetzbuch, the German civil code of 1 January 1990, stated paradigmatically: ‘The legal personality of human beings begins with the completion of birth’.18 Materials explaining the motivation for this formulation in the introductory provision of the German civil code, in the drafting of which academics played a prominent role, referred to the underlying moral standpoint: By recognising the legal personality of each human being irrespective of its character and will, the legal order realises a commandment of reason and ethics. Besides this provision, the content of the code as a whole reflects this requirement of today’s sense of right or wrong [Rechtsbewusstsein] as a self-evident statement.19

12  I understand the term ‘fundamental rights’ in the title, which has been assigned by the ­editors, to refer to ‘human’ and ‘fundamental’ rights interchangeably—mirroring Recital 2, 3 Preamble to the ECHR, which indicates that ‘fundamental rights’ (in the ECHR) are the legal embodiment of the ­concept of ‘human rights’ (in the UDHR); see T van Boven, ‘Préambule’ in LE Pettiti et al (eds), La Convention européenne des droits de l’homme 2nd edn (Paris, Economica, 2009) 125, 127; it also covers the free movement of persons in the EU single market conceived as a human rights by Art 45(1) EU Charter. 13  See the French Code civil, Part I, title 1, Arts 7–8 for citizens and Arts 11–16 for foreigners. 14  On the Prussian Allgemeine Landrecht of 1794, which employed a somewhat ambiguous formulation continuing the tradition of different statuses in the definition of legal personhood, and the more Kantian Austrian Allgemeines Bürgerliches Gesetzbuch of 1811/12, see Hattenhauer (n 9) 52–58. 15  Article 25 Code civil (n 13) was abolished in 1854; similarly, the prescription in s 135 of the ­German Constitution of 1849 (which never entered into force) and corresponding rules in the constitutions of German states in the early 1850s. 16  For a comparative overview, see J Schröder, ‘Rechtsfähigkeit’ in A Erler and E Kaufmann (eds), Handwörterbuch zur deutschen Rechtsgeschichte, vol 4 (Köln, Schmidt, 1990) column 290. 17  See S Mezzarda, ‘Citizen and Subject. A Postcolonial Constitution for the European Union?’ in MC Caloz-Tschopp and P Dasen (eds), Mondialisation, migration et droits de l’homme. Un nouveau paradigme pour la recherche et la citoyenneté, vol I (Brussels, Bruylant, 2007) 533–47; and L Obregón Tarazona, ‘The Civilized and the Uncivilized’ in Fassbender and Peters (n 1) 917–42. 18  Own translation of the German original: ‘Die Rechtsfähigkeit des Menschen beginnt mit der Vollendung der Geburt’. 19  Motiven zu dem Entwurfe eines Bürgerlichen Gesetzbuches für das Deutsche Reich, vol 1 (Berlin, Guttentag, 1888) 25 (own translation).

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That is not to say, crucially, that continental European civil law at the time was pervaded by notions of equality as we understand them today.20 Tellingly, practical jurisprudence never paid much attention to the provision and focused instead on more specific rules in civil law codifications which often mirrored the earlier distinction between the stati ascribed to a person in the tradition of Roman law by perpetuating, for example, a lesser degree of legal capacity for women.21

B.  International Human Rights Law Article 6 UDHR took up the basic concept of equal legal personhood in civil law codifications and guided the drafting of the legally binding guarantee in Article 16 ICCPR according to which everyone is recognised ‘as a legal person before the law’. Similar to corresponding guarantees in continental codes, the provision is generally understood to guarantee legal personhood only, ie the aptitude to have rights and obligations—not full legal capacity to enter into legal obligations ­autonomously.22 As a result, limitations in legal capacity, in particular for women, which were widespread across Europe until recently and persist elsewhere, are not covered by the provision, although more specific human rights may apply instead.23 This limited doctrinal reach of the right to legal personality explains why the provision never gained much practical relevance.24 It does not appear, therefore, as a lacuna, from a doctrinal perspective at least, that the European Convention on Human Rights (ECHR) and the EU Charter do not contain similar guarantees. Article 16 ICCPR represents, like the invocation of human dignity, a remainder of the equal moral worth of all persons lying at the heart of contemporary conceptions of unalienable human rights guarantees. Noting the limited practical relevance of the human right to legal personality does not mean that there are no conceptual or doctrinal difficulties in defining the scope of state obligations with a direct or indirect bearing on how personhood is constructed in legal discourses. A first set of uncertainties concerns borderline cases, such as the status of the handicapped, animals, corporations or cyborgs,

20 It should be recognised, however, that the civil law codifications adopted during the 19th c­ entury were important instruments of bourgeois emancipation overcoming the conventional constraints of feudal societies in semi-monarchic political systems, which persisted in many European countries (notably Germany). 21  See Hattenhauer (n 9) 59–65. 22  See M Nowak, CCPR Commentary 2nd edn (Strasbourg/Kehl, NP Engel, 2005) Art 16 paras 2–3. 23  See M Deshaires, ‘Article 16’ in E Decaux (ed), Le Pacte international relatif aux droits civils et politiques (Paris, Economica, 2010) 377, 379; one may criticise, however, the distinction between legal personality and capacity as sanctioning an active, disproportionately male conception of human behaviour. 24 An exception are some (but not all) decisions on forced disappearance; cf Human Rights ­Committee, Kimouche et al v Algeria, Communication 1327/2004, CCPR/C/90/D/1328/2004 of 16 August 2007.

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which are a matter of controversy in legal and philosophical circles.25 A typical example is embryos on which there are intense constitutional debates across the world.26 This chapter will not discuss corresponding uncertainties. Similarly, it does not concern social realities in the field but rather focuses on rules and principles in Union law. That is not to say that there are no practical problems, but discussing them would overstretch the scope of this chapter. It is inherent in the structure of international human rights law that the universal ambition of the guarantee, in Article 16 ICCPR, that legal personality shall be guaranteed ‘everywhere’ is limited by the essentially territorial reach of state authority and corresponding human rights obligations.27 States are obliged to extend respect for human rights ‘to everyone within their jurisdiction’ (Article 1 ECHR) which suggests that people outside of the state jurisdiction lack an addressee for human rights claims. While US constitutional law has traditionally been reluctant to accept extraterritorial application,28 the ECtHR (European Court of Human Rights) has held ever since the 1990s that the High Contracting Parties may be responsible for extraterritorial state action, such as the (more or less) effective control exercised by the United Kingdom in Southern Iraq.29 However, even such a broad reading does not resolve all potential problems, since the application of the ECHR will usually be limited to scenarios of effective state control over territory or individual persons. By contrast, the ECtHR found that air bombardments do not meet the threshold of Article 1 ECHR and are not, therefore, subject to its jurisdiction.30 Given that the EU Charter does not contain a similar provision, one may argue that it has a broader scope,31 although such an extension would not undo the state-focused underpinning of human rights law and there would therefore always remain scenarios where no state can be held directly responsible. As in the case of embryos, a discussion of territorial limits of Union law would be a topic in itself but will not be pursued further in this chapter. At a more abstract level, there has always been a debate as to whether the ­concept of legal personhood should be limited to a ‘thin’ formal guarantee or whether it should embrace a ‘thick’ reading including substantive rights and/or social realities on the ground.32 Critical legal scholars emphasise that formal 25  See N Naffine, ‘Who Are Law’s Persons? From Cheshire Cats to Responsible Subjects’ (2003) 66 Modern Law Review 346–67. 26  See the paper by Stephanie Hennette-Vauchez in this volume. 27  See Deshaires (n 23) 390–91. 28  See L Bosniak, ‘Persons and Citizens in Constitutional Thought’ (2010) 8 International Journal of Constitutional Law 9, 18–21 and GL Neuman, ‘The Extraterritorial Constitution after Boumediene v Bush’ (2009) 82 Southern California Law Review 259–90. 29  cf ECtHR, judgment of 7 July 2011 (GC), No 55721/07, Al-Skeini et al v the United Kingdom, paras 130–142; and S Miller, ‘Revisiting Extraterritorial Jurisdiction’ (2009) 20 European Journal of International Law 1223–46. 30  See ECtHR, Decision of 12 Dec 2001 (GC), No 52207/99, Banković et al v Belgium et al. 31  For a generous approach, see C Costello and V Moreno-Lax, ‘The Extraterritorial Application of the EU Charter of Fundamental Rights’ in Peers et al (eds), The EU Charter of Fundamental Rights. A Commentary (Munich/Oxford, CH Beck/Hart, 2014) 1657–84. 32  cf Nowak (n 22) margin nos 3–6.

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g­ uarantees alone, such as Article 16 ICCPR or § 1 of the German civil code, may mask profound forms of economic or social domination and reflect stereotyped worldviews.33 I will not delve into this discussion at this level of abstraction and suggest, alternatively, to analyse it from a different angle when distinguishing between human rights of every person and citizens’ rights of some in EU law. To do so may be more promising for a content-oriented legal analysis such as the one pursued in this chapter. The abstract notion of ‘legal personality’ has a chameleon character: it is capable of sustaining different conceptions which can be unearthed by focusing on more specific rules. One example illustrates the benefit of such a content-oriented analysis transcending abstract notions of legal personality. The situation of ‘illegal migrants’ residing in a country without a residence right has caused intense legal and political debates, among others in the United States where the Supreme Court found that illegal residents are ‘persons’ within the meaning of the Fourteenth a­ mendment.34 Similarly, both the ECHR and the EU Charter apply to ‘everyone’ irrespective of nationality or residence status. In a famous line of case-law, the ECtHR holds that persons without a right to reside can rely upon the protection of ‘private life’ under Article 8 ECHR in exceptional circumstances to legalise their irregular stay in order to protect ‘the network of personal, social and economic relations that make up the private life of every human being’.35 In addition, ­secondary EU legislation guarantees that illegal migrants are protected against mistreatment by the employer as a matter of principle.36 Many Member States also grant basic health care and education even if access to such statutory guarantees is often hindered by a ‘chilling effect’ when the fear of deportation may prevent irregular migrants from accessing public services in situations where they are technically available.37 This shows that it can be beneficial to pierce the veil of personhood and to concentrate on substantive provisions.

33  See L Bosniak, ‘Human Rights within one State. Dilemmas of Personhood in Liberal Constitutional Thought’ in B Dembour and T Kelly (eds), Are Human Rights for Migrants? (London, ­Routledge, 2012) 201, 207–08; and S Strasser, ‘Rethinking Citizenship. Critical Encounters with Feminist, ­Multicultural and Transnational Concepts of Citizenship’ in B Halsaa et al (eds), Remaking Citizenship in Multicultural Europe. Women’s Movements, Gender and Diversity (Suffolk, Palgrave, 2012) 21–41. 34  See H Motomura, ‘Who Belongs? Immigration Outside the Law and the Idea of Americans in Waiting’ (2012) 2 University of California Irvine Law Review 359–79. 35  ECtHR, judgment of 9 Oct 2003, No 48321/99, Slivenko et al v Latvia, para 96; for further detail, see D Thym, ‘Residence as de facto Citizenship? Protection of Long-Term Residence under Article 8 ECHR’ in R Rubio-Marin (ed), Human Rights and Immigration (Oxford, Oxford University Press, 2014) 106–44. 36  See Art 6 of Dir 2009/52/EC [2009] OJ L168/24. 37  See R Cholewinski, Study on Obstacles to Effective Access of Irregular Migrants to Minimum Social Rights (Strasbourg, Council of Europe Publishing, 2006).

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III.  The Individual in EU Law The story of the individual and human rights in EU law has often been told. It is well known that the doctrine of direct effect and the evolution of human rights as unwritten general principles of law by the ECJ (European Court of Justice) followed the primary motivation to guarantee the effective application of EU law by domestic courts. Nevertheless both concepts developed a life of their own by empowering individuals to promote their agenda via Union law, in particular in situations where the EU’s objectives coincide with the interests of individuals (see below A). In order to identify the underlying conception of personhood, an inspection of the groupings of individuals endowed with individual rights in the EU Treaties reveals different categories of right-bearers whose contours changed over time (see below B). From today’s perspective, the distinction between citizens and non-citizens presents in itself a pertinent classification of personhood in EU law, in particular when it comes to free movement and migration.

A.  Rights of Individuals and Human Rights One of the most significant judgments in the history of the EU legal order, Van Gend en Loos, concerned the concept of individual rights, since the ECJ found that the EU Treaties constituted a new legal order ‘the subjects of which comprise not only Member States but also their nationals [French: ressortissants]’ and that, therefore, Union law ‘not only imposes obligations on individuals [particuliers] but is also intended to confer upon them rights which become part of their legal heritage’.38 Re-reading the judgment from an analytical standpoint and in the light of the research question pursued in this chapter, one is bound to notice the textual and substantive ambiguity of the above-mentioned formulation, including in the French version,39 with its reference to nationals (instead of all persons) in the first passage and obligations as well as rights in the second quotation. This ambiguity arguably reflects the primary motivation of the Court to guarantee the effet utile by making use of individuals to police compliance with Union law: the individual was activated as an instrument in support of Union law.40

38 

Case 26/62, Van Gend en Loos, EU:C:1963:1. that the English language version is a translation produced at the time of British accession, while the Court drafted the judgment in French and delivered it also in German, Italian and Dutch originally (the German language version refers to Einzelne, ie individuals, in the first reference instead of nationals). 40  See B de Witte, ‘Direct Effect, Primacy and the Nature of the Legal Order’ in P Craig and G de Búrca (eds), The Evolution of EU Law 2nd edn (Oxford, Oxford University Press, 2011) 177, 183–89, 205–07; and JHH Weiler, ‘Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy’ (2014) 12 International Journal of Constitutional Law 94–103. 39  Remember

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This functional approach to individual rights as an instrument for law enforcement has often been criticised for privileging certain actors, in particular those representing economic interests, and for favouring ‘negative’ market integration to the detriment of ‘positive’ political integration.41 Having said this, it should be emphasised that the prominence of individual rights in EU law can develop a life of its own. The Court may have perceived of the individual primarily as an ‘agent’ supporting the effectiveness of EU law, but it thereby created ‘actors’ promoting their agenda via Union law. As a legal doctrine, the concept of individual rights now has repercussions far beyond the internal market where economic considerations can be largely irrelevant, not least since secondary legislation can have the same direct effect in domestic legal orders as Treaty provisions.42 The example of the Family Reunification Directive 2003/86/EC shows that individual rights can serve as a doctrinal justification for limits to state discretion in relation to domestic rules on fee levels and language tests.43 Observers with a pro-migrant outlook regularly emphasise this potential of individual rights as an instrument for promoting a pro-migrant agenda before the Court.44 Of course, this outcome is no foregone conclusion, not least since the scope of individual rights enshrined in secondary legislation ultimately depends upon the wording, general scheme and objective of the instrument in question whose contours are determined by the legislature. Indeed, there are a number of more recent examples of the ECJ backtracking from its initial ambition in the field of family reunification in light of presumed legislative preferences.45 This reaffirms that the promotion of individual rights is no end in itself but supports the realisation of broader EU objectives,46 which, in the field of migration, do not necessarily follow the freedom-centred approach of the single market.47 A similar trajectory can be observed for fundamental rights. They were first used by the Court as unwritten general principles of law in an instrumental ­manner as a defensive shield against a challenge to the supremacy of Union law by the G ­ erman

41 For a pronounced critique, see F Scharpf, ‘The European Social Model: Coping with the ­ hallenges of Legitimate Diversity’ (2002) 40 Journal of Common Market Studies 645–70; and Weiler C (n 40). 42  Treaty rules on free movement were crucial for ‘negative’ market integration, while provisions in secondary legislation often bolster ‘positive’ integration. 43  Case C-578/08 Chakroun, EU:C:2010:117, paras 41, 43 demonstrate how the doctrine of individual rights can result in ‘individual-friendly’ legal conclusions; similarly, on the need for an individual assessment in case of language tests Case C-153/14 K & A, EU:C:2015:453, paras 54–60. 44  See J Bast, Aufenthaltsrecht und Migrationssteuerung (Tübingen, Mohr Siebeck, 2011) 101–11; and K Groenendijk, ‘Recent Developments in EU Law on Migration’ (2014) 16 European Journal of Migration and Law 313, 329–30. 45  See Case C-338/13 Noorzia, EU:C:2014:2092; and the comments by G Milios, ‘Family Reunification for Third-Country Nationals’ (2015) 17 European Journal of Migration and Law 127, 130–32. 46  For immigration and asylum, see K Hailbronner and D Thym, ‘Constitutional Framework’ in ibid (eds), EU Immigration and Asylum Law. Commentary 2nd edn (Munich/Oxford, CH Beck/Hart Publishing, 2016) ch 1 margin no 15. 47  See below IV.B.

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Constitutional Court.48 In practice, they did not gain much prominence and ­constituted, on the whole, a corollary element of Community action during the 1970s, 1980s and 1990s.49 Again, this passive approach need not be the ­ultimate answer, since the entry into force of a legally binding Charter of F ­ undamental Rights seems to have enhanced the visibility and relevance of human rights. The number of preliminary references to the ECJ increased exponentially and so did the number of judgments exploring the potential of the Charter,50 including prominent cases such as data retention.51 That is not to say that the Court takes human rights seriously in most or all situations and there may be structural reasons as to why they are bound to remain second-order principles in EU law.52 All I say is that the function and relevance of individual and fundamental rights can change over time and alter its meaning. Institutional mechanisms ensuring compliance are central for the effective application of individual and human rights, both in instances of individual wrongdoing or systemic failure (like in the case of the Greek asylum system).53 The significance of institutional mechanisms is amplified when we accept that debates on human rights are not just about questions of doctrinal interpretation but relate to basic choices of societies which change over time.54 Against this background, another historical starting-point of individual rights in EU law deserves our attention, since the original EEC Treaty explicitly referred to ‘persons’ not only with regard to free movement, but also for judicial review regarding direct access to the Court in scenarios of direct and individual concern.55 It is well known that this right to standing has been interpreted narrowly by judges in Luxembourg ever since the Plaumann ruling of 1963 delivered a few weeks after Van Gend en Loos,56 since the federal structure of the Union entrusts Member States with the provision of procedural guarantees for effective judicial review.57 This solution may well be correct, since it reflects the broader constitutional set-up of the European Union—even though it underlines, for the purposes of

48 

cf Case 11/70 Internationale Handelsgesellschaft, EU:C:1970:114, paras 3–4. See M Dani, ‘Constitutionalism and Dissonances’ (2009) 15 European Law Journal 324, 329–35; and the classic account by P Alston and JHH Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy’ in ibid (eds), The EU and Human Rights (Oxford, Oxford University Press, 1999) 3–66. 50  See the quantitative account in the Staff Working Document attached to the Commission’s 2014 Report on the application of the Charter, SWD(2015) 99 of 8 May 2015, 7–11; and the qualitative analysis of court judgments by S Iglesias Sánchez, ‘The Court and the Charter’ (2012) 49 Common Market Law Review 1565–612. 51  cf Cases C-293/12 & C-594/12, Digital Rights Ireland, EU:C:2014:238. 52  See the chapter by Damian Chalmers in this volume. 53  cf Cases C-411/10 & C-493/10, NS et al, EU:C:2011:865. 54  See below section IV. 55  cf Art 173(2) EEC Treaty as established by the Treaty of Rome in line with today’s Art 263(4) TFEU, which was broadened a little by the Treaty of Lisbon. 56  cf Case 25/62 Plaumann v Commission, EU:C:1963:17; recently confirmed by Case C-583/11 P Inuit Tapiriit Kanatami et al v Parliament & Council, EU:C:2013:625. 57  See Case C-50/00 P Unión de Pequeños Agricultores v Council, EU:C:2002:462, paras 40–41. 49 

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our analysis, that the doctrines of direct effect and individual rights are primarily concerned with establishing effective government structures by supporting the effet utile of Union law in domestic legal orders.58 Individuals benefit from this approach when their interests coincide with the objectives pursued by the supranational legal order and corresponding doctrines of individual and human rights can unfold a certain dynamism promoting individual rights irrespective of EU objectives. However, this does not undo the rationale underlying their establishment and continued application.

B.  ‘Personhood’ in the Text of the EU Treaties To say that individuals can invoke guarantees under Union law does not explain which individuals benefit in practice and whether there are certain patterns discernible in the deep structure of the supranational legal order. This sub-section explores the evolution of the Treaty texts by focusing on the category of the rightbearer, subjects endowed with individual rights by the EU Treaties, as a heuristic device to re-construct different conceptions of personhood in Union law. Doing so leads us to the identification of what I will call the ‘citizenship-foreigner-cleavage­’ in contemporary Union law discussed in the next section. The original Treaty text contained little reference to abstract notions of ­personhood and/or human rights.59 The Treaty of Rome rather ensured the ‘free movement of persons’ (Title III), which literally embraced ‘workers’ (Article 48), ‘nationals of a Member State’ (Articles 52, 59), ‘companies or firms’ (Article 58), and allowed ‘any natural or legal person’ to initiate infringement proceedings (Article 173). While the latter provision had little relevance, it is well known among experts of EU law that the free movement of persons soon emerged as an essential guarantee whose effective implementation was promoted by the Commission and the Court. Notwithstanding the essentially economic rationale underlying the Treaty text, the ‘market citizen’, a term coined by Hans-Peter Ipsen to describe a status in between alienage and nationality,60 was never supposed to be a f­ actor of production only. Implementing legislation adopted during the 1960s61 and ECJ

58 See for the original approach in the early 1960s A Vauchez, ‘The Transnational Politics of ­Judicialization. Van Gend en Loos and the Making of EU Polity’ (2010) 16 European Law Journal 1, 3–4; and more generally D Chalmers and L Barroso, ‘What van Gend en Loos Stands for’ (2014) 12 International Journal of Constitutional Law 105, 120–33. 59 The 1951 Treaty establishing the Coal and Steel Community referred to ‘person/ne(s)’ or ‘­personnalité’ (remember that only the French language version was authentic) mainly with regard to institutional questions, such as nomination as a judge. 60  See HP Ipsen, Europäisches Gemeinschaftsrecht (Tübingen, Mohr Siebeck, 1972) 250–54. 61  See D Thym, ‘Family as Link. Explaining the Judicial Change of Direction on Residence Rights of Family Members from Third States’ in H Verschueren (ed), Where Do I Belong? EU Law and Adjudication on the Link between Individuals and Member States (Antwerp, Intersentia, 2016) sect 2 (forthcoming).

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case-law from the 1970s onwards, involved elements one could describe as an incipient form of European citizenship with the Union legal order embracing the individual as a source of potential legitimacy.62 In the early 1970s, a debate emerged whether the abstract notion of ‘worker’ in the Treaty text may include those without the nationality of an EU Member State.63 The idea was rejected by the ECJ,64 but the argument is still occasionally taken up today when Community institutions are accused of ‘revisionist interpretation’.65 Historically, this accusation is inaccurate. Closer inspection of the drafting history shows that there was agreement during Treaty negotiations that only nationals should be covered: an explicit nationality clause fell ‘victim’ to Franco-Italian dispute about Algeria and German concerns about East ­Germans.66 ­Furthermore, the alleged parallelism with the free movement of goods is misleading, since the C ­ ommon Commercial Policy does not cover migration law for ­persons.67 Of course, it would have been possible to reconceptualise the meaning of the Treaty texts and to extend the free movement of workers to foreigners by means of dynamic interpretation irrespective of the will of the founders.68 Yet, the political debate moved in a different direction. In 1992, the Treaty of Maastricht officially transcended the economic rationale underlying the single market. Mirroring the original motivation for a united Europe in the Schuman declaration, the Treaty of Maastricht endeavoured to establish something like a political union. In terms of the reform steps brought forward, the introduction of ‘Union citizenship’ and the third pillar on justice and home affairs were among the most visible innovations. For our purposes, it is worth noting that two new categories of persons were introduced as a result.

62  For controversial debates about early judgments on both workers and service recipients, see A Evans, ‘European Citizenship’ (1982) 45 Modern Law Review 497, 502–10; and the contemporary critique by JHH Weiler, ‘Deciphering the Political and Legal DNA of European Integration: An Exploratory Essay’ in J Dickson and P Eleftheriadis (eds), European Union Law (Oxford, Oxford University Press, 2012) 137, 151–55. 63  cf WR Böhning, ‘The Scope of the EEC System of Free Movement of Workers: A Rejoinder’ (1973) 10 Common Market Law Review 81–84; the freedom of establishment and to provide services were limited to nationals of EU Member States explicitly. 64 Those without an EU passport can benefit from the fundamental freedoms indirectly only, as f­amily members by means of a legal reflex as ‘derived rights’; cf Case C-256/11 Dereci et al, EU:C:2011:734, para 55. 65  E Guild and S Peers, ‘Out of the Ghetto?’ in S Peers and N Rogers (eds), EU Immigration and Asylum Law. Text and Commentary (The Hague, Martinus Nijhoff, 2006) 81, 114. 66  See S Goedings, Labor Migration in an Integrating Europe (The Hague, SDU Uitgevers, 2005) 128–35 who shows that the formulation of the nationality clause was delegated to a working group on oversea countries and territories, which seems to have forgotten the issue during heavy controversies on other issues. 67  The free movement of goods from third countries requires prior access to the single market in line with today’s Art 28(2) TFEU; to this date, Art 34 TFEU does not cover restrictions to imports into the single market. 68 See D Kochenov and R Plender, ‘EU Citizenship: From an Incipient Form to an Incipient ­Substance? The Discovery of the Treaty Text’ (2012) 37 EL Rev 369–96.

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In 1992, the introduction of ‘Union citizenship’69 for those holding a passport of an EU Member State and specific rules for ‘nationals of third countries’70 within the intergovernmental pillar on justice and home affairs p ­ olicy, were parallel phenomena.71 Since, in parallel, the fundamental freedoms were re-conceptualised as a specific expression of Union citizenship, the most famous individual rights at Treaty level became at that moment citizens’ rights. The introduction of Union citizenship by the Treaty of Maastricht may have been a spontaneous decision during the intergovernmental conference,72 but it built on more than a decade of political debates about a relance européenne ever since the mid-1970s when heads of state or government had promoted further integration under the heading of ‘A Citizens’ Europe’73 through a collection of diverse policies including free movement for others beyond workers, direct elections of the European Parliament and the establishment of a passport union which later became the Schengen area.74 While the initial reception of Union citizenship was tempered at best,75 it is well known that the concept gained considerable prominence after 1999 in a series of ECJ judgments which constitute one of the most fascinating legal developments in recent memory76—although the Court has retreated from its initial ambition lately.77 The Treaty of Lisbon, which replaced the erstwhile Constitutional Treaty, reaffirmed the direction taken in Maastricht. First, it buttressed citizens’ rights through a discernible effort to replicate civic-republican participation at EU level by enhancing political dialogue, inter alia through the introduction of the ­citizens’ initiative, and by declaring that the Union ‘shall be founded on representative democracy’.78 Secondly, it established migration law towards third-country nationals as a policy field in its own right when it replaced the intergovernmental former third pillar with a fully ‘supranationalised’ policy design within the area of

69 

Art 8 EC Treaty as amended by the Treaty of Maastricht [1992] OJ C224/36. Art K.1 EU Treaty as established by the Treaty of Maastricht [1992] OJ C191/1. 71  See K Groenendijk, ‘Categorizing Human Beings in EU Migration Law’ in S Bonjour et al (eds), The Others in Europe (Brussels, Institut d’études européennes, 2011) 21–36. 72 Apparently, the Spanish Prime Minister Felipe González Márquez had the idea first; see F ­Wollenschläger, Grundfreiheit ohne Markt (Tübingen, Mohr Siebeck, 2007) 110–13. 73  L Tindemans, European Union, Report to the European Council, Bulletin of the European Communities Supplement 1/76, 26. 74  See A Wiener, Building Institutions (Boulder, Westview, 1998) chs 2–3; and W Maas, Creating European Citizens (Lanham, Rowman & Littlefield, 2007) ch 2. 75  See S O’Leary, The Evolving Concept of Community Citizenship (The Hague, Kluwer Law International, 1996) 304–07. 76  For an overview, see D Kochenov, ‘The Essence of EU Citizenship Emerging from the Last Ten Years of Academic Debate’ (2013) 62 International and Comparative Law Quarterly 97–136. 77  See D Thym, ‘When Union Citizens turn into Illegal Migrants: the Dano case’ (2015) 40 EL Rev 248, 259–60. 78  Arts 9–11 TEU sound more ambiguous than the substance; cf J Shaw, ‘Citizenship’ in Craig and de Búrca (n 40) 575, 605–08; and N Nic Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47 Common Market Law Review 1597, 1619–27. 70 

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freedom, security and justice. At the same time, the Charter became legally binding and declared that the Union ‘places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice’.79 This raises the following question: how does one explain the apparent cleavage between citizens’ rights and migration law in the EU ­Treaties, which was indicated first by the parallel introduction of the terms ‘Union ­citizenship’ and ‘third-country national’ and came full circle with the reinforcement of corresponding sets of rules in the Treaty of Lisbon?

IV.  The Citizenship-Foreigner-Cleavage Legal analyses should recognise that basic constitutional concepts, such as citizenship, human rights or personhood, convey a set of normative values and express basic choices of societies which change over time.80 If this assumption is correct, essential points of reference for more specific questions of legal interpretation are less static than one might suggest and it seems that supranational rules on citizenship, migration and human rights are excellent examples to illustrate the inherent ambiguity of conceptions of personhood in EU law. From a perspective of constitutional theory, debates on the meaning and reconfiguration of such essentially contested concepts can be described as a process of jurisgenesis where the interpretation of the law interacts with contextual factors and broader societal debates.81 Union law deconstructs old conceptions of nation-state membership or alienage and, yet, it is unclear how to explain the new setting positively. Methodologically, this chapter follows an approach one may call contextually embedded doctrinal constructivism, since it assumes, in contrast to US-style legal realism, that legal concepts can have a semi-autonomous significance and that academia may contribute to their rationalisation.82 Corresponding analyses are based on a reconstruction of the case-law and its doctrinal foundations, thereby ideally supporting a better understanding of the systemic coherence of the law and its internal inconsistencies.83 Doing so assumes that doctrinal arguments

79 

Recital 2 (emphasis added). for the US context L Bosniak, ‘Persons and Citizens in Constitutional Thought’ (2010) 8 ­International Journal of Constitutional Law 9–29; and generally RM Cover, ‘Foreword: Nomos and Narrative’ (1983) 97 Harvard Law Review 4, 11–44. 81  See S Benhabib, ‘Claiming Rights across Borders: International Human Rights and Democratic Sovereignty’ (2009) 103 American Political Science Review 691, 697–99; and FI Michelman, ‘Law’s Republic’ (1988) 97 Yale Law Journal 1493–537. 82  See G Beck, The Legal Reasoning of the Court of Justice of the EU (Oxford, Hart Publishing, 2012); and T Horsley, ‘Reflections on the Role of the Court of Justice as the “Motor” of European Integration’ (2013) 50 Common Market Law Review 931, 934–54. 83  See R van Gestel and HW Micklitz, ‘Why Methods Matter in European Legal Scholarship’ (2014) 20 European Law Journal 292–316. 80 See

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and constraints should be taken seriously in a discursive community involving academics in the constant reconstruction of the legal infrastructure.84 This focus on intra-legal arguments falls short of a critical analysis of legal developments from an external standpoint, while acknowledging that abstract legal concepts, such as citizenship or human rights, require a broader constitutional outlook in a process Armin von Bogdandy has aptly described as a doctrinal argument about constitutional principles.85 Their inherent openness allows for connections with other disciplines even if such feedback loops will never result in the simple transfer of extra-legal arguments into doctrinal reasoning.86 This chapter follows this approach by extrapolating the constitutional infrastructure guiding the interaction of the diverse sets of rules on free movement, Union citizenship, human rights and migration law.

A.  The Puzzle The example of labour migration illustrates a conceptual puzzle at the heart of the European project: there does not seem to be a major difference, from a sociological point of view, between a Ukrainian national and Greek national working in Germany. They live in a country of which they do not possess its nationality, are faced with a foreign language and may be confronted with comparable challenges of equal treatment and social integration. Nonetheless, their legal status differs quite fundamentally. While the Greek national qualifies as a Union citizen under Article 20(1) TFEU (Treaty on the Functioning of the European Union) and benefits, therefore, from an individual right with constitutional status to transnational mobility as a migrant worker in accordance with Article 45 TFEU, the Ukrainian national must be classified as a third-country national from the perspective of the EU Treaties. Such foreigners are not covered by the fundamental freedoms, although they may invoke statutory guarantees in secondary legislation under the conditions set out by the legislature as well as human rights in the EU Charter, which, however, in the field of labour migration, reaffirms the principled distinction described above.87 In order to resolve the puzzle it is important to understand that the free movement of Union citizens is nowadays conceptualised as being intricately linked to Union citizenship, whose contours and finalité may remain vague,88

84 See M Kumm, ‘On the Past and Future of European Constitutional Scholarship’ (2009) 7 ­International Journal of Constitutional Law 401, 406–11. 85  See A von Bogdandy, ‘Founding Principles of EU Law: A Theoretical and Doctrinal Sketch’ (2010) 16 European Law Journal 95, 98–100. 86  See von Bogdandy, ibid, 100–04. 87  Contrast Art 15(2) and (3) EU Charter. 88  See D Thym, ‘Citizens and Foreigners in EU Law. Migration Law and Its Cosmopolitan Outlook’ (2016) 22 European Law Journal s 1.3 (forthcoming).

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but which nonetheless embraces free movement as an essential guarantee. The EU legislature expressed the desire to remedy, in light of the overarching concept of Union citizenship, the ‘sector-by-sector, piecemeal approach to the right of free ­movement’89 and the ECJ emphasised that a ‘particularly restrictive ­interpretation’90 of national restrictions to the free movement of workers was required by the introduction of Union citizenship. In short, citizenship became the fixed star guiding the interpretation of different settings in line with the ECJ’s principled assertion that the new concept ‘is destined to be the fundamental status of nationals of the Member States’.91 The use of the term ‘status’ in this quotation deserves our attention. It emphasises at a semantic level that Union citizenship should not be confused with ­universal personhood. In line with the long tradition of the term ‘status’ in Roman law and civil law jurisdictions in continental Europe described above, it should be read as designating a collection of rights for specific purposes which may overlap with other statuses persons may hold in parallel.92 Unfortunately, it is not crystal clear how the concept of ‘status’ found its way into the case-law. Advocate General La Pergola is widely credited for having introduced it in his opinion in Martínez Sala, although closer inspection of the original Italian language version advises caution93 (La Pergola would have been a plausible source given his background as a professor of constitutional law in a continental jurisdiction).94 Advocate General Alber similarly used the term in his opinion in Grzelczyk, albeit in a rather mundane manner and without much conceptual overtones.95 It is therefore difficult to verify whether the use of the term ‘fundamental status’ by the ECJ in relation to Union citizenship was meant to continue the tradition of Roman law and civil law jurisdictions. However, such a reading could rather well explain that the original citation was not limited to a simple invocation of the abstract legal concept of a status a person holds, but rather as the ECJ states it ‘enabl[ed] those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for’.96 This suits the relativity of the concept of status in 89 

Recital 4 Dir 2004/38/EC [2004] OJ L158/77. Cases C-482/01 & C-493/01 Orfanopoulos & Oliveri, EU:C:2004:262, para 65. 91  Case C-184/99 Grzelczyk, EU:C:2001:458, para 31 (emphasis added). 92  See above s II.A. 93  AG A La Pergola, Case C-85/96, Martínez Sala, EU:C:1997:335, para 18 employed the term ‘la situazione giuridica di base’ (not: ‘lo status fondamentale dei cittadini degli Stati membri’, like the ECJ in Grzelczyk); similarly, the French (‘situation juridique de base’) and German (‘grundlegende Rechtsstellung’) translation—in contrast to the English language version (‘fundamental legal status’). 94  See his CV at http://curia.europa.eu/jcms/jcms/Jo2_7014. 95  See AG S Alber, Grzelczyk, Case C-184/99, EU:C:2000:518, para 52, which is complemented by multiple other uses in a rather unspecific manner (‘status of student’); altogether, the term ‘status’ is used no less than 10 times in the original German language version, 12 times in the French translation and no less than 55 times in the English translation, which employs it for describing the characteristics of the worker as well; Alber studied law, but worked as a politician and civil servant thereafter, see http://curia.europa.eu/jcms/jcms/Jo2_7014. 96  ECJ (n 91) para 31. 90 

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Roman and civil law where it is often applied to rather specific situations such as the status of a person under family law and designated a bundle of rights it brings about. Against this background, the fundamental status formula would concern, ­essentially, equal treatment in situations of (legal) residence in another Member State—no more, no less. Arguably, some academic observers without a background in continental European civil law read too much into the use of the term ‘status’. Of course, the somewhat revolutionary outcome of the Grzelczyk case indicated that the new formula was meant to pave the way for great changes, but the terminology used could also be conceived as a rather sober description of existing rights. For the purposes of our analysis, this linkage between traditional debates in continental civil law and contemporary discussions over Union citizenship justifies two conclusions. First, the description of Union citizenship as a ­‘fundamental status’ in a number of different scenarios covered by Union law should not necessarily be confused with essential notions of personhood or dignity; in other words, it arguably conflates two distinct categories.97 Secondly, the classification of citizenship as a status fits well into the broader constitutional landscape, since the introduction of Union citizenship and of rules on third-country nationals into the EU legal order were parallel developments. In order to disentangle the resulting citizenship-foreigner-cleavage it is necessary to explain the second category.

B.  Three Academic Reconstructions In nation states, rules on citizenship often appear as the legal reflection of quasinatural phenomena. They often build upon strong and historically contingent identities as well as an enhanced degree of social and political cohesion, which disguise the element of reconstruction inherent in the concept of collective identities in any constitutional setting, also at the level of the nation state.98 In the European Union, this is not the case. The Treaty of Maastricht may have introduced rules on ‘citizenship’ which were taken up by the Court in judgments filling the Treaty regime with doctrinal substance. Yet, this legal and doctrinal relevance hardly reflects an existing real-life citizenship based on shared identities. Most social scientists agree that the legal construction of Union citizenship does not coincide with the social construction of European identity.99 In the words of the German constitutional court: ‘In this sense, the citizenship of the Union is nothing which culturally or normatively precedes the EU Treaties’.100 97  cf the critique by C O’Brien, ‘I Trade, Therefore I Am: Legal personhood in the European Union’ (2013) 50 Common Market Law Review 1643–84. 98  See D Kostakopoulou, The Future Governance of Citizenship (Cambridge, Cambridge University Press, 2008) ch 2; and B Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London, Verso, 1991). 99  cf G Delanty, ‘European Citizenship: A Critical Assessment’ (2007) 11 Citizenship Studies 63–72. 100  Bundesverfassungsgericht (BVerfG), Judgment of 30 June 2009, Case 2 BvE 2/08 et al, Treaty of Lisbon, para 348 (own translation).

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If the latter is correct, it complicates the resolution of the citizenship-foreignercleavage. To be sure, legal rules on personhood, citizenship and foreigners are always a construction in any legal order and the same applies to political identities and social solidarity. But in the EU, the connection between legal rules and social facts is weak at best. In a certain way, EU citizenship pretends to be more than it is.101 It largely lacks the substratum of common identities and social solidarity which define the nation state; Union citizenship is primarily a virtual, legal reality. Against this background, our academic analysis of the citizenship-personhoodcleavage has three major options. First, we could deconstruct Union citizenship as an ‘empty gesture’, a sort of ‘cynical public relations exercise’ on the part of the High Contracting Parties102— a misnomer which should better be forgotten. It seems to me that this is to a certain extent at least a realistic option, insofar as it reminds academic observers of the limits of political and social imagination legal developments are capable of bringing about.103 They participate in the constant reconstruction of identities, but cannot change them single-handedly; they need to be embedded into social structures and political life. Recent cases, such as Dano, show that there are limits in what abstract notions such as citizenship can achieve at this juncture.104 Secondly, one may emphasise the empirical situation and present the E ­ uropean project as a prototype for transnational governance which detaches citizenship from the nation state and recognises various forms of post- or transnational ­membership. On the basis of legal developments in Europe, Yasemin Soysal famously argued 20 years ago that universal personhood was about to replace state citizenship as the basis for rights.105 From this standpoint, Union citizenship would present a model of rules which third-country nationals should follow in a similar way as some international lawyers and political theorists, most of whom are from continental Europe, present EU integration as a model for and first step towards global constitutionalism.106 Approaching the citizenship-personhood-cleavage from this position, the distinction between citizens and third-country nationals in positive EU law appears

101  For a critical assessment see U Haltern, ‘Pathos and Patina’ (2003) 9 European Law Journal 14, 26–32; and J Přibáň, ‘The Juridification of Identity, Its Limitations and the Search of EU Democratic Politics’ (2009) 16 Constellations 44–58. 102  cf JHH Weiler, ‘European Citizenship and Human Rights’ in JA Winter et al (eds), Reforming the Treaty on European Union (The Hague, TMC Asser, 1996) 57, 68, 73. 103  See D Thym, ‘Frontiers of EU Citizenship. Three Trajectories and their Methodological Foundations’ in D Kochenov (ed), EU Citizenship and Federalism. The Role of Rights (Cambridge, Cambridge University Press, 2016) s 3 (forthcoming). 104  See S Barbou des Places, ‘La cohérence du droit de la libre circulation des personnes à l’épreuve de la mobilité des indigents’ (2015) Revue trimestrielle de droit européen 133, 145; and Thym (n 77) 259–60. 105  See Y Soysal, Limits of Citizenship (Chicago, University of Chicago Press, 1994) chs 7–9. 106  See the overview by M Koskenniemi, ‘The Fate of Public International Law’ (2007) 80 Modern Law Review 1, 15–19; and J Habermas, Die postnationale Konstellation (Frankfurt/Main, Suhrkamp, 1998).

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arbitrary—at least from a conceptual perspective. If the EU is in essence about overcoming the nation state, it should not make a difference whether a worker applying for a job in Germany comes from Ukraine or Greece. In academic debates, corresponding arguments are widespread and present themselves in two forms. Many explore the doctrinal potential of Treaty law or secondary legislation for status approximation.107 Others move beyond doctrinal hermeneutics and criticise the status quo from an extra-legal standpoint. They warn against ‘European Apartheid’ or decry the spread of social control mechanisms.108 Both arguments share the assumption that the citizenship-personhood-cleavage that can be found in positive Union law is an aberration contradicting the conceptual underpinning of rules on citizenship and broader objectives of EU integration and should therefore be minimised as far as possible. Thirdly, one may try to reconstruct the distinction between citizens and ­foreigners from within the legal order in line with the methodological underpinnings of a contextually embedded doctrinal constructivism described above. One starting-point for doing so is the observation that our analytical choice is not limited to the binary juxtaposition of the legally sovereign and culturally homogeneous nation state on the one hand and an extensive and deep moral and institutional universalism on the other hand.109 There is room for intermediate solutions between sovereign statehood and thick universalism. On this basis, one may emphasise that the status of third-country nationals can be given an autonomous constitutional reading if we detach its analysis from a comparison with Union citizenship. That is what I mean by deciphering personhood as the default position of Union law which comes to the fore ex negativo when we leave aside rules which are specific to the fundamental status of Union citizenship. Doing so does not leave non-citizens without legal protection, since they can invoke human rights. Human rights allow critics of the status quo to articulate their concerns within the framework of the EU Treaties110—even if human rights are conceptually and doctrinally more flexible than citizens’ rights, since they allow for the accommodation of countervailing public policy considerations, which emanate for particularistic self-government.111 I do not claim that this

107  cf Groenendijk (n 44) 313–35; and A Wiesbrock, ‘Granting Citizenship-related Rights to ThirdCountry Nationals’ (2012) 14 European Journal of Migration and Law 63–94. 108  See, by way of example, D Acosta Arcarazo and J Martire, ‘Trapped in the Lobby: Europe’s Revolving Doors and the Other as Xenos’ (2014) 39 EL Rev 362–79; and, more generally, G Agamben, ‘Au-delà des droits de l’homme’ La Libération of 9/10 June 1993. 109  See U Beck, Cosmopolitan Vision (Cambridge, Polity, 2006) ch 1; and S Benhabib, The Rights of Others: Aliens, Residents, and Citizens (Cambridge, Cambridge University Press, 2004) ch 4. 110  See M Kumm, ‘The Idea of Socratic Contestation and the Right to Justification’ (2010) 4 Law & Ethics of Human Rights 141–75; and S Besson, ‘Deliberative Demoi-cracy in the European Union’ in ibid and JL Martí (eds), Deliberative Democracy and its Discontents (Farnham, Ashgate, 2006) 181, 193–204. 111  See D Thym, ‘EU Migration Policy and its Constitutional Rationale’ (2013) 50 Common Market Law Review 709, 718–21.

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model supports easy solutions: individual cases will always be contested. All I say is that at an abstract level of analysis the constitutional infrastructure is intact. We can explain the status of third-country nationals without necessarily connecting it to Union citizenship. It does not deny the legal and moral significance of personhood to distinguish the citizens’ rights of some from the human rights of all. This account is not universalist in a thick sense, but it is not statist either. It presents an intermediate solution, which one may call the ‘cosmopolitan outlook’ underlying EU law112—although this description can certainly be contested. That is what I perceive to be the default position of personhood in EU law which can be construed positively independent of the citizenship status on the basis of human rights. It would require substantive analyses of EU immigration and asylum law to identify how far the EU legal order recognises basic notions of personhood in specific scenarios of transnational mobility.

V. Conclusion As a supranational legal order, EU law governs only certain aspects of human behaviour and its perspective is necessarily a partial one. Having emerged as a project of economic integration, Union law did not comprise an explicit concept of personhood from the beginning and it continues to be fragmented into different policy fields. This chapter therefore concentrated on substantive rules in the EU Treaties with a particular focus on free movement, Union citizenship, human rights and migration. Such an approach follows the conclusion that abstract notions of ‘legal personhood’, such as the human right to equal personality before the law enshrined in Article 16 ICCPR, have little bearing in practice beyond a number of borderline scenarios such as the beginning of birth or extraterritorial state action. The recognition of equal personhood may appear self-evident from today’s perspective, but it was the outcome of extensive debates in legal practice and philosophy building on the traditional notion of ‘status’ characterising relations of individuals with society, which had defined debates in civil law jurisdictions which follow the tradition of Roman law for centuries. In EU law, the concept of individual and human rights lies at the heart of a project building upon integration through law, since it was developed by the ECJ to guarantee the effet utile of Union law, inter alia by engaging individuals in its enforcement. Notwithstanding this functional pedigree, the concept of individual rights can develop a life of its own when individuals promote their agenda via Union law. Such dynamism is possible, in particular when the interests of individuals coincide with the EU’s objectives, but remains subject to structural caveats such as restrictive standing rights before the Court of Justice. An assessment of

112 

See Thym (n 88) s 4 (forthcoming); and Thym (n 111) 725–35.

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underlying notions of legal personhood should also consider substantive guarantees. This chapter did so by extrapolating two distinct categories of the rightbearer which evolved gradually and define rules on free movement and migration nowadays: Union citizens and third-country nationals. Basic constitutional concepts such as citizenship and human rights are not confined to legal debates, but convey normative values which can change over time. Against this background, the ‘citizenship-foreigner-cleavage’ on a distinct set of rules for Union citizens and third-country nationals in positive EU law is in need of explanation. The resolution of this puzzle should recognise that specific rules for Union citizens are conceived, from today’s perspective, as the expression of a ‘fundamental status’—a description which should not be confused with essential notions of personhood or dignity in light of the traditional meaning of statuses designating a collection of special rights in continental civil law. By contrast, the default position on personhood in EU law comes to the fore ex negativo when we leave aside citizens’ rights and focus on third-country nationals. In this respect, the entry into force of the Treaty of Lisbon reaffirmed an intermediate solution which falls short of citizenship but comprises individual guarantees whose contours remain contested. In that respect, the notion of personhood underlying EU migration law is very much in flux.

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6 Neo-mediaeval Permutations of Personhood in the European Union DIMITRY KOCHENOV*

I.  Introduction: The Usefulness of Amusing Tales The most crucial paradigm shift in the last millennium’s law of personhood ­brilliantly documented by Keechang Kim, reached the very core of understanding of equality, liberty and community.1 Personhood moved from the realm of private to public law, as the core border of personhood drifted from free/unfree to citizen/ foreigner, this change bringing with it the necessity of a presumption of equality, thus removing the long-dominant moral ideal of inequality from its pedestal, and the idea of liberty through submission to the sovereign. In its place came political community, which later became one of the core elements of democracy. The EU is very affective in seriously undermining, if not undoing this ages-old development, as this chapter will demonstrate. The mediaeval paradigm shift behind what still officially informs our approach to personhood in law was distilled in all clarity in the famous Calvin case,2 where the Law Lords, for the first time in history, connected allegiance with natural law, as opposed to simply the law of the land, thus mandating equal protection of the law extending, by virtue of such allegiance, to all the subjects of the King: ‘the law is equal and favoureth not’.3 They thereby allowed a Scot born under James S­ tuart, the first King of both England and Scotland, to inherit property in England as if he were an Englishman.4 Allegiance amounted to a totally new kind of bond

*  Visiting Professor and Martin and Kathleen Crane Fellow in Law and Public Affairs, Woodrow Wilson School, Princeton University (2015–2016); Chair in EU Constitutional Law, University of ­Groningen; Visiting Professor, College of Europe, Natolin campus. I am grateful for useful comments to Loïc Azoulai, Marija Bartl, Sherally Munshi, and the attendees of my lecture at Princeton European Union Programme in the Fall of 2015, where the first draft of the chapter was presented upon the kind invitation of Sophie Meunier. 1  K Kim, Aliens in Mediaeval Law (Cambridge, Cambridge University Press, 2000). 2  Calvin’s Case 7 Coke Report 1a, 77 ER 377. 3  Sir Francis Bacon, who won Calvin as Mr Calvin’s counsel, as cited in Kim (n 1) 195. 4  For a superb discussion, see Kim (n 1) 176–99.

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c­ ompared with the Roman and early-mediaeval understandings of personhood and shows how much the presumptions of what it means to be a person in the eyes of the law have changed from the Roman law on personal status and the ­evolution of its vestiges in the Middle Ages to the seventeenth century understanding. The change marked a full-blown revolution at three levels: liberty, equality and the nature of legal status, marking the beginnings, however rudimentary, of the ­modern understanding of belonging and the construction of personhood in the eyes of the law.5 This contribution uses this shift in legal understanding to extrapolate the ­possibility of a far-reaching change which is one of the capacities of the law, ­seeking parallels in the key legal elements of constructing mediaeval personhood and the concept of citizenship in the European Union (EU) today.6 What we shall see is that a number of crucial presumptions concerning the legal position of a person in law, taken by the Member States of the EU as a given, are past their prime, as they do not fully—not at all in fact—overlap with the law as applied, as it mutated under the influence of the EU, reshaped by the Union either directly or indirectly.7 Moreover, such assumptions are potentially responsible for a distorted—if not misleading—picture of personhood in European law both at the supranational and at the national levels. The analogy with mediaeval developments will help us keep an eye on the crucial discrepancies between the law as declared and the law as applied. A mediaeval analogy helps to illuminate an understanding of how the contemporary European legal system approaches the human being as a ­person and a citizen.8 This chapter claims that there is a notable neo-mediaeval turn in the legal framing of personhood in the EU, which can be traced to the same key features of the idea of a person in law that was altered in the era of the Calvin ­judgment: liberty, equality and community: all what being a ‘person’ in law is about. This sketch does not aspire to provide a full analogy between the mediaeval and the contemporary transformations of the understanding of personhood in law in Europe. Any such analogy would in all likelihood be profoundly misplaced at countless levels if taken literally. Yet, the illustration employed herein will make abundantly clear that we are far removed, in the Union of the beginning of the twenty-first century, from an understanding of citizenship which still rhetorically marks all the legal systems of the EU Member States and are used to legitimise the

5 

For a beautiful, intricate and convincing retelling of this story, see, ibid. For the most recent detailed analysis of EU citizenship, see, eg, the contributions in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2016). 7  For a detailed account, see, D Kochenov, ‘Rounding up the Circle: The Mutation of Member States’ Nationalities under Pressure from EU Citizenship’ (2010) EUI RSCAS Working Paper No 2010/21. But see S Hall, ‘Determining the Scope Ratione Personae of European Citizenship: Customary International Law Prevails for Now’ (2001) 28 Legal Issues of Economic Integration 355. 8  L Bosniak, ‘Persons and Citizens in Constitutional Thought’ (2010) 8 International Journal of ­Constitutional Law 9. In the context of the EU, see L Azoulai, ‘L’autonomie de l’individu européen et la question du statut’ (2013) EUI LAW Working Paper 2013/14. 6 

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established organisation of power at the Member State and, consequently, also at the supranational level. The creation and the operation of the Union alongside a whole array of other factors, including the global rise of the human rights ideology9 and of the culture of justification as opposed to that of authority,10 are responsible for the rise of accidental cosmopolitanism,11 in Alexander Somek’s insightful understanding. This triad brings about a radical revision in how the three core elements of personhood in law operate in Europe today. Neo-­mediaevalism is thus not a result of a (nostalgic) turn to the remote past, but, rather, a hopeful ­construction of a future that moves away from an array of fundamental understandings coded into the legal-political framing of reality which dethroned the classical mediaeval approaches around half a millennium ago. Not merely a rondo, the story this chapter retells is rather a rondo with a variation in form, while its substance is about an incidental trend towards a departure from what seemed an innovation half a millennium ago and what is, officially, the basis for understanding citizenship and statehood in contemporary world. The task of this contribution is not to judge, but to document, showing how the legal understanding of personhood has been severely altered; first, under the influence of sovereignty and Christian soteriology, culminating in a total shift of paradigm of personhood in law in the sixteenth century and, secondly, how a contemporary shift in understanding, under the influence of, inter alia, the law of the European Union, provides an unexpected excursion into the past, reminiscent as it is of some pre-modern understandings, thus showing deep-rooted conflicts between how the Union operates and the classical ideology of citizenship.12 The chapter proceeds as follows. The section that follows describes the mediaeval transformation of personhood: the rise of a public law-inspired sovereignist model of the person marked by equality before the law and liberty for all subjects through the formation of a political community and submission to the sovereign by means of allegiance, which opened the age of modernity—not yet democracyinspired back then—in the reading of personhood in law (section II). This model of personhood, building on equality before the law intertwined with a submission to the sovereign, is then traced into the future, up to its prestigious placement at the centre of the core national constitutional understandings of the ‘self ’ by European states which have offered their ‘peoples’ to the Union13 (section III).

9  G Frankenberg, ‘Human Rights and the Belief in a Just World’ (2013) 12 International Journal of Constitutional Law 35. 10  M Cohen-Eliya and I Porat, ‘Proportionality and the Culture of Justification’ (2011) American Journal of Comparative Law 463. But see, S Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’ (2009) 7 International Journal of Constitutional Law 468 (for criticism). 11  A Somek, ‘Europe: Political, Not Cosmopolitan’ (2014) 20 European Law Journal 142. 12  On the latter, see, eg, W Kymlicka and N Wayne, ‘Return of the Citizen: A Survey of Recent Work on Citizenship Theory’ (1994) 104 Ethics 352. 13  The High Contracting Parties clarified in the preamble to the Treaties that they are ‘DESIRING to deepen the solidarity between their peoples while respecting their history, their culture and their traditions’.

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This is done only to then remind the reader of the reality of the legal-political functioning of personhood in the Union today—whatever the justifications or the standard practices used to interpret the tensions away. It is perhaps amusing to see in this context that the new individualism with all its accidental ­cosmopolitanism could actually be presented—legitimately I claim—as neo-mediaevalism. The key elements of both seem to be overlapping: in practice, equality is not treated as a value—not even as a starting presumption—community does not build on the idea of sovereignty and submission, and liberty is detached from the ­political realm and does not imply collective self-determination (section IV). The conclusion draws some lessons from the legal evolution of the understanding of ­personhood in Europe. It notes, especially, that officially the paradigm still has not changed: the constitutions cling to sovereignist understandings and are ripe with solemn ­proclamations, while the practice of how the law operates could not be more ­different. This practice does not find reflection—or does not find a ­reflection yet—in how the law of personhood in Europe is officially constructed.

II.  Mediaevalism and the Change of the Paradigm of Personhood in Law Although citizenship is traced to Aristotle in the popular imagination,14 as well as to the Romans,15 it would be more correct, with the reference to those remote times, to speak of personhood in law tout court. While the law definitely applied to and was shaped by an array of persons, citizenship in the modern understanding— either pre- or post-Marshallian16—would be extremely difficult to apply to that context for a number of reasons. One of the main ones among these is that personhood in law up to the crucial turn which culminated more or less with the Calvin case in 1608—what is sometimes referred to as ‘citizenship’ in the textbooks—was mostly private, not public in nature.17 Although Aristotle conceived of the citizen as—very approximately—a rightful holder of office18 and although all the way through Roman and mediaeval periods the possession of a certain legal status could imply the exercise of public functions, the paradigmatic border marking the confines of the legal status was based on a fundamentally different consideration, compared with the idea of citizenship—either with or without office—today.

14 

eg C Johnson, ‘Who Is Aristotle’s Citizen?’ (1984) 29 Phronesis 73. AN Sherwin-White, The Roman Citizenship 2nd edn (Oxford, Clarendon Press, 1973). 16  TH Marshall, Citizenship and Social Class, and Other Essays (Cambridge, Cambridge University Press, 1950). On the non-applicability of Marshall’s model to the European citizenship context today, see, G de Búrca, ‘Report on the Further Development of Citizenship in the European Union’ (2001) Zeitschrift für Schweizerisches Recht 39, esp 50. 17  Kim (n 1) 1–3. 18  Johnson (n 14) 82. 15 

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The key legal status-determining distinction, at the core of the understanding of personhood until well into the middle ages, was whether one was free or unfree.19 So, if citizenship is defined following Brubaker as an ‘instrument and object of ­closure’20—in that it outlines the confines of the group keeping the ‘other’ out, while also defining such a group by formulating the rules on joining or leaving it—the crucial border between the ‘ins’ and the ‘outs’ is now a separation between f­ oreigners and those who have a local status of citizenship: both according to a public law understanding, of course. The foreigner is the enemy.21 Such a ­dichotomy was not in place in the past and did not mark the core attributes of personhood in law until the late middle ages.22 The crucial border between the ‘ins’ and the ‘outs’, which is the defining feature of personhood in law, lay in the realm of private law and denoted whether one was ‘free’ or ‘unfree’.23 It goes without saying that there were plenty of locals and foreigners in this world at any period of its historical development, yet, as Kim convincingly demonstrates, this distinction was inconsequential for the most part, with regard to the legal construction of the law of personhood.24 Indeed, while people belonged to guilds, towns, parishes and countries, the distinction between ‘us’ and ‘them’ arose all the time without amounting, however, to the key paradigm of the legal approach to personhood. In the medieval period, citizenship was by definition multi-layered, without affecting, however, its dominant universally accepted understanding.25 So, while the details concerning what being free and unfree implied were c­ hanging gradually, from slaves to serfs, from Aristotelian citizens26 to the libertini,27 the core distinction driving the understanding of what it means to be a person in the eyes of the law clearly stayed unaltered for hundreds of years: you are either free or unfree, with a corresponding gradation of duties and entitlements. It is crucial in this context to understand that the misconception that a slave or a serf is not a person in a world marked by such a division, implying that only the ‘free’ would enjoy a ‘true’ personhood in law is unhelpful and does not correspond to reality.28 There were simply two different types of persons in law: the free and the unfree, like there are now citizens and foreigners. It is this paradigmatic opposition that mattered, shaping the core importance of each of the two components. Being a slave would not mean, necessarily, not holding an important office,29 just as being 19 

Kim (n 1). Brubaker, Citizenship and Nationhood in France and Germany (Cambridge MA, Harvard ­University Press, 1992). 21  C Schmitt, The Concept of the Political (G Schwab trans, Chicago, University of Chicago Press, 2007). 22  Kim (n 1) 200 et seq. 23  ibid, 1. 24  ibid, 1–19. 25  Y Blank, ‘Spheres of Citizenship’ (2007) 8 Theoretical Inquiries in Law 411. 26  Johnson (n 14). 27  Kim (n 1) 3 (meaning ‘freed men’). 28  ibid, 200–02. 29  Tilly reminds us that whole provinces of important empires could be run by slaves: C Tilly, ­Coercion Capital and European States: AD 990–1992 (London, Wiley-Blackwell, 1992) 24. 20 R

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free would not make you King. It is the logic behind determining which line of separation is crucial in the eyes of the law that is important for us. This distinction defining the legal approach to the person came with a law-­ supported worldview which is evidently very different from our own.30 The ­crucial differences were two. They were interrelated and equally important. The first ­concerned the understanding of equality and the second concerned the understanding of liberty. Each of the two by analogy with the core free/unfree ­distinction in the pre-modern law on personhood has no direct parallel to our contemporary understanding of law and society—at least not officially, as we will see. Liberty was a private-law concept, like the main paradigm of personhood based on private law: born a serf one is unfree and bound to one’s lord and his land. Once freed, one moves up a rank compared to one’s serf parents, but one’s liberty is still very different from that of the lord, translating into a radically different set of rights, privileges and entitlements, detailing whom one can sue, whom one can marry. The whole history of the gradual emergence of statehood and collective freedoms, which started in Europe with the cities, could legitimately be presented as a story of reinventing the private-law meaning of liberty in public law terms.31 The paradigmatic change in the understanding of liberty had to do with the emergence of the notion of sovereignty, backed by theology, responsible for sowing the seeds of the world of ideas, which we still inhabit today, however changed and differently presented is its actual form.32 For liberty, to quote once again from the brilliant study by Kim, ‘legal debate … would shift its focus from the question of “doing” to the question of “being”’.33 To do versus to be. ‘Doing’ is quite clear in this respect. As a serf, one can work the land, accompany one’s master to war and beget new serfs. One’s liberty is defined by the precise legal position of one’s private legal status of subjugation or freedom. A continuum of liberty thus existed: different categories of persons, finding themselves in different contexts of subjugation or domination would be free to do different things. One of the key tasks of the law, then, was ensuring justice through clarity and precision in the apportionment of liberty, ‘legal inequality [being] the essential attribute of the Classical notion of justice’.34 This view of freedom is rendered obsolete once liberty turns into a yes or no question and ceases being a matter of making precise the degree of entitlement in each particular case.35 Such a change happened under the influence of the idea of sovereignty and Christian soteriology ‘by a close analogy to spiritual

30 

JM Balkin, ‘The Proliferation of Legal Truth’ (2003) 26 Harvard Journal of Law and Public Policy 5. Tilly (n 29). 32  It goes without saying that the understanding of liberty went through an important intellectual evolution, which this chapter is not the proper venue to retell. See, eg, I Berlin, Liberty (Oxford, Oxford University Press, 2004). 33  Kim (n 1) 194. 34  ibid 193 (footnote omitted). 35 ibid. 31 

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­liberation’.36 If one can be saved, one is free and this freedom is ensured through one’s ­allegiance to the sovereign through the law of nature which is also responsible for making him King under the same God that (if one behaves) will open, for the chosen, the doors of heaven. One’s subjugation to his law and sovereignty, which is, as we learnt from Calvin, of itself based on natural law, is thus essential for one’s liberty. There is no place for gradations in this straightforward system. Keechang Kim’s illustration of the shift in the understanding of liberty through the discussion of Bodin’s criticism of Aristotle makes this shift crystal clear.37 Bodin, wrongly presuming that personhood in the law of his times had the same meaning and structure as in the times of Aristotle, criticised the latter for failing to make a distinction, while approaching the notion of citizenship, between, on the one hand, those who owe allegiance to the sovereign38—whom we now would brand as ‘citizens’ since ultimately it does not matter who the sovereign one is bound to respect actually is: a large lady, a parliament, or ‘the people’39—and, on the other hand, all others. Only the former can enjoy true liberty, it was argued, and this liberty—paradoxically as it sounds—was gained precisely through the act of submission. Since in Bodin’s time the defining borderline determining the essence of personhood in law moved from ‘free/unfree’ to, essentially ‘a local/a foreigner’, understood as ‘under this King/under some other King’, liberty became an attribute of belonging—submission—to a particular sovereign (actually construed through the territoriality of the realm) and lost the preceding dominant meaning of freedom ‘to do’. Once liberty came to mean submission and, in return, the reception of protection from the sovereign, all those who submit are equally graced by law, undermining the previously established gradation of liberty. This also reflected the key idea of Christian soteriology well: either one will be saved or not. Noone was only saved a little bit. The new meaning of liberty defined through a yes or no question brought about a total reshaping of thinking about equality. In the legal paradigm of personhood based on the private legal relationship defined by one’s freedom or unfreedom, equality could not be of any moral value, since such a moral value would ­delegitimise not only the key division on which the paradigm rested, but also the understanding of liberty as a gradual apportionment of the freedom ‘to do’. C ­ onsequently, inequality, rather than equality used to be the moral ideal, emphasising the importance to apportion liberty precisely as the level of freedom of each individual stipulated.40 This understanding is all but strange. There

36 ibid. 37 

ibid 203–08. ibid, 204, relying, inter alia, on J Franklin, Jean Bodin and the Sixteenth-Century Revolution in the Methodology of Law and History (New York, Columbia University Press, 1963). 39  For a convincing story of the actual articulation of the sovereign, see, eg, C Tilly, ‘War Making and State Making as Organized Crime’, in P Evans, D Rueschemeyer and T Skocpol (eds), Bringing the State Back in (Cambridge, Cambridge University Press, 1985) 169; Tilly (n 29). 40  Kim (n 1) 193. 38 

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is ­overwhelming agreement in the legal-philosophical literature that equality, as such, is a choice which polities make rather than any ‘natural’ way of approaching the organisation of humans living together, which would be the most ­ideologically charged way to ‘explain’ equality by appeals to nature—more or less what Lord Coke did in Calvin.41 Sir Isaiah Berlin, with his characteristic clarity, claimed that the moral reasons behind the presumption of equality—rather than instrumental considerations—will not and cannot be found, since ‘like all human ends [equality] itself cannot be defended or justified’.42 It is thus ‘neither more nor less “natural” or “rational” that any other constituent of [such ends]’.43 Sir Isaiah’s was not a political argument about equality’s worth44 or a claim about its necessity.45 Rather, it was the acknowledgement of the fact that, in ­philosophy both equality and inequality seem to be rather thinly framed, amounting to mere societal choices, beliefs.46 In this sense, ‘it is difficult to see what is meant by considering it either rational or non-rational’, continues Sir Isaiah.47 The currently dominant approach—that equality is a good thing (at least better than inequality)48—goes back to the shift in the law on personhood in the late middle ages, when the idea of sovereignty and allegiance de facto shaped a requirement of equality before the law among all those whose liberty is guaranteed, as we have seen, through submission to their sovereign master sanctioned by the God their sovereign master opted to declare that he believed in. Importantly, the new equality as a legal ideal was not supposed to extend to those who are not bound by the same sovereign: allegiance played a key role in this process, creating the harshest principle of exclusion—discrimination on the basis of nationality49—which still holds true in the majority of countries around the world, to outrageously inequitable results,50 treated as unproblematic by lawyers

41  42 

ibid 176 ff. I Berlin, ‘Equality’ (1955–1956) 56 Proceedings of the Aristotelian Society 326.

43 ibid.

44  Peter Westen emerged as a famed advocate of equality’s emptiness: P Westen, Speaking of Equality: An Analysis of the Rhetorical Force of ‘Equality’ in Moral and Legal Discourse (Princeton NJ, Princeton University Press, 1990). For well-argued disagreements, see, eg, J Waldron, ‘The Substance of ­Equality’ (1991) 89 Michigan Law Review 1350; K Karst, ‘Why Equality Matters’ (1983) 17 Georgia Law Review 245. 45 On why such legal concepts are not ‘empty’, see, A Ross, ‘Tû Tû’ (1957) 70 Harvard Law Review 812. 46  More specifically, Berlin speaks of the ‘belief in the general rules of conduct’: Berlin (n 42) 320. See also LP Pojman, ‘Are Human Rights Based on Equal Human Worth?’ (1992) 52 Philosophy and Phenomenological Research 605. 47  Berlin (n 42) 319. 48 ibid. 49  B Kingsbury, ‘Sovereignty and Inequality’ (1998) 9 European Journal of International Law 599. In the context of the EU, see A Williams, ‘The EU, Interim Global Justice and the International Legal Order’ in D Kochenov and F Amtenbrink (eds), European Union’s Shaping of the International Legal Order (Cambridge, Cambridge University Press, 2013) 62. 50  Kingsbury, ibid; A Shachar, ‘Children of a Lesser State: Sustaining Global Inequality through ­Citizenship Laws’ (2003) Jean Monnet Working Paper No 2003/03.

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and political theorists alike. All in all, everyone is now free and equal, as long as everyone is under the same sovereign. Modern theorists would re-name submission as membership of the political community,51 which does not alter the essence of the crucial boundary drawn in the realm of the law of personhood. The division is the same: those under this sovereign versus those under some other sovereign, or no sovereign at all (as defined by our law).52 Foreigners in their foreign lands are, of course, usually not taken into account at all, their possible claims amounting to nothing.53 Excluding them is presented as a good thing, indeed, an indispensable thing, since it protects the political community, read ‘the sovereign’, democracy requiring closure.54 At the same time, the political community is responsible for equality in the current understanding of the word—assuming every person’s equal worth: the circular reasoning is strong yet did not scare away Walzer and too many others to be named.55 The easiest is, of course, to pretend that there is only one bounded political community inhabiting this universe, existing in a vacuum with no neighbours: the world of TH Marshall and John Rawls. Our world is so different, that ignoring its crucial multiplicity is the fatal sin of omission ­virtually impossible to forgive. Forgiven or not, this thinking, conceptually endebted to Bodin’s criticism of Aristotle, is so much engrained and accepted as a universal norm that whatever happens to the foreigner does not enter our moral universe.56 It is not surprising, thus, that in the contemporary political community the foreigner has taken the legitimate place of the mediaeval serf and Aristotelian slave, as the discussion above demonstrates: the free/unfree duality came to be replaced by citizen/foreigner duality at the heart of the legal understanding of personhood. The shift from free/unfree to local/foreigner as the most crucial legal denominators of personhood was thus of a truly paradigmatic nature, changing our—or our ancestors’—understanding of equality, liberty and the nature of community. The excluded and fenced out group has changed, just as the nature of the legal bond determining each persons’ status and entitlements: from private law the person meandered into public law.

51 eg M Walzer, Spheres of Justice (Oxford, Martin Robertson, 1983). For a general analysis: MJ Gibney, ‘The Right of Non-Citizens to Membership’ in C Sawyer and BK Blitz (eds), Statelessness in the European Union (Cambridge, Cambridge University Press, 2011) 41. 52  This is where all the undocumented and ‘illegal’ people come from—especially those born in the territory but not recognised as fully ‘in’ for whatever reason. Pre-texts for such non-recognition ­historically varied from marrying a colonial subject to belonging to the inferior race or an ethnic minority. B de Hart, ‘The Morality of Maria Toet: Gender, Citizenship and the Construction of the Nation-State’ (2006) 32 Journal of Ethnic and Migration Studies 49; K Rundle, ‘The Impossibility of an Exterminatory Legality: Law and the Holocaust’ (2009) 59 University of Toronto Law Journal 65, 69–76; D Kochenov and A Dimitrovs, ‘EU Citizenship for Latvian Non-citizens: A Concrete Proposal’ (2015) 38 Houston Journal of International Law 1. 53  eg Walzer (n 51). 54  For an enlightening discussion, see Gibney (n 51). 55  cf J Cohen, ‘Changing Paradigms of Citizenship and the Exclusiveness of the Demos’ (1999) 14 International Sociology 250. 56  But see Kingsbury (n 49); Williams (n 49).

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The European Union is now, at least in part, rowing back on this important late-mediaeval shift. Not that foreigners are treated better than usual—they are not—the bulk of citizens are treated differently through subjection to additional requirements before the presumption of inequality can be reversed, thus ­qualifying them as free and reaffirming their membership of the community as well as their worthiness of protection by law. The EU has de facto introduced the mediaeval understanding of liberty as a continuum between the entitlements of different relatively strictly policed categories of persons, while also shifting the borderline between those who are ‘in’ and those who are ‘out’: it now runs through the body of citizens both at the national and at the supranational level.

III.  The Official EU Story Today: The Law of As If The official story line presents the EU as very closely resembling its own Member States in terms of all the key principles and values, which are said to be shared between the two levels of the law as reflected, for instance, in Article 2 TEU (Treaty on European Union).57 Further perusal of the Treaties and the case-law of the Court of Justice of the European Union (ECJ) read in the light of a textbookfriendly self-image of the Union reveals that EU law unquestionably builds, inter alia, on the ideas of equality, liberty, democracy58 and boasts the legal definition of personhood through a clear separation between ‘us’ and ‘them’, ie between citizens and foreigners.59 Indeed, the ECJ built on the promise of the treaties in Part II TFEU (Treaty on the Functioning of the European Union) and Article 9 TEU and turned EU citizenship into a ‘fundamental status of the nationals of the ­Member States’.60 Even if someone is not convinced as to how exactly this h ­ appened ­methodologically,61 this is the law.62 This new citizenship, which is a more or 57 On possible deviations from this default position and dealing with such deviations see, eg J-W Müller, ‘The EU as a Militant Democracy’ (2014) 165 Revista de estudios políticos 141; J-W  ­Müller, ‘Should the European Union Protect Democracy and the Rule of Law in Its Member States’ (2015) 21 European Law Journal 141; C Hillion, ‘Overseeing the Rule of Law in the EU: Legal Mandate and Means’ in C Closa and D Kochenov (eds), Reinforcing the Rule of Law Oversight in the European Union (Cambridge, Cambridge University Press, 2016). 58  Indeed, democracy is one of the values on which the Union together with its Member States is said to be built: Art 2 TEU. See also A von Bogdandy, ‘The Prospect of a European Republic: What European Citizens are Voting on’ (2005) 42 Common Market Law Review 913. 59  But see, D Acosta Arcarazo, ‘Civic Citizenship Reintroduced? The Long-Term Residence Directive as a Post-National Form of Membership’ (2015) 21 European Law Journal 200. Long-term residence glorification scholarship severely downplays the fact that such residence is de facto and also frequently de jure operates within the context of a given Member State, not the Union as such: D Kochenov and M van den Brink, ‘Pretending There Is No Union: Non-Derivative Quasi-Citizenship Rigths of Third-Country Nationals in the EU’ (2015) EUI Working Paper LAW 2015/07. 60  eg Case C-184/99 Grzelczyk [2001] ECR I-6193, para 31; Case C-13/99 Baumbast [2002] ECR I-7091, para 82; Case C-34/09 Ruiz Zambrano [2011] 2 CMLR 46, para 41. 61  U Šadl, ‘Case—Case-Law—Law’ (2013) 9 European Constitutional Law Review 205. 62 T Schulz, ‘Why Being Law Matters’ (2014) King’s College London Law School Research Paper No 2014-27.

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less well-articulated legal status by now63—never mind its ius tractum conferral, dependent on the nationalities of the Member States64—comes with a powerful package of rights reserved for the citizens—not aliens, ie third country nationals in the supranational context of EU law—and also builds on a powerful promise of equality and non-discrimination among all the holders of this legal ­status. It is thus derivative at the level of individual articulation through its dependence on the nationalities of the Member States, but autonomous at the level of its ­day-to-day operation, through the dependence on the Union as a supranational provider of rights.65 Equality seems to be one of the cornerstones of the status: the list of the prohibited grounds of discrimination is truly comprehensive,66 and the articulation of the day-to-day application of the non-discrimination provisions of primary and secondary law is growing.67 Important in this respect is that alongside a number of well-known prohibited grounds of discrimination traceable to the UN Universal Declaration of Human Rights and the principles of non-discrimination in the national constitutions of the Member States, Union law also refers to the principle of non-­discrimination on the basis of nationality,68 which became one of the beacons of European ­integration from its earliest days.69 This principle, although it seems natural to the majority of the students and practitioners of EU law, is in fact ­radically ­innovative and has only one major parallel in history, outside of the classical ­federal ­context,70 which also happens to be a truly idealistic one71—the attempt of the revolutionary Assemblée nationale framing the notion of Frenchness in ­pre-Napoleonic France, to prohibit nationality discrimination.72 The prohibition did not work out back then and the radical distinction between locals and foreigners was not in fact ­questioned either in the French context afterwards or elsewhere in Europe,

63 

For an overview, see, Kochenov (n 6). Kochenov, ‘Ius Tractum of Many Faces: European Citizenship and a Difficult Relationship between Status and Rights’ (2009) 15 Columbia Journal European Law 169. 65  Case C-135/08 Janko Rottmann [2009] ECR I-1449, Opinion of AG Poiares Maduro, para 23. 66  This does not mean that there is no room for improvement, of course: H Meenan (ed), Equality Law in an Enlarged European Union: Understanding the Article 13 Directives (Cambridge, Cambridge University Press, 2010). 67  See, eg, the contributions in D Schiek and V Chege (eds), European Union Non-Discrimination Law: Comparative Perspectives on Multidimensional Equality Law (London, Routledge Cavendish, 2009). 68  Art 18(1) TFEU. 69  G Davies, Nationality Discrimination in the European Internal Market (The Hague, Kluwer Law International, 2003); K Lenaerts, ‘Union Citizenship and the Principle of Non-Discrimination on the Grounds of Nationality’ in B Vesterdorf, N Fenger and K Hagel-Sørensen (eds), Festskrift til Claus ­Gulmann (London, Thomson Reuters, 2006). 70 C Schönberger, ‘European Citizenship as Federal Citizenship: Some Citizenship Lessons of ­Comparative Federalism’ (2007) 19 Revue européenne de droit public 61. 71  European integration as such can also be presented as a messianic project: JHH Weiler, ‘Europe in Crisis: On “Political Messianism”, “Legitimacy” and the “Rule of Law”’ (2013) Singapore Journal of Legal Studies 248. 72  The line of exclusion and inclusion was purely ideological: J Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge, Cambridge University Press, 1999). 64  D

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thus demonstrating faithfulness to the trend which emerged around the time when Calvin was decided. Moreover, the idea of the nation came to be rooted in the ­distinction between the citizens and foreigners, reinforcing the principle of ­inequality between the holders of different nationalities, owing allegiance to d ­ ifferent sovereigns, or, in contemporary language, once again, belonging to ­different political communities:73 even dual nationality would not routinely be tolerated until very recent times to ensure that the purity of the separation is not violated.74 Given the promise of the prohibition of discrimination on the basis of nationality, the EU could thus depart from the core duality marking the dominant legal paradigm of personhood in contemporary law, but it did not. The core distinction holds at the supranational level—the level at which EU citizenship is granted and operates. Non-discrimination on the basis of nationality is almost a tautology if applied within the confines of one status of personhood in law—however ­atypical this status might seem—thus without cutting across different statuses. In fact, such a proclamation only increases the sharpness of the distinction between ­citizens and foreigners so familiar from the transformation described above in that nonEU citizens are not included within the scope of the promised supranational law’s ‘innovation’. It appears, therefore, that the comparison with what the Assemblée nationale did at the end of the eighteenth century is unwarranted: EU citizenship is not a liberation from the idea of nationality.75 Rather, it is a superimposed nationality of a different level, which seemingly follows exactly the same key logic of exclusion as the one marking the operation of the citizenships of the Member States at the national level. The task of modern citizenship being to exclude and to justify exclusion internally and externally, the national and EU levels of the law fulfill this task following precisely the same blueprint and using the same criterion of exclusion, thus being logically indistinguishable in this regard. In the beginning of the internal market there was probably more room for ­idealism: European law on personhood resulting in the strict separation between EU citizens and third country nationals observable today is at least partly ­judge-made. From the very beginning the treaties spoke about ‘workers of the Member States’76 without pointing to the fact that those who were to enjoy this status under (then) EEC law were supposed to hold a particular nationality.77

73 

D Miller, On Nationality (Oxford, Oxford University Press, 1997). Triadafilopoulos, ‘Dual Citizenship and Security Norms in Historical Perspective’ in T Faist and P Kivisto (eds), Dual Citizenship in Global Perspective: From Unitary to Multiple Membership ­(Basingstoke, Palgrave Macmillan, 2007) 27; P Spiro, Beyond Citizenship: American Identity after ­Globalisation (Oxford, Oxford University Press, 2008). 75  In this particular context ‘nationality’ is not a value-laden term, following Miller’s insightful analysis: Miller (n 73). 76  Now Art 45(2) TFEU. The reference to ‘workers of the Member States’ has not changed since the Treaty of Rome. 77  For a telling account of the birth of free movement of persons law in Europe, see, W Maas, ­Creating European Citizens (Lanham MD, Rowman and Littlefield, 2007). 74  T

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It goes without saying that the inclusion of nationality into the definition of a worker78 is ­profoundly problematic in the internal market where a number of national ­economies rely on guest-workers’ labour, as was the case when nationality came to be regarded as an essential connection between the status of a worker and the rights that workers would enjoy under the supranational law of the EEC.79 The Court has definitely played a crucial role in preventing the EU’s possible departure from the exclusionary patterns of the classical post-Calvin ­personhood paradigm, which takes the distinction between citizens and foreigners as an almost presumed factor of great importance. So engrained was this vision that the ­treaties did not even need to mention nationality with regard to the workers’ free ­movement regime80—as they did in the context of the free movement of services, for instance.81 The distinction between citizens and foreigners was deemed to be there anyway.82 This traditionalism and dogmatic approach to the scope ratione personae of EEC law resulted in the exclusion of all the workers holding a non-EU nationality from relying on EU-level rights, thus making the rights-side of the internal market mostly invisible for this large group.83 In other words, the ECJ effectively reinforced the grip of the ‘band of citizen-tyrants’84 ruling over their ‘guests’ who work for them. Non-discrimination on the basis of nationality came to be interpreted in exactly the same way as the scope of the then Community ‘worker’ status even if the ­provision establishing the non-discrimination principle does not itself limit its scope to any particular set of nationalities, confined to the ‘scope of the T ­ reaties’85

78  Case 75/63 Hoekstra (née Unger) [1964] ECR 177; Case 61/65 Vaassen-Göbbels (a widow) [1966] ECR 261; Case 44/65 Singer [1965] ECR 965; Case 66/85 Lawrie-Blum [1986] ECR 2121. 79 S Castles, ‘The Guest-Worker in Western Europe—An Obituary’ (1986) 20 International ­Migration Review 761. 80  The story was probably more complex, as there are strong indication in the Treaties that the notion of ‘workers of the Member States’ had to acquire a territorial, rather than a nationality-based framing. For a discussion, see Kochenov (n 64) (and the literature cited therein). 81  Art 56 TFEU; Case C-147/91 Ferrer Laderer [1992] ECR I-4097, para 7. This is only so, of course, as long as you do not believe, as does Thym, for instance, touching upon this issue in his chapter in this volume, that the Court is not bound by the law, but, rather, by some tacit agreement between the writers of the Treaties. See, for a compelling discussion of the necessarily deceptive nature of originalism, however much ‘modernised’, KL Scheppele, ‘Jack Balkin Is an American’ (2013) 25 Yale Journal of Law and Humanities 23. 82  For a historical scholarly debate problematising this distinction, see, DF Edens and S Patijn, ‘The Scope of the EEC System of Free Movement of Workers’ (1972) 9 Common Market Law Review 322; WR Bohring, ‘The Scope of the EEC System of Free Movement of Workers: A Rejoinder’ (1973) 10 Common Market Law Review 81. 83  Although a number of exceptions from this approach were later introduced through s ­ econdary legislation, these do not reverse, but rather reinforce the distinction between EU citizens and f­ oreigners: Kochenov and van den Brink (n 59); See, also, the relevant Dir 2003/109 and a its very optimistic analysis: D Acosta Arcarazo, The Long-Term Residence Status as a Subsidiary Form of EU Citizenship (Leiden, Martinus Nijhoff, 2011). 84 Walzer, The Spheres of Justice, as cited by Gibney (n 51) 62. 85  Art 18(1) TFEU reads as follows: ‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited’.

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instead.86 In this sense, the EEC could mark a departure from the ­citizen-foreigner paradigm from the outset giving all the workers legally employed in the Member States supranational-level rights in the internal market, but it did not—at least not on the face of it and certainly not in the name of broadening the a­ pplication of equality, as will be explained in more detail in the next part. As a ­consequence—and this was fully confirmed by the Treaty of Maastricht through making a c­ onnection between the Member State nationality of every person and her ­ European ­citizenship87—EU law on personhood seems to be a faithful continuation of the ages-old tradition building the notion of the person in law on the distinction between the foreigner and the citizen: no innovation there, s­ ubmissions from the scholars88 and EU organs89 notwithstanding. Once again, one should not be misled by the manner through which Article 18 TFEU f­ unctions today: once EU citizenship is regarded as having graduated into a meaningful legal status, Member State nationalities in their totality virtually completely disappear under its umbrella: within the scope ratione materiae of EU law they cease to exist in the eyes of the supranational legal system90 beyond their function of triggering the acquisition by their holders of a status of EU citizenship, which happens ­automatically through the direct effect of the relevant Treaty provisions.91 The same can seemingly be said about what is thought of equality and liberty—only EU citizens are fully included, equal and free, all the ‘lacking demos’92 and ­democratic deficit aspects of the story pointing to the EU’s natural limitations93 as a proclaimed constitutional system94 notwithstanding.

86  For a sound criticism of reading a list of nationalities in the text of what is now Art 18 TFEU, see P Boeles, ‘Europese burgers en derdelanders: Wat betekent het verbod van discriminatie naar nationaliteit sinds Amsterdam?’ (2005) 12 Sociaal-economische wetgeving 502. 87  Art 8 TEC, Maastricht version. The principle remains unchanged in Arts 9 TEU and 20 TFEU. It is essential not to forget, in this context, that the definition of a Member State nationality deemed relevant in this context is also very narrow, building on the notion of ‘Member State nationals for the purposes of Community law’—not on all the richness of the nationality law of the Member States concerned, as confirmed by the Court: Case C-192/99 Kaur [2001] ECR I-1237. 88  eg D Kostakopoulou, ‘European Union Citizenship and Member State Nationality: Updating or Upgrading the Link?’, in J Shaw (ed), Has the European Court of Justice Challenged Member State ­Sovereignty in Nationality Law? (2011) EUI Working Paper RSCAS No 2011/62. 89  See, most recently, European Economic and Social Committee (Rapporteur Mr Pariza Castaños) Opinion ‘A More Inclusive Citizenship Open to Immigrants’ (own initiative opinion) 2014/C 67/04. 90  G Davies, ‘“Any Place I Hang My Hat?” or: Residence is the New Nationality’ (2005) 11 European Law Journal 43. 91  Arts 9 TEU and 20 TFEU. See also M Szpunar and ME Blas López, ‘Some Reflections on ­Nationality of Member States: A Prerequisite of EU Citizenship and an Obstacle to its Exercise’ in Kochenov (n 6). 92  For a masterful contextualisation, see, G Palombella, ‘Whose Europe? After the Constitution: A Goal-Based Citizenship’ (2005) 3 International Journal of Constitutional Law 357. 93  JHH Weiler, ‘Epilogue: Living in a Glass House: Europe, Democracy, and the Rule of Law’ in C Closa and D Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (Cambridge, Cambridge University Press, 2016). 94 A Somek, ‘Is Legality a Principle of EU Law?’, unpublished paper on file with the author; D ­Kochenov, ‘EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It?’ (2015) 34 Yearbook of European Law.

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All in all, even though the EU is not a state and boasts a somewhat ­atypical ­system of structures of democratic governance, when scrutinised from the point of view of the Member States at least, the citizenship it has created is in full ­conformity with the key modern assumption that the core distinction in the law of personhood lies between citizens and foreigners. In this sense, even though EU citizenship is, for obvious reasons, radically different from the nationalities of the Member States, it is much more dull and lacking in novelty, than o ­ ptimists would assume.95 Indeed, broadly speaking at least, it is a federal citizenship like any other.96 Consequently, instead of innovating, what it does is merely replicate the Member States’ nationalities on a different scale. The chief added value of the supranational status is, then, in the fact that this replication is not complete and does not involve coercive molding of togetherness—demos-building.97 Consequently, the supranational ­status could be presented as more just and less authoritarian: a modern take on what a national citizenship ideal could be, should coercion and nationalism be excluded from it, replaced by a respect for ­multiplicity98 and a rights-based, as opposed to a duties-based, self-justification.99 The EU idea of freedom is thus not based on ­submission to a sovereign in the vein of Bodin,100 even if the sovereign is actually the very people, the demos itself,101 democracy implying, following G ­ ibney’s apt characterisation, ‘the meshing of two ideas: that rights matter and that demos rules’.102 EU citizenship emerges as overwhelmingly traditional in terms of the key form of exclusion it advocates and, simultaneously, extremely innovative—if not potentially destructive from the point of view of traditional democratic theory—in terms of implicitly denying the necessity of a political community. This is what it tacitly advocates through the promotion of liberation from ‘suffocating bonds’: a well-known problem addressed in a broader context by a number of writers.103 Given that this ‘problem’ is a natural consequence of a new role individualism

95  For a stimulating account of citizenship’s possible futures see, eg, D Kostakopoulou, The Future Governance of Citizenship (Cambridge, Cambridge University Press, 2008). 96  Schönberger (n 70). On the general federal context of EU law, see, O Beaud, Théorie de la ­fédération (Paris, PUF, 2007); R Schütze, From Dual to Cooperative Federalism (Oxford, Oxford ­University Press, 2009). 97  For a spectacular criticism of demos-afflicated constitutional patriotism theories—­ ­Kostakopoulou (n 95) 66–99. 98  Palombella (n 92); JHH Weiler, ‘In Defence of the Status Quo: Europe’s Constitutional S ­ onderweg’ in JHH Weiler and M Wind (eds), European Constitutionalism beyond the State (Cambridge, ­Cambridge University Press, 2003) 18. 99  D Kochenov, ‘EU Citizenship without Duties’ (2014) 20 European Law Journal 482. 100  Kim (n 1) 202–08. 101  For an insightful critique of any constitutionalism as a mechanism of oppression, see, J Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, Cambridge University Press, 1995). 102  Gibney (n 51) 56. 103  Somek (n 11) 142; G Davies, ‘Humiliation of the State as a Constitutional Tactic’ in F ­Amtenbrink and P van den Bergh (eds), The Constitutional Integrity of the European Union (The Hague, TMC Asser Press, 2010).

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seems to play in the framing of community while coercive togetherness is more and more difficult to justify,104 it actually appears that EU citizenship is not innovative at all on this second plane either: an ordinary replication of ordinary and expected features of any standard approach to nationality difficult to justify in this changing world.105 In other words, given that the literature bemoaning institutionalised individualism’s effects on the ideology of demos and nationhood seems to ­ teach the same l­esson when applied to the supranational106 and to the national level107—­including outside of the context of the Union108—the core paradigm of understanding of personhood is the same in the Member States and in the EU as a whole: while demos as a starting point of liberty at the complex intersection of sovereignty, submission and democracy, is under attack and increasingly difficult to justify, let alone to forge, the abyss between citizens and non-citizens is at least as important and relevant now as it used to be before. Crucially, this applies equally at both levels of the law in the EU. This sameness is achieved by drawing the boundary of exclusion in exactly the same manner in the EU as the Member States do it: third country nationals are out of the picture unless they settle long-term and are on track to acquire the really meaningful status of ­citizenship,109 and rights as well as, crucially, equality, are distributed between the ­supranational ­citizens, thus marking out the confines of the community of persons with regard to which EU citizenship serves as an instrument of closure in the vein of B ­ rubaker’s thinking. This story is not the whole truth, however: once the actual operation of EU ­citizenship is scrutinised, a somewhat different—partly pre-Calvin picture of ­personhood in European law emerges, bringing an array of problems ­undermining this coherent worldview at both the national and the supranational levels of the law.

IV. EU’s Quasi Neo-Mediaevalism: The Law As Is An inattentive observer will be satisfied with the story of personhood in EU law retold above. At a conceptual level, EU citizenship emerges as a largely thoughtless if not haphazard replication,110 where the ambitious scale of the model c­ annot

104  C Joppke, ‘The Inevitable Lightening of Citizenship’ (2010) 51 European Journal of Sociology 9; A Badiou, Ethics: An Essay on Understanding of Evil (London, Verso, 2001). 105  Joppke, ibid. 106  Somek (n 11). 107  Joppke (n 104). 108  eg S Žižek, ‘Against Human Rights’ (2005) 34 New Left Review 10. 109  This is the core goal of Dir 2003/109 as I read it. 110 But see A Wiener, ‘Going Home? “European” Citizenship Practice Twenty Years After’ in ­Kochenov (n 6).

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hide the key deficiencies of the replicated originals. Yet, once we start looking below the surface of EU Treaties and case-law it becomes clear, almost i­mmediately, that what we are actually dealing with is a somewhat more complex story than the one of replication presented above. The story is also potentially far more problematic. In fact, the approach to personhood in law which we find in the EU seems to be radically different from what we find at the level of the Member States. Moreover, the Member States’ nationalities—usually presented as a model and the source of derivation of the status are also seriously affected by this difference. The established paradigm of personhood in public law which the EU seemingly follows implies a strict separation between foreigners and citizens accompanied by a strong imperative of equality before the law in dealing with those in ­possession of the citizenship status, accompanied by the idea of liberty through sovereignty and submission—a criterion which, in its latest emanation is equated with ­democracy, the sovereign being the people. Since the people is a complex construction by ­definition,111 it is impossible, it seems, to reproach the EU by advancing claims that the official story is untenable since there is ‘no EU demos’: demoi come and go112 and could flourish or die in correlation with authority within given ­boundaries, something that the EU unquestionably enjoys.113 Indeed, a demoi approach could solve this problem, rhetorically at least,114 allowing the EU to emerge as a republic, for instance.115 ‘Democracy talk’ usually ­disregards the instrumentalist nature of the Union, which operates in the realm of ­pre-set goals, turning democracy into a game of means, not ends, in Gareth Davies’ insightful analysis.116 Could this approach turn the citizens into a means to an end? A democracy of means is the most reliable way to remove the core of the legal political ­system from the realm of potential democratic contestation:117 precisely the opposite of what ­democracy normally stands for. There is a difference between taking one’s destiny into one’s own hands and taking the construction of the Internal Market into one’s own hands of course.118 Demoicracy, solving the demos problem for ‘European ­democracy’ is about the latter. This ­unquestionably

111 

B Anderson, Imagined Communities revised edn (London, Verso, 2006). N Davies, Vanished Kingdoms: The Rise and Fall of Nations (New York, Penguin, 2011). Berger and T Luckmann, The Social Construction of Reality (Garden City NY, Doubleday, 1966). 114 K Nicolaïdis, ‘The Idea of European Demoicracy’ in J Dickson and P Eleftheriadis (eds), ­Philosophical Foundations of EU Law (Oxford, Oxford University Press, 2012); K Nicolaïdis, ‘The New Constitution as European “Demoi-cracy”?’ (2004) 7 Critical Review of International Social and Political Philosophy 76. 115  von Bogdandy (n 58). See also K Lenaerts and JA Gutiérrez-Fons, ‘Epilogue on EU Citizenship: Hopes and Fears’ in Kochenov (n 6). 116  G Davies, ‘Social Legitimacy and Purposive Power: The End, the Means and the Consent of the People’ in D Kochenov, G de Búrca and A Williams (eds), Europe’s Justice Deficit? (Oxford, Hart Publishing, 2015). 117  MA Wilkinson, ‘Politicising Europe’s Justice Deficit: Some Preliminaries’, in Kochenov et al, ibid; AJ Menéndez, ‘Whose Justice? Which Europe?’ in Kochenov et al, ibid. 118  G Peebles, ‘“A Very Eden of the Innate Rights of Man”? A Marxist Look at the European Union Treaties and Case Law’ (1998) 22 Law and Social Inquiry 581. 112 

113  PL

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c­orrupts EU law, u ­ naccustomed to restraints,119 even if based on delegated ­authority. P ­ resenting the EU in a democratic vein thus is a powerful ideological tool120 to remove any d ­ emocratic contestation from the framing of the very core of its ­exercise, p ­ otentially leading to injustice.121 This reality, which is always in the shadow of the official story the textbooks rehearse, has profound implications on the actual framing of ­personhood in EU law. An alternative approach to finding problems and solving them would be rooted in a totally different kind of literature and based on a totally different ­attention to detail in presenting the EU’s day-to-day. Alexander Somek’s accidental c­ osmopolitanism could offer a useful starting point in this regard.122 It is ­descriptive in the most positive sense of the word, it does not construct castles in the sky in contrast to the most popular literature that fly the banners of demoicracy and legal pluralism.123 Instead, it opts against interpreting away the difficulties a democracy perspective faces, the promise in the treaties notwithstanding.124 Stretched to the extremes, the story emanating from this descriptive understanding is that demos and democracy cannot possibly be necessary for freedom, in its contemporary highly individualistic understanding, since as Davies has demonstrated, it is now the liberation from the effects of legitimate democratic outcomes—as opposed to submission in the name of freedom—that is gradually becoming an element of ‘citizenship’.125 As mentioned above, rather than an EU-specific story, this seems to be yet another illustration of the general trend outlined, inter alia, by Alain Badiou and Slavoj Žižek.126 This is where neo-mediaevalism enters the stage: the EU is the only functioning legal system in the world that is not merely paralysed—at least to some extent—by this (let us crudely call it ‘new’) liberty’s function, which frustrates the system’s ability to choose what is good and how to do it together and what is not acceptable and how to fight it together, even if this generates very high costs for some.127 The EU’s core effect seems to reinforce this new understanding, by imposing serious limits on the operation of the legal-political systems of the Member States. The EU thus emerges as structurally anti-demos in that it denies the promise of equality 119 

Somek (n 94); Kochenov (n 94). the ideological essence of internal market knowledge, see M Bartl, ‘Internal Market ­Rationality, Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political’ (2015) 21 European Law Journal 572. See, also, for a broader account, P Agha, ‘The Empire of Principle’ in J Přibáň (ed), The Self-Constitution of European Society (Abingdon, Routledge, 2016). 121  D Kochenov and A Williams, ‘Justice Deficit Introduced’, in Kochenov et al (n 116). 122  Somek (n 11). 123 For somewhat atypical voices in the flood of the popular literature, see, eg, G Davies, ­‘Constitutional Disagreement in Europe and the Search for Legal Pluralism’ (2010) Eric Stein Working Paper No 1/2010; G Letsas, ‘Harmonic Law: The Case against Pluralism’ in Dickson and Eleftheriadis (n 114) 77; RD Kelemen, ‘On the Unsustainability of Constitutional Pluralism’ (2016) 23 Maastricht Journal of European and Comparative Law 88. 124  Lenaerts and Gutiérrez-Fons (n 115). 125  Davies (n 103). 126  Badiou (n 104); Žižek (n 108). 127  Badiou (n 104). 120 On

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and offers a shield against legitimate collective action in the name of reaching its goals, like the construction of the internal market, which are removed from the realm of democratic contestation. The EU’s official story does not hold, not because there is no demos and there is democratic deficit. Rather than the difficulties with the subjective perceptions of European ‘peoplehood’ or the objectively vacant place left in the system of EU law for the people of Europe,128 it appears we are now observing a shift in law away from equating freedom with democracy, through the medium of national unity and the double submission of the individual, which the two require: ­fitting the mould of the nation and accepting democratic outcomes which are (very often) contrary to one’s interests. The very starting point is that the EU is, by law, by its very design, the denial of demos-like unity among the people which would be legally consequential in the core fields of regulation. In this sense it is like any other federation. Reconciling the EU and the demoi, thus, is difficult, if not i­mpossible. How can this be? Once we take a closer look at how EU law actually operates, it seems to be p ­ remised on the need to apportion liberty on the basis of persons’ actions, wealth and life-styles, not their submission to the sovereign (or collective self-­ determination), ie the status of citizenship, as the classical post-Calvin approach would require. Belonging to the ‘non-existent’ European demos or the nationallevel demoi will not help at all, since the EU instead of favouring equality before the law, offers its law precisely as a tool against submission (read: collective selfdetermination)—the one which used to imply liberation, remember?—to those who do not feel like being treated like their peers in the national systems. This includes the d ­ eserters from both facets of the grand submission narrative: those who dislike the idea of being part of the nation, its demos, and those who dislike the outcomes of the fully legitimate operation of such a nation’s democracy. The EU thus by ­definition cannot offer voice on the core issues,129 since its goals are pre-set.130 What it does, instead, is offer exit but also to those who are still within their polity: exit without exiting, as it were. Such a fictitious exit is only possible since it is policed through the supranational level of the law; the offer of this exit emerges as the EU’s strategy of taming the Member States—their humiliation, after all, is the EU’s c­ onstitutional tactic, in Davies’ memorable phrasing.131 This turns the demoi, tenable fictions, which are perceptible and alive, as it were, but also necessarily fictitious by definition—the imagined communities—into u ­ ntenable fictions in their own land, with far-reaching effects for national democracy, which are still to be experienced in full.

128 

On the dual subjective-objective essence of the definition of nationality: Miller (n 73) ch 1. See AO Hirschman, Exit, Voice, and Loyalty (Cambridge MA, Harvard University Press, 1970). 130  Davies (n 116). 131  Davies (n 103). 129 

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In other words, while the core of the modern understanding of personhood in law is the reading of liberty as a yes or no question, as explained in the first part, this is not the understanding that EU law promotes. It is only at the level of proclamations that EU citizenship, as such, is about freedom and the enjoyment of rights. The law tells us that ‘EU citizens shall enjoy the rights … provided for in the Treaties’.132 Once the actual enjoyment of rights is scrutinised, an ­important correction arises, which profoundly alters the legal meaning of personhood in Europe, bringing it closer to the mediaeval ideal of a strict apportionment of what different people within the same society and under the same authority can do depending on their level of personal freedom, ascribed by law while taking subtle differences in their individual legal statuses into account. Asking who enjoys the crucial European-level rights is not merely a rhetorical question, as it would be, for instance, in the post-Calvin union of England and Scotland. The traditional answer is ‘the one who owes allegiance’ to the sovereign, ie holds the status of a subject in this monarchy or is a citizen in this democracy, should we project several centuries—the one who is bound by the law to the equal extent as all the co-participants in the same national project. Belonging to a Volk with the honour it brings could be presented as an extreme version of this reasoning,133 which also knows a (more popular) strictly civic emanation, as embodied in the fourteenth amendment, for instance. Such an answer is never, and cannot possibly be, formulated in terms of ­‘falling within the scope of the law’,134 which, in the EU, often stands for ‘send us your CV with a photo and we will see’ (whether you enjoy any citizenship rights, that is). Criticism of this situation on logical and technical grounds is abundant and ­poignant.135 Little attention has been paid to how this state of affairs alters the essence of European constitutionalism. Personalisation and individualisation of the scope of the law is a tragedy which several generations of EU lawyers saw unfolding,136 which was only made possible through the obscure complexity

132 

Art 20(1) TFEU. JQ Whitman, ‘On Nazi “Honour” and the New European “Dignity”’ in C Joerges and N Singh Ghaleigh (eds), Darker Legacies of Law in Europe (Oxford, Hart Publishing, 2003) 243. 134  Or, the extreme version of the same, ‘[EU] citizenship is not intended to enlarge the scope ratione materiae [of EU law]’, which used to be a standard addition to the ECJ case-law on the subject: eg Joined cases C-64 and 65/96 Uecker and Jacquet [1997] ECR I-1371, para 23; Case C-148/02 Garcia Avello [2003] ECR I-11613. For criticism, see, D Kochenov and R Plender, ‘EU Citizenship: From an Incipient Form to an Incipient Substance? The Discovery of the Treaty Text’ (2012) European Law Review 369. 135  eg A Tryfonidou, ‘Reverse Discrimination in Purely Internal Situations: An Incongruity in a ­Citizens’ Europe’ (2008) 35 Legal Issues of Economic Integration 43; N Nic Shuibhne, ‘Free ­Movement of Persons and the Wholly Internal Rule: Time to Move on?’ (2002) 39 Common Market Law Review 731; R-E Papadopoulou, ‘Situations purement internes et droit communautaire: Un instrument ­jurisprudentiel à double function ou une arme à double tranchant?’ (2002) Cahiers de droit européen 95; RAC White, ‘A Fresh Look at Reverse Discrimination?’ (1993) 18 European Law Review 527. This fundamental literature in EU law has been as strong as inconsequential. 136  For an overview, see D Kochenov, ‘Citizenship without Respect’ (2010) Jean Monnet Paper (NYU Law School) No 08/10. 133 

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of the rules and a total removal of the EU from democratic control of its aims, as ­discussed above. Moreover, the overwhelming importance of the economic ­activity advanced137 in the supranational context—precisely the things the EU wants to see on your CV—ensures that this individualisation is almost entirely private, rather than public in nature, yet, its function in the EU is precisely to frame the boundary of public law.138 The core of your EU citizenship—including the essence of your rights—now depends on your employer—from a cross-border MacDonald’s to HSBC—as much as on your Member State. This being said, this is definitely the new order rather than sheer anarchy139—it is this ‘being order’ that makes EU’s neo-mediaevalism so effective and so frightening. It goes without saying that ‘the scope of the law’ answer is a logical impossibility, in a legal system reasoning from consequences.140 It is not to criticise the Court, which tries admirably to infuse the questionable design of the EU with at least a modicum of logical coherence.141 Rather, personalising the relationship between the person and the law, this neo-mediaevalism ceases to live up to the ideal of ­generality in the law’s application to all, assumes that the status of citizenship can be disregarded by the public authority the belonging to which this very status is there to signify. We are all aware of the justifications, including respect of the Member States’ sovereignty and so forth.142 It is crucial to ensure, however, that the discussion of the justifications of the current situation does not obscure an analysis of the law Europeans now have to live under, either as demos or as demoi, which they are unable to change, because this is how the EU works as a republic. Let us look at our law, which is quite simple. The law’s construction—both at the national and at the EU level, as sides of the same coin—implies that the principle of equality before the law is missing. Like under feudalism, inequality claims the place as the key moral ideal: it is the just separation between those who by virtue of their actions, occupations, wealth or other factors, acquire a claim to a larger portion of legal protection—let us call it freedom—than their peers holding the same legal status.

137  On the core implications of this aspect of EU law on personhood, see the lucid analysis by A Somek in his chapter in this volume. 138  In this sense, I fully agree with Hans-W Micklitz’s analysis of the key trends in EU law on personhood in this volume, building on the foundational work of Demogue and Kennedy. His conclusions could be pushed even further: also public law today manifests itself by the paradigm of ‘weighing diverging legal positions’ which Micklitz outlines for private law (286). 139  Even though Loïc Azoulai’s claim elsewhere in this volume that ‘there is something profoundly anarchical about EU law’s core concept of the individual’ (203) acquires even more acute meaning, when EU citizenship emerges as an effective neo-mediaeval enterprise. 140  J Bengoetxea, ‘Reasoning from Consequences from Luxembourg’ in H Koch, K Hagel-Sørensen, U Haltern and JHH Weiler (eds), Europe. The New Legal Realism (Copenhagen, Djøf Publishing, 2010) 39. 141  For a crisp exposé, see, A Tryfonidou, Reverse Discrimination in EC Law (The Hague, Kluwer Law International, 2009). 142  D Thym, ‘Frontiers of Citizenship. Three Approaches and Their Methodological Limitations’ in Kochenov (n 6).

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In fact, the same state of affairs could be restated in a slightly more ­radical f­ashion than this. It is common knowledge, of course, that equality is an ­instrument in the hands of the law, a belief,143 rather than a philosophically sound principle.144 This belief unites contemporary societies, however, since it seems to be corresponding particularly well to the starting position of thinking about the person—the citizen—and the law: equality of all (at least of all those holding the status) in the eyes of the authority granting the status of legal attachment to the community. In other words, equality becomes the starting presumption of thinking about the relationship between the persons in every given legal system. In the EU, this starting presumption function of equality is nowhere to be found:145 quite on the contrary, the presumption is differentiation, unless ‘falling within the scope of the law’ is demonstrated. The legal system is built in such a way that the majority of those who acquired the legal status of attachment to it will never be in the position to be rich enough, ­economically active enough, or simply lucky enough to be graced by the ­application to them of the promise of equality.146 The presumption of inequality, in their ­particular case, will never be rebutted and will shape the law they know, the rights in the Union, which they enjoy and the limits of opportunity they face, thus shaping their lives. Equality being the core element of personhood in law, those not capable to enter the scope of equality are de facto excluded from citizenship. They are on the other side of the in/out divide. Approached from the national level, however, the picture is probably even more problematic: all those lucky enough to qualify for the EU-level rebuttal of the ­presumption of inequality frequently end-up carved out from the national demos commanding a legitimate legal claim to their allegiance, liberated from the ­application of the outcomes of the democratic process at the national level to them and thus breaking up the idealistic story all the national constitutions are so eager to tell. Once there is no presumption of equality at the supranational level, it obviously cannot hold at the national level either, when both levels of the law claim the same persons as their citizens.147 143 

As discussed in Berlin (n 42). ibid; Pojman (n 46). 145  Unless one simply accepts it as a presumption, of course, like Daniel Thym in his chapter, ­proclaiming it to be so basic a principle that ‘[equality before the law as expressed in international legal instruments] has little practical impact in the EU legal order’ (112). Of course it has little practical impact, but not because it is so engrained. Rather, the practical effect of equality before the law is doubtful because this principle does not work in practice. 146  Kochenov (n 136). 147  This being said, the national constitutional provisions as interpreted by the highest national courts could of course remove differentiated treatment based on the functioning of EU law by ­extending EU law protections to all the nationals under national law, as the Italian Corte costituzionale has done, for instance. This practice remains atypical in the EU, however. See, eg, Corte ­Costitutzionale, sentenza 16–30 dicembre 1997, No 443, para 6: ‘nel giudizio di eguaglianza affidato a questa Corte non possono essere ignorati gli effetti discriminatori che l‘applicazione del diritto comunitario è ­suscettibile di ­provocare’ [in judging on equality this Court is entrusted with it is impossible to ignore the discriminatory effects, which Community law is susceptible of provoking]. 144 

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Should this presentation of the operation of EU law be correct, the Union is very effective in pursuing justice understood as a mediaeval apportionment of privileges best suited to a particular situation of each person, while the presumption is against equality before the law and the idea of freedom understood through democracy and equality before the law could not be more antagonistic to what EU law is about. Where EU justice is about apportioning privilege based on the factors having no relation to the legal status held by individuals, equality becomes an impossibility, since the idea is not limited to the scope of a particular legal system as such a legal system defines it. Rather, equality is about ensuring that all those possessing a legal status of attachment to the sovereign are always put on the equal footing vis-à-vis the law. Unlike in the middle ages—and since the times of Calvin at least—‘the law favoureth not’. Importantly, this is not how EU law approaches the idea of justice, since equality does not even serve the function of the starting presumption, as we have seen. To the contrary, in the EU the law will favour and promote the interests of some groups of citizens and downgrade and ignore the interests of others based on a highly flexible idea of the ‘scope of the law’, which has nothing to do at all with the status as such and is thus a rhetorical method to disown some of the citizens while furthering the interests of others in a legal context where equality is still on the books, even if it does not function as a ­starting presumption or, for that matter, as a principle of law.148 Equality, thus, is not guaranteed even at the most basic level,149 ie the level of uniform application of the rules to a given status, which seriously undermines the formal legal relevance of the latter.150 The picture will not be complete before the reasons behind excluding lives from the scope of the law are touched upon. This has been done in the literature on a number of occasions in great detail. Salvation was an idea unifying and ­demanding equality at the time Calvin was decided. Soteriology was the leading field that had a direct impact on law. Those who submit to wrong Gods and ­neighbouring sovereigns will not be saved. The EU-embraced soteriology is ­different. Only those who move—actually or potentially—across the eradicated (by definition of such market) borders of the internal market, obtain access to the tools, within the EU’s system of legal truth—to build on Jack Balkin151—to reverse

148  For and important early analysis, see, G de Búrca. ‘The Role of Equality in European Community Law’ in A Dashwood and S O’Leary (eds), The Principle of Equal Treatment in EC Law (London, Sweet and Maxwell, 1997) 13. 149  Sir Isaiah, to refer to his important work again, distinguished between two levels of approaching equality: equality as rules (based on the idea of uniform application of the norm, which is a necessary part of any rule of law) and equality per se (as the highest moral standard of valuing the just nature of the rules): Berlin (n 42). 150 The current system is reminiscent of the extraterritorial approach to jurisdiction over the nationals commonly practiced by the most powerful countries in the semi-colonised nations in the 19th–early 20th century. On extraterritoriality see, eg, T Kayaoglu, ‘The Extension of Westphalian Sovereignty: State Building and the Abolition of Extraterritoriality’ (2007) 51 International Studies Quarterly 649. 151  Balkin (n 30).

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the ­presumption of inequality applied to them by default by EU law. While the stated aim is well-known and consists in contributing to the cause of building a strong ­internal market,152 while the aim was once logical, it makes little sense now. To avoid one’s family’s ruin one has to take a bus across a non-existent b ­ order,153 since historically—before citizenship that is—moving across borders could ­legitimately imply economic activity benefiting us all. To cut the long story short, the ­reasons for exclusion are purely ideological and self-contained, inexplicable logically. The ideologies packed into the exclusionary reasoning are engrained in the system of supranational law to such a degree that they are non-negotiable and cannot be contested democratically. No bus ticket or a clear willingness on the part of the judges to believe that you might possibly buy one in the future—and the ­presumption of inequality will not be reversed.

V. Conclusion This chapter has argued that the approach to personhood in law in the ­contemporary European Union is both typical and atypical. To start with the typical—EU citizenship resembles much more than not a most ordinary nationality of any random contemporary state, thus being much less innovative and unique, than what many scholars have claimed. Crucially, the core paradigm of personhood in law seems to be—in the EU’s self-image—building on the ‘golden standard’ of the Member States and the key distinction between the foreigners and the citizens. The mediaeval parallel drawn in this chapter helped us uncover the pre-modern paradigm of personhood in law, the one which does not know Bodinean sovereignty, allegiance and, by extension, democracy and opposes the idea of equality. The core distinction at the heart of such legal paradigm of personhood is between the free and unfree; the core moral value—the precise apportionment of liberty among the persons in accordance with their legally recognisable chance and circumstance. This paradigm of personhood, which is private, not public in nature, almost became extinct with the advent of democracy, equality, and the status of citizenship based on the citizen/foreigner distinction is what the EU is now ­forcefully reviving. The fact that this is undoubtedly inadvertent does not alter the outcomes of this process. In EU law as it stands borders of presumed inequality run through societies, the starting assumption in the law of personhood is that of the desirability of the apportionment of liberty. Lastly, collective self-­determination en par with the submission to the sovereign is frowned upon

152  A Tryfonidou, ‘In Search of the Aim of the EC Free Movement of Persons Provisions: Has the Court of Justice Missed the Point?’ (2009) 46 Common Market Law Review 1592. 153  For more on the operation of EU law see, eg, Kochenov (n 136).

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in an atmosphere where democratic contestation of ends, which the legal system is striving to achieve is both de jure and de facto impossible. Due to this neomediaevalism, the EU’s approach to personhood is actually much more atypical than many scholars have claimed. Through the developments described above the EU is drifting in a dangerous direction of extinguishing the classical ideas of selfdetermination and human worth in public law tout court.

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7 The ‘Enlisted Terrorist’: Institutionalising Personhood in EU Law CHARLOTTE BEAUCILLON*

I. Introduction The first question that arises concerning the ‘enlisted terrorist’ category is to u­nderstand to whom it refers.1 Indeed, the ‘enlisted terrorist’ is a broad and ­functional category that gathers all ‘persons, groups, entities or undertakings’ who have been listed for their participation in, or support to international terrorism.2 In concrete terms, there is no single list of terrorists. Instead, there are two distinct lists. The United Nations Security Council (UNSC), under the so-called ‘1267 sanctions regime’, compiles the first list.3 At one time, the UNSC targeted Osama bin Laden, Al-Qaeda and the Taliban regime in Afghanistan.4 After the fall of Kabul in late November 2001, it evolved into a list targeting Al-Qaeda and any associated person or group, without any territorial link to Afghanistan or any other State.5

*  Maître de conférences en droit public/Associate Professor in Public law, Sorbonne Law School, Paris 1 Panthéon Sorbonne University. 1  This paper is based on field research conducted on international sanctions and EU restrictive measures: C Beaucillon, Les mesures restrictives de l’Union européenne (Bruxelles, Bruylant, 2014). 2  United Nations Security Council, S/RES/2161(2014), Threats to International Peace and Security Caused by Terrorist Acts, 17 June 2014, para 1. 3  The sanctions regime is named after the UNSC resolution grounding the first measures: resolution 1267 of October 1999. The Sanctions Committee that was established by the Security Council as its subsidiary organ (art 29 UN Charter) also takes the name of this grounding resolution and is referred to as the 1267 Committee. 4 S/RES/1267(1999), The Situation in Afghanistan, 15 October 1999. 5 S/RES/1390(2002), The Situation in Afghanistan, 28 January 2002.

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As such, it was later extended to include both Daesh and the Al-Nusrah Front, and to prevent terrorist recruitment in Western societies.6 All UN Member States are bound to adopt measures against those who are listed by the 1267 Sanctions ­Committee at the UN level.7 The second list is compiled by the United Nations Member States in order to implement resolution 1373 measures on the fight against international terrorism, which was triggered by the 9/11 terrorist attacks against the United States of ­America.8 With regard to the UN Member States that are also members of the European Union (EU), the Council of the European Union compiles, upon ­proposal for listing by national authorities of the Member States, an EU list of ­targeted persons in order to implement resolution 1373.9 It stems from the above that the UNSCR 1267 list is centralised at a UN level, whereas the 1373 list is decentralised at an EU level, both lists resting on UNSC binding resolutions ­aiming at international peace and the maintenance of security.10 From the EU standpoint the ‘enlisted terrorist’ is, therefore, an exogenous ­category that is imported into EU law from international security law. This ­reception of the ‘enlisted terrorist’ category into EU law rests upon a dual process. It depends on, first, its incorporation through a decision adopted unanimously by the Council under the Common Foreign and Security Policy (CFSP).11 It ­embodies the Council’s decision, above mentioned, to implement the UNSC resolutions at the EU level. In the fields of EU competence, such as the freezing of funds and financial assets for instance, this CSFP decision is then implemented through Council regulations.12 In this perspective, EU law has become an ­intermediary legal order

6 S/RES/2161(2014), Threats to International Peace and Security Caused by Terrorist Acts, 17 June 2014; S/RES/2170(2014), Threats to International Peace and Security Caused by Terrorist Acts, 15 August 2014; S/RES/2178(2014), Threats to International Peace and Security Caused by Terrorist Acts, 24 September 2014; S/RES/2199(2015), Threats to International Peace and Security Caused by Terrorist Acts, 12 February 2015. 7  Art 25 of the UN Charter. 8 S/RES/1371(2001), Threats to International Peace and Security Caused by Terrorist Acts, 28 ­September 2001. 9  The EU Member States propose the names to be added on the list when a national decision— prosecutory or condamnatory—reasonably allows establishing the risk that these persons are a­ ssociated with international terrorism. 10  These resolutions are adopted under Ch VII of the UN Charter, which grants coercive powers to the UNSC to restore international peace and security. See especially: arts 39–42 of the UN Charter. 11  The historical basis of this approach comes from the European Political Cooperation (EPC) that preceded the European Union in the field of foreign policy, whereby political decisions taken by States in the EPC framework had to be collectively implemented by the European Community. Before the entry into force of the Lisbon treaty, this decision was adopted under art 15 TEU through a common position. It is now framed in a decision adopted under art 29 TEU. 12  Before the entry into force of the Lisbon treaty, the Council used a mixed legal base (combining arts 60, 301 and 308 TEC) to enable the Community to take implementation measures against ­individuals who were deprived of any territorial link, as it is the case for the enlisted terrorists, while the treaty was designed for traditional sanctions targeting States. The Lisbon treaty resolved this ­competence issue through art 215 TFEU, which expressly allows the adoption of restrictive measures against States and/or individuals.

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through which all EU Member States collectively implement UNSC resolutions 1267 and 1373 and target ‘enlisted terrorists’.13 It is precisely this incorporation from international law into EU law that will allow us to examine the complexity of the ‘enlisted terrorist’ category, which results from a diverse interplay between international, regional and national legal orders, each developing their own conceptions of the ‘enlisted terrorist’ as an object or as a subject of law. Exploring this complexity argument shows that the addition of the EU law layer, between the Member States and the United Nations, has had a significant impact on the very conception of the ‘enlisted terrorist’. Indeed, this category coming from an essentially inter-governmental origin was merely considered the legal object of collective measures protecting international peace and security. This is no longer the case, as the full operation of EU law has restored the ‘enlisted terrorist’ in his status as a subject of EU law and, consequently, as a person in EU law. It also had significant consequences outside the EU legal order, once the EU had projected back into the international order its own construction of the ‘enlisted terrorist’ as a person. In both these processes of incorporation and projection of an initially exogenous category, the EU affirms the basic rights that should be attached to any person in EU law, which is a form of projection of its own constitutional identity abroad. This mutation of the ‘enlisted terrorist’ category from legal object to legal ­subject has not been accompanied by the category’s subjectification in EU law, in contradistinction to the citizen for example.14 It is true, however, that the locus standi of the ‘enlisted terrorist’ before the European Court of Justice (ECJ) paved the way for the minimal—though fundamental—expression of a form of emancipation through law.15 It will be argued that the circulation of the normative ­interpretation of the ‘enlisted terrorist’—from object to subject—was made ­possible by the untouched institutional character of the category after its incorporation into EU law.16 Conserving its original structure, the category could rather easily be filled with new substantive legal principles and then be re-introduced, in its augmented version, into international law. This question may be framed in terms of the identity of the person in EU law. While the recognition of the status of legal subject is not necessarily accompanied by his subjectification, it is merely the result of the normal operation of the EU constitutional order. The ‘enlisted terrorist’ ­category in EU law will reveal, therefore, the substrate of what EU law minimally attaches to personhood within its legal order, which will be analysed in terms of both ­complexity (section II) and identity (section III). 13  Indeed, although all EU Member States are Members of the UN, the EU itself is not bound by the San Francisco Charter while holding an enhanced observer status: UN General Assembly, Resolution A/75/276, Participation of the European Union in the work of the United Nations, May 3rd 2011. 14  See Dani’s contribution within this volume. 15  See De Witte’s contribution within this volume. 16  The category is considered institutional in the sense that the ‘enlisted terrorist’ is a c ­ onstruction that aggregates and assimilates very different physical and legal persons; it is therefore a legal ­institution and does not describe a set of homogenous legal facts.

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II.  EU Personhood Complexity: ‘Enlisted Terrorists’, Incorporated Objects of International Law Personhood and the recognition of the status of subject of law both contribute to the guarantee of a person’s agency in a given legal order. The ‘enlisted terrorist’ may be considered a borderline case in the sense that this chapter will c­ oncentrate, paradoxically, on a category that is meant to restrict the capacity of the listed persons. As mentioned above, the ‘enlisted terrorist’ is a functional category used to impose certain international sanctions through EU restrictive measures on ­persons that are associated with terrorism. These measures are meant to p ­ revent the ‘enlisted terrorists’ from participating in, or giving support to, international t­errorist activities. To be sure, these measures are not criminal sanctions, and ‘enlisted terrorists’ are not (yet) convicted of a crime. They are administrative emergency measures aimed at depriving ‘enlisted terrorists’ of some of their agency means17 under EU law (sub-section A below). Unsurprisingly, the very nature of these measures triggered reactions from the persons targeted. However, the international legal structures in which the measures were initiated being exclusively inter-governmental, the ‘enlisted terrorist’ was de facto deprived of any international judicial review. The question necessarily shifted to the domestic courts of EU Member States and the ECJ, which gave EU Member States the opportunity to elaborate their own vision of the balance to be struck between the rule of law and international peace and security (sub-section B below).

A.  Depriving ‘Enlisted Terrorists’ of their Agency Means When registered on United Nations Security Council resolutions (UNSCR) 1267 and 1373 lists, the ‘enlisted terrorist’ is the object of international emergency ­measures aimed at preventing his participation in international terrorism. Nevertheless, the ‘enlisted terrorist’ is not the addressee of the UNSC decisions, which must be implemented by UN Member States. At the EU level, the Common Foreign Security Policy decision that is taken to trigger implementation by the EU conserves this approach. At this stage, the ‘enlisted terrorist’ is merely a legal object, as illustrated by the personal scope of the measures (sub-section i below) and the licit agency means at stake (sub-section ii below).

17  Understood as the concrete legal and factual means at the disposal of a legal subject to act and interact in society.

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i.  The Personal Scope of the Measures The addressees of both resolutions of the UNSC and the EU CFSP decisions implementing them within the EU legal order are the Member States of the United Nations and, at the implementation stage, EU Member States and institutions. The UNSC adopted resolutions 1267 and 1373 on the basis of its powers under Chapter VII of the UN Charter to fulfil its primary responsibility to maintain international peace and security.18 The resolutions of the UNSC under Chapter VII powers are decisions that are binding upon all UN Members according to article 25 of the UN Charter,19 and generate obligations that prevail over any other ­conflicting international obligation of the UN Members according to article 103 of the UN Charter.20 In the case of UN Members who are also Members of the EU, the division of competences under the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) imposes, first, the adoption of a CFSP decision under article 29 TEU, by which the Council of the European Union unanimously decides to implement the UN resolutions.21 Second, according to the field in which the restrictive measures are to be taken, either the EU Member States or the EU institutions will adopt implementation measures in their r­espective fields of competence. Resolution 1267 against ‘Al-Qaeda and related persons and entities’ imposes an obligation on UN Member States to take targeted sanctions against terrorists who have been listed by the 1267 Committee at the UN level. This listing procedure has evolved considerably over the years, but suffice it to say that it is an e­ xclusively inter-governmental process. A UN Member State proposes the listing of a p ­ erson to the 1267 Committee, which decides her listing by a reverse consensus procedure.22 18 

Art 24 of the UN Charter. Art 25 of the UN Charter reads as follows: ‘The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’. It is generally accepted that resolutions adopted under Ch VII of the Charter qualify UNSC decisions in the sense of art 25. See International Court of Justice, Legal consequences for States of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 53, para 113. 20  Art 103 reads as follows: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’. On the applicability of art 103 to UNSC decisions in the sense of art 25 of the Charter, cf among others R Bernhardt, ‘Article 103’ in B Simma (ed), The Charter of the United Nations, A Commentary 2nd edn (Oxford, Oxford University Press, 2002) 1295–96. 21  The requirement of unanimity is smoothened by the introduction of constructive a ­ bstention through art 31(1) TEU, which authorises a EU Member State not to abstain from voting the ­implementation while not blocking the EU decision. 22  Sanctions Committees are subsidiary organs of the UNSC, created under art 29 of the UN C ­ harter. To each sanctions strand adopted by the UNSC, corresponds a Sanctions Committee ­usually bearing the resolution’s name (although the Sanctions Committee managing resolution 1373 is known as the Counter-Terrorism Committee or CTC). As subsidiary organs of the UNSC, Sanctions ­Committees are composed of 15 State representatives of the 15 Members of the UNSC and function according similar procedural rules (reversed consensus). 19 

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This means, in practice, that a person is recorded on the list when no other Member of the Sanctions Committee expressly and formally opposes her registration.23 As to the other list, UN resolution 1373 equally binds States, but requires them to elaborate their own terrorist lists. In the case of the EU Member States, the list is established by the Council of the European Union on the basis of the decision targeting ‘persons, groups and entities involved in terrorist acts’.24 This broad formulation includes a wide range of situations; from persons committing ­terrorist acts to persons acting on behalf, or under the direction, of such persons. These persons, groups and entities are to be identified through evidence that ‘a d ­ ecision has been taken by a competent authority’, ‘irrespective of whether it concerns the instigation of investigations … for a terrorist act, or condemnation’.25 In the case of the ‘enlisted terrorist’, the implication in, or association with, terrorist activities does not require proof beyond all reasonable doubt,26 but corresponds to a ‘reasonable suspicion’ of the targets’ implication.27 This indicates that rule of law guarantees are not considered at that stage of the registration of the ‘enlisted ­terrorist’, whose status is no more than an institutionalised category of persons that should be prevented from threatening international peace and security. From this perspective, it can be said that there is a single approach to the listing: the targets are the objects of the measures; no distinction is made, at the UN or EU level, between individuals, legal persons or non-personalised groups.

ii.  The Licit Agency Means at Stake The measures that affect the ‘enlisted terrorist’ form a relatively homogenous set of restrictions compared to other threads of international sanctions or EU restrictive measures, which can be much broader, partly because they usually target States.28 Indeed, the ‘enlisted terrorist’ is essentially subjected to measures of funds freezing on the one hand, and visa bans on the other hand. These two categories of measures are part of the category of targeted or smart sanctions that were developed during the ‘sanctions decade’,29 in reaction to the

23  S/RES/1267(1999) (n 4), para 6; S/RES/1390 (n 5) para 2. Note that the inscription process has evolved over the years, and that States are now subject to stronger information requirements than in 1999. See especially: S/RES/1989(2011), Threats to International Peace and Security Caused by Terrorist Acts, 17 June 2011. 24  Common position of the Council 2001/931/CFSP of 27 December 2001, On the Application of Specific Measures to Combat Terrorism, art 1(2). 25  Art 1(4). 26  As would require the criminal law standard, which is not applicable to international preventive measures. 27  B Ackerman, Before the Next Attack, Preserving Civil Liberties in An Age of Terrorism (New Haven, Yale University Press, 2007). 28  States are usually the formal targets of international sanctions and/or EU restrictive measures. These measures can impose, for instance, an arms embargo, provide for the restriction of diplomatic relations or even require the boycott of international sports events. 29 D Cortright and GA Lopez, The Sanctions Decade: Assessing UN Strategies in the 1990s (Boulder CO, Lynne Rienner, 2000).

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disastrous humanitarian consequences that global State-oriented sanctions had at the end of the 1990s.30 Designed to lift the veil of the State legal personality, these measures are oriented specifically against certain persons who are deemed to have the power to alter the targeted State’s conduct. This gives rise, thus, to the distinction between the formal target of the measures (the State) from the real ­target of the measures (certain legal or physical persons).31 It is even more important to underline here that international sanctions against terrorism adopted under resolutions 1267 and 1373 are the only sanctions threads to be directed exclusively against physical or legal persons, without targeting a State. In other words, the formal target of the measures disappeared behind the contemporary transnational reality of international terrorism. Paradoxically, while the measures detailed below by nature necessarily affect persons, the persons who are targeted are nevertheless exclusively considered the legal objects of international cooperation. On the one hand, the fund freezing measures affect both terrorists listed under UNSCR 1267, against Al-Qaeda and associated movements, and under UNSCR 1373 against international terrorism. These resolutions provide, in very broad and similar terms, that States shall: Freeze without delay the funds and other financial assets or economic resources of these individuals, groups, undertakings and entities, including funds derived from property owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction, and ensure that neither these nor any other funds, financial assets or economic resources are made available, directly or indirectly, for such persons’ benefit, by their nationals or by any persons within their territory.32

These measures are respectively implemented by the Members of the European Union through the dual process described above. First, by the adoption of two CFSP decisions;33 second, an action of the EU institutions being required, through the adoption of two regulations that are directly binding on the territory of all EU Members. These regulations ensure a very broad application of the UNSC ­measures, as they precise: Freezing of funds, financial assets and economic resources means the prevention of any move, transfer, alteration, use of or dealing with funds that would result in their any

30  As illustrated by the comprehensive sanctions against Iraq, Haiti and Cuba. cf D Hawkings and G Lloyd, ‘Questioning Comprehensive Sanctions: The Birth of a Norm’ (2003) 2(3) Journal of Human Rights 443–45; A Arnove (ed), Iraq Under Siege: The Deadly Impact of Sanctions and War (London, Pluto Press, 2000). 31  The distinction between the formal and the real targets of the measures, which cannot be f­ urther developed here, has been elaborated in previous legal research on international sanctions and ­European restrictive measures: cf C Beaucillon, (n 1) 7, 23–25. 32  S/RES/1390 (n 5) para 2(a), emphasis added; see in similar terms S/RES/1373(2001), Threats to International Peace and Security Caused by Terrorist Acts, 28 September 2001, para 1(c)–(d). 33  At the time based on art 15 TEU: EU common position 2002/402/CFSP of 29 May 2002, implementing UNSCR 1267 and EU common position 2001/931/CFSP of 28 December 2001, ­implementing UNSCR 1373.

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change in their volume, amount, location, ownership, possession, character, destination or other change that would enable the funds to be used.34

The visa ban measures, on the other hand, only affect UNSCR 1267-UN listed terrorists.35 Pursuing the same dual process of normative reception, they are implemented through the aforementioned CSFP decision,36 and then followed by implementation measures adopted directly by the EU Member States.37 It is clear from the examination of the material scope of the measures in question that they aim to restrict otherwise licit agency means of the ‘enlisted terrorist’ under EU law.

B.  Depriving the ‘Enlisted Terrorists’ of Judicial Review? Besides the personal scope of the measures targeting the ‘enlisted terrorist’, another sign that the ‘enlisted terrorist’ is not regarded as a legal person is manifested by the manner in which judicial review was framed at the national level. Indeed, it was constructed in essentially hierarchical terms opposing the international peace and security objectives on the one hand (sub-section i below), and the rule of law and fundamental rights on the other hand (sub-section ii below).

i.  Cultures of Hierarchy and Deference In France, judicial control of the national implementation acts imposing sanctions on the ‘enlisted terrorist’ has traditionally been justified through the ‘Act of State’ argument. More precisely, French courts developed the argument according to which domestic courts could not review the decisions of the UN Security Council. This position is illustrated by numerous decisions at the turn of the new ­millennium. In the Société Héli-Union case of 1997, an action was brought against an administrative act implementing the air embargo against Libya, which was imposed by UNSC resolution 748 of 1992. A company exploiting helicopters in Libya challenged the legality of the decree. The Conseil d’Etat considered the decree an ‘acte de gouvernement’ because it directly implemented the UNSC ­resolution and, therefore, could not be detached from the conduct of international ­relations.38 In 1999, the same company, Société Héli-Union, contested the legality of an individual decision refusing the renewal of certain authorisations

34  Council reg 2580/2001, art 1, implementing common position 2001/931/CFSP; see in similar terms Council reg 881/2002, article 1, implementing common position 2002/402/CFSP (emphasis added). 35  S/RES/1390 (n 5) para 2(b). 36  2002/402/CFSP (n 33). 37  Notwithstanding the evolution triggered by the Lisbon treaty, which submits a future integrated management of EU Member States external borders to the ordinary legislative procedure through art 77 TFEU. 38  Conseil d’Etat, no 138310, Société Héli-Union, 29 December 1997.

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to export war-related material to Libya. Pursuing the same line of argument, the Conseil d’Etat considered that the individual decision was linked to the decree and, by analogy, could not be detached either from the conduct of international relations.39 The case-law of the Court evolved slightly over the years, and another important judgment was given by the Conseil d’Etat in 2004. The Association secours mondial de France contested a preventive national measure taken by the French ­government, which subjected her to UNSCR 1267 measures before the Association was formally listed at the UN and EU levels. In its judgment, the Conseil d’Etat ­considered that the decree was separable from the conduct of international relations on the basis of two arguments. First, the Conseil d’Etat considered that the French government did not limit itself to drawing the consequences from the resolution since it anticipated the inscription of the Association on the list. S­ econd, it noted that the act was not adopted immediately after the adoption of the UNSC resolution, but rather eight months later, which presumably gave time to the ­government to define its own practice and strategy. While this judgment can be read as a relaxation of the application of the ‘Act of State’ doctrine, the C ­ onseil d’Etat exercised a very limited review. It held that the government was under no obligation to state the reasons on which a decision is based because its action was excused by the secrecy of national defence justification.40 Second, the Court ­concluded that the French administrative authorities did not commit any manifest error in the use of the targeted measures before the Association was formally listed, since the registration of the Association on both the UN 1267 Sanctions Committee and the EU implementation lists was effected only a few days after the adoption of the national measure. Belgian courts attempted to reconcile the state’s obligations under the UN Charter and the UNSC resolutions, on the one hand, with state responsibility on the other hand, in the context of the well-known Sayadi and Vinck case.41 Mrs Vinck and Mr Sayadi had been proposed for listing by Belgium to the 1267 Sanctions committee. Belgium acted on the basis of a number of domestic ­criminal proceedings in which Mrs Vinck and Mr Sayadi were suspected of supporting ­terrorist activities. The two persons listed were not convicted in the end, and sought their de-listing by the Belgian state, which failed to take action. It is important to recall that there was no locus standi for listed persons before the UNSC until direct action was granted through UNSCR 1904(2009), with the creation of an Ombudsperson able to receive direct requests for de-listing and to conduct the de-listing procedure.42 Before this procedure was introduced, an intermediary

39 

Conseil d’Etat, no 162131, Société Héli-Union, 12 March 1999. Art 413-10 of the French criminal code. 41  Views of the United Nations Human Rights Committee, Communication 1472/2006, Sayadi and Vinck v Belgium, 22 October 2008. 42 S/RES/1994(2009), Threats to International Peace and Security Caused by Terrorist Acts, 17 December 2009. 40 

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step was taken with UNSCR 1730(2006) creating the Focal Point, which receives the de-listing requests, but is limited to their transmission to the UNSC.43 In 2005, the Brussels Court of First Instance issued an order requiring the Belgian state to initiate the procedure to have their names removed from the 1267 list, subject to a daily penalty fine. While recognising Belgium’s obligations under international law, the Brussels court thus made effective the state’s obligations to request de-listing.44 Alongside this line of hierarchical deference towards the UN Security Council, France and the Netherlands joined the United Kingdom at the appeal stage of the Kadi I case.45 The three states supported the hierarchical argument brought by the Council of the European Union, stating that the European Court of Justice had no jurisdiction because of the hierarchical nature of the obligations deriving from the UN Charter, and especially article 103.46 This argument did not convince the Court in the end, and we will demonstrate later how the ECJ found a way out of the hierarchical deadlock through the affirmation of its constitutional identity in the international legal order.

ii.  Cultures of Protection and Promotion of Fundamental Rights In contradistinction to the above, it is well known that German courts t­ raditionally strike the balance on the side of the constitutional protection of f­undamental rights through the constitutional obligation to control the compatibility of ­supranational acts with German fundamental rights, unless the supranational jurisdiction ensures their equivalent protection. This stems from the Federal ­constitutional Court’s Maastricht Decision of 1993.47 This recalls the logic of both the Solange decisions of 1974 and 1986, which affirm the obligation to disregard EU law if no equivalent protection of German fundamental rights is ensured at the EU level, the corollary of which allows for national control to be set aside if effective and equivalent protection of fundamental rights at the EU level is guaranteed.48 At another level, Switzerland, Germany, Sweden and Austria sought to p ­ romote the better respect of fundamental rights in targeted sanctions practice. They funded 43 S/RES/1730(2006), General

Issues Relating to Sanctions, 19 December 2006. Civ Bruxelles, Sayadi et Vinck c Belgique, 11 February 2005. 45  C-402/05 and C-415/05, joined cases, Yassin Abdullah Kadi and Al Barakaat International ­Foundation v Council of the European Union and Commission of the European Communities, 3 ­September 2008. 46 T-315/01, Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities, 21 September 2005, para 217; Abdullah Kadi and Al Barakaat (n 45) para 262. 47 Bundesverfassungsgericht, (Maastricht) Brunner v Treaty on European Union, 12 October 1993, 89 BVerfGE 155. cf U Everling, ‘The Maastricht Judgement of the German Federal Constitutional Court and its Significance for the Development of the European Union’ (1994) 14 Yearbook of E ­ uropean Law 1. 48 Bundesverfassungsgericht, Solange I, 29 May 1974, 37 BVerfGE 271; Solange II, 22 October 1986, 73 BVerfGE 339. On the application of the Solange argument to the Kadi case, cf for instance A  ­Tzanakopoulos, ‘The “Solange” Argument as a Justification for Disobeying the Security Council in the “Kadi” Judgments’ in M Avbelj, F Fontanelli and G Martinico (eds), Kadi on Trial: a Multifaceted Analysis of the Kadi Trial, (London/New York, Routledge, 2014) 121–34. 44 

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important research initiatives to resolve the fundamental rights ­conundrum in the light of the rule of law within the United Nations. S­ witzerland, a close EU partner,49 initiated the so-called Interlaken process (involving the UN S­ ecretariat), which focused on targeted financial sanctions in 1998 and 1999.50 Germany, then, funded the so-called Bonn-Berlin Process (involving the UN ­Secretariat), which centred on visa bans, and air and arms embargoes between 1999 and 2001.51 ­Sweden also assumed a leading role with the Stockholm ­process at Uppsala ­University, which aimed to strengthen the implementation of UN measures between 2001 and 2003.52 In 2002, Sweden was the first state on the diplomatic scene to raise the question of the respect of fundamental rights in the process of registration and radiation of persons on the 1267 list, before the UNSC.53 Combined academic efforts between 2003 and 2005 built on the above-mentioned three research processes and led to the influential report from the Watson Institute aimed at ‘Strengthening Targeted Sanctions Through Fair and Clear Procedures’.54 Austria subsequently funded another research programme based at New York University from 2003 to 2008, which directly focused on the UNSC and the rule of law.55 The only other research initiative at that time, directed by the Fourth Freedom Forum and the B Kroc Institute for Peace Studies in the United States was neither funded by states nor involved the UN Secretariat.56 Certainly, the question of the ‘enlisted terrorist’ status in international law was not only a European concern, but remained most acute among the Member States of the European Union.

49  Switzerland is a Member of the European Free Trade Association (AFTA). It aligned, at the time, with the EU Presidency positions that were expressed at the UNSC. 50  The results of the Process have been published in the form of a handbook prepared by the Watson Institute, Brown University: Targeted Financial Sanctions—A Manual for Design and Implementation. A Contribution from the Interlaken Process, 2001, available at www.eda.admin.ch/content/dam/eda/en/ documents/home/Handbuch-zu-gezielten-Finanzsanktionen_EN.pdf. 51  The website of the project is no longer active. A summary of the Process is still available at www. watsoninstitute.org/tfs/CD/ISD_Summary_of_Bonn_Berlin_Process.pdf. 52 The Stockholm Process led to the publication of a report: P Wallensteen, C Staibano and M Eriksson (eds), ‘Making Targeted Sanctions Effective, Guidelines for the Implementation of UN Policy Options’, 14 February 2003, available at http://pcr.uu.se/digitalAssets/173/173853_1final_ ­ report_complete.pdf. 53  S/2002/1423, 26 December 2002, Letter Dated 20 December 2002, addressed to the President of the Security Council by the President of the Committee of the Security Council Created by Resolution 1267(1999), 4, para 11. 54  TJ Bierstecker and SE Eckert, ‘Strengthening Targeted Sanctions Through Fair and Clear Procedures’, 30 March 2006, 58, available at http://watsoninstitute.org/pub/Strengthening_Targeted_Sanctions.pdf. 55  U Plassnik and S Chestermann, The Role of the Security Council in Strengthening a Rules-Based International System, Final Report and Recommendations from the Austrian Initiative, 2004–2008, 2008, Annexed to the UN Document A/63/69-S/2008/270, 8 May 2008, Letter Dated 18 April 2008 from the Permanent Representative of Austria to the United Nations Addressed to the Secretary General. 56 The website of the project is no longer active. A general presentation of the Sanctions and­ Security Programme is available at http://kroc.nd.edu/research/sanctions-security.

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Before the introduction of EU law as a ‘buffer legal order’ between Member States and the UNSC, the ‘enlisted terrorist’ was not considered a legal person, but was the mere object of emergency security measures coming from structures before which individuals have normally no locus standi. This was accentuated, undoubtedly, by the great political threat represented by terrorism, making it e­ asier to justify the balance being struck in favour of security rather than ­fundamental rights. It will be shown, presently, how the introduction of the EU legal order as a layer between the legal orders of its Member States on the one hand, and the international legal order on the other hand, contributed to the restoration of the ‘enlisted terrorist’ in his status of legal subject.

III.  EU Personhood Identity: ‘Enlisted Terrorists’, Institutionalised Subjects of EU Law From the perspective of our discussion, EU law appears as a disruptive ­element. The EU law layer interferes in the narrative that Member States and the United Nations have developed in conceiving their relationship. These interferences appear in a context in which the European Union refuses to act as if it were a ­member of the United Nations and stresses its autonomy in international law.57 Having placed back on Member States the burden to reconcile potentially ­contradictory international obligations, the EU legal order unfolds and ­produces its full effects: the ‘enlisted terrorist’ is a subject of EU law (sub-­section A below). While ­re-­constructing the ‘enlisted terrorist’ category according to EU law, the EU influences the international legal order from which the category is initially imported. This is all the more significant as the affirmation of the ‘enlisted ­terrorist’ as a subject of EU law rests on EU fundamental values that are recalled in articles 2 and 21(1) of the TEU,58 which combined reading confirms that democracy, the rule of law and human rights are not only binding upon EU action, but are also to be promoted at the international level (see sub-section B below).

57  Only states can become members of the United Nations Organisation. On the EU status in the UN, see above (n 13). 58  Art 2 TEU reads as follows: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the member states in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’. Art 21(1), first part, TEU reads as follows: ‘The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and ­international law’.

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A. Affirming EU Constitutional Identity Through the Restoration of the ‘Enlisted Terrorist’ as a Person in EU Law The restoration of the ‘enlisted terrorist’ as a person in EU law is the result of the affirmation of the constitutional identity of the European Union. First, its constitutional identity derives from the way EU law structures its relationship with conventional obligations that Member States have contracted to before the entry into force of the Treaty of Rome, which aims to protect the operation of the EU legal order from external interferences (sub-section i below). This triangular ­relationship between the EU, the UN and their common Member States being clarified by EU law and the full operation of the EU legal order being reaffirmed by the Court, the ‘enlisted terrorist’ benefited from the systematic application of the right to effective judicial review, as any other subject of EU law (sub-section ii below).

i. Systemic Conditions: The Protection of the Full Operation of the EU Legal Order Once the ‘enlisted terrorist’ was integrated into EU law, the European Court of ­Justice finally refused to reduce the question of his status in EU law to a h ­ ierarchical issue whereby EU law would be subordinated to the UN system. The existence of a grey zone helped in this ‘autonomisation’ of EU law: the EU is not a member of the United Nations, although the principles of the UN Charter form part of the objectives the EU pursues in the conduct of its external relations.59 The Charter of the United Nations is considered, therefore, an agreement to which the EU members have acceded before the entry into force of the Treaty of Rome, pursuant to the rationale of article 351 of the TFEU. The first p ­ aragraph of this article affirms that the European Union respects the obligations that its ­Member States have undertaken before the Treaty on European Community entered into force. However, the second paragraph of article 351 affirms the ­obligation of Member States to resolve possible incompatibilities between their previous international obligations and EU law. This obligation is all the more striking when applied to the UN Charter, as it is the cornerstone of contemporary collective security in international law and foresees its own primacy over other international obligations that bind on its members. Since EU Member States are all members of the UN, they are required to find means to implement both sets of international obligations in such a way as to make them compatible, subject to engaging their responsibility. The trigger of the EU interference is another agency mean of the ‘enlisted ­terrorist’, which derives from the status of the person under EU law: the locus standi before the ECJ of the person that is directly affected by binding EU legal acts. 59 

Art 21(2)(c) TEU.

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The ECJ competence is, however, restricted in this field: the CFSP decisions taken under article 29 TEU are excluded from its review.60 This exclusion can be read in parallel to the ‘Act of State’ argument that remains, to a certain extent, valid before French courts. However, those regulations that the EU institutions adopt in order to implement the CFSP decisions are submitted to judicial review.61 Judicial review of these implementing regulations is subject to the conditions stated in article 263(4) of the TFEU. The Council regulations in question directly affect the ‘enlisted terrorist’, because of both their direct effect and the explicit mention of the name of each targeted person. These implementing measures can therefore be challenged in Court by each ‘enlisted terrorist’. From this perspective, the consequences of ECJ judicial review on EU institutions implementing regulations forms part of the grey zone that was described above: ultimate responsibility for the articulation of EU law and UN law rests on the common Member States of both organisations. From an EU institutional law perspective, the absence of review of CFSP acts protects the discretion of the EU Member States meeting in Council, to decide on the implementation of UN resolutions. In other words, the EU institutions will bear the burden of the ­consequences of judicial review as to the validity of the implementation acts. From an international law perspective, this approach obliges the Member States to relieve EU institutions, in seeking to reduce incompatibilities of their obligations under the UN Charter, with their obligations as framed by the European Court of Justice when controlling the merits of the ‘enlisted terrorist’ cases.62

ii. A Systematic Application of the ‘Enlisted Terrorist’s’ Right to Effective Judicial Control The terrorist listings by the Council of the EU on the grounds of UNSCR 1373 were the first to undergo the effective judicial review of EU jurisdictions. The ­General Court brought out the first solution in the field in the PMOI I ­judgment.63 The Court considered that the Council decision to implement UNSCR 1373 ­measures rested on the Council’s wide discretion to determine which elements to take into consideration in order to implement the CFSP decision implementing the UNSC resolution. Therefore, the scope of the judicial review by the Court must ­encompass: ‘the respect of the rules of procedure and motivation, the reality of facts, and the lack of manifest error and abuse of power in their determination’.64

60 

275(1) TFEU. Art 275(2) TFEU. 62  More developments can be found with regard to the coordination of UN and EU legal orders by their common Member States: cf Beaucillon (n 1) 245–62. 63 T-228/02, People’s Mojahedin Organisation of Iran v Council of the European Union, 12 December 2006. 64  ibid, para 159. 61 

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In this case of EU-decentralised listing, the intensity of judicial review obeys a rather low threshold, because of the principle of sincere cooperation.65 EU ­institutions and Member States must indeed assume that procedural guarantees are equally respected by their respective administrations and the Council should not seek to evaluate the opportunity of the national decision—­prosecutory or condemnatory—which has grounded the proposal for listing by national ­authorities.66 The control should be limited, therefore, to a manifest error of ­interpretation of the existence of such a decision.67 The case of UN-centralised terrorist listings was more contentious, in the sense that both the CFSP decision adopted under article 29 TEU and the EU implementing regulations directly reproduce the listings that are established by the 1267 Sanctions Committee at the UN level. The principle of judicial review by EU jurisdictions has been affirmed in the well-known Kadi I decision of the ECJ in 2008.68 The General Court expanded on the consequences of that decision when it decided the Kadi II case, linking the principle of effective judicial review of EU-centralised and UN-centralised listings.69 Significantly, in his concurring opinion in the Nada v Switzerland case before the European Court of Human Rights (ECtHR), Judge Malinverni considered that this was ‘an historical decision in that it affirms that the respect of human rights is the constitutional foundation of the EU, of which the Court must ensure the respect, even when implementing UNSC resolutions’.70 In the Kadi II judgment the ECJ affirmed, with regard to the UN-centralised listing cases, the principle of the full review of the legality of the implementation EU regulations. Indeed, the Court pointed to the fact that human rights guarantees within the UN system were no satisfactory equivalent to the EU standard of effective judicial protection.71 It is significant to note that the case-law on the ‘enlisted terrorist’ has then led to the recognition of the legal status of another category of sanctions targets: ­individuals who are listed in their official capacity or because of their specific ­relation to targeted state regimes. In other words, the principle of full judicial

65 

Art 3(4) TEU. On the distinction between EU-decentralised and UN-centralised listings, see above introduction and section I.A.i. on the personal scope of the measures. 67 T-348/07, Stichting Al Aqsa v Council of the European Union, 9 September 2010, para 77; a solution constantly re-affirmed since then. 68  Abdullah Kadi and Al Barakaat (n 45). 69 T-85/09, Yassin Abdullah Kadi v Commission of the European Union, 30 September 2010, para 138 (referring to its PMOI I decision of 12 December 2006). 70  European Court of Human Rights, Grand Chamber, no 10593/08, Nada v Switzerland, 12 ­September 2012. Para 18 of Judge Malinverni’s Concurring Opinion. For a constitutional approach on this issue: cf M Forteau, ‘La CJCE et la Cour européenne des droits de l’homme face à l’articulation du droit européen et du droit des Nations Unies: quelques remarques iconoclastes’ (2009) 529 Revue du Marché Commun 397. 71  C-584/10, C-593-10 and C-594/10, joined cases, European Commission, Council of the European Union and The United Kingdom of Great Britain and Northern Ireland v Yassin Abdullah Kadi, 18 July 2013, para 127. 66 

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control was then systematically extended to any implementation act of restrictive measure regimes involving individual targets.72 This systemic approach reveals that the restoration of the ‘enlisted terrorist’ in his quality as a person under EU law results from the full operation of the EU legal order and, as such, must apply equally to all similar situations.

B. Interactions Triggering the Exportation of the EU Construction of the ‘Enlisted Terrorist’ as a Legal Subject Besides the limits of the EU legal order, the recognition of the ‘enlisted t­errorist’ status of a person in EU law had a significant impact on this category in international law. More precisely, the end of the fiction according to which the ‘enlisted terrorist’ is merely an object of international security measures triggered a reforming trend in the international legal order, albeit at a jurisprudential or institutional level only. This exportation, back into international law, of the EU material ­construction of the ‘enlisted terrorist’ as a legal subject, was made possible by focusing on the role of Member States, both when framing the international regimes of sanctions (sub-section i below) and when responding actions before national and regional judges (sub-section ii below).

i. Harmonisation of the Member States’ Position Outside the European Union It has been shown that EU Member States’ positions as to how ‘enlisted ­terrorists’ should be protected by their legal orders were heterogeneous and mostly ­dependent on the manner in which Member States attempted to reconcile their relationship to UN Security Council decisions with the protection of fundamental rights. The considerable judicial constraint shown within the EU legal order, with regard to the implementation of UN-listed terrorism measures deriving from UNSC ­resolution 1267 was such that the 1267 Sanctions Committee was more attentive of ECJ judicial developments than any other jurisprudence. Simultaneously, there was growing pressure on the EU Member States to resolve the situation from both the UN and EU institutions perspective.73 This uncertain phase of tension between legal orders resulted in the initiation by the French presidency of the EU in 2008 of the so-called ‘article 19 coordination meetings’, in reference to the provision of the TEU requiring EU Member States to

72  See, for instance, on the targeted restrictive measures imposed by the EU to Myanmar: C-376/10 P, Pye Phyo Tay Za v Council of the European Union, 13 March 2012. 73  S/2008/324, 14 May 2008, Letter Dated 13 May 2008, Addressed to the President of the S ­ ecurity Council by the President of the Security Council Committee Created by Resolution 1267(1999), 18, paras 40–41.

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coordinate their positions within international organisations.74 This resulted in, notably, the adoption of UNSC resolution 1822(2008) that drastically increased the procedural guarantees of the ‘enlisted terrorist’ under the 1267 regime.75 This resolution was passed immediately before the Kadi I case was decided by the ECJ, attempting—in vain—to give the Court sufficient material guarantees to satisfy European standards. The point here is, however, that a harmonised EU position emerged on the issue of the guarantees that should accompany the ­concrete ­targeting of any person by international sanctions as a direct result of judicial pressure exerted by the ECJ and EU law on the legal regime applicable to EU implementation acts.

ii. The Relative Harmonisation of International and National Case-Law Through the Fiction of the States’ Margin of Appreciation The first consequence of ECJ case-law affirming the status of the ‘enlisted terrorist’ as a legal subject was shown in the interpretation of the European Convention for the Protection of Human Rights and Fundamental Freedoms, through which the legal reasoning of the ECJ has been extended to all 47 members of the Council of Europe. This harmonisation of regional case-law was initiated by the Nada v Switzerland judgment, which was decided by the ECtHR after the Kadi I and before the Kadi II judgments. M Nada is an Italian-Egyptian national who resided in the Switzerland enclave of Campione d’Italia when he was listed by the UNSC 1267 Sanctions Committee and subjected to a visa ban. He challenged the national implementation measures taken by the Swiss authorities, arguing that in his specific case, because he resided in an enclave, the application of the visa ban was equivalent to house arrest. Switzerland, a member of the UN since 2002 was required, ironically, to justify the whole UN sanctions regime before the Court. The Swiss ­Government argued, classically, that Member States are bound by UNSC resolutions and, as such, no transit visa could be granted on its territory. The ECtHR cited the ECJ in the Kadi I judgment, arguing that Switzerland had a certain margin of a­ ppreciation to implement the UNSC resolution at stake.76 The Court referred once again to the ECJ Kadi I judgment, applying mutatis mutandis the reasoning according to which it is the Member States’ responsibility to compensate for the lack of judicial protection at the UN level in introducing appropriate control of the national implementation measures.77 Interestingly, the ECJ did not hesitate to cite the

74 

Art 34 TEU after the entry into force of the Lisbon treaty. Threats to International Peace and Security Caused by Terrorist Acts, 30 June 2008. 76  European Court of Human Rights, Nada v Switzerland (n 70) para 176. 77  ibid, para 212. 75 S/RES/1822(2008),

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ECtHR Nada judgment in its Kadi II judgment,78 showing a very c­ onstructive and un-deferential judicial alliance of both European courts with regard to the imposition of basic fundamental rights guarantees in the process of implementing UN targeted sanctions. In addition, it is well-known that the ECJ reasoning in the Kadi I case was ­followed by the United Nations Human Rights Committee in 2008, in its views on Sayadi and Vinck v Belgium. In essence, the Human Rights Committee considered that Belgium’s failure to order the de-listing of these two persons could be examined in the light of the International Covenant on Civil and Political Rights (ICCPR) without relying on the UNSCR resolutions, because of Belgium’s ­supposed margin of manoeuvre in the field of sanctions implementation.79 It is clear from the above that the restoration of the status of legal subject to the ‘enlisted terrorist’ has been strongly advocated for by EU Member States in forums outside the European Union as a result of their EU law obligation to reconcile their international obligations under the UN Charter with their competing EU law obligations as clarified by the ECJ. It is interesting, from the perspective of the accession of the EU to the European Convention on Human Rights,80 that the ECJ case-law has induced the ECtHR to draw the necessary conclusions on how the rights of targeted persons should be balanced against international peace and security objectives. The ‘enlisted terrorist’ category reveals, therefore, the substrate that the EU legal order minimally attaches to personhood in EU law, which is essentially composed of procedural guarantees linked to the rule of law principle. This substrate is a mini­mal, but non-derogable vision of which rights should accompany a person’s legal status. Moreover, this borderline case-study shows that the notion of the ­person in EU law is still in flux at its periphery. The ‘enlisted terrorist’, though a legal subject of EU law, remains an institutionalised category heavily influenced by the international legal order. It is, precisely, the ‘disembodiedness’ and f­ unctionality of the person’s category that allowed its material exportation back into the international legal order. This reveals the potential impact that a ­homogenous concept of the person in EU law could have, as an element of the constitutional identity promoted in the conduct of EU’s external relations.

78 

Yassin Abdullah Kadi (n 71) para 133. Sayadi (n 41). cf C Beaucillon (n 1) 584–88; JF Flauss, ‘Les “listes noires” de l’ONU devant le Comité des droits de l’homme, Comité des droits de l’homme, Sayadi et Vinck c Belgique, 22 ­octobre 2008’ (2010) 21(82) Revue Trimestrielle des Droits de l’Homme 376; M Milanovic, ‘The Human Rights ­Committee’s Views in Sayadi v Belgium: A Missed Opportunity’ (2009) 1(3) Gottingen Journal of ­International Law 459. 80  Art 6(1) TEU. 79 

Part IV

Person and Integration

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8 The Integrated Person in EU Law SÉGOLÈNE BARBOU DES PLACES*

I.  The Rise of Integration in EU Law We are witnessing, before our eyes, the rise of the notion of ‘integration’ in EU law. To be sure, integration was already present in the first age of EC law.1 But ­integration is now a central, free-standing and normative category of EU law. The language of integration has invaded all the branches of law dealing with the legal situation of physical persons, be they EU citizens or third country nationals (TCNs). In the past few months, the Court has, f­requently, had to adjudicate preliminary rulings about national regulation imposing integration tests on ­ TCNs.2 When ­examining the case-law,3 we observe that integration permeates internal market law,4 EU citizenship law, and the law of the freedom, security

* 

Professor at Paris 1 Panthéon-Sorbonne University. K Groenendijk, ‘Legal Concepts of Integration in EU Migration Law’ (2004) 6(2) European Journal of Migration & Law 111; also D Kostakopoulou, S Carrera and M Jesse, ‘Doing and Deserving: Competing Frames of Integration in the EU’ in E Guild, K Groenendijk and S Carrera (eds), Illiberal Liberal States. Immigration, Citizenship and Integration in the EU (Farnham, Ashgate, 2009) 167 ff. 2  Case C-153/14 K and A EU:C:2015:453. 3  The ECJ first made use of the ‘real link with the host society’ criterion in the D’Hoop case (Case C-224/98, 11 July 2002): ‘38 The tideover allowance provided for by Belgian legislation, which gives its recipients access to special employment programmes, aims to facilitate for young people the transition from education to the employment market. In such a context it is legitimate for the national legislature to wish to ensure that there is a real link between the applicant for that allowance and the geographic employment market concerned’. Progressively, the real link test became a main element for assessing the proportionality of national measures refusing non-workers the benefit of social rights. See C O’Brien, ‘Real Links, Abstract Rights and False Alarms: The Relationship between the ECJ’s “Real Link” Case Law and National Solidarity’ (2008) 5 European Law Review 643. It is with the Bidar and Collins judgments that reference to ‘integration’ has progressively settled in case-law: Case C-138/02, Collins, 23 March 2004 and Case C-209/03, Dany Bidar, 15 March 2005. 4  The notion of integration was first introduced in free movement law by the main legal instrument dealing with workers, Reg 1612/68. Integration is also a central element of the Turkish workers’ legal status in the EU: S Barbou des Places, ‘La Cour de Justice et l’accord d’Ankara : variations jurisprudentielles sur la vocation européenne des travailleurs turcs’ in B Bonnet (ed), L’Union européenne et la Turquie : Etat des lieux, (Bruxelles, Bruylant, 2012) 199. 1  See

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and justice area.5 Since the Collins and Bidar judgments, integration has become a standard, a benchmark of judicial review. Daniel Thym describes the emergence of an ‘overarching guideline for free movement’6 and not only for certain specific categories of persons (students or jobseekers) as it was in the past. Integration has become, I submit, pivotal to EU law. It plays a decisive role in the distribution of rights to persons: the right to be protected against expulsion, to access welfare rights, and to family re-­unification. Moreover, with the rise of the integration criterion, CJEU c­ ase-law is re-interpreted radically: integration has enriched the proportionality test applied to national measures denying access to European rights. That integration is becoming the main axis of EU law governing the persons’ legal status is now a reasonable hypothesis.7 The aim of this chapter is to capture the meaning, and to evaluate the impact, of the cloudy notion of integration. For, it is not only the word, but also the object, which is taking root in EU law. The rise of integration is ‘about more than the technical finesse of doctrinal interpretation’.8 It reflects the Court’s vision of the values underlying the European integration process; it expresses a particular conception of social justice. Besides its role in positive law, integration now performs a descriptive function. Loïc Azoulai,9 for instance, makes use of the notion to qualify EU citizenship which he suggests is a statut d’intégration sociale. Attention to the impact of integration is called for because ‘integration’ is not a ‘neutral’ word. The very notion carries with it a world of representation, ­signification and struggles. The use of the term often assumes a political and ­philosophical vision of the individual–society relationship. We know only too well the debates which oppose the ‘models’ of assimilation and of integration.10 In political debates, integration is frequently coupled with the notions of nation, identity and of the Republic (the French speak about the intégration républicaine). Discourses on integration are discourses about the degree of homogeneity of ­societies, of who is—or ought to be—in and who is—or ought to be—out. ­Integration is a sensitive issue: it deals with incorporation, social boundaries, sometimes with ethnicity, and in the American debates, it frequently relates to race and social class. Therefore, when in the Bidar and Collins judgments the Court referred to the social integration of the individual, it opened a ­Pandora’s box.

5  See for an example of non-execution of the European arrest warrant by the executing Member State conditional upon the person having spent a period of 5 years in its territory, Case C-123/08, Dominic Wolzenburg, 6 October 2009. 6  D Thym, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically Inactive Union Citizens’ (2015) 52 Common Market Law Review 37. 7  S Barbou des Places, ‘Le critère d’intégration sociale, nouvel axe du droit européen des personnes?’ (2013) 4 Revue des Affaires Européennes 689. 8  Thym (n 6) 49. 9 L Azoulai, ‘La citoyenneté européenne, un statut d’intégration sociale’ in Chemins d’Europe, Mélanges en l’honneur de Jean-Paul Jaqcué, (Paris, Dalloz, 2010) 1. 10 See D Schnapper, Qu’est-ce que l’intégration? (Paris, Gallimard folio, 2007); PA Taguieff and P Weil, ‘Immigration, fait national et citoyenneté’ (1990) 161(5) Esprit 89.

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My ambition is to try to grasp its influence on (the science of) EU law since integration has become a central element of free movement law and EU citizenship law. Despite its centrality, the notion of integration is not defined by EU law. It undoubtedly refers to the incorporation of the individual into a host society. But this implicit meaning does not hide that integration is a complex and multifaceted notion of EU law. It performs, at least, three different functions. First, and classically, integration is a criterion, a condition to access rights: an individual is expected to pursue incorporation into societal structures before she can obtain the benefit of certain rights (mostly social rights). This sense of integration is familiar to migration studies that have observed, in the 1990s the introduction of civic integration tests in Member States’ legislation.11 To a large extent, integration has in the post-1990s become an injunction made to non-EU citizens before they are granted the right to stay, to family reunification or access to citizenship.12 ‘Integration as a condition’ has penetrated EU law, as Council Directive 2003/86 of 22 September 2003 on the right to family reunification illustrates. After mentioning the conditions to be fulfilled to avail of family re-unification, its Article 7.2 allows Member States to require third country nationals to comply with integration measures in accordance with national law.13 But EU law has promoted another sense of integration, which happens to be defined as an objective. Its rationale strongly contrasts with that of ‘integration as a condition’. In this sense, rights are conferred upon individuals in order to achieve a certain degree of integration of the person in the host society. This is the original meaning of the workers’ integration that we find in Regulation 1612/68.14 And interestingly enough, ‘integration as an objective’ is not limited to the b ­ enefit of EU citizens. In the Long-term Resident Directive,15 we find that integration

11 For a debate as to their legitimacy and side-effects, see J Carens, The Ethics of Immigration (Oxford, Oxford University Press, 2013). Migration studies have evidenced the shift from integration of immigrants as a policy aimed at ensuring more cohesion of the society (ie emphasis is put on the duty of society to integrate migrants) to integration as a pre-condition to access rights. Sociologists have also documented the influence of moralist and ‘assimilationist’ conceptions: A Favell, ‘Integration Policy and Integration Research in Europe: a Review and Critique’ in A Aleinikoff and D Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices, (Washington DC, Carnegie Institute for International Peace, 2001) 349. 12  D Lochak, ‘L’intégration comme injonction. Enjeux idéologiques et politiques liés à l’immigration’ (2006) 64 Cultures et Conflits 131. 13  In the same vein, Art 4 states that ‘by way of derogation, where a child is aged over 12 years and arrives independently from the rest of his/her family, the Member State may … verify whether he or she meets a condition for integration provided for by its existing legislation’. 14  See Preamble of 1612/68 Reg ‘the right of freedom of movement, in order that it may be exercised, by objective standards, in freedom and dignity, requires that … obstacles to the mobility of workers shall be eliminated, in particular as regards the worker’s right to be joined by his family and the conditions for the integration of that family into the host country’. 15  See Preamble of Council Dir 2003/109 concerning the status of third-country nationals who are long-term residents: ‘(12) In order to constitute a genuine instrument for the integration of long-term residents into society in which they live, long-term residents should enjoy equality of treatment with citizens of the Member State in a wide range of economic and social matters’.

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of non-EU nationals must be facilitated because they participate in the better social cohesion of the host society.16 In the Family Reunification Directive,17 we learn that measures concerning family reunification help to create socio-cultural stability facilitating the integration of TCNs. The Court has followed this line of reasoning. In the Servet Kamberaj judgment,18 integration of TCNs who are longterm residents in the Member States is referred to as a ‘general rule’ to which the judge must refer when (strictly) interpreting the derogation provided in Directive 2003/109.19 Integration has a third facet: it is a rule of proximity,20 a connecting rule that serves to determine to which Member State an individual is principally related or connected. The EU is a space composed of 28 territories where people move, leave their home country yet keep contacts with it and settle in another Member State. When social rights or protection against expulsion are at stake, what must be determined is where the centre of gravity of the person is located: in her State of nationality or in the State where she resides and lives with her family? The answer is important because it has legal consequences, as Advocate General Juiz-Jarabo Colomer explained in his opinion delivered in the Petersen judgment.21 When the freedom of movement was restricted to the removal of barriers and the prohibition of discrimination it was understood that an individual who exercised freedom of movement belonged to a community of origin, in other words, the State of his nationality. That factor alone would be sufficient to justify responsibility for individuals falling on their respective States, thereby giving rise to policies of solidarity.22

But the Court now privileges an approach more in keeping with the nature of EU citizenship. As Ruiz-Jarabo Colomer rightly points out, ‘the importance of the responsibilities and obligations of States of origin is noticeably waning in favour of the responsibilities and obligations of host States’.23 In this world of transnational lives, the Court accepts that the individual is connected—integrated—to different Member States (one by a nationality bond, one by social integration).

16  Preamble of Council Dir 2003/109 (4): ‘The integration of third-country nationals who are longterm residents in the Member States is a key element in promoting economic and social cohesion, a fundamental objective of the Community’. 17  Preamble of Council Dir 2003/86/EC on the right to family reunification: ‘(4) Family reunification … helps to create sociocultural stability facilitating the integration of third country nationals in the Member State, which also serves to promote economic and social cohesion, a fundamental Community objective stated in the Treaty’. 18  Case C- 571/10 Servet Kamberaj 24 April 2012, para 86. 19  See, by analogy, Case C-578/08 Chakroun EU:C:2010:117, para 43. 20  E Pataut, ‘Le citoyen dans tous ses états—Chronique de citoyenneté de l’Union européenne’ [2013] Revue Trimestrielle de Droit Européen 917–31. See also J-Y Carlier’s attempt to describe free movement law as a system of attachment rules, ‘La libre circulation des personnes dans l’Union ­européenne. Chronique de jurisprudence et de législation’ [2015] Journal de Droit européen 166–78. 21  Opinion delivered on 15 May 2008 in the Petersen case, Case C-228/07 EU:C:2008:494. 22  ibid, para 29. 23  ibid, para 30.

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But this requires that the judge can identify which Member State should take ­responsibility.24 A good example is the expulsion of EU citizens on grounds of public order and public security. Before taking an expulsion decision, the host Member State is required, following Article 28 of Directive 2004/38, to take account of considerations such as how long the individual concerned has resided on its territory, her age, state of health, family and economic situation, social and cultural integration into the host Member State but also the extent of his/her links with the country of origin. The test imposed upon Member States leads to an evaluation of where the individual belongs. Only if the bonds with the home State remain ­significant may the judge find expulsion appropriate. In the MG ­judgment,25 the ECJ (European Court of Justice) requires an overall assessment to determine whether the integrating links previously forged with the host Member State have been broken and, thus, whether the enhanced protection provided for in the Directive will be granted. In sum, the measure of integration test does not aim to decide whether an individual is integrated but where she is more integrated. The function performed by the integration criterion is to position an individual on a spectrum going from State of nationality to host State—it is an attachment rule. The ambition of this chapter is to understand the extent to which, if at all, the introduction and generalisation of integration has instilled a new rationality in EU law. Did it create a disruptive effect? The starting point is the observation that the rise of integration has contributed to a re-organisation of the system of ­allocating rights. It remains to be seen, thus, whether it also participates in the (re-)design of European society as it is, and as it is becoming. The spread of integration is truly challenging: it has to do with the place given to social facts, with the recognition of identities, with the possibility for Member States to delineate a sphere of autonomy. The pivotal place of integration also raises normative questions: is it fair to grant or deny a right on the basis of a social situation? What type of European citizenship are we willing to construct through the language of integration? What has integration to offer the European sense of belonging? Any enquiry into the meaning of the notion of integration in the European context contains immense difficulties. One among them is the definition of person and

24  See the Prinz Case, C-523/11, 18 July 2013 concerning German legislation that makes the award of an education grant for studies in another Member State for a period of more than one year subject to a condition, requiring the applicant to have had a permanent residence in the national territory for at least three years before commencing her studies. The Court decided that the use of the sole condition of residence risks excluding from funding students who, despite not having resided for an uninterrupted period of three years in Germany immediately prior to studying abroad, are nevertheless sufficiently connected to German society. That may be the case where the student is German and was educated in Germany for a significant period or on account of other factors such as her family, employment, language skills or the existence of other social and economic factors. Furthermore, other provisions of the legislation permit factors distinct from the place of residence to be relevant, both in order to establish the centre of family interests of the person concerned and to determine whether the conditions for the award of the grant are fulfilled in the case of home-country nationals who have established their permanent residence abroad. 25  Case C-400/12, MG EU:C:2014:9 para 36.

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personhood. The ambition of this chapter is to ask one simple question: what do we learn about the category of the person in EU law when we look at her from the perspective of integration? In this chapter, I will make four points. The chapter starts by telling a short story: that of integration infusing a new rationality in EU law and creating a new figure. I then try to emphasise the promises offered by the language of integration but, also, the limits and contradictions of capturing the person through the lens of integration.

II.  When the Logic of Integration Infiltrates EU Law I argue that the introduction of integration is a disruption in the conception of EU law for at least three reasons. First, its rationality competes with the market’s rationality (sub-section A below). Secondly, the rise of integration gives ­expression to a social and moral turn in EU law (sub-section B below). Thirdly, it introduces more relativity in the distribution of rights (sub-section C below).

A.  Market Rationality is Challenged One may argue that the introduction of integration in EU law dealing with persons does not bring any significant changes. To be sure, integration has been used to confer new rights (mostly social rights) to new categories of persons (eg students). But one may argue that access to social rights by non-working people is a quantitative rather than a qualitative shift. From the beginning, the very logic of EU free movement law was that of a progressive expansion of rights granted to new beneficiaries. Accordingly, the Commission v the Netherlands judgment is a magnificent example of market rationality’s resilience.26 In this case, the legal issue concerned funding for higher educational studies pursued outside the territory of the Member State concerned. The Court decided that as regards migrant workers and frontier workers, the fact that they had participated in the employment market of a Member State established, in principle, a sufficient link of integration with the society of that Member State. The argument is straightforward: the link of integration arises from, inter alia, the fact that, through the taxes which he pays in the host Member State by virtue of his employment, the migrant worker also contributes to the financing of the social policies of that State and should profit from them under the same conditions as national workers.27

26  27 

Case C-542/09 Commission vs The Netherlands, EU:C:2012:346. ibid, para 65.

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To cut a long story short, economic rationality remains persistent. Yet the dominant rationale of EU movement law, ie market rationality, is challenged by the introduction of a competing logic. Since the emergence of the social integration criterion priorities have been reorganised. The central agent of EU law, the moving worker national of a Member State, now coexists with non-market figures. In the gallery of portraits of EU law we now find the Long term resident TCN, students with real links, the person (not) willing to integrate into the society, etc. We are witnessing a process of re-organisation of the categorisation of EU law, with integration being a new guiding line. Indeed, the construction of new categories of persons no longer starts from the traditional nexus which used to be economic activity and nationality. In the migration directives, even non-nationals are now granted rights in the name of integration. And, more significantly, the rise of integration departs from the functional definition of the person whose rights depend on her participation in the market. The market is about action and the market categories are built upon the criterion of economic exchange. The individual matters mostly insofar as she is capable of offering her labour, services or goods to the other Member States’ operators. Family or personal situation is taken into account only indirectly, and only if it is susceptible of having an impact on the exercise of the economic activity. This is in sharp contrast to integration tests whereby the ECJ weights personal situation and family connections. In brief, while economic activity has always been central to the market, proximity to a society is entering the scene. The market used to function with ‘invisible’ persons (they are healthy persons working and contributing to the society) while integration deals with the ‘visible’ persons: those who stay, who cost, who need to be cured. It is also noteworthy that former categories born of the market era are ­reinterpreted in the language of integration. The ECJ has indeed rephrased the two monuments of internal market law, work and nationality, in the language of integration. In the Commission v The Netherlands judgment,28 the ECJ decided that work is an activity that plays a presumptive role: it helps presume that the individual is integrated in the host society. In the same vein, in the Wolzenburg judgment, the Court incorporated nationality into the world of integration. Nationals are those who ‘have a connection with their Member State of origin such as to ensure their social reintegration after the sentence imposed on them has been enforced.’29 In placing emphasis on integration, the Court goes far in the reconfiguration of EU law’s frame of reference. The market language does not disappear but it now coexists with another form of rationality. The marker of the border between i­ nsiders and outsiders has significantly evolved. A number of clues point to a change of paradigm. One of them is the shift away from the mobility paradigm:30 while internal market law is about actors 28 

Commision vs The Netherlands (n 26). Wolzenburg (n 5), para 68. 30  See S Robin-Olivier, ‘Le citoyen de l’Union : entre intégration et mobilité’ (2014) 4 Revue des Affaires Européenne 667. 29 

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moving from one State to another (mobility is the very condition of international exchanges), integration is about stability, settlement and anchoring. It supposes a certain form or degree of sedentary life. This contrasts with the market logic where cross-border movement performs central functions (and, in particular, that of establishing jurisdiction). Accordingly, while the market concerns instantaneity, and is mostly about access, integration concerns length and roots grown over time. Constructing the internal market consists, before all, of creating a European area, ie a space, while focus on integration is a question of the passage of time. In its integration test, the ECJ places emphasis on the stability of the person. Council directives on the right to family reunification and on long-term residence refer, explicitly, to the objective of socio-cultural stability. And in case-law, the Court speaks about roots and anchoring, which is a semantic evolution. In the ­Mangat Singh judgment,31 the ECJ decided that Article 3(2) of Long-term Residents ­Directive 2003/109 excludes from its scope residence of third-country nationals which, ‘whilst lawful and of a possibly continuous nature, does not prima facie reflect any intention on the part of such nationals to settle on a long-term basis in the territory of the Member States’. Social integration presupposes physical stability and sedentary life. Herein lies a main difference with the type of life that free movement law has always assumed; that of people moving, passing from one State to another. With sedentary life comes the possibility to create bonds and connections to the membership of a host society. The apparently neutral introduction of the notion of integration has considerable effects: market preferences are blurred, its objectives are challenged and its language is enriched.

B.  A Social and Moral Turn In free movement and EU citizenship law, economic rationality is resilient as we well know.32 Yet the rise of integration represents a social and moral turn in EU law. I refer to a ‘turn’ as a means of describing an evolution, a curve, as distinct from a rupture. Speaking of a social turn means two things. First, the introduction of social integration played a pivotal role in the opening of access to social welfare entitlements. It is a fundamental change and not only because welfare entitlement describes the degree of obligation felt by Member States to protect individuals as human beings. Social integration has played a central role in the Court’s reasoning. It has equipped the judge with a legal and normative argument to expand the scope of equality for social rights to non-working individuals. Integration is also a fundamental tool for the judge because it articulates the equality principle with the integrity of national welfare systems. Because only the integrated person

31 

Case C-502/10 Mangat Singh, 18 October 2012. Nic Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47 Common Market Law Review 1597. 32  N

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can claim access to welfare rights, integration serves as both a filter (it ensures the viability of national system in limiting the number of beneficiaries) and a protective mechanism (integration can be opposed to the Member State in support of the claimant). When linking the notion of social integration and the very idea of a social turn, I mean another thing. I wish to underline that in EU law, emphasis is now placed on the existence of societies. The very notion of social integration refers to societies, human communities, rather than the market and the population of the State. What the judge strives to assess is whether the individual is connected to the fabric of a national society. This has two consequences. The first one is that we depart from the idea of (nation)-State. Up until now, it seems that for the purposes of the integration test, the ECJ’s referent society is not the community of nationals; it is the society of the host Member State. The second consequence is that we suddenly (re-)discover or value positively the importance of mother tongues, structures and institutions33 such as schools and marriage. For the first time we read about learning, links, belonging, social membership etc. The emphasis has changed and infra-state societal reality emerges in the case-law. A holist vision is offered: in order to assess the situation of an individual, the judge searches for a complex of connections, actions, ties, intentions, time etc. A new prism is offered, I would argue, which allows for the discovery of collective modes of existence. To be sure, this is not novel for sociologists. The theory of integration is a theory of belonging, of society, not a theory of the person. With the spread of social integration the texture of EU law is progressively evolving. It takes on a more social and societally dense orientation. Next to the social turn of EU law, the rise of social integration is revealing a moral turn. This is no surprise for migration specialists who evidenced, one or two decades ago, the moral turn of migration legislation.34 The ECJ seemed to follow that path in the Onuekwere judgment,35 concerning the acquisition of a permanent right of residence right by a third-country national following a period of continuous residence of five years with a Union citizen in the host Member State. The Court was asked whether periods of imprisonment had to be taken into account for the calculation of the period of continuous residence. The answer of the Court is straightforward. Integration, the judge said, which is a precondition of the acquisition of the right of permanent residence, is based not only on territorial and temporal factors but also on qualitative elements, relating to the level of integration in the host Member State. As a consequence, the undermining of the link of integration justifies the loss of the right of permanent residence. The conclusion is severe: ‘the imposition of a prison sentence is such as to show the non-compliance by the person concerned with the values expressed by the society

33 

See the contribution by Azoulai in this book. Favell (n 11) 349 ff. 35  Case C-378/12 Onuekwere EU:C:2014:13. 34 

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of the host Member State in its criminal law’,36 with the result that the taking into consideration of periods of imprisonment for the purposes of the acquisition of the right of permanent residence would be contrary to the aim pursued by that Directive in establishing the right of residence. We find the same line of reasoning for EU citizens in the Tsakouridis37 and MG38 judgments. In the latter case, the referring court asked whether a period of ­imprisonment is capable of interrupting the continuity of the period of residence for the purposes of Article 28(3) of Directive 2004/38 and may, as a result, affect the decision regarding the grant of the enhanced protection provided, even where the person concerned resided in the host Member State for 10 years prior to imprisonment. Following the line of Tsakouridis, the ECJ reaffirmed that the system of protection against expulsion measures established by Directive 2004/38 is based on the degree of integration of the persons concerned in the host Member State: the greater the degree of integration of Union citizens in the host Member State, the greater the degree of protection against expulsion that should obtain. The core of the reasoning is at para 31 where the ECJ decided that the fact that a national court has imposed a custodial sentence ‘is an indication that the person concerned has not respected the values of the society of the host Member State, as reflected in its ­criminal law’.39 In consequence, taking into consideration periods of imprisonment for the purposes of the acquisition of the right of permanent residence would clearly be contrary to the aim pursued by the Directive. In brief, the breach of criminal law is considered a breach of national values, which raises doubts as to the integration of the person. Now, there is a triad in the Court’s reasoning: criminal offence equates to breach of national values which equates to a presumption of non-integration. Accordingly, in the PI case,40 the Court had to decide whether a crime committed by an EU citizen should be tackled exclusively by national criminal law or whether that crime should be seen as a rupture of the bonds of integration between the foreigner and society, resulting in the foreigner’s expulsion. In particular, the question arose as to whether the long period of residence of Mr I. in Germany should prevent his expulsion or whether the nature and gravity of the crime he committed (he committed acts of sexual assault and rape on his former partner’s daughter, ie in the domestic sphere) called for a different solution. The ECJ did not use, explicitly, the vocabulary of values. It decided that according to para 28, it is open to the Member States to regard criminal offences as constituting a particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population and, thus, be covered by the concept of ‘imperative grounds of public security’, ‘as long

36 

ibid, para 26. Case C-145/09 Tsakouridis, EU:C:2010:708. 38  MG (n 25). 39  Onuekwere (n 34), para 26. 40  Case C-348/09 PI of 22 May 2012. See Opinion of Advocate General Y Bot delivered on 6 March 2012. 37 

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as the manner in which such offences were committed discloses particularly serious characteristics, which is a matter for the referring court to determine on the basis of an individual examination of the specific case before it.’41 But the accent is placed in the case on horrifying details, on the fact that the crimes were committed within the family, which all constitute elements that make it more intolerable. The terminology is not about values but the tone is undoubtedly a normative one. Indeed, Advocate General Yves Bot sees Mr I’s conduct as showing ‘a total lack of desire to integrate in the society in which he finds himself and some of the values he conscientiously disregarded for years’, conduct which amounts in a certain sense to fraud or abuse of rights.42 We can only agree with Azoulai and Coutts43 when they argue that society herein is not concerned in its physical structures but in its normative foundations. This turn must be taken seriously: integration is not only about situation and proximity, but about good and bad behaviour. This is another difference with the amoral market agent, whose economic action alone matters for the benefit of free movement law. I do not mean here that the market oriented legal system is insulated from any sense of morality. But in the integration judgments, moral arguments are explicitly used and a sense of the good and the bad individual is emerging.

C.  A Relative World Let us now consider the vocabulary of the Court when it decides on the integration of a person. The ECJ frequently makes reference to a ‘certain degree of integration’, and aims to determine whether the person is ‘sufficiently’ integrated. Accordingly, before granting a right, governments require a ‘minimum degree of integration’44 or a ‘significant contribution’ to the national market.45 These terms are significant. According to the logic of integration, absolute values no longer exist. Integration is a matter of degree, of progressivity, ie a world of relativity. Because social integration is measured in terms of intensity, of importance, social rather than legal facts matter. But it is a collection of different facts that are taken in consideration, compared and weighed. When the judge applies the integration condition in order to decide the allocation of rights, she has to weigh a variety of social facts and, then, to decide where on the scale of integration the claimant is positioned. As a consequence, in the integration era, we have only situations and no absolute legal position. The legal position of the person is

41 

PI (n 40), para 28. Opinion of Advocate General Y Bot delivered on 6 March 2012 (n 38) paras 60 and 61. 43  L Azoulai and S Coutts ‘Restricting Union Citizens’ Residence Rights on Grounds of Public Security. Where Union Citizenship and the AFSJ Meet: PI’ (2013) 50 Common Market Law Review 553. 44  eg see Prinz (n 24). 45  Case C-1/97 Birden, 26 November 1998; Case C-188/00 Kurz, 19 November 2002. 42 

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strongly dependent on her factual situation and on how administrative authorities and judges46 assess and value this factual social membership. Considering the weight of facts, each situation is unique and the result is hardly predictable and applicable to another person. This contrasts with the legal positions of individuals in the market society. In EU law, once a person is a worker or a service provider she can anticipate access to rights, notwithstanding her social situation (marriage, linguistic capacities, knowledge of the country, time spent in the country, etc). Intensity and thresholds thus become central. Since Directive 2004/38, we know that in EU law, rights and integration are placed on two x- and y-axes. The principle is straightforward: the more integration the more rights. The intensity of the protection conferred upon a person grows in parallel with her integration in a host society.47 My assumption is that, in the world of relativity entailed by the notion of integration, predictability and stability is not completely absent. But they are provided by graduations on the two scales of integration and protection. In the 2004/38 Directive, we find several explicit grades, among which are the two thresholds of three month and five years’ residence. They serve to decide on the rights that can be granted or refused. The two thresholds also serve to presume a given degree of integration of an individual within the host society. Similarly, I would submit, these presumptions are found in the ECJ’s case-law. In the ECJ’s case-law, we observe the rise of references to ‘prima facie’ integration or a ‘presumption of integration’. Of course, the presumptions are rebuttable; however, they guide the judge. Whether a person is or is not sufficiently integrated is determined on a case-by-case basis. Presumptions allow a certain predictability of result. This may be the reason why, I suggest, the Court has decided in the Commission v The Netherlands judgment that the fact that a person has participated in the employment market of a Member State ‘establishes, in principle, a sufficient link of integration with the society of that Member State’.48 Accordingly, a national is presumed to be integrated in her home Member State following the line of the Wolzenburg judgment. In a legal constellation in which the intensity of the protection granted to a person depends on the intensity of her integration, presumptions act as markers, thresholds that guide the judge when she positions an individual on the integration/protection axis. This clearly departs from the logic of rights distribution to the worker and service provider in the market system. The integration paradigm modifies the relationship between social facts and legal norms.

46  For a reflection of the constitutional impact of the personalisation of proportionality in the review of the integration test, see E Spaventa, ‘Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and its Constitutional Effects’ (2008) 45 CMLR 13, 40. 47  The same logic applies for Turkish workers in the Ankara agreement system. The more integrated an individual is in the employment market, the more rights she is granted. 48  Commission v The Netherland (n 26), para 65.

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III.  The Birth of a New Figure How does the rise of integration affect the category of the person in EU law? By creating a new figure, I would argue. ‘New’ denotes two things. First, as hinted above, new categories of beneficiaries of rights have emerged. Secondly, these persons are identified with the help of new criteria. The market orientation of EU law has led to the emergence of an active figure: the transnational healthy and/ or working man, able to adapt to changing economic conditions. He (for the figure is predominantly male) is a man living in the present, who is the master of his destiny. The legal criterion of economic activity, a general and abstract criterion, serves to define this figure. In contrast, the integrated woman is a much less abstract person. Ms Prinz49 and Ms Prete,50 are the archetype of the integrated wo/man. The ECJ does not describe what she does but focuses on her personal life: she sometimes has a husband, and has one or two kids or none; she has resided in two Member States, and she has studied three years in the host country; there she has met and married a national; she has a clean criminal record and she speaks perfectly the language of the host society. We could also learn that she knows how to bake the regional pastry or that she is a supporter of the local football club! Last, she gives no sign of unwillingness to integrate into the society in which she finds herself and she conscientiously respects the fundamental values of this society. In some cases, we also learn something about her projects and future (divorce, remarriage, return to and work in the host country after one year of study abroad). To be sure, this story does not make for good literature, but it is on the basis of similar short stories that rights are now conferred upon persons. Looking at EU law through the lens of integration certainly provides a more realistic representation of a contemporary human life than mere description of the market and its substitutable agents. However we must be careful. Whereas we are describing real-life individuals, the integrated woman of EU law is not the ‘person’ and rights do not attach to personhood. Rather, she is the individual. The integrated woman is indeed granted rights only in the name of her sufficient degree of integration in the home or host society, the reality of her links with this society and her willingness to be a member of the society. In the ECJ’s case-law, we see the judge strive to assemble a puzzle. On a case-by-case basis, focus is on personal characteristics of the individual concerned as revealed by her conduct, her will, her personal story, measure of time, etc. Within the framework of integration, there thus remains a patchwork

49  50 

Prinz (n 24). Case C-367/11 Prete, 25 October 2012.

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of personhoods. The integrated person is mostly a fragmented subject; she has not become the fundamental moral unit of the social structure.51 If she is a fragmented subject, can we portray the integrated wo/man? EU law does not provide any definition of integration, and the term integrated person is mostly absent from the vocabulary of the Court. Therefore, we must start from what EU law offers: a list of factors of integration. Apart from work and length of residence, it mentions schooling, linguistic capacity, family links, continuing links with the country of origin, situation of the family members, contribution to the financing of social policy, respect of national values and the will to integrate. This list helps capture the main features of the integrated wo/man. Roughly, we could say she is a situated individual, a social and multinational wo/man.

A.  Situated Wo/man The ‘integrated’ wo/man is the wo/man in the street, a real life wo/man, with friends and, sometimes, a husband or a wife and children. This person works but also dreams and procrastinates. This is important because integration does not belong to the world of action. Herein lies a profound difference with the worker, who is defined on the basis of her economic activity, rather than elements of her personal life. From the perspective of integration, the agents of EU law are not abstract figures or substitutable subjects. The characterisation of a person as ­(sufficiently) integrated derives from the analysis of concrete elements and ­circumstances. It is a process whereby social facts (the social reality of that person) are listed, analysed and weighed. Most importantly, the integrated wo/man is situated in space52 and time, she is located somewhere in Europe. Indeed, as hinted above, integration is a rule of proximity which permits to determine whether it is the home or the host country that should take responsibility for her protection. But the main difference with the market agent is the role played by time and history. My assumption is that the market agent is an a-historical figure: he has no past and no future. For workers, the length of residence or of employment is immaterial for being a legitimate beneficiary of a social advantage. Accordingly, the future is irrelevant for the design of the legal status of workers. In contrast, time and duration of stay are major elements in the world of integration. The integrated woman has a past which is pivotal to the allocation of social advantages. Assessing integration supposes an account of where an individual has resided in the previous years. It imposes an obligation on the courts to look backwards.

51  To borrow the expression used by C O’Brien regarding market agents, ‘I Trade, Therefore I Am: Legal Personhood in the European Union’ (2013) 50 Common Market Law Review 1643. 52  See above, section I.

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B.  A Social Individual It might sound trivial to say that the integrated woman is a social individual. Is not the ‘social’ part of what defines the individual?53 However, I find it important to underline the point because socialisation, aptitude to connect is what guides the allocation of rights in EU law. Since D’Hoop,21 the Court uses the wording of ‘real links’ existing between a person and a society and makes reference to the degree of connection to society.22 In that judgment, the meaning of the term integration became clear, which equates to belonging and membership. In other judgments, the ECJ refers to the person in a web of interactions. The same rationale underpins the integration test: priority is given to connecting elements. As a general rule, belonging to groups is the key in EU law. That is why family links—central in the Orfanoupoulos54 or Prete55 judgments—matter, which comes as no surprise because domestic life is the first site of socialisation. In the same vein, in Morgan and Prinz,56 the ECJ underlined the number of years spent at school. Durkheim has taught us that schooling is a major element of socialisation. School is a ­primary ‘real group’ where the different forms of intellectual activity are developed. It is, before all, the place in which children learn to live with their peers and learn tolerance. The workplace is also a site where connections are made and hierarchy is experienced. Hence the Court’s decision to transform work into a presumption of integration. Finally, considering the discursive structure of society, the capacity to share views with others and connect requires a minimum knowledge of the ­language of the host society; mutual understanding requires a common tongue. This is why most integration tests in national law are language tests.57 Herein lies a significant difference with the market approach insofar as accent is not placed on exchange, but on relationships and mutual understanding. The ambition is profound because it suggests reciprocity in its substantive meaning. Interestingly, in the French version, the Court frequently refers to integration in the milieu de l’Etat d’accueil (we read society in the English version). In biology, chemistry and even geography, the milieu is the set of concrete elements and ­physical circumstances that surround, influence or condition cells. It is the domain in which a reaction occurs. Such a definition points to the direction of mutual interactions and collective transformations. To be an integrated person means that the agent accepts that she will be influenced, transformed by her host society and will contribute to the evolution of the whole group. Stemming from that perspective, Advocate General Yves-Bot can legitimately take into consideration the (un)willingness of Mr I to integrate into his host society.

53  See on that point the interesting D Martucelli, Grammaires de l’individu (Paris, Gallimard Folio, 2002). 54  Case C-482/01 Orfanopoulos, 29 April 2004. 55  Prete (n 50). 56  Prinz (n 24). 57  K and A (n 2) para 53.

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C.  The ‘Multinational’ Wo/man It is common understanding that free movement law and EU citizenship law have contributed to the emancipation of citizens from their home-country c­ onstraints. We know how far the Court has gone in the Garcia Avello and Grunkin-Paul ­judgments. The constraints—the subjugation—arising from nationality or the application of personal law was challenged in the name of EU citizenship.58 These judgments have given rise to a myriad of comments, precisely because the ECJ has offered EU citizens the possibility to emancipate from the requirements and structures of national law. The classical reading of integration introduces another sense of emancipation. In the 1930s scholarship of the Chicago school on immigration,59 immigrants are assumed to be attracted by the culture of the host society. They are aware of, and wish to escape, the codes and constraints of their ethnic group of origin through a process of convergence towards the main characteristics of the members of the host society. Following that approach, integration is a positive movement of emancipation. It is a movement of modernisation, whereby the person leaves behind her ‘archaic’ culture. Of course, this is an outdated and patronising reading of migration. Nevertheless, it suggests that integration can have an emancipatory function. The cultural ethos of the market was that of success and achievement. The test of integration does not fully depart from this objective: it values the figure of the educated, multilingual trans-national migrant. The importance given to schooling is important. In the works of Durkheim, the school is a group in which children obtain distance from family codes and norms; they learn difference and new forms of identification. Interestingly enough, in judgments such as Prete or Prinz, attention is given to the number of years at school in the Member State. Thus, the integrated woman deals easily with her cultural dualism. She is the true ‘European’, a ‘multinational’ individual who keeps in contact with the former home society, who speaks a plurality of languages, masters the social codes of several European societies, and experiences a feeling of belonging where she is. The Prete or Prinz judgments are particularly significant because integration serves as the justification for the conferral of a grant to studying abroad. Multiple belonging is part of her life. The portrait of the integrated wo/man is difficult to sketch. It has as many faces as cases exist. Thanks to the introduction of integration, intention, projects, but also deviances are significant; the past and the future count. The integrated wo/man is a more human and realistic social individual than the market agent, and she is less abstract than the person within human rights law. To capture

58 

Azoulai (n 9). Park, ‘Human Migration and the Marginal Man’ (1928) 33(6) The American Journal of S­ ociology 881. 59 RE

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her, we need to change our lens. Instead of looking at the archetypes of the human ­condition, we must look at practices, situation and positions in a social environment.

IV.  The Promise of Integration The rise of integration in EU law can be positively valued from both an individual and a collective perspective. For the individuals, the rise of integration is undoubtedly an asset. First, it is now contrary to the principle of equal treatment for the host Member State to deny social benefits to EU citizens who, like the Member State’s nationals, have forged strong bonds with that State’s society. In other words, the function that integration has played is to facilitate the mobility of EU workers and to ensure that they enjoy equality, non-discrimination together with a secure judicial status.60 In so doing, the ECJ’s case-law has reconciled the requirement of membership with free movement law. That is why Kostakopoulou describes the first decades of EU law as the golden age of EU law. The aim was to facilitate the process of integration of the migrant worker and her family into the fabric of the Member States; a purposively broad and liberal application of the non-discrimination principle served this objective. Secondly, basing the distribution of rights on integration has entailed a new and favourable approach to persons. The logic of equity has become predominant when law (and the judge) allows for the non-application of the general rule in the name of the particular situation of the person.61 The fact is, EU citizens can now ask national authorities to take the peculiarity of their situation into consideration. Under the paradigm of integration, personal identities ought to be recognised. This is the case, in particular, because the case-law and the Commission privilege a pragmatic approach to integration: they do not give priority to cultural assimilation. Emphasis is mostly placed on facilitating exchanges between people and cultivating mutual respects. Such an approach affirms diversity62 and the recognition of differences.63 From a collective perspective, the introduction of the notion of integration is also an ‘added-value’. Its rationale would be the creation of a collegiate environment, it would bring the peoples of Europe together.64 Introducing integration into the vocabulary of EU law would entail, supposedly, a collective vision of a

60 

Groenendijk (n 1). Iliopoulou-Penot, ‘Le rattachement à l’Etat comme critère de l’intégration sociale’ (2013) 4 Revue des Affaires Européennes 651 ff. 62  Carens (n 11) 164 notes that social membership evokes the sense that being a member of a ­society involves a dense network of relationships and associations. What is at stake is a person’s ability to ­maintain and develop a rich and highly particular set of human ties. 63  Kostakopoulou, Carrera and Jesse (n 1) 167 ff. 64  ibid, 176. 61  A

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European society. Glance at the language once more: in EU law, integration is about belonging, membership, common values and solidarity. Thus, the integration of a person into society participates in the development of a cohesive world. Durkheim first, followed by Weber, Tönnies and Elias, insisted on the fact that integration of the individual in a society and the integration of that society are two intertwined realities. Is it not puzzling that the very same word, integration, is now used to refer both to the persons and to Europe itself? To be sure, Europe’s aspiration to cohesion is not new. But in the Long-term Residence Directive, EU law states explicitly that the integration of TCNs is a means of achieving social cohesion of the EU. At this stage of my optimistic presentation of what integration means to EU law, I will suggest that a more cohesive and collective world can arise from the ­generalisation of integration. Three arguments can be proffered. First, in making Mr Bidar’s right to be given a grant contingent upon his integration into ­British society, the ECJ struck a balance between the requirement of mobility and the need to preserve national welfare systems. It is not in the name of mere abstract transnational solidarity that Mr Bidar deserves to be granted his social rights. In fact, the assessment of the sufficiency of his integration in Britain serves to demonstrate that he is already a member of a united group, he is a sociological National.65 Therefore, in requiring proof of integration prior to providing its grant, the Court bases the allocation of a right on pre-existing factual solidarity. In so doing, the Court acknowledges that ‘associations of people require a sense of shared identity if our societies are to be more than the sum of its parts’.66 ­Secondly, it might be considered that integration has enriched EU citizenship which is now equipped with duties. Only integrated people, ie people who have made the effort of inserting themselves in the national community, can access rights. An embryo of duty is observable in what I think is an injunction of integration made to citizens. Last, in linking integration and the respect of national values in recent cases, the ECJ would replace the a-moral economic actor by the social and moral agent. In a sense, integration reconciles the individual and the collective. Instead of the strategic individual—a typical figure of the market—whose interest prevails and ­generates forum shopping practices, the integrated wo/man becomes a f­ undamental unit of the collective structure. Can we then suggest that introducing the rationality of integration, that is to say interdependence among individuals and cohesion of the society, would limit some of the biases of the market-based approach? Criticism of the rights-based and market-orientated EU citizenship is well-known. In giving priority to competition as the guiding principle for individual conduct, EU law encourages commodification, challenges the nation state and endangers the sustainability of welfare. In offering conditions for emancipation of the person from society, it would ­permit

65 

66 

P Weil, Histoire de la nationalité française depuis la Révolution (Paris, Grasset, 2002). Thym (n 6).

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the individuals to avoid any type of responsibility vis-à-vis the society they belong to. In other words, in emphasising rights and neglecting duties, market citizenship is unable to generate any sense of a life in common. To a certain extent, the rise of integration participates in the re-design of a society freed from these shortcomings.

V.  Lost in Integration? It is time to consider a less enthusiastic and emphatic approach to integration. We learn from sociologists that looking at the person through the prism of integration is anything but a neutral operation. Looking at the ‘social’, the embedded individual as it were, indeed always presupposes a given frame of reference, what Martucelli names a horizon d’interprétation.67 We cannot naively believe that the notion of social integration does not bring with it its underlying priorities and classification. As to EU law, we should note the complexity, the contradictions and possible consequences of a system based upon integration as the condition for rights. To this aim, I would pose four questions.

A.  Inclusion or Exclusion? It is necessary to turn back to the crude reality of positive law. Integration is a social fact (a given) but it is also a normative expectation; it is both an objective and a means, but it is above all a condition. Migration studies remind us that integration was raised in the world of immigration control. The previously distinct fields of migration control and immigrant integration ‘are now conflated’ and the integration domain is now potentially subordinated to the exigencies of migration control.68 Leaving apart the generous call of the Tampere Council, we can evidence, with Guild,69 the mutation of EU law at the beginning of the 2000s. The turning point was the development of a common legal framework ­covering the conditions of entry and residence of TCNs. Progressively, the functionalities attributed to the category of integration mutated significantly towards a more restrictive and immigration control trend. For TCNs, integration now is a new frontier to being considered as a legal migrant: it determines the legality or ­illegality of human mobility. This dark presentation stresses the potential exclusionary effects of integration. Scholars have denounced for a long time the fact that instead of being a

67 

Martucelli (n 53) 16. Z Yanasmayan, ‘European Citizenship: A Tool for Integration?’ in Guild, Groenendijk and Carrera (n 1) 96. 69 ibid. 68 

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social expectation and incentive (migrants must be integrated by society), ­integration has become a requirement (migrants must adapt to society). To be sure, the Court has recently stated that integration tests must respect the principle of ­proportionality.70 The aim of the test, the ECJ added, is not selection but ­integration.71 But the legitimacy of integration tests as a condition for entry and family reunification remains unchallenged. We also have to be aware of the potentially exclusionary role of integration tests and the possible biases in the criteria used to assess integration.72 Therefore, despite the Tampere call for equality of treatment between EU citizens and integrated TCNs, the exclusionary notion of integration remains dominant when TCNs are concerned. The expectation that the barrier between outsiders and insiders would not be designed on the basis of nationality has not been borne out in practice. If anything, social integration is an additional rather than an alternative condition to access rights. One interesting question, posed by Kostakopoulou et al,73 is whether the shift in the normative framing and meaning of integration in EU law dealing with TCNs is spilling over into other branches of EU law and affecting the notion of EU c­ itizenship. I suggest that we treat the question seriously. It appears, does it not, that the ECJ case-law shows signs of a restrictive tendency when it states that criminals are not integrated in a host society? Is prison not a place of socialisation, a place where people live together? I keep asking myself what is the relevant difference between Mr Nazli,74 a Turkish man in prison, and Mr Onuekwere who is a Nigerian with a criminal record married to an Irish woman. Despite his time in jail, Mr Nazli maintained his link to the employment market. On the contrary, Mr Onuekwere has broken his connection to the host society. In so deciding, is the Court not beginning to define integration as a reward for good behavior, rather than as the aim of the European project? The main limitation of integration is, while spreading through EU law, it has failed to engender a unitary regime where the person is the centre of gravity. The ‘integrated person’ remains a fragmented person:75 legally speaking, rights are granted to her, on an unpredictable case-by-case basis/inquiry, as a consequence of the recognition of her social peculiarities. What results is a fragmented EU citizen, with variegated rights according to personal circumstances. We observe no significant path towards the individual subject—the person—as a legally relevant being and we are forced to come to accept the steep inequalities76 inherited from market citizenship. The introduction of social integration has not generated a profound movement towards status unification. This differentiation has ­normative 70 

K and A (n 2). ibid, para 57. 72  Discrimination on the basis of gender, class, race, age and other categories that reflect unfair bias. 73  Kostakopoulou, Carrera and Jesse (n 1) 179. 74  Case C-340/97 Nazli, 10 February 2000. 75  I borrow the illuminating expression used by Marco Dani regarding the consumer, M Dani, ‘Assembling the Fractured Consumer’ (2010) 36 EL Rev 362. 76  O’Brien (n 51) 1649. 71 

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consequences. It entails a system with a limited notion of equality. We have learned from case-law on public order that breaching the duty of integration to the community carries different consequences for EU citizens and TCNs. While for the former, membership is presumed and irrefutable, for the latter rights are contingent on their continuing integration. Moreover marginalisation is now an issue in EU law. What if the person is not willing—or is not capable—to integrate? At what point is integration also becoming an injunction for EU citizens? The difference between a moral duty and a legal injunction can be fine. The risk is to marginalise lonely peoples, people who refuse to integrate into the traditional and main instances of collective life. Moreover, insofar as integration becomes a requirement of belonging to a society, we might become suspicious of those (migrants or, indeed, EU citizens) who resist the duty to integrate. In a sense, it becomes their responsibility if they are not granted rights. Fairness is at stake: what about an approach that instead emphasises the duties of society to protect the interests of the most vulnerable? I am asking to what extent the new rationale of inclusion/exclusion introduced by integration is more or less acceptable than the forms of exclusion entailed by market rationality and nationality.77

B. Emancipation? Thus far, I have portrayed the integrated wo/man as an emancipated person. She is presumed to be emancipated from her home State’s constraints, and she circulates easily from one society to another. Integration in her new society is the promise of a wider and better approach to the immensity of the world and its multiculturalism. This is, of course, a biased reading of EU law for at least three reasons. First, is it not the case that there is a contradiction in assuming an emancipated person when integration tests do not take—or only indirectly and negatively—her will into account?78 This does not coincide with the idea of the integrated person who is the master of her destiny. Secondly, in emphasising connections, belonging and membership, EU takes the risk to impose new forms of dependency. When ­marriage is a major presumption of integration, what about the possibility to leave your spouse if you are a TCN? The Court itself acknowledges the vulnerability of the spouse in such conditions.28 Thirdly and above all, my perplexity is about the logic underpinning the whole conception of integration. At first glance, the integrated wo/man is the

77  One may argue that with market rationality anyone can, formally at least, be a market player. In contrast, there is the risk with integration that we actively create a notion premised on in-groups and out-groups. 78  Or only negatively, with regard to the public order cases. In the Tsakouridis case, emphasis was indeed put by the Advocate-General on the absence of an intention to integrate.

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­ ost-modern wo/man, with multiple links and connections throughout Europe. p But with the emergence of social networking, the term social integration has a new meaning: it refers to the vantage of individuals who are transparent in all their various work, faith, personal and local community interactions. To wit, I wonder to what extent the logic of recognition entailed by the paradigm of integration is not susceptible to generate an injunction to transparency. Take the case-law again: whereas the EC worker was entitled to the right to reside in a Member State in the sole name of work, Ms Prete has to provide the details of her life: to whom she is married, what language she speaks at home, where she has been living. She has to explain how she sees her future. In other words, emancipation certainly remains high on the agenda of EU law. But whether integration does not have negative side effects remains an open question.

C.  What Solidarity? For Kostakopoulou, Carrera and Jesse,79 when integration is conceived of as an objective, it promotes a true ethic of solidarity in Europe. In EU law, in the name of integration, the British must pay for Mr Bidar and people from Luxembourg have to pay for German students studying abroad. Membership, once evaluated on the basis of de facto associative relations and connections brought about through residence, imposes de jure equal membership as far as possible. However, what type of solidarity derives from this order? At first sight community belonging is not defined on the basis of organic national qualities and cultural commonalities. But integration is not just about ‘being here’. As the Court has maintained since the Lassal judgment,80 length of residence is measured in qualitative time. It is a period whereby the individual connects to ‘the other’, learns a national language and customs, and roots her personal history in a collective destiny. In this reading lies the rationality of approximation, convergence towards the dominant way of acting and thinking of a host society. And to a large extent, the very notion of integration relies on an idea of conformity. It is frequently argued that market citizenship did not connote a collective sense of solidarity or of a shared endeavour. I do not fully agree. Solidarity of the ­market was akin to the organic solidarity described by Durkheim: solidarity based upon a strong differentiation of the functions. In the market economy, solidarity derives from interdependence: producers and consumers, service providers and takers need one another. To be sure, it is a limited form of solidarity but interdependence is a central category. It seems to me that integration relies on a very different approach: its rationale is conformity as far as possible. Are we thus constructing mechanic solidarity based on similarity? Are we suggesting that there is an

79  80 

Kostakopoulou, Carrera and Jesse (n 1) 172. Case C-162/09 Lassal, 7 October 2010.

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implicit obligation of conformity? This, I suggest, would be more than a change of paradigm for the EU based upon learning from difference and diversity. Of course, Carens acknowledges, it might be much easier for immigrants to be seen as members of society when immigrants resemble most of the existing population with respect to race, ethnicity, religion, lifestyle, values and so on. But these are not morally acceptable criteria of social membership.81 And if it is commonplace to assume that in Rome you should do as the Romans do, some demands for conformity are unreasonable when they ask too many changes and adjustments.

D. Conservatism? Finally, I would suggest that we return to the emancipating function of the ­European project. Integration through the market was supposedly virtuous in its capacity to challenge national borders. As for the project of a European citizenship, it offered the prospect of a supranational community, an idea ‘that expresses the claim that the nation-state is becoming decentered as the locus of our collective institutional and affiliative lives’.82 For cosmopolitan thinking, the ambition was that of genuinely post-national citizenship where rights are inherently individual and universal, and not circumscribed though the particularity of membership in a nation-state.83 The introduction of integration suggests a different path. It is true, the nationstate clearly is no longer the sole provider of individual rights and EU law plays a major role in the inclusion and exclusion of individuals. In the EU citizenship case-law, national tests of integration are under strict European scrutiny. In the name of integration, the discriminatory function of nationality is eroded. But Mr Bidar must be integrated in ‘British’ society and whether he is integrated is evaluated by Britain alone. The integration test evaluates and values integration into ‘national’ not ‘European’ societies. Thus, it remains to be seen how it will evolve and whether EU law and the ECJ can avoid a process of re-nationalisation of the condition of the persons. Kochenov is rather pessimistic when he observes that the ‘genuine links jurisprudence’ of the Court is in direct tension with the liberal essence of EU citizenship. We cannot deny that there is a danger ‘in allowing the “genuine links” to become a push for the acceptance of ­State-level ­mythology’.84 The challenge is to invent legal solutions to encourage Member States not to conceive of the l­egitimate link of integration only with the narrow bonds of the

81 

Carens (n 11) 176. L Bosniak, ‘Denationalizing Citizenship’ in Aleinikoff and Klusmeyer (n 11). 83 EDH Olsen, ‘European Citizenship: Towards Renationalization or Cosmopolitan Europe’ in E Guild, CJ Gortázar-Rotaeche and D Kostakopoulou, The Reconceptualization of European Union ­Citizenship (Leiden, Brill Nijhoff, 2014) 346. 84  D Kochenov, ‘The Essence of EU Citizenship Emerging from the Last Ten Years of Academic Debate: Beyond the Cherry Blossoms and the Moon?’ University of Groningen Faculty of Law Research Paper Series 02/2014, 129. 82 

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national c­ ommunity ‘but also within the wider context of the society of peoples of the Union’, as Advocate General Maduro suggested in his Opinion.85

VI. Conclusion With integration becoming a central element of EU law, we are witnessing the rise of new figures and of new modes of allocation of rights. The predominant economic model of personhood is altered. We now have to evaluate the normative side of the evolution. I offered a more optimistic view in presenting the possible benefits of a system guided by the notion of integration, for both EU citizens and TCNs living in the EU. This chapter has also emphasised some of the possible sideeffects of integration becoming the main axis for the allocation of rights. In a sense, what is currently being achieved in EU law has common features with the regime of social membership called for by Carens.86 In a system based upon social membership, it is indeed not—national—citizenship but social ­membership that tends to provide the basis for moral claims to most legal rights. This is why social membership is, following Carens, an ‘in-between’ theory between c­osmopolitan thinking, which goes too far in denigrating the significance of belonging (‘cosmopolitans’ think that everyone within a state ought to enjoy the same legal rights) and the traditional nation-based system of rights that emphasises ­citizenship. Of course, adjustments need to be made and social membership theory remains an abstract model. But Carens incites us to imagine a new mechanism of allocation of rights and to provide new perception of the person. In a sense, the rise of integration is an opportunity for jurists: it opens the floor to creative thinking. The turn is ambitious: it is political, philosophical and linguistic. Because what is at stake is more than simply the challenge of overcoming the national/European divide or the economic/non-economic divide. Above all, the challenge is to define broadly the ‘social’ in social integration. We need a conception of the social that does not refer to a single system of social relations, a single interpretation of belonging, but a truly pluralist and European notion of social integration.

85  86 

Case C-499/06 Halina Nerkowska EU:C:2008:300. Carens (n 11) 159 ff.

9 The European Individual as Part of Collective Entities (Market, Family, Society) LOÏC AZOULAI

I. Introduction There is something profoundly anarchical about EU law’s core concept of the individual. It is a concept that combines an aspiration to self-realisation and the opportunity to opt for different territories, lifestyles and regulatory systems with the corresponding capacities to challenge the barriers to leave one’s own country and to question the prevalence of the nationality bond in ever broader fields of social life.1 To be sure, there are practical limits to this concept. It does not apply— or at least not in the same way—to a whole range of individuals who are not Union citizens or are not part of the inner circle of EU law’s privileged ­people.2 But, even when Union citizens are concerned, there are limits to the individual’s capacity to contest state prerogatives. Under EU law, the autonomy of individuals must yield to society’s commitment to public policy and public ­security.3 However, these ­limits are traditionally construed so narrowly that they are not so burdensome as to invalidate the notion of the ‘transnational sovereignty’ of the European ­individual.4 Against this background, the story often told is one of national

1 

See D Kochenov, ‘EU Citizenship Without Duties’ (2014) 20 European Law Journal 482. non-Union citizens under EU law are primarily family members of Union citizens and nationals of States parties to the European Economic Area Agreement. The definition of family ­members is provided by Art 2.2 of Dir 2004/38/EC on the right of citizens of the Union and their ­family members to move and reside freely within the territory of the Member States [2004] OJ L158/77. 3  See in general T Corthaut, EU Ordre Public (The Hague, Kluwer Law International, 2012) and N nic Shuibhne, ‘Limits Rising, Duties Ascending: The Changing Legal Shape of Union Citizenship’ (2015) 52 Common Market Law Review 889. 4  By analogy with René Demogue’s statement that the French Civil Code relies on the defence of the ‘sphère de souveraineté de chacun’. See on Demogue’s conception of the legal subject, the contribution by Hans-W Micklitz in this volume. 2  Privileged

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ties becoming less pronounced and thus making space for greater i­ndividual ­emancipation and self-determination, and yet, leading to frustration and isolation for those unable to practically benefit from these capacities. To affirm the sovereignty of the individual in the EU law context is not to affirm pure individualism. Pure individualism is the view that individuals are entirely inward-looking beings for whom only individual goods, and no collective goods, matter. In this perspective, group membership and a sense of community are of no intrinsic value. What we perceive with EU law is of a different nature. I should like to suggest that EU law strives to convert European individuals into members of social spheres external to the political system of the country of origin, with the possibility to circulate among these spheres, establishing links between them, occasionally pitting one entity against another. Hence, by this definition, EU law is not individualistic. Yet, it is not holistic either: the whole point of EU law is not to connect E ­ uropean individuals to the Union as a unifying whole in which they would feel part of the same inclusive community. There is no genuine social and political integration transposed to the Union level by EU law. Clearly, the conditions for the creation of a shift in allegiance from Member States to the Union and the creation of mutual reciprocity among Europeans are not currently met.5 ­Individuals do not get from EU law a sense of belonging to an overarching community of life and destiny. What they get is an opportunity to integrate into and circulate among territories as well as various social and institutional spheres prevalent in the Member States. EU law is a conceptual world in which the individual’s participation into preexisting institutional contexts rooted within the Member States is key. Rights to produce, trade, acquire and exchange goods, provide services and develop all kinds of activities are granted to free individuals but they aim at their participation in an institutionalised marketplace. More broadly, EU law aims at the individual’s participation in institutions such the workplace, the family or the educational ­system.6 Crucially, these spheres are seen as collective entities in which individuals are allocated a place and a specific role. As a result, EU law allows individuals to be part of collective entities to which they do not exclusively and definitively belong. It allows them to move across these entities, establishing links between their roles as market agent and as family member or between the family member

5  C Kantner, ‘Collective Identity as Shared Ethical Self-Understanding. The Case of the Emerging European Identity’ (2014) 17 European Journal of Social Theory 407; P Lomba, ‘Constructing a “We”: Collective Agency and the European Union’ in M Cremona et al (eds), Reflections on the Constitutionalisation of International Economic Law. Liber Amicorum for Ersnt-Ulrich Petersmann (Leiden, Nijhoff Publishers, 2014) 97. 6  This chapter focuses on participation of individuals in social spheres of activity and institutional systems and not on recognition of social or cultural groups. See on the latter issue the contribution by Robin Olivier in this volume.

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and the fellow of the educational system. Thus EU law has not only a transnational ­dimension.7 It has what may be called a ‘trans-institutional’ dimension. The problem of the legal constitution of the person in the Union then entirely devolves to that of describing this process of integration of individuals and the implications this may have upon the social and institutional contexts and upon individuals. As regards individuals, the constant challenge EU law faces is to put them in a position to emerge from these specific institutional contexts, to free themselves from their multiple assigned roles and to reconstruct themselves through their own stable set of social relationships. Only this, I will argue, may give EU law a particular ‘personalist’ meaning. It is personalist if it is able to focus not only on individual rights and specific roles but on rights and roles of the ­individual as part of broader relations with others embedded into society.

II.  The Trans-institutional Individual Even though the idea that Europeans may live, at least partially, in material, social, political and moral conditions forming a far-reaching European society is ­attractive, it does not give an adequate description of the way EU law actually operates. EU law departs not only from the notion that genuine forms of ­belonging are restricted to relations developed within each nation taken separately but also from the notion of an unmediated connection to Europe as a whole. Admittedly, the notion of the Union as a meaningful framework for mutual identification is not absent in EU law. Thus, it has been suggested that, through its operation and its free movement provisions in particular, a ‘connection is woven in a wider sphere’ and, ‘as a result, the notion of European belonging is created, which the Treaties seek to strengthen’.8 This reference was maintained as an elegant fiction used to facilitate the implementation of EU law. However, it did not substantiate into s­pecific rights or special ties within a genuine European community of shared feelings and shared ends. Instead, the task of EU law is mainly to grant individuals rights that make them ‘integrable’ into institutions that derive from the pre-­structuration of national societies, irrespective of the individuals’ legal categorisation under the law of their country of origin. Granted an opportunity to carry out activities across local and national boundaries, individuals are put in a position to circulate among various social spheres and institutions and

7 On the transnational dimension of EU law in particular its EU citizenship provisions see A Iliopoulou Penot, ‘The Transnational Character of Union Citizenship’ in M Dougan, N Nic ­Shuibhne and E Spaventa (eds), Empowerment and Disempowerment of the European Citizen (Oxford, Hart ­Publishing, 2012) 15. 8  Opinion of AG Ruiz-Jarabo Colomer in Case C-228/07 Petersen EU:C:2008:494, para 31.

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to ­establish their own ensemble of social relations. This chapter focuses briefly on three prominent institutional spheres: the marketplace, the family and social systems regulated by the Member States.

A.  The Marketplace The language of the Court of Justice attests to the integrative character of the relationship of individuals to the marketplace, particularly the employment market. To decide on EU law’s issues the Court assesses whether or not a person ‘belongs’ to the employment market.9 However, this integration is clearly of an instrumental and provisional nature. Individuals are turned into legal subjects, recognised qua worker, employer, producer, consumer, service provider and so on, with a view to create a new institutional order originally labelled the ‘Common Market’ and now framed as the ‘Internal Market’. EU internal market law is about the partial transformation and merging of local markets. How is it possible to establish a genuine new order by relying on domestic socio-economic structures? It is the very problem the Court of Justice has been confronted with. It has been resolved by equipping individuals with rights and resources such as to facilitate their circulation among these structures and to integrate into them. The basic operation carried out by EU law is a twofold one. The first one aims at emancipating individuals from the legal and territorial boundaries of domestic markets and their regulatory structures. This may be done simply by overturning the preferences imposed on individuals and maintained by national legislation or, in a more sophisticated way, by granting individuals a capacity to move whilst keeping the protection of the home state intact. The free movement of goods is a good example of the former, the construction of a transnational healthcare space an illustration of the latter.10 In both cases, be it the importer of goods or the transnational patient, this construction presupposes the emergence of the category of the rational agent, who is active and self-organised, able to make autonomous decisions in the market beyond the boundaries of the domestic orders, provided that she is secured a sufficient level of information. In addition to the agency deriving from the rights to free movement, the EU law’s definition of the market agent includes her responsibility for the knowledge she has on the market. The second operation consists in ensuring that individuals are put in a position to access, effectively, every market in the Union. This presupposes the implementation of legal principles (non-discrimination and proportionality as the most important ones) and legal mechanisms (mutual recognition and harmonisation

9 

See eg Case C-507/12 Jessy Saint-Prix EU:C:2014:2007, para 41. On free movement of goods see eg Case 15/81 G Schul EU:C:1982:135; Case C-90/96 Zoni 1988 EU:C:1997:553; on patients’ rights in cross-border healthcare see typically Case C-372/04 Watts EU:C:2006:325. See also and more broadly D Chalmers, ‘Gauging the Cumbersomeness of EU Law’ (2009) 62 Current Legal Problems 405. 10 

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as the main ones) but also various forms of social mobilisation within and across social and economic networks which is sometimes called, albeit loosely, the formation of a ‘European civil society’.11 This move to transnational market integration has been captured by Advocate General Poiares Maduro in the broad following terms: the fundamental objective of the principle of free movement of goods is to ensure that producers are put in a position to benefit, in fact, from the right to carry out their activity at a cross-border level, while consumers are put in a position to access, in practice, products from other Member States in the same conditions as domestic products. Such was the intention of the Treaty draftsmen; such has been the approach of the Court which implemented it … the Treaty provisions … aim to guarantee the opening-up of national markets, offering producers and consumers the possibility of fully enjoying the benefits of a Community internal market.12

Interestingly, these words come very close to the canonical language of the US Supreme Court in its interpretation of the commerce clause of the United States Constitution.13 This is not surprising. Both Courts have been engaged in a process through which individuals are given the opportunity to work their way out of the relations of embeddedness developed within domestic markets. Individuals are put in a position to make their own set of relations in a transnational context specifically created for them. However, this construction aimed at emancipation may easily turn into a form of alienation for individuals. Take the classic case-law of the Court on alcohol from the 1980s as an illustration of this process. In these cases, the consumer is constructed as an individual who is to be delivered from domestic industrial ­preferences. As stated by the Court, Member States’ legislation ‘must not ­crystallise given consumer habits’ in a Member State or in a given region.14 To break away from this regime of ‘domestication’, the consumer is detached from the specific context in which she lives and assimilated to a social group: the Court refers

11  On the institutional and ideological aspects of this construction see J Weisbein, ‘Sociogenèse de la “société civile européenne”’ (2003) 10 Raisons politiques 125. 12  Opinion of AG Poiares Maduro in Joined Cases C-158/04 & C-159/04 Alfa Vita Vassilopoulos and Carrefour Marinopoulos EU:C:2006:562, paras 37–39. 13  ‘Our system, fostered by the Commerce clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have access to every market in the Nation, that no home embargoes will withhold his exports, and no state will by custom duties or regulation exclude them. Likewise, every consumer may look to the free competition from each producing area in the Nation to protect him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of the Court which has given reality to it’. (US Supreme Court HP Hood and Sons 336 US 525 [1949]). More surprisingly, the Advocate-General’s words also resonate with the following sentences drafted by the young Marx in The German Ideology (1846): ‘The real wealth of the individual depends entirely on that of his real and effective relations. It is only this way that individuals are delivered from the various national and local barriers, put in practical contact with the production (including that of the spirit) of the whole world, and become capable of acquiring the capacity to enjoy the production of the entire world in all areas’. Of course, such proximity in wording is not to suggest proximity in thinking. 14  Case 170/78 Commission v United Kingdom EU:C:2006:562, para 8.

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indeed to ‘consumers’ habits’.15 Then this group is made subject to an impersonal driving force: ‘the establishment of the common market is one of the factors that may play a major contributory role in [the fact that consumers’ preferences may change]’.16 As a result, consumers’ preferences are framed by the Court’s preferences fostering the ‘unity of the common market’. In other words, consumers are legally transformed into objects and integrated into a de-personalised order of commodities. We are a long way from the idea of a social contract among nationals of the Member States which is supposed to be the basis for the construction of a new ‘constitutional subject’ and a new EU ‘constitutional order’.17 Rather, what we have is a kind of ‘social contract among commodities’.18 Rather than an active subject, the person experiences herself as a passive object.19 This mode of ‘personalisation’ has traditionally been called ‘alienation’.20 Individuals are integrated into the formation of a collective in the form of a ‘union of consumers’ governed by the teleology of the common market whose representative is the Court of Justice. This is not, however, the only form of mutation of the individual through this process of market integration. There are cases in which the position of the individual results not only from the consideration of the construction of the internal market but also from the consideration of the many entangled social relations she may have. At this point, the Court of Justice deviates from its conceptualisation of the individual in the strict terms of rational agent. The Aziz judgment is a case in point.21 In this case, the Court struck down the mortgage loan agreement system in Spain on the ground that it does not take into account the forms of social links established by individual consumers. The fact that the contract concluded by the person concerned led to the definitive and irreversible loss of his ‘family home’ was deemed to change his legal position. In such a case, the Court was keen to protect the consumer despite the express terms of the contract. This is so because without this protection the individual would be deprived of ‘an asset that meet his essential need’, namely his family home and family relationships.22 In other words, an individual separated from the family and the rest of society is regarded as vulnerable to external coercion and broader market forces. Although Mr Aziz remains a market participant engaged in a commercial transaction, he is made legally consistent by his many personal and institutional ties. Through this interpretation we do not obtain a moral subject, a person detached from context. We obtain an active market agent connected to other individual existences as

15 ibid. 16 

Case 178/84 Commission v Germany EU:C:1987:126, para 32. JHH Weiler, ‘To be a European Citizen. Eros and Civilization’ (1997) 4 Journal of European Public Policy 495. 18  E Balibar, ‘Le contrat social des marchandises: Marx et le sujet de l’échange’ in E Balibar, Citoyen Sujet et autres essais d’anthropologie philosophique (Paris, PUF, 2011) 327–28. 19  R Jaeggi, Alienation (New York, Columbia University Press, 2014) 3. 20  See the contribution by Alexander Somek in this volume. 21  Case C-415/11 Mohamed Aziz EU:C:2013:164. 22  Case C-169/14 Sánchez Morillo EU:C:2014:2099, paras 38 and 48. 17 

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well as non-market institutions. The legal situation of the individual concerned is framed as the point of refraction of broader contexts: the family and the society at large in addition to the market. This marks a shift from the rational agent to a form of relational individual.23 The same pattern may be detected in relation to family issues.

B.  The Family Under EU law the family tie is traditionally conceived as a particular form of the rights-based approach prevailing in internal market law. The Court has e­ stablished a link between the exercise of free movement rights and the need for the fullest possible integration of the migrant’s family.24 In this case-law, the protection of family life is a trigger for the integration of the Member States’ nationals into the internal market. The justification for this link has been premised on human dignity.25 But dignity here is not a source of universal rights; it is the ground used to provide certain individuals—the Member States’ nationals—with the p ­ re-­conditions required to fully enjoy their free movement rights and market agency. Dignity is instrumental to the smooth functioning of the internal market. The rights-based approach has been progressively extended to the field of family law. As enriched by the law of Union citizenship, this results in the figure of a rational and self-organised individual, capable of expressing her own preferences in an environment composed of different jurisdictions and capable of choosing the law applicable to her situation.26 In this context, individuals are granted a new type of rights. These are not tradable rights but rights to enjoy an area of freedom, security and justice without frontiers. These rights may be broken down into two main prerogatives: on the one hand, the possibility of detaching from the exclusive national setting and the nationality bond; on the other hand, the possibility of integrating into another form of community that the Court calls ‘the social and

23  See for an analysis of this shift from another perspective the contribution by Hans-W ­Micklitz in this volume. See also G Comparato and H-W Micklitz, ‘Regulated Autonomy between Market F ­ reedoms and Fundamental Rights in the Case Law of the CJEU’ in U Bernitz, X Groussot and F Schulyok (eds), General Principles of EU Law and European Private Law (Aldershot, Ashgate, 2013) 121 where the expression of ‘constitutionalised consumer/subject’ is used to capture this figure. 24 See typically Case C-370/90 Singh EU:C:1992:296, para 23; Case C-60/00 Carpenter EU:C:2002:434, para 39. 25  As recalled by the Court in Case C-308/89 Di Leo EU:C:1990:400, para 13. See 5th recital of Reg (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community OJ (1968) 475. 26 See for eg Council Reg (EU) No 1259/2010 of 20 December 2010 implementing enhanced ­cooperation in the area of the law applicable to divorce and legal separation (OJ 2010 L343/10) and Reg (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ 2012 L201/107).

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family environment’.27 The own setting of the family member is not the nation state nor the enlarged internal market but a set of social relations organised around family ties whose continuity and permanence are secured beyond and across the boundaries of domestic jurisdictions. Parallel to the construction of the market participant, the construction of the family member presupposes new methods and mechanisms (the method of recognition, new means of ­enforcement)28 as well as new institutional arrangements (essentially, an enhanced form of judicial cooperation).29 There are cases, however, in which the Court has departed from this ­framing of the family member as a self-organised agent, turning towards the figure of r­elational individual, ie someone who acquires her status through inter-­ personal relationships. Through the case-law of the Court, these relationships mainly consist of relations of care and dependence. Consider for instance the famous Baumbast and R case.30 At first glance, it may seem a typical instrumental approach to free movement informed, as it is, by traditional humanistic ­considerations about the dignity of the human being. The mobility of workers has its pre-­conditions and one of these is the integration of the family members of migrant workers. According to the Court, even though a worker ceased to work or separated from his spouse, it is important ‘from a human point of view’ that his children can complete their education in the host society.31 That is to say, work mobility and dignity of the person stand in a dialectical relationship. But what about the separated mother who is not classified as a ‘migrant worker’? Can she maintain herself in the host society? In the construction of the Court, the children, not their mother, derive their status from work mobility and the ‘good of the market’. The classic instrumental approach would deny any right to the separated mother. Yet she is granted a right to reside. To make this possible, the Court portrays the mother as featuring in a special relationship with her children. This link is based on care and dependence. The mother is seen as the ‘primary carer’ of her children.32 From an analysis of the Court’s reasoning, it is clear that this relationship is not reducible to the functional link between a market agent and her ‘appendage’. Nor is it reducible to a form of universal human relation between mother and child. It is based on a specific relational link

27  Case C-523/07 A EU:C:2009:225, para 38. See also H Stalford, ‘For Better, For Worse: The Relationship between EU Citizenship and the Development of Cross-Border Family Law’ in Dougan, Nic Shuibhne and Spaventa (n 7) 225. 28  On recognition see P Lagarde, ‘La reconnaissance, mode d’emploi’ in Ancel et al (eds), Vers de nouveaux équilibres entre ordres juridiques. Liber amicorum Hélène Gaudemet-Tallon (Paris, Dalloz, 2008) 481 and H Fulchiron, ‘La reconnaissance au service de la libre circulation des personnes et de leur statut familial dans l’espace européen’ in L D’avout et al (eds), Mélanges en l’honneur du Professeur Bernard Audit. Les relations privées internationales (Paris, Lextenso, LGDJ, 2014) eds. 29  See on these arrangements E Pataut, S Bollée, L Cadiet and E Jeuland (eds), Les nouvelles formes de coordination des justices étatiques (Paris, IRJS Editions, 2013). 30  Case C-413/99 Baumbast and R EU:C:2002:493. 31  ibid, para 68. 32  ibid, para 26.

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and on a particular form of knowledge, ie a knowledge about child-raising. As further developed in other cases, the mother is invoked as a person whose ‘presence and care’ are required.33 Her legal r­ elevance entirely depends on presumed ‘emotional ties’ with her children (who may be adult ­persons).34 As a caregiver, she has no autonomous existence outside this ­relationship. She is tied to this relationship in a specific role-playing way.35 But how is this relationship brought about? How can this derivation be justified if not on the ground of market integration? In the case, the grounds that justify the relationship are, primarily, the right to education granted to the child and, secondarily, the child’s financial and/or emotional dependence. The possibility of going to school and to pursue further education is seen as a ‘condition for the best possible integration of children of migrant workers in the social life of the host Member State’.36 It seems that the nexus family ties/education/integration into society is crucial to understand this development. As Hegel famously wrote in paragraph 158 of his Philosophy of Right, ‘in a family … one is in it not as an independent person but as a member’. Family membership is used here as a proxy for social membership. Implicit is the idea that children of migrant workers are ideal vehicles for bringing about a new social space in the Member States structured around the values of mobility and promotion of education enshrined in the EU legal order.37 As a result, the setting up of a care relationship within the family is complemented and somewhat ensured by an exteriorisation of this intimate ­relationship into broader social links. It is a set of links and social relationships which emerges from this case. The term that may best capture this outcome is ‘status’.38 The Court has created a status which is not reducible to a set of personal traits. It is based on objective traces of dependency and social integration. Yet, it is not about protecting a group either. It is not about family life as such. It is not about family as a mini-society, a separate world with its own ‘constitution’. It is the individual as a member of various groups, participating in a family relationship as well as in an ensemble of social relations, who is protected.39 Consistent with the market participant, we are left here with a rather cloudy separation between individuals and the many institutions in which they are integrated or the relationships in which they are engaged.

33  This conception has been out-worked in more recent cases presenting similar situations: see Case C-310/08 Ibrahim EU:C:2010:80; Case C-480/08 Teixeira EU:C:2010:83. 34  See Case C-529/11 Alarape and Tijani EU:C:2013:290 para 30. 35  This finding resonates with Starthern’s reflection on the anthropology of kinship: M Strathern, ‘Kinship as a Relation’ (2014) 210 L’Homme 43, 57. 36  Opinion of AG Kokott in Case C-480/08 Teixeira (n 38) para 62 (my translation). 37  See Case C-20/12 Greisch EU:C:2013:411. 38  See the contribution by Etienne Pataut in this volume. 39  On the idea that ‘what requires recognition is not group-specific identity but rather the status of individual group members as full partners in social interaction’ see N Fraser, ‘Why Overcoming ­Prejudice is Not Enough: A Rejoinder to Rochard Rorty’ (2000) 1 Critical Horizons 21, 23.

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C. Society Until recently the state had no special position as an instance of integration of individuals under EU law. This is so because the original ‘partial’ nature of the European project left outside its scope the core of welfare policies, membership policies, political citizenship and activities related to the exercise of state official authority. National governments representing the nation states were involved, of course, in all disputes concerning access to the market or family reunification since their territory and regulatory structures may be affected. But it is not until EU law has penetrated all the areas of competence of the Member States including welfare and membership policies (areas such as social protection, education, taxation, civil status, immigration), a phenomenon that originated in the mid 1990s, that the state as a regulator and actor in social life is considered as a proper instance of integration for European individuals. Integration now also concerns what is characterised in the case-law as ‘retained powers of the Member States’.40 The reaction of EU law to claims of integration into state regulatory structures and national forms of membership can be stated very simply as follows: EU law is keen to release individuals from their original political allegiances and foster their integration into settings defined as the ‘society of the Member States’. It is most likely the society of the host State but it may be the home State in case of circular migration.41 Integration into society instead of political community means integration into a group of people whose members are bound by various kinds of connecting factors based on residence, employment, family ties, education and so on, and not exclusively or primarily by the nationality bond. This is what the Court terms as ‘real links’.42 Depending on the kind of access requested (access to territory and residence, access to employment, access to different kinds of social benefits or access to civil status), different forms of social integration may be required.43 In some cases the mere fact of being present, located in the territorial jurisdiction of the host State, will be sufficient. The Trojani case is the best illustration of this extreme.44 In other cases, such as cases concerning the granting of permanent residence, ‘qualitative elements’ relating to the assimilation of cultural elements and compliance with the values of the host society will be required.45

40  L Azoulai, ‘The “Retained Powers” Formula in the Case Law of the European Court of Justice’ (2011) 4 European Journal of Legal Studies 192. 41  See the contributions by Floris de Witte and Ségolène Barbou des Places in this volume. 42  See eg Case C-209/03 Bidar EU:C:2005:169. See in general C O’Brien, ‘Real Links, Abstract Rights and False Alarms: The Relationship between the ECJ’s “Real Link” Case Law and National Solidarity’ (2008) 33 European Law Review 643; PJ Neuvonen, ‘In Search of (even) more Substance for the “Real Link” Test: Comment on Prinz and Seerberger’ (2014) 39(1) European Law Review 125. 43  On variability of the real link test in the social benefits area see Case C-75/11 Commission v ­Austria EU:C:2012:605, para 63. 44  Case C-456/02 Trojani EU:C:2004:488. 45  See eg Case C-325/09 Dias EU:C:2011:86, para 64.

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This shift from political communities to social constituencies and social s­ ystems as frameworks of integration has a clear purpose. Unlike bounded political communities, societies and discrete social groups are deemed to be capable of mutual recognition. The institutional and personal parties to these groups, be they hospitals and patients, universities and students, tax authorities and taxpayers or social security and insured persons, may develop direct relations even though they do not belong to the same nation or, if they do, do not operate within the same national borders.46 Through the operation of EU law, the political and administrative authorities of the Member States are bound to recognise these special links and to draw all the necessary consequences from them. They are asked to consider these relations from an impartial and fair point of view in order to take into ­consideration all the features of the situation involved.47 This is clearly illustrated in the case-law on surnames. The regulation on ­surnames is a central part of the State policy on individuals’ recognition and composition of its population. In this context, EU law’s intervention means special protection for individuals who have developed multiple affiliations within the Union, whether they are nationality bonds, family or professional ties. The core of the EU law regime consists in imposing on Member States the obligation to grant a legal status corresponding to the concrete life of these European individuals who are anchored in different points of the European territory. That this regime collides with a state territoriality concern recognised by the Court as a public policy concern is not surprising.48 The attribution and change of surnames is seen as a traditional state attribute essential to the identification of persons within a polity. Accordingly, in Garcia Avello, the Belgian government argued that the immutability of surnames guaranteed by the state is a ‘founding principle of the social order’ justified by the objective of promoting integration into, and equality of, individuals in Belgian society. The Court famously replied that naming and parentage ‘­cannot be assessed with the social life of one Member State only’.49 The situation of the individual concerned has to be re-positioned within a wider social context, reconceived at the European level. This pre-empts, in practice, Member States to recognise the status of multi-anchored individuals within their legal order and to organise their integration into the host society. In these cases, EU law stands in striking contrast with the conceptualisation of the person in national law. In the latter, the acquisition of civil status and surname precedes and conditions opportunities for social and economic integration. In EU law, the recognition of a single legal status is more outcome than premise. It is the legal consequence of concrete and discrete connections in different societies.

46  See more broadly A Sen, ‘Justice across Borders’ in P De Greiff and C Cronin (eds), Global Justice and Transnational Politics (Cambridge MA, The MIT Press, 2002) 37. 47  See, for example, Watts (n 10) para 116. 48  Case C-353/06 Grunkin & Paul EU:C:2008:559, para 38. 49  Case C-148/02 Garcia Avello EU:C:2003:539, paras 40 and 42.

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Moreover, in this construction, multi-anchorage refers not only to connection to different domestic societies but also to a multifaceted and entangled social life. To make this clear, a comparison with the famous Wagner decision of the European Court of Human Rights is in order.50 In that decision, the European Court of Human Rights forced the Luxembourg authorities to recognise an adoption judgment passed in Peru as legally valid. It referred to the ‘social reality’ of the situation created under Peruvian law. But, in Wagner, social reality essentially means family ties as attested to by foreign law. By contrast, in the Court of Justice’s case-law on surnames, the family perspective is only one aspect of the situation. What really matters is that the individual concerned is ‘closely connected’ to different societies and to different aspects of social life: the family, the profession, the social protection or the education system. In these cases, the Court’s concern is not so much the preservation of a family group but to secure a smooth mode of circulation of individuals between these distinct social spheres and institutions.

III.  Personal Implications This approach has restructuring effects on both institutions and individuals affected. At the level of institutions, the effect on the one hand is one of affirmation. On the face of it, EU law does not intend to undermine the underlying normative principles and basic structures of the domestic market, the family, the host society and the state. This explains, for instance, how the Court had for a long time a rather conservative conception of the family (which finds its origins in marriage and consists of husband, wife and children).51 It reflected the status quo in the social orders of the Member States. By the same token, it should be recalled that the integration of individuals into welfare state policies rests on a distinction between access to social goods and the kind of social goods and benefits that they can access. Only the former is governed by EU law while the latter are entirely shaped by the Member States and their territorial principle of solidarity. The affirmative dimension of EU law is reinforced by the recent introduction of the symbolic references to ‘national identity’, ‘constitutional identity’ and ‘constitutional history’ in the EU law discourse.52 On the other hand, however, it

50 ECtHR 28 June 2007 req no 76240/01. The recent ECtHR Jeunesse v The Netherlands case (3 ­October 2014, app no 12738/10) points in the same direction. 51 On the conservative ‘categorical schemes’ institutionalised within traditional EC law see K ­Armstrong, ‘Legal Integration: Theorizing the Legal Dimension of European Integration’ (1998) 36 Journal of Common Market Studies 155, 165; L Ackers, ‘Women, Citizenship and European Community Law: The Gender Implications of the Free Movement Provisions’ (1994) 4 The Journal of Social Welfare & Family Law 367. 52  Art 4(2) TEU and Case C-208/09 Sayn Wittgenstein EU:C:2010:806; Case C-391/09 Vardyn & Wardyn EU:C:2011:291. See further L Azoulai, ‘The ECJ and the Duty to Respect Sensitive National Interests’ in M Dawson, B De Witte and E Muir (eds), Judicial Activism at the European Court of Justice (Cheltenham, Edward Elgar, 2013) 167.

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cannot be denied that EU law has a clear transformative effect. As is made clear by the Court itself, the operation of EU law leads States to ‘make adjustments to their national systems’.53 Adjustments entail costs. The structure of national systems such as the healthcare system and institutions such as the family must be re-programmed such as to allow for the integration of European individuals. EU law aims essentially at correcting inequitable outcomes in specific individual cases. This inevitably ends up imposing structural reforms on national systems and local settings.54 As regards the position of individuals, the implications of the EU law approach can also be further developed in contrasting directions. There are both protective and destabilising effects.

A.  The House of European Individuals By situating individuals disaffiliated from the country of origin in a set of social relations, EU law provides an anchor for their self-identification and for their recognition by local, national and supranational authorities. It creates the conditions assuring the integrity, consistency and permanence of the connection of these individuals with their own social environment. This is what we have called a ‘status’ following a traditional legal term. It should perhaps be called a ‘house’ by reference to the term coined by Lévi-Strauss and developed by the anthropology of kinship: a house is an analytical category used to describe collective entities or social units which bring together aspects of social life which have previously ignored or treated separately and which perpetuate themselves through the transmission of their name.55 Our discussion of EU law suggests a similar construction: the identification of fragile and complex social relations to which EU law lends recognition, integrity and continuity. If the language of EU law is about the ­market, it is no less about care and dependency and just as much about family and education as it is about production and consumption. What certain individuals may expect from EU law is to secure their entangled social lives, ie their identities, in cross-border situations of disaffiliation and vulnerability. It is not by chance that the issue of surname is central in this construction. It should be clear, however, that this position is reserved to certain individuals, the Member States’ nationals to the exclusion of third-country nationals who are not family members of Union citizens. It is also restricted to certain forms of social and family relations to the exclusion of less conventional ones.56 But, for

53 

Watts (n 10). G Davies, ‘The Price of Letting Courts Value Solidarity: The Judicial Role in Liberalizing Welfare’ in M Ross and Y Borgmann-Prebil (eds), Promoting Solidarity in the European Union (Oxford, Oxford University Press, 2010) 106. 55  C Lévi-Strauss, The Way of the Mask (Seattle, University of Washington Press, 1982) 184; J Carsten and S Hugh-Jones (eds), About the House. Lévi-Strauss and Beyond (Cambridge, Cambridge University Press, 1995). 56  See n 51. 54 

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individuals securing this position, it results in changing the sense of belonging to a community. European individuals do not integrate into societies as nationals sharing the same grounded sense of identity. Their integration is not based on complete assimilation. They remain ‘outsiders’ within national settings.57 This is also the case of nationals returning to their country of origin when their position is based on EU law. They acquire an identity under EU law not by assimilating but from identification with a set of social relations of their own. They do not find in these relations the pervasive culture and the rooted bond distinctive of ‘encompassing groups’ such as nation states.58 Recalling a famous representation, one might say that the first moment of emancipation and the second moment of social integration are not surmounted by membership in a whole as in Hegel’s theory of the state. This may, of course, have a destabilising effect.59 It may cause social pathologies, a feeling of homelessness, apathy and passivity leading one to separation from community.60 This may help explain the introduction in the Court’s case-law of the language of ‘destiny’ in Union citizenship law as a way to remedy a form of personal inconsistency: ‘Union citizenship is destined to be the fundamental status of nationals of the Member States’.61 If it does not currently exist, the community of those who are not exclusively tied to nation states may well arrive—predicts the Court. Moreover, this sense of indetermination may explain the ‘normative turn’ taken by the Court in recent cases: compliance with the values of the host society is a way to give a stronger anchor to the social integration of disaffiliated European individuals whilst apparently avoiding the determinations of strict cultural assimilation.

B.  The Normative Turn in EU law In recent cases, the Court of Justice used metaphorical language. In its ­Onuekwere judgment, the Court referred to the situation of an individual who d ­ emonstrates a lack of ‘feeling of Union citizenship’ and draws legal consequences from this.62 In the Ruiz Zambrano case, it referred to the ‘territory of the Union’ as the ­presumptive residence and refuge of European citizens and their family ­members.63 In the ­casuistic context in which they are used, these formulations do not point to any shared feelings of Union citizens or physical features of the space they live in. Rather, they help reframe the cases at hand and allow the Court 57  Opinion of AG Bot in Case C-123/08 Wolzenburg (2009) EU:C:2009:616, para 109: ‘It is not the objective of Community law to abolish all differences of treatment in the law of a Member State between the nationals of that State and other citizens of the Union’. 58  On the notion of ‘encompassing groups’ see A Margalit and J Raz, ‘National Self-Determination’ (1990) 9 The Journal of Philosophy 439. 59  See the contribution by Damian Chalmers in this volume. 60  See the contribution by Stephen Coutts in this volume. 61  The formula was devised in Case C-184/99 Grzelczyk EU:C:2001:458, para 31. 62  Case C-378/12 Onuekwere EU:C:2014:13. 63  Case C-34/09 Ruiz Zambrano EU:C:2011:124.

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to depart from strict legal parameters in assessing the situation of the individual concerned. The Court carries out an evaluation of individuals’ actions and modes of being within the specific local setting in which they are located. As a result of this evaluation, some individuals may appear to be marked out by a closer relationship to the society they live in than might be expected from their current legal situation, whereas others are marked out by a relationship to society which is more distant than the one their legal situation should allow them to establish. In the ECJ’s case-law, Gerardo Ruiz Zambrano, a Colombian national seeking asylum in Belgium, ­epitomises the first figure whereas Pietro Infusino and Nnamdi Onuekwere, a European citizen and a Nigerian national married to a Union citizen, both seeking protection from expulsion, are examples of the second one.64 Mr Ruiz Zambrano is a third-country national who was refused his application for asylum and subsequent applications to have his situation regularised. Mr Ruiz Zambrano is, in pure EU legal terms, an illegal immigrant likely to be expelled from Europe. However, during his stay in Belgium, his wife gave birth to two children, Diego and Jessica. As a result of this, he was considered by the Court as a European individual worthy of protection. Indeed, his case has been described as one of a man enjoying stable family relationships, assuming the role of caretakers for his children and having shown a willingness to create ‘real links’ by finding employment and paying taxes. Whilst illegally resident in Belgium, he and his family were registered in the municipality in which they lived. More importantly, perhaps, he manifested a desire for legality and social integration as evidenced by his application to have his situation regularised and his ‘efforts to integrate into Belgian society, his learning of French and his child’s attendance at pre-school’.65 Such behaviour is seen as that of a ‘good citizen’ in any society of the Member States and so worthy to find a place within the ‘European territory’. The fact that his children acquired Belgian nationality and are Union citizens as a result of being born in Belgium was deemed to be the trigger for granting this protection. Conversely, Mr Infusino, an Italian national resident in Germany and sentenced to seven and a half years imprisonment for sexually abusing the daughter of his former partner, was considered to have affected ‘the calm and physical security of the population as a whole’.66 The imposition of a prison sentence by a national court was such as to show ‘the non-compliance by the person concerned with the values expressed by the society of the host Member States’.67 Therefore, he should be expelled from the host society not just for having breached the law but for ­having separated from the social community which led him to crime. According to the Court, his behaviour demonstrated a lack of ‘feeling of Union citizenship’.68

64 

Ruiz Zambrano (n 63); Onuekwere (n 62); Case C-348/09 PI EU:C:2012:300. Ruiz Zambrano (n 63) para 16. 66  Case C-145/09 Tsakouridis EU:C:2010:708, para 47. 67  Case C-400/12 G EU:C:2014:9, para 31. 68  Onuekwere (n 62), para 24. The expression has its origin in recital 17 of the preamble to Dir 2004/38. 65 

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In these cases, the Court looked into various patterns of action of the individuals concerned as embedded in specific local contexts and worked out legal regimes which make sense of their existence as a whole.69 It turned lived experiences into valid ‘forms of existence’.70 Clearly there is a strong normative dimension in the Court’s construction. The criteria against which individual existences are assessed are, to put it plainly, the criteria of a communal life in a decent society. Mr Ruiz Zambrano was protected as the father of two children who are nationals of a Member State. To trigger EU citizenship law’s protection, a link to individuals having a Member State’s nationality was required. However, it should be clear that, in this case, this was not the primary ground of protection. The father was primarily protected by his implicit designation as ‘good father’ and ‘good citizen’. Similarly but with contrary effects, Mr Infusino was repatriated to his home country not so much because he was a national of that country but on the ground that he was a ‘deviant’ and a non-integrable person into the host society.71 In this construction, family, workplace and society in which the individual is integrated are not only spheres of activity but forms of a common good. They are characterised by normative background assumptions. Thus, the society typically ‘expresses values’ and it is respect or non-compliance to these local values which determines the individual as able to feel herself a Union citizen or to be part of the European territory. EU law thus conceived is a broad process of interaction whereby the obligation of Member States to integrate individuals into society, which has long been the main focus of EU citizenship law as articulated by the case-law of the Court of Justice, is now mirrored by the obligation for these individuals to recognise the common space of values they live in, in the particular form of the host society or local social setting in question. To the broadened agency resulting from EU law is added a particular sense of obligation and duty. No doubt this approach carries with it a form of intense social control imposed on individuals. Moreover, it entails that the Court is engaged in the control and the validation of value choices adopted by national governments, concerning for instance the parent–child relations or the cohesion of national societies. In the PI case, for instance, the process of social integration of the person concerned is assessed not only against the values protected by national criminal law but also against the common values of the Union’s public order as reflected in EU legislation.72 However, this engagement is inevitably subject to limitations. The Union cannot easily interfere with the ‘moral autonomy’ of Member States. As often repeated by the Court, ‘EU law does not impose on Member States a uniform scale of values’.73 By situating individuals 69  Similarly, Agamben has pointed to religious models of construction of forma vitae: G Agamben, The Highest Poverty. Monastic Rules and Form-Of-Life (Stanford, Stanford University Press, 2013). 70  RB Pippin, Hegel’s Practical Philosophy. Rational Agency as Ethical Life (Cambridge, Cambridge University Press, 2008) 257. 71  PI (n 64). See also E Pataut, ‘Intégration et solidarité: quelles valeurs pour la citoyenneté?’ (2014) 3 Revue trimestrielle de droit européen 781. 72  PI (n 64). 73  Joined Cases 115 and 116/81 Adoui and Cornouaille EU:C:1982:183.

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within a local space of values under the supranational control of EU law, the Court mainly aims at conformity in the modes of existence and the beliefs of individuals with the broad standards of the European society characterised, in Article 2 TEU (Treaty on European Union), as a ‘decent society’.74 Mauss famously referred to ‘[the] moment when a society and its members take sentimental stock of themselves [prennent conscience sentimentale d’eux-mêmes]’.75 Strikingly, in the French working language of the Court, the Onuekwere judgment refers to the ‘sentiment de la citoyenneté de l’Union [feeling of Union citizenship]’. These cases reflect, in a sense, instances in which individuals are called to take ‘sentimental stock of themselves’ in the context of their relationship to a given society. However, in EU law, this sentiment takes the form of an assessment of worth: the ‘good citizen’ is the one who feels respect for the family, the work and society at large as valuable goods; the ‘bad citizen’ is the one who does not feel this respect and presents a threat to the cohesion of society.76 The normative turn in EU law of EU citizenship has as its main purpose to develop types of social personalities subject to evaluation.

C.  Lost in Transition But what if the individual is deprived of any possibility of integrating in ­society? What if, for instance, her identity is ‘lost in transition’ when circulating from one society to the other? What if she is cut off of any social relation and institutional bond? Is it possible to live legally beyond the world of institutions and social spheres as referred to by EU law? Such seems to be the case of Mr Rottmann.77 In the course of moving from ­Austria to Germany, Mr Rottmann, an Austrian national, applied for and was granted German citizenship, thereby losing his Austrian citizenship. He was subsequently deprived of his new citizenship on the ground that he had obtained this status by deception. As a consequence of the withdrawal decision he became stateless. This is a case of de-institutionalisation. What can Union law do? The Union is no homeland and cannot offer an alternative membership. Moreover, Union law is meant to regulate the activities of individuals whose identity is already fashioned by the various Member States; it is not meant to constitute its own subjects. As repeatedly stated by the Court of Justice, the constitution of legal persons as well as

74  On this notion see A Margalit, The Decent Society (Cambridge MA, Harvard University Press, 1996). 75  M Mauss The Gift: Forms and Functions of Exchange in Archaic Societies (London, Routledge, 1990, first published in French in 1923–24 within l’Année sociologique). See further B Karsenti, L’homme total. Sociologie, anthropologie et philosophie chez Marcel Mauss (Paris, PUF, 2011). 76 See further on this basic distinction L Azoulai, ‘The (Mis)Construction of the European ­Individual. Two Essays on Union Citizenship Law’ EUI Working Paper LAW 2014/14. 77  Case C-135/08 Rottmann EU:C:2010:104.

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the nationality of natural persons is a matter of national law.78 Yet, in this ­particular case, the Court decided to construct a provisional status whereby Mr Rottmann could legally exist as a person independently of any other factor connecting him to a Member State, whilst encouraging the German and Austrian authorities to cooperate and to further consider his case. In practical terms, this means that national authorities were under an obligation to review the proportionality of the decision withdrawing nationality having regard to ‘the situation of the person concerned in the light of European Union law’ and this applied ‘both to the Member State of naturalisation and to the Member State of the original nationality’.79 Absent a capacity for Mr Rottmann to integrate both on the Union level and on the national one, the Court forges a transitional status of protection for this individual. First, it makes clear that this construction does not challenge the fact that nationality attribution remains governed by Member States’ law and that withdrawal of nationality may be perfectly legitimate in a case of deception. Yet, in exceptional situations in which deception may lead to statelessness, the Court offers an alternative instance of institutionalisation—at least provisionally: a ­transitional European ‘house’. Ultimately, however, it is for the national authorities to decide on nationality issues and, in this case, it may be noted that the ­German court confirmed its decision of withdrawal.80 This decision may be interpreted in two different ways. One interpretation would suggest that the Court stands firm on the virtues of its traditional rightsbased approach. In this case just like in others, it is concerned with ‘the loss of the rights [to free movement] enjoyed by every citizen of the Union’.81 However, this does not really fit with the notion, acknowledged by the Advocate-General and endorsed by the Court in its ruling, that the duty to demonstrate loyalty towards the home State is part of the duties constituting the status of a national and that it should prevail over the enjoyment of EU rights.82 In the Court’s construction, free movement rights yield to nationality bond. Therefore, another interpretation should be considered. In this extreme case, the Court goes beyond its traditional rights-based approach. It goes beyond the mere facilitation of transnational activities and the creation of opportunities for integration into various institutions. The Court gives EU law the power to govern the constitution of persons even though to a limited extent and for a limited amount of time—pending the reconsideration of the national authorities of the case. It engages in a form of legal constructivism. This bold approach is clearly a reaction to both national and international law which in such a case allow States to create a stateless person. It is grounded in the

78 

As recalled by the Court in Case C-210/06 Cartesio EU:C:2008:723, para 109. Rottmann (n 77) paras 55 and 62. 80  cf S Mantu and E Guild ‘Acts of Citizenship Deprivation: Ruptures Between Citizen and State’ in E Isin and M Saward (eds), Enacting European Citizenship (Cambridge, Cambridge University Press, 2013) 111, 121. 81  Rottmann (n 77) para 56. 82  Opinion of AG Poiares Maduro in Rottmann (n 77) para 33 and para 51. 79 

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underlying idea that statelessness is not easily compatible with the constitutional standards of a decent European life. This original judicial construction serves to aid European individuals in need of a status in exceptional situations in which their existence as ‘persons’ having a decent social and legal life is challenged. This constructivism is a form of constitutionalism.

IV.  A Fragile Construction In the course of this investigation, we have encountered a series of figures, ie ­consumers and patients, migrants and their family, children with multiple affiliations, caregivers and caretakers, persons who have committed serious crimes, stateless persons. What emerges from this list is a pattern through which these individuals may be classified as more than just rational agents embedded in the marketplace and empowered through the granting of individual rights. Through the prism of EU law, individuals live and operate in a world of market and nonmarket institutions and they may develop various social links as well as moral duties. The latter is precisely what, in the essentially functional and volatile EU law context, tethers them as ‘persons’. In such a context, the construction of the person presupposes that there is something deeper than the granting of rights and roles which makes the exercise of these rights and role-playing possible, something which relates to the recognition of a social and moral fact: the ability to connect to others and to integrate into various social spheres and institutions such as the family, the education system or the society at large, while complying with the ­values of these institutions. We may call it a status or simply personhood.83 It is the technique of framing a case or a form of reasoning which resists the dissolution of European forms of existence into broader functional structures. It should be clear, however, that this construction remains fragile. First of all, it seems rather blind to the social background of the process of European integration which consists of individuals who may be economically unable to enjoy EU rights and yet bear some negative consequences of the structural reforms imposed by EU law. This is the thrust of the critical studies currently emerging in EU law.84 Second, it is a purely complex legal and jurisprudential construction which is hardly communicable to individuals if not supported by the main institutional players of European integration and endorsed by large groups of people, a support that is by no means guaranteed. Indeed, the construction of European individuals as persons may potentially be disruptive of the balances of powers currently in place. It challenges many institutional and vested interests. There is in particular

83  See on the notion of status as distinct from rights J Waldron, ‘Is Dignity the Foundation of Human Rights?’ (2013) NYU School of Law, Public Law Research Paper No 12-73. 84  See Editorial Comments: ‘The Critical Turn in EU Legal Studies’ (2015) 52 CML Rev 881.

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the fear that Member States lose control over their territory and population. That this construction faces fierce resistance comes as no surprise.85 But the risk of deconstruction may also stem from EU law itself. This is a demanding and therefore vulnerable construction. The risk is twofold. One is to remain locked in a functional approach such as to miss the point at which broader social ties are brought about; the other is, by inflating the respect of the particular value system of the Member States, to bind European individuals within the confines of national cultures and identities such as to re-territorialise them. On the one hand, it may well happen that the Court fails to reconcile the relational individual with the rational agent. Arguably, this was the case in the famous Viking Line and Laval cases.86 Reasoning from the purely legal perspective of the c­ onflict of rights (right to free movement versus right to collective action) within the framework of internal market law, the Court failed to consider the specific context at hand consisting of persons and bodies acting in a transnational and multifaceted social setting. As a result, it failed to recognise the trade unions involved in the dispute as actors able to rise above their limited function of pure defence of corporatist positions, enjoying the capacity to act within the internal market but also to relate to groups of workers across borders and to take up broad social issues. It is as if there was no ‘house’ for the trade unions to inhabit but simply the iron cage of the market. On the other hand, individuals may be forced to fall from the ‘European house’ back onto national belonging and what has been called the ‘common home’.87 This is illustrated in the Dano decision of the Court of Justice.88 To recall, the case ­concerns a Romanian national living in Germany who applied for basic ­subsistence benefits for jobseekers. As provided by the German Social Code, the function of this social assistance ‘is to enable the beneficiaries to lead a life in keeping with human dignity’.89 In this case, the Court focuses on the objective of preventing Union citizens from becoming an unreasonable burden for the host Member State. Part of this judgment reflects a ‘culturalist’ approach to the case. It abandons the traditional approach centred on the protection of multi-affiliated persons for a logic of assimilation with a view to the maintenance of the perceived cohesion of the host society. This is clearly reflected in the factual account of the case as reported by the Court: although Ms Dano had a residence certificate and a child who was born in Germany, it was noted that she spoke German poorly,

85  See for instance the reception of the Ruiz Zambrano ruling by UK courts: C O‘Brien, ‘I Trade, therefore I am: Legal Personhood in the European Union’ (2013) 50(6) CML Rev 1643. 86  Case C-438/05 Viking Line EU:C:2007:772; Case C-341/05 Laval un Partneri EU:C:2007:809. 87 This is suggested by David Cameron, British Prime Minister, in his speech on immigration ­delivered on 28 November 2014. Found at: www.gov.uk/government/speeches/jcb-staffordshire-primeministers-speech. 88  Case C-333/13 Dano, EU:C:2014:2358. See also Case C-67/14 Alimanovic EU:C:2015:597. 89  Book II of the German Social Code, paragraph 1, subparagraph 1 as reported by the Court in Case C-333/13 Dano EU:C:2014:2358, para 18.

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she could not write in German and was not willing to integrate into the labour market. In other words, independent of her willingness to comply with the values of the host society, she was deemed unable to assimilate its cultural codes. This is indicative of a shift emerging in EU law from integration as responsibility for Member States’ authorities to take care of European individuals and to respect their differences to integration as a requirement for the foreigner to assimilate the national community. The Viking Line and Laval cases on the one hand, the Dano case on the other show how difficult it is to maintain a personalist approach to EU law as we have defined it. There can be no doubt that this is especially the case in the context of a significant decrease in trust and harmony among the Member States and in times of economic and political crisis. In such a context, the pattern we have detected in the course of EU law may well turn out to be a purely normative framework with little impact in reality.

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10 Union Citizenship, Social Integration and Crime: Duties Through Crime STEPHEN COUTTS*

I.  The Social Integration Paradigm Citizenship of the Union is first and foremost a transnational status of social ­integration.1 The most important rights of Union citizenship, arising from the internal market,2 of free movement and non-discrimination, can be seen as ­reflecting a broader right to move to, and become a member of, another ­society within the European Union. It empowers individuals, from a migration status within the discretion of sovereign national law, to a transnational citizenship ­status guaranteed by supranational law.3 Individual Union citizens now stand in a different relation to the other Member States of the Union.4 The institution of Union citizenship renders the borders of national communities more porous and flexible and alters the principles that determine belonging within the European Union.5 Like other forms of citizenship, it is a membership status complete with rights but it is one that operates within a unique political entity and one that ­functions primarily on a transnational basis. *  Stephen Coutts, Lecturer-at-law, Dublin City University. I would like to thank Loïc Azoulai for feedback on an early version of this chapter and Dimitry Kochenov for useful comments during ­presentation at a workshop. All errors are the author’s. 1 See A Iliopoulou-Penot, ‘The Transnational Character of Union Citizenship’ in M Dougan, N Níc Shuibhne and E Spaventa (eds), The Empowerment and Disempowerment of the European Citizen (Oxford, Hart Publishing, 2012) and Loïc Azoulai, ‘La citoyenneté européenne, un statut d‘intégration sociale’ in G Cohen-Jonathan et al (eds), Chemins d‘Europe: Mélanges en l‘honneur de Jean Paul Jacqué (Paris, Dalloz, 2010). 2  See N Níc Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47 CML Rev 1597. 3  See P Magnette, La Citoyennéte Européenne (Brussels, Editions de l‘Université de Bruxelles, 1999). 4  For an early analysis of this paradigmatic shift in the status of then Community nationals in the context of expulsion and the operation of public order or ordre public see G Lyon-Caen, ‘La réserve d‘ordre public en matière de libeté d‘etablissement et de libre circulation’ (1966) 2 Revue Trimestrielle de Droit Europeen 693. 5  See D Kostakopoulou, ‘European Citizenship: Writing the Future’ (2007) 13 European Law Journal 623. See also D Kostakopoulou, Citizenship, Identity and Immigration in the European Union; Between Past and Future (Manchester, Manchester University Press, 2001).

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The operational principle behind this process is that of social integration.6 The concept of social integration determines the relationship between the host ­Member State and the citizen. The rights of Union citizenship are intended to facilitate integration: the more integrated an individual becomes the more rights he or she is entitled to. The goal is to firmly root an individual as a ­member in the society of another Member State. The operation of an exceptionally broad ­principle of non-discrimination is intended, in particular, to facilitate ­integration,7 but other aspects of Union citizenship including free movement based rights, such as family reunification, are also concerned with facilitating the social inclusion of an individual.8 This occurs in a material sense by allowing ­individuals to p ­ articipate fully in the economic, social and even political life of the host society.9 It also operates in a symbolic manner, by reducing instances where differences manifest between Union citizens and nationals.10 Social integration, in conjunction with the operation of a principle of proportionality and the principle of non-­discrimination,11 has become the axis along which the extent of an individual’s membership in a host society and hence the responsibilities of that society towards her, is measured.12

6 

See Azoulai (n 1). eg the rights of equal access to social services, labour rights and other welfare benefits ­guaranteed to migrant workers as early as 1968. See Reg 1612/68/EEC on freedom of movement for workers within the Community [1968] OJ L 257/2, since replaced by Reg 492/11/EU on freedom of movement for workers within the Union [2011] OJ L 141/1. 8 See Case C-127/08 Metock v Minister for Justince Equality and Law Reform (Metock) EU:C:2008:449, [2008] ECR I-6241. 9  See Dir 94/80/EC laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in munipal elections by citizens of the Union residing in a Member State of which they are not nationals [1994] OJ L 368/38 as amended by Council Dir 96/30/EC [1996] OJ L 122/14 and Dir 93/109/EC laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals (Uniform Election Procedure) [1993] OJ L 329/34. 10  Case C-524/06 Heinz Huber v Bundesrepublik Deutschland EU:C:2008:724, [2008] ECR I-9705. The logic being that in their interactions with officials of Member State’s Union citizens are not to be classified as somehow ‘other’ and therefore more suspicious. See, in particular, the sentiments expressed by AG Maduro: ‘the idea underlying the EU law provisions on citizenship and the right of entry and residence is that individuals should be able to integrate into the society of the host Member State and enjoy the same treatment as nationals, the system in question perpetuates the distinction between “us”—the natives—and ‘them’—the foreigners’. (Opinion of AG Maduro, para 15). 11 A legal technique developed by the Court of Justice in the context of social benefits. See K ­Hailbronner, ‘Union Citizenship and Access to Social Benefits’ (2005) 42 CML Rev 1245. 12  Case C-209/03 The Queen (on the application of Dany Bidar) v London Borough v Ealing, Sec of State for Education and Skills EU:C:2005:169, [2005] ECR I-2119, see further ch 9. While there is a ­separate strand of case-law that bases a citizen’s inclusion on mere residence (See G Davies, ‘“Any Place I Hang my Hat?” or: Residence is the New Nationality’ (2005) 11 European Law Journal 43) this has been losing out to an increasingly ‘qualitative’ understanding of social integration as a means of regulating the boundaries of national communities and responsibilities of host Member States. (See D Thym, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically Inactive Union Citizens’ (2014) 52 CML Rev 17, citing in particular the judgment in Case C-333/13 Elisabeta Dano & Florin Dano v Jobcenter Leipzig EU:C:2014:2358). 7 See

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The purpose of this contribution is intended to identify, first, the use of the social integration paradigm in cases involving Union citizens who have c­ ommitted crimes. Three areas, in particular, stand out: the interpretation of Article 4(6) of the European Arrest Warrant Framework Decision (EAW FD);13 the area of expulsion decisions and, finally, the question of the impact that periods of imprisonment may have on the acquisition of resident rights under the Citizenship Directive.14 Secondly, this chapter will attempt to analyse the impact of these cases on the social integration test itself and the transnational relationship between the Union citizen and the host Member State that it regulates. It will be argued that the use of certain concerns of the criminal justice system, namely rehabilitation and crime as wrongdoing, inform and alter the application of the social integration paradigm, rendering it both more inclusive and exclusive in certain circumstances. Moreover, it will be argued that the more interesting phenomenon, namely the impact of crime as wrongdoing on the concept of social integration, is part of a wider ­process of the re-orientation of Union citizenship towards imposing ­obligations on Union citizens and the tendency to view integration as a thicker, more s­ubstantive or ‘qualitative’ process.

II.  The EU Criminal Citizen and Social Integration Paradigm Developed principally in the field equal treatment for social benefits, the ­principle of social integration has been extended to regulate the status of migrant Union citizens in other areas, including in the area of criminal law.15 Three areas, in p ­ articular, deal with the situation of migrant Union citizens who have been convicted of crimes: Article 4(6) of the EAW FD16 on the right to remain in a state to serve a sentence; expulsion decisions under Article 28 of the Directive 2004/38/EC (Citizenship Directive)17 and, finally, the effect of ­periods of imprisonment on the calculation of periods of residence for the ­purposes of acquiring certain rights under the same Directive. In all three areas the ­concept of social integration has been employed to regulate the position of the i­ ndividual Union citizen.

13  Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States [2002] OJ L 190/1. 14  Dir 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L 158/77 (Citizenship Directive). 15 See Huber (n 10). 16  EAW Framework Decision (n 13). 17  Citizenship Directive (n 14).

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A. Article 4(6) of the European Arrest Warrant Framework Decision Article 4(6) of the EAW FD allows Member States to introduce an exception to the general rule which obliges surrender where the conditions of the Framework ­Decision are fulfilled.18 Member States may refuse to surrender an individual who is subject to a European Arrest Warrant (EAW) if that individual is a national of that Member State or is resident or staying there. Furthermore, the executing Member State must undertake to enforce the sentence itself. A corollary is found in Article 5(3) EAW FD for individuals that have not been convicted but are merely sought for trial; here the executing Member State may agree to surrender a suspect only if it receives a guarantee that upon conviction the individual may return to the executing Member State in order to serve any sentence imposed. Articles 4(6) and 5(3) EAW FD were viewed as a replacement for the nationality exception that traditionally operated in many continental extradition regimes.19 This exception was based on various reasons, flowing from a traditional subjectsovereign relationship to a general distrust of foreign legal systems.20 The replacement contained in Article 4(6) EAW FD altered the nationality exception in two ways. First, by extending it beyond the traditional group of the nation to those ­‘resident and staying in’ that Member State. Secondly, by including an automatic obligation to enforce the sentence imposed. Thus, individuals could remain in their ‘own’ Member State to serve a sentence, while remaining subject to the judgment of the issuing Member State, combining a significantly altered and diluted nationality exception with the enforcement rationale and automatic mutual ­recognition structure of the EAW FD.21 In its operation the Court of Justice has relied specifically on the social ­integration paradigm to determine who precisely benefits from the operation of the provision. In Kozłowski, the Court interpreted the concept of ‘staying in’ in terms of the connections a particular individual has with the executing ­Member State, be they familial, social or economic.22 In Wolzenburg the Court framed

18  It should be noted that this is an optional provision that not all Member States have necessarily availed of with Ireland, the United Kingdom and Slovakia not availing of the option. See E ­ uropean Commission, Report from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (COM(2006) 8 final, 2006), 4. 19  See M Plachta, ‘European Arrest Warrant: Revolution in Extradition?’ (2003) 11 European Journal of Crime, Criminal Law & Criminal Justice 178, 187. 20  For an overview of the nationality exception see M Plachta, ‘(Non-)Extradition of Nationals: A Neverending Story’ (1999) 13 Emory International Law Review 70. 21 For the importance of the ‘effectiveness’ rationale in the interpretation of the EAW FD see E Herlin-Karnell, ‘From Mutual Trust to the full effectiveness of EU Law: 10 Years of the European Arrest Warrant’ (2013) 38 EL Rev 79. 22  Case C-66/08 Proceedings concerning the execution of a European arrest warrant issued against Szymon Kozłowski EU:C:2008:437, [2008] ECR I-6041.

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the operation of Article 4(6) EAW FD in terms of Union citizenship.23 It was a classic application of the citizenship-equal treatment-proportionality frame­ work ­developed to extend equal treatment in the area of welfare to sufficiently ­integrated Union ­citizens.24 Thus, in theory, in the operation of Article 4(6) EAW FD the Netherlands was obliged to extend the benefit of that provision to Union citizens. That equal treatment could nonetheless be curtailed in order to ensure a sufficiently strong connection with the Netherlands depended on the degree of the migrant citizen’s social integration. Intriguingly, and perhaps as a nod to national sensitivities on the question of the now abolished national exception,25 nationals were deemed automatically and simply by virtue of their nationality, to enjoy such a connection.26 Finally, in Jorge da Silva the Court confirmed that if a M ­ ember State sought to implement the optional provision for its own nationals it was obliged under the principle of equal treatment to extent its application to Union citizens who were sufficiently integrated. In a rather striking move the Court even implied, based on the submissions of the Commission on the matter, that France may be obliged to define sufficiently integrated Union citizens as its own nationals for the purposes of international law instruments.27 Article 4(6) EAW FD (and presumably by implication Article 5(3) EAW FD) is, therefore, a clear example of the extension of the social integration paradigm to regulate the treatment of migrant Union citizens to a new area, that of the serving of custodial sentences. In doing so it expands the group of persons that traditionally benefitted from the operation of a nationality exception to a new group, that of Union citizens who are sufficiently integrated, thereby rendering the borders of the national communities more flexible in this area. It is worth mentioning in passing that a similar logic informs the operation of a complementary piece of legislation—the Framework Decision on the Mutual Recognition of ­Custodial Sentences28—establishing a system for allocating responsibility for convicted 23 

Case C-123/08 Dominic Wolzenburg EU:C:2009:616, [2009] ECR I-9621. For the paradigmatic case see Bidar (n 12). 25  See for example the constitutional challenges in Attorney General of the Republic of Cyprus v ­Konstantinou [2007] 3 CMLR 42, Re Constitutionality of Framework Decision on a European Arrest Warrant (Czech Constitutional Court) [2007] 3 CMLR 24, Re Constitutionality of German Law ­ ­Implementing the Framework Decision on a European Arrest Warrant [2006] 1 CMLR 16 and Case P1/05 Re Enforcement of a European Arrest Warrant (Polish Constitutional Tribunal) [2006] 1 CMLR 36. For commentary see J Komarek, ‘European Constitutionalism and the European Arrest Warrant: In Search of the Limits of “Contrapunctual Principles”’ (2007) 44 CML Rev 9 and V Mitsilegas, ‘The ­Constitutional Implications of Mutual Recognition in Criminal Matters in the EU’ (2006) 43 CML Rev 1277. 26 A perhaps somewhat simplistic assumption see S Peers, ‘The European Arrest Warrant: The ­Dilemas of Mutual Recognition, Human Rights and EU Citizenship’ in A Rosas, Y Bot and E Leits (eds), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-Law (The Hague, Asser Press, 2013). 27  Case C-42/11 Proceedings concerning the execution of a European arrest warrant issued against João Pedro Lopes Da Silva Jorge EU:C:2012:517, paras 47–49. 28  Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purposes of their enforcement in the European Union [2008] OJ L 327/27. See especially art 4. 24 

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individuals between Member States based on a combination of the principles of nationality and of social integration.

B. Expulsion The second area in which the concept of social integration has been extended to regulate the position of criminal Union citizens is the area of expulsion. It is both one of the oldest areas in which the concept of social integration has been employed to regulate the position of Union citizens and, in two recent cases, an area in which the notion of social integration has resurfaced and been re-emphasised. Expulsion of Union citizens has long been subject to a test of proportionality within which the concept of social integration has played a key role. Based on the jurisprudence of the European Court of Human Rights (ECtHR) on Article 8 on the right to family and private life of the European Convention on Human Rights (ECHR),29 the Court of Justice in Ofanopoulos and Oliveri explicitly adopted a test establishing the degree of protection a Union citizen enjoys from expulsion as being based on the extent of his or her social integration.30 Thus any measure expelling an individual and, hence, restricting his or her rights under Union law, must be proportionate. The greater an individual’s degree of social integration, the more harm she would suffer in the event of expulsion and, hence, the greater the threat she would have to pose in order to justify expulsion. This system of increased protection based on degree of social integration was codified in the Citizenship Directive31 and was also reflected in a new system of graduated protection establishing three levels: in order to expel a Union citizen a Member State would generally need to demonstrate a threat to public policy or security; after five years and the acquisition of permanent residence, ‘a serious threat’ to public policy or security is needed; finally, after a period of ten years of residence (or if the citizen concerned was a minor), a Union citizen can only be expelled in the event of ‘an imperative threat to public security’.32 It will be noted that the final category differs in both degree (‘serious’ versus ‘imperative’) and kind (‘public policy and public security’ versus ‘public security’ alone) from the basic and intermediate ­levels of protection.

29  See in particular Boultif v Switzerland ECHR 2001-IX and Maslov v Austria App no 1683/03 (ECtHR, 23 June 2008). For an overview see P Van Dijk, ‘Protection of “Integrated” Aliens against Expulsion under the European Convention on Human Rights’ in E Guild and P Minderhoud (eds), Security of Residence and Expulsion: Protection of Aliens in Europe (The Hague, Kluwer International, 2001). 30  Joined Cases C-482/01 and C-493/01 Georgios Ofanopoulos et al and Raffaele Oliveri v Land Baden-Würtemberg EU:C:2004:262, [2004] ECR I-5257. 31  Citizenship Dir (n 14). See commentary in P de Bruycker, ‘La Libre Circulation des Citoyens Européens Entre Codification et Reforme’ in JY Carlier and E Guild (eds), L’Avenir de la libre ­circulation des personnes dans l‘UE/ The Future of Free Movemenet of Persons in the EU (Brusselles, Bruylant, 2006) 29–31. 32  Citizenship Dir (n 14) art 28(3).

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In a pair of recent cases, the Court of Justice has taken the opportunity to i­nterpret the concept of ‘imperative reason of public security’ in a manner different from what one might expect from a plain reading of the words. In T ­ sakouridis33 34 and especially in PI, it has interpreted the notion of public security as simply ‘a threat to a fundamental interest of society’, rather than a concept related to the institutions or territorial integrity of the state itself.35 Moreover, that interest of society may be measured in terms of the particular values of the society concerned, as reflected in its criminal law.36 A corresponding focus on the blameworthiness of the perpetrator’s actions and her general culpability, allowed the Court to present, at least implicitly, those values as being breached and that interest being threatened by the wrongful conduct of the Union citizen. The result is a certain implication that it is the Union citizen’s wrongful conduct and the affront to the host Member State’s values that constituted an ‘imperative threat to public security’ and hence led to a forfeiture of her right to remain in that particular Member State. It is only a short step to conclude that crime, in its breach of the values of the host society, is incompatible with integration itself. A step that was indeed taken by AG Bot in PI,37 and by the Court in a pair of cases dealing with the implications of periods of imprisonment on the acquisition of rights under the Citizenship Directive.

C. Periods of Imprisonment and the Acquisition of Residence Rights In another area, namely the effect of a period spent in prison on the acquisition of rights under the Citizenship Directive, the Court has explicitly framed the question in terms of social integration, presenting a particular vision of Union citizenship and of criminal conduct in particular. In Onuekwere, a Nigerian husband of an Irish national living in the United Kingdom, sought to rely on the heightened system of protection offered by Article 28(2) of the Citizenship Directive, available after a period of five years’ residence and the acquisition of permanent residence. However, unfortunately for Mr Onuekwere (and indeed his family) he had never spent a consecutive prison-free five years residing in the UK. In MG, Mrs MG, a Portuguese national also living in the UK, sought to rely on the higher level of ­protection offered by Article 28(3), available after 10 years of continuous residence.

33  Case C-145/09 Land Baden-Wurttemberg v Panagiotis Tsakouridis EU:C:2010:708, [2010] ECR I-11979. 34  Case C-348/09 PI v Oberbürgermeisterin der Stadt Remscheid EU:C:2012:300. 35 As per the Commission’s understanding, see European Commission, Communication from the Commission to the European Parliament and the Council on guidance for better transposition and ­application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (COM(2009) 313 final, 2009), 10. 36  PI (n 34) para 21 speaking of the scale of ‘values’ used by Member States to determine a threat to public security. 37  ibid, Opinion of AG Bot, paras 60–62.

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As with Mr Onuekwere, Mrs M had spent some of that time in prison. In both cases, decided on the same day by the same Chamber, the Court of Justice found that periods spent in prison not only could not count towards the periods necessary for the acquisition of rights, but in fact broke the continuity of such periods. Both cases, relying on substantially the same reasoning, developed primarily in Onuekwere, turned on the question of social integration.38 Union Citizenship, particularly as it is reflected in the Citizenship Directive, was presented as a ­status of social integration and the rights contained therein, including heightened protection from expulsion, as a reward for integration (thereby reversing the traditional causal direction between rights and integration whereby rights lead to integration rather than the reverse). Moreover, such integration should contain ‘qualitative elements’ in addition to mere temporal or geographic factors.39 Finally, criminal law reflected the values and norms of the host society. Combining these premises the Court then reached the conclusion that criminal activity represented a transgression of the values of the host society and reflected an unwillingness to integrate, or alternatively in the words of AG Bot ‘expunged’ any integration that may have already taken place.40 In the absence of any clear textual indication, the Court reached for a contextual, schematic and teleological interpretation of the ­Citizenship Directive in order to decide on the impact of periods of imprisonment. The telos and scheme selected by the Court in order to make its ­determination is once again that of social integration, both in terms of the over-riding purpose of the Citizenship Directive itself and more particularly on the impact of crime on the acquisition of rights under the directive.

III.  Criminal Justice and Social Integration Social integration is employed, therefore, in an explicit fashion to regulate the ­position of convicted migrant Union citizens. However, social integration has ­independent meanings within the field of criminal law and criminal theory, ­separate from the concept as typically employed in Union citizenship, d ­ eveloped originally in the field of social (financial) solidarity.41 By using the concept of social integration in different fields the Court of Justice necessarily engages ­different concerns that may in turn feed back into the concept of social integration, thereby

38  The Court in MG merely making reference to the reasoning in Onuekwere and dispensing with the need for an Opinion from an Advocate-General. See Case C-400/12 Secretary for State for the Home Department v MG EU:C:2014:9, para 31. 39  Case C-378/12 Nnamdi Onuekwere v Secretary of State for the Home Department EU:C:2014:13, para 25. 40  ibid, Opinion of AG Bot, para 54. 41  See C Barnard, ‘EU Citizenship and the Principle of Solidarity’ in M Dougan and E Spaventa (eds), Social Welfare and EU Law (Oxford, Hart Publishing, 2005).

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altering it and the transnational relationship it regulates. This is precisely what has occurred in the field of criminal law. Two concepts in particular have arisen in the case-law and have interacted with the social integration test to produce differing results for the Union citizen: rehabilitation and crime as wrongdoing. These are not ­necessarily mutually exclusive concepts, and indeed in certain circumstances there may be a logical link between the two; the need for rehabilitation arises from precisely the lack of integration demonstrated by a disregard of social values.42 However, in their influence on the operation of the social integration paradigm they do tend to pull in opposite directions, one reinforcing it as a mechanism for the inclusion of migrant Union citizens, the other tending towards greater exclusion.

A. Rehabilitation The first use of the concept of social integration in criminal justice that springs to mind and, in particular, in penology and criminological studies, is in discussions concerning the purposes of punishment; the concept of social rehabilitation of offenders as a goal of imprisonment, and indeed other forms of punishment. Rehabilitation, alongside retribution and prevention, is seen as a goal of the penal system. In this sense the underlying cause of criminal activity is seen as disaffection from society or social exclusion, leading to disrespect of social norms and of the legal system in general and the values it represents.43 As a social policy, punishment should be geared, therefore, towards the (re-)inclusion of the individual in social, cultural and economic terms, in order to render her a better ‘functioning’ member of society.44 Incidentally, but importantly for the purposes of Union ­citizenship, this is best achieved by allowing the individual to serve her sentence close to whatever social, economic, familial, cultural or even linguistic links he or she might have. The use of the concept of rehabilitation is, therefore, entirely logical and ­predictable in the context of the interpretation of Article 4(6) of the EAW FD, which was after all initially entitled the ‘Principle of Integration’ by the Commission in an earlier draft of the Framework Decision.45 Herein, the concept of

42 See eg AG Bot who views rehabilitation as necessary precisely because an individual has c­ ommitted a wrongful act and therefore somehow compromised the extent of his or her integration in society. See Opinion of AG Bot, Onuekwere (n 39) para 50. 43  In Durkheim’s vision ‘anomie’ or normlessness. See P Rock, ‘Sociological Theories of Crime’ in R Reiner, M Maguire and R Morgan (eds), The Oxford Handbook of Criminology 5th edn (Oxford, Oxford University Press, 2012), 47 ff. 44  For an overview of the policy of rehabilitation see P Raynor and G Robinson, Rehabilitation, Crime and Justice 1st edn (Basingstoke, Palgrave Macmillan, 2005). 45  Proposal for a Council Framework Decision on the European arrest warrant and the surrender procedures between the Member States COM(2001) 522 final [2001] OJ C 332 E/18, recital 13 and art 33.

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r­ ehabilitation is used by the Court in two related ways. First, as a means of altering the rationale for Article 4(6) EAW FD relative to the nationality exception it replaces. No longer is the exception to be justified by some archaic concept of sovereign–subject relations or a rather essentialist vision of the nation,46 but rather on the more objective rationale of facilitating the social rehabilitation of the convicted individual. A similar sentiment underlies the Framework Decision on the Mutual Recognition of Custodial Sentences.47 Secondly, in a related sense the concept of social integration is used to reinforce the operation of the principle of equal treatment; the more integrated a Union citizen is, the clearer her ‘right’ is to avail of the opportunity contained in Article 4(6) of the EAW FD and serve her sentence in her new ‘home’ State. However, rehabilitation is premised on the ties an individual already has to society. Therefore, conversely it also provides a certain rationale for, and means of regulating, and restricting the equal treatment to a certain category of Union citizens. Just as the concept of (transnational) social solidarity is used to justify both the extension and restriction of equal treatment in the early welfare cases such as Bidar,48 the concept of rehabilitation is used to similar effect within the social integration paradigm in Wolzenburg49 in particular; the existence of social integration justifies an extension of equal treatment whereas its absence justifies a denial of equal treatment.

B.  Crime as Wrongdoing The second concept or idea, prevalent in certain areas of criminal theory and, in particular, normative theories of criminalisation and in descriptive theories of the criminal law,50 adopted by the Court and combined with the social integration paradigm, is that of crime as wrongdoing. Thus the Court in the expulsion cases and the residence rights cases appears to take a moral view of the criminal law, viewing crime as reflecting certain values. Not only is it a moral view of the criminal law but it is a communitarian view; it is the values and norms of a particular society, in this case the society of the host Member State.51 This is

46 See for example the sentiments expressed by the German Constitutional Court in Re ­ onstitutionality of German Law Implementing the Framework Decision on a European Arrest Warrant C (n 25) paras 66–67. Although note that Member States may retain nationality as a criteria that automatically engages the operation of the exception, reflecting a presumption that ‘nationals’ are n ­ ecessarily integrated in the ‘national’ society. See Wolzenburg (n 23) para 26. As noted above, the resistance from national constitutional courts on precisely this question cannot be discounted as an influence on the Court of Justice’s interpretation. 47  Transfer of Custodial Sentences Framework Decision (n 28). 48  Bidar (n 12). 49  Wolzenburg (n 23). 50  See for example M Moore, Placing Blame: A Theory of Criminal Law (Oxford, Oxford University Press, 1997). 51  For one example of such a view in criminal law theory see A Duff, Answering for Crime: Responsability and Liability in the Criminal Law (Oxford, Hart Publishing, 2007) chs 2 and 4.

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combined, then, with the concept of social integration in an antithetical manner; crime as w ­ rongdoing against society is said to undermine or ‘un-do’ the social integration of the individual Union citizen, resulting in the conclusion that the individual citizen has not reached, or indeed has regressed below, the required degree of ­integration and, hence, can be denied rights. Such a moral, communitarian view of the criminal law is implicit in the expulsion cases and, in particular, in PI.52 As was noted above, PI appeared to establish a continuity between the notions of public policy and public security on the one hand, and simply public security on the other hand. Public security was interpreted, therefore, not as a threat against the territorial integrity of the state or of its institutions but rather as a threat against the ‘fundamental interests of society’ based on the particular ‘values’ of the host Member State. This ‘socialised’ and normative vision of public security, is reinforced by the presentation of the case by the Court and, in particular, the nature of the threat and the manner in which it was considered ‘serious’. Unlike, for example, in Tsakouridis, in PI the perpetrator was not part of a larger group of individuals engaged in, for example, human trafficking, child prostitution rings or the dissemination of child pornography. It was not a ‘diffuse’ harm with wider ramifications. Nor did he show any predilection towards offending against other women or children. Rather the conduct remained confined to the family home and a single individual over a number of years. What rendered the act ‘serious’ in the eyes of the Court was the continuous nature of the crime, the vulnerability of the victim, its horrific nature, the apparent lack of remorse on the part of the offender and the position of responsibility he occupied vis-à-vis the victim.53 Interestingly, the fact that the Union itself had legislated on the matter was also seen as a sign of the seriousness of the offence and its appropriateness as being characterised as a threat against ‘public security’.54 It was serious, certainly, but not in terms of the threat or risk posed to society at large but rather in terms of its moral blameworthiness. This moral and communitarian vision of the criminal law was rendered explicit in the residence rights cases and, in particular, in Onuekwere.55 Following on from the strong opinion of AG Bot and indeed reflecting a similar view to that expressed

52  PI (n 34). It is worth pointing out that the interpretation of public security and public policy adopted in these two cases has recently been reaffirmed and extended by the Court to the interpretation of public policy and security in asylum related matters. See Case C-373/13 HT v Land ­Baden-Württemberg EU:C:2015:413 paras 77–79. Interestingly again the Court takes its cue from a Union level instrument (Common Position 2001/931/CFSP on the application of specific measures to combat terrorism [2001] OJ L 344/93) in order to confirm that the PKK were indeed a terrorist organisation. 53  Relying on the description supplied by the national court in the preliminary reference order see PI (n 34) para 13. 54  ibid, para 47. See also a similar operation in Tsakouridis (n 33) para 46. 55  For a more extensive version of the analysis see S Coutts, ‘Union Citizenship as Probationary Citizenship: Onuekwere’ (2015) 52 CML Rev 531.

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in PI, the Court of Justice found quite simply that criminal law reflects the values of the host society. Moreover, a crime (or at least a crime that results in a custodial sentence) is a transgression of those norms and values. It is, therefore, only logical that the commission of crime represents an unwillingness to respect the norms and values of the host society and hence an unwillingness to integrate within that society.56 Crime as wrongdoing interacts, therefore, with the concept of social integration in a rather different way than rehabilitation; it operates to ‘un-do’, undermine or in the words of AG Bot, to ‘expunge’ the integration of the migrant Union citizen. There is an intimate and, indeed, intrinsic relationship between criminal activity and the attitude of an individual towards society, and in the case of migrant Union citizens, the society of the host Member State. It is a disregard of its values, the appropriation of which is deemed essential for the ‘qualitative’ dimension of social integration envisaged by the Directive, as interpreted by the Court.

IV.  Criminal Justice and Social Integration: Qualitative Integration and the Duty of Respect Until recently, the social integration paradigm has been characterised by a ­mutually reinforcing and progressive interaction between rights and integration. Rights are intended to secure integration, whereas the greater the degree of integration the more extensive the right to equal treatment enjoyed by the Union citizen is and so on. Moreover, it reflected a rather passive and insubstantial view of the process of integration, whereby a Union citizen was deemed to be integrated merely by residing in a particular place for a certain period of time, giving rise to an ‘­autistic’ vision of transnational Union citizenship based on mere ‘being and time’.57 Both of these tendencies are reinforced in the context of the use of the rehabilitation rationale but challenged by the use of crime as wrongdoing within the social ­integration paradigm. This classic operation of the paradigm of social integration—that of a progressive status resting on a rather passive role for the Union citizen—is reinforced and confirmed by the use of the concept of rehabilitation. On the one hand, the concept of social integration is an additional reason to extend rights to sufficiently integrated Union citizens, it confirms the mutual reinforcement of integration and rights and ensures that they both move in a positive direction. It acts, therefore, in precisely the same manner as the concept of (transnational) solidarity does in the field of social benefits, providing a reason for the inclusion and exclusion of Union citizens depending on the degree of their integration. If anything, as 56 

Onuekwere (n 39) para 26. Somek, ‘Solidarity Decomposed: Being and Time in European Citizenship’ (2007) 32 EL Rev 787, 814. 57 A

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an area where the concept of nationality and the sovereign–subject relationship was ­particularly strong, it is a striking example of the manner in which Union citizenship can rearrange boundaries of belonging within the Union rendering them more inclusive.58 Moreover, the integration that triggers the application of Article 4(6) EAW FD and renders rehabilitation a relevant consideration, would appear to rest simply on residence over a certain period of time, requiring nothing special from the migrant Union citizen.59 As with the traditional view of the social integration paradigm, it is a relatively passive vision of the Union citizen’s role.60 The precise opposite vision of the criminal is at stake in the case of crime as wrongdoing; a moral view of the criminal law necessarily respects the ­perpetrator’s capacity for independent action and responsibility. The attribution of ­criminal responsibility embodied in moral views of the criminal law and particularly retributive theories of punishment, rests on a vision of the accused as an autonomous moral actor.61 Perhaps reflecting this, the use of the concept of crime as wrongdoing has an opposite and more transformative effect on the social ­integration paradigm, unsettling the mutually reinforcing nature and inherently progressive nature of the rights/integration dynamic and introducing a more ‘qualitative’ and, in particular, normative dimension to the process of integration, resulting in a greater emphasis on the role of the migrant Union citizen and an implied duty of respect for national societies, imposed by Union law. First, the traditionally progressive nature of the integration/rights dynamic is unsettled. There is a greater emphasis on the element of the social integration ­paradigm that states that integration leads to rights, rather than the reverse; the fact that the individual citizen must first achieve a level of integration is ­highlighted. Rights are now presented in an explicit fashion as the ‘reward’ for integration; integration is a ‘precondition’ for the acquisition of permanent residence rights. However, the shift in the relationship between rights and integration goes deeper than this mere change in emphasis, important though this may be as a pointer for the future direction of Union citizenship.62 For the first time it appears

58 See for example the attitude of the German Constitutional Court in Re Constitutionality of ­German Law Implementing the Framework Decision on a European Arrest Warrant (n 25) paras 66–67. 59  See for example in Wolzenburg where the five year period of residence was deemed an appropriate proxy for measuring the degree of Mr Wolzenburg’s integration. See Wolzenburg (n 23) para 68: ‘the condition of residence of a continuous period of five years for nationals of other Member States … may be regarded as being such as to ensure that the requested person is sufficiently integrated in the Member State of execution’. 60  Coincidentally, the very concept of rehabilitation, while not denying a certain role for perpetrators themselves, does present the individual as something worked upon by the criminal justice system, who can be moulded somewhat to adopt the appropriate attitude towards society. 61  Moore (n 50) 148–51 (‘Respecting the autonomy of criminals is the grain of truth in the ­otherwise misleading slogan that “criminals have a right to retributive punishment”’). 62 Again see the recent welfare cases of Dano (n 12) and C-67/15 Jobcenter Berlin Neukölln v ­Alimanovic et al EU:C:2015:597. Spaventa characterises this, alongside some of the cases analysed here, as part of a reactionary phase of the Court’s jurisprudence in Union citizenship. See E Spaventa, ‘Earned Citizenship: Understanding Union Citizenship through its Scope’ in D Kochenov (ed), EU Citizenship and Federalism: the Role of Rights (Cambridge, Cambridge University Press, forthcoming 2016).

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that certain activity can ‘un-do’ or ‘expunge’ the integration of migrant citizens ­leading to a consequent loss of rights. No longer is a simple and unidirectional relationship of progress assumed, but rights can in fact be reversed under specific ­circumstances. Of course, absence from the host Member State may, over a certain period of time, also operate to deny individuals certain rights; in this case the integration is properly seen as fading or diminishing over time. However, mere absence is precisely not what is at stake in the present cases, the analogy of periods spent abroad with terms of imprisonment, being implicitly rejected by the Court of Justice in O ­ nuekwere.63 What concerns the Court is the far more active and destructive influence that criminal activity has on integration of the Union citizen. This points to the second impact that viewing crime as wrongdoing has on the social integration paradigm; the move towards viewing integration as a more ‘qualitative’, substantive process than mere presence or absence in a particular ­territory. Viewing crime as wrongdoing, as an act contrary to the values of the host society, introduces a qualitative dimension to the integration process and, more­over, a normative one. The notion of a ‘qualitative’ dimension to Union c­ itizenship has been gaining ground in a number of judgments of the Court of Justice, ­particularly in the field of social welfare benefits. Thus, the conditions contained in Article 7 of the Citizenship Directive64 for residence prior to the acquisition of permanent residence (in effect for the first five years of residence) pertaining to sufficient resources of an economic activity, are presented as the conditions under which ‘genuine’ residence is achieved,65 and as representing the ‘qualitative ­dimension’ of integration.66 The ‘crime as wrongdoing’ cases take this qualitative dimension, developed with economic contribution in mind, and infuses it with a moral or normative content. What is at stake in the expulsion and residence rights cases is the respect the migrant Union citizen has for the values and norms of the host society. It concerns a particular attitude that an individual is supposed to adopt in order to become genuinely integrated in the host Member State and, hence, enjoy the rights of Union citizenship. Note that this is a duty of respect towards the society of the Member State ­concerned; it is specifically linked both in content and in the target of the duty to the host Member State. In terms of content, it is clear that it is national values that are at stake. In both Tsakouridis and PI, the Court emphasised the traditional position that the definition of public security and public policy and, in ­particular, those

63  Suggested by the German government in particular. See Onuekwere (n 39), Opinion of AG Bot, para 60. 64  Citizenship Dir (n 14). 65 See eg Case C-456/12 O & B v Minister voor Immigratie, Integratie en Asiel EU:C:2014:135, para 53. 66  See Case C-325/09 Secretary of State for the Home Department v Maria Dias EU:C:2011:498, [2011] ECR I-6387, para 64. See also the turn to the use of the conditions contained in Art 7 of the ­Citizenship Dir as the means of determining the genuine nature of a Union citizen’s residence and hence his or her entitlement to rights in Dano (n 12) and Alimanovic (n 62). For a discussion of the emphasis in this ‘integrative’ vision of Union citizenship see Thym (n 12).

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interests deemed worthy of protection by those concepts, is defined by the Member State concerned.67 (Although it should be noted the interesting role Union law plays in validating or confirming these choices.)68 Similarly, in O ­ nuekwere the Court noted that it is the values of the society of the host Member State that are reflected in its criminal law.69 At the same time, it is the national society that is the target of the relevant crime. The various crimes were deemed offenses against those particular Member States and the communities they represent. That is why it is logical to expel an individual from one Member State to another, despite the fact that the act may be considered a crime in both, or indeed all, Member States. It is an offense against a particular Member State and the citizen’s rights are forfeited vis-à-vis that Member State.70 Thus, a specific transnational duty of respect towards the values and social norms of the host society can be discerned in the Court’s characterisation of crime as wrongdoing and the use to which this ­characterisation is put in its jurisprudence. On its face this may seem as simply a negative duty to refrain from committing crimes, and moreover one that results from national rather than Union law. Indeed, nationals are equally subject to the criminal law of their own state. ­However, these cases reflect a specifically European duty contained in Union ­citizenship and, in particular, Union citizenship as a status of integration. There are additional ­consequences peculiar to Union citizenship for Union citizens and while the content of the individual duties may be the same, the nature of the ­general duty is different. For nationals it represents the general duties of ­citizens to ­fellow co-­citizens.71 However, for Union citizens, in addition to this general duty, it also ­represents a qualitative dimension to the integration process that they are subject to qua Union citizens. It is, in effect, a general duty of respect towards the host society, and while the substantive content is found in national law this duty is imposed by Union law and with consequences in Union law, namely the ­temporary loss of the rights of Union citizenship, in addition to w ­ hatever ­consequences may flow from national law. There is moreover an implication

67  A position recently confirmed in relation to the definition of the same concepts in the area of asylum. See HT (n 52) para 77. 68  See the use of Framework Decisions on drug trafficking Framework Decision 2004/757/JHA ­laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking [2004] OJ L 335/8 and Dir 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework ­Decision 2004/68/JHA [2011] OJ L 355/1 respectively in Tsakouridis (n 33) para 46 and PI (n 34) paras 25–26. See also the use of Common Position 2001/931/CFSP on the application of specific measures to c­ ombat terrorism [2001] OJ L 344/93 to characterise the PKK as a terrorist organisation in the ­application of a public policy exception in asylum law in HT (n 52). 69  Case C-378/12 Nnamdi Onuekwere v Secretary of State for the Home Department EU:C:2014:13, para 26. 70  My thanks to Dimitry Kochenov for raising this potential issue in an earlier discussion of this paper. 71  RA Duff, Answering for Crime: Responsability and Liability in the Criminal Law (Oxford, Hart Publishing, 2007) ch 2.

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that what is at stake is the attitude the migrant citizen adopts towards the host society—in contrast to the merely passive ‘temporal and geographical’ factors, the integration ­process contains a ‘qualitative dimension’, regarding a certain attitude of respect the reward for which is a status of quasi-membership. What appears to emerge from these cases is a duty of respect towards the values of the host society peculiar to Union citizenship reflecting both a re-balancing of the relationship of integration between the host-society and the individual, placing more emphasis on the role of the individual, and also a shift in the quality of that integration from an economic to a normative or, indeed, a moral plane.

11 The Roma Population: A Borderline Case SOPHIE ROBIN-OLIVIER*

In spite of the uncertain definition of the category of ‘Roma’, which stands out as a major source of confusion,1 it is not contested that the Roma population, Europe’s largest minority group,2 is one of the most deprived of all communities, facing discrimination, racial hatred, extreme poverty and exclusion from basic goods (health, education, housing etc). If this situation is not new, recent events have shed light on very worrisome developments concerning Roma basic rights, which directly concern EU law: not only were free movement rights of members of the group violated, but the group, as such, was targeted by collective deportations. There is no hesitation, as a result, in identifying ‘the Roma population’ as a major concern for the European Union, as it is one for Europe as a whole.3 But how does the situation of the Roma population relate to the constitution of ‘the person’ in EU law? One thing is sure: analysing the Roma case compels us to consider ‘the person’ as a member of a group. Not any group: a stigmatised and oppressed minority. Thus, the Roma case is to be looked at through the concepts and reasoning of racial discrimination, and the reaction of EU law to this category of discrimination, in the particular context of its development. Looking at ‘the Roma population’, we need to envisage persons, in EU law, as members of a ­vulnerable group. Does identification of persons as members of the Roma community take place, in the framework of EU law, and, if so, with what consequences? In the field of EU anti-discrimination law, until recently,4 not much discussion has occurred, at least before the Court of Justice:5 the Roma remained largely * 

Ecole de droit de la Sorbonne, Université Paris 1. On the definition of the Roma community, see below, section II.A. 2 On the situation of Roma in the EU, see, namely, AG Kokott, Opinion in Belov (C-394/11), 20 September 2012. 3  See, for instance, the creation of the Ad-Hoc Committee of Experts on Roma Issues (CAHROM) by the Council of Europe. 4  An important case was decided on 16 July 2015: case C-83/14 CHEZ RB EU:C:2015:480. 5  Many surveys, programmes, actions are developed by other EU bodies and, in particular, by the European Agency for Fundamental Rights (on the different actions of the FRA concerning the Roma, see: http://fra.europa.eu/en/theme/roma, last consulted on 5 Nov 2015). 1 

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unidentified, invisible. In relation to collective deportations and other recent restrictive measures taken by Member States, the same questions of identification of Roma, as a discriminated group, can legitimately be raised in the context of free movement law. In that domain, the instruments and objectives of EU law can certainly advance the cause of Roma, when they can also be identified as mobile European citizens. But the specific situation of the Roma population is not taken into account: should the Roma be able to reap the benefits of free movement law (although, considering recent adverse measures taken by Member States, this has not been the case in practice), this is only an incidental protection. This chapter explores the question of the identification of persons as members of the Roma population, in the two branches that constitute, I believe, the pillars of an EU ‘law of persons’: anti-discrimination law and free movement law. The chapter will start by considering the Roma case within the framework of antidiscrimination law, wherein Roma have been practically ignored, until recently. In the second section, the situation of the Roma community in the light of EU free movement law, and the force of individual rights against racial prejudices, will be envisaged. In a final short section, this chapter suggests that bringing together EU free movement law and anti-discrimination law, by identifying Roma as a racial minority among mobile EU citizens, may increase the protection of the rights of that minority.

I.  Roma in EU Anti-discrimination Law: The (Quasi) Invisible Persons In EU anti-discrimination case-law, the Roma were nowhere to be found, until, finally, two references for preliminary rulings were raised to the Court of Justice, in 2011 and 2014, both from Bulgarian source.6 This is a paradox. The Roma population, carrying a history of prejudices leading to discriminations, should be the primary beneficiary of EU anti-discrimination law, which, since Directive 2000/43 was adopted,7 covers discriminations based on race and ethnic origin. However, as compared to discriminations on grounds of sex or age, for instance, which have been the subject of a large number of cases brought before the Court of Justice, there is only one single case concerning discriminations against the Roma that the Court accepted, to date, to examine.8 Thus, a stark contrast exists between the almost virgin territory of EU law, and the intense discussions that have taken place, in the last decade, at the European Court of Human Rights (ECtHR).

6 

Case C-394/11 Belov EU:C:2013:48 and CHEZ RB (n 4). 2000/43 of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, (2000) OJ L 180/22. 8  CHEZ RB (n 4). 7  Dir

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To better understand EU law (under)development, ‘compare and contrast’ is an appropriate method.

A. Discriminations Against Roma in European Courts: A Persisting Imbalance Prejudices and discriminations against the Roma community have a long ­history, and no serious study denies that they are still rampant in Europe: ‘Roma are very widely misunderstood, and, over the centuries, attitudes towards them, or the political decisions taken in respect of them, have been prompted more by ­prejudice than by a knowledge of historical and cultural realities’.9 Against this background, it comes as no surprise that a number of cases have reached the European Court of Human Rights. Among them, recent decisions addressed some of the most crucial issues: school segregation, access to housing and forced sterilisation of women, in particular.10 In cases of school segregation, the ECtHR has continued, in line with previous cases, to condemn indirect discriminations based on ethnic origin.11 In addition, the Court of Human Rights insisted that states take positive actions in favour of Roma children, recognising the effects of a history of prejudice and discrimination on the Roma population: in the context of the right to education of members of groups which suffered past discrimination in education with continuing effects, structural deficiencies call for the implementation of positive measures in order, inter alia, to assist the applicants with any difficulties they encountered in following the school curriculum. These obligations are particularly stringent where there is an actual history of direct discrimination. Therefore, some additional steps are needed in order to address these problems, such as active and structured involvement on the part of the relevant social services.12

Discrimination in access to housing also led to important decisions. The Court insisted, once again, on the vulnerability of the Roma as a group, and the fact that they represent a ‘vulnerable minority’, which requires public authorities to take into account their special needs and way of life, and protect their cultural ­identity.13 Similarly, in a case concerning the eviction of Roma from camps where

9  Council of Europe (2012), Descriptive glossary of terms relating to Roma issues, version dated 12 May 2012, Strasbourg, http://a.cs.coe.int/team20/cahrom/documents/Glossary%20Roma%20EN %20version%2018%20May%202012.pdf (last consulted on 2 Nov 2015). 10  On this recent case-law, see E Bribosia and I Rorive, ‘Equality and Non-Discrimination’ (2014) 2 European Journal of Human Rights 228. 11  See, namely: DH v the Czech Republic (2007) no 57325/00 and Orsus v Croatia (2010) no 15766/03. More recently: Sampanis v Greece (2012) no 59608/09; Lavida v Greece (2013) no 7973/10; Horvath and Kiss v Hungary (2013) no 11146/11. 12  Horvath, ibid, para 104. 13  Winterstein v France (2013) no 27013/07, paras 148 and 160.

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they had lived for decades, in Bulgaria, the Court pointed to the vulnerability of Roma as a minority, circumstances in which a state’s margin of ­discretion is ­limited.14 States were required to recognise the situation of Roma ‘as an o ­ utcast community and one of the socially disadvantaged groups’.15 According to the Court, such social groups, regardless of the ethnic origin of their members, may need assistance in order to be able effectively to enjoy the same rights as the majority population.16 The Strasbourg Court also confirmed that, in the context of ­Article 14 of the European Convention, a Member State is not only allowed to treat groups differently in order to correct ‘factual inequalities’ between them, but may have to take action in order to correct inequality: a failure to attempt to correct such inequality through differential treatment may, in itself, give rise to a breach of Article 14 of the ­European Convention on Human Rights (ECHR), prohibiting discriminations.17 The Roma, as a social group, and their particular needs, are considered relevant factors to be taken into account in the proportionality assessment that national authorities are under a duty to undertake to assess whether forced evictions of Roma camps and settlements are necessary in a democratic society. To be sure, the Court of Human Rights does not always acknowledge a ­violation of the prohibition of discriminations, based on Article 14 of the ECHR. In two recent cases concerning forced sterilisation of women of Roma origin,18 for instance, no discrimination was found. The solution was considered a step back from the more extensive conceptions of discriminations applied in school ­segregation cases,19 but the issue of discrimination was nonetheless discussed, and the court reiterated that ‘shortcomings in legislation and practice relating to sterilizations were liable to particularly affect members of the Roma community’, which led to their being considered incompatible with Article 8 of the ECHR.20 As compared to this series of important decisions, it is hardly understandable that only two cases concerning discriminations against the Roma were raised to the Court of Justice for preliminary rulings. In one of them, the Court decided it had no jurisdiction to rule on the question, since the Bulgarian Commission for Protection against Discrimination (KZD), which referred the question, was not, according to the Court of Justice, a ‘court or tribunal’ within the meaning of Article 267 of the TFEU (Treaty on the Functioning of the European Union).21 In the second case,22 no problem of jurisdiction or admissibility interfered in the

14  15 

Yordanova v Bulgaria (2012) no 25446/06. ibid, para 129.

16 ibid. 17 

Among other judgments, the case mentions DH (n 11) para 175. v Slovakia (2012) no 29518/10 and IG, MK and RH v Slovakia (2012) no 15966/04. 19  See Bribosia and Rorive (n 10) 317. 20  NB (n 18) para 121. 21  Belov (n 6). 22  CHEZ RB (n 4). 18 ECtHR, NB

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procedure, since the referring Bulgarian authority was, without any doubt, a court or tribunal. This second case is, fortunately, making up for the missed opportunity of the first reference. The two cases concern the same situation: electricity d ­ istribution, and the placing of meters to measure electricity consumption at a height of seven meters above the ground, on poles situated on the outside of houses connected to the electricity network, only in certain urban districts in Bulgaria, which were known to be inhabited primarily by members of the Roma community. Both cases question whether this practice constitutes discrimination on grounds of race or ethnic origin according to Directive 2000/43. The issue is indeed important: it involves segregation, and stigmatisation of the Roma population. But compared to the diversity of issues, in the various Member States, related to the Roma situation, it seems like a drop in the ocean. The limited jurisdiction of EU law, as compared to the extended scope of application of the ECHR, contributes to explain, of course, the different levels of involvement of the two courts. School segregation, for instance, or forced ­sterilisation are not situations evidently falling within the scope of EU law, notwithstanding the uncertainty surrounding the jurisdiction of EU law.23 The fact that the prohibition of discriminations on grounds of race only recently became part of EU law, with the adoption of Directive 2000/43,24 is another explanation, but not a very powerful one, since there are plenty of cases concerning discriminations on ground of age, a criterion which does not have a longer history than race in EU law.25 If there is no evident explanation for the very low number of cases concerning Roma in the case-law of the Court of Justice, the consequence is clear: except for the very recent CHEZ RB case,26 Roma have not been included among the persons that EU law made visible, on the legal scene, through the enforcement of anti-discrimination law.

B. EU Anti-discrimination Law Confronted with the Roma Case: The Beginning of a New Era? For the first time, in the Belov case, the Court of Justice was given an opportunity to deal with an exemplary situation of discrimination against the Roma ­community, in a Member State of the EU, in which problems concerning that group are especially prevalent.27 As previously mentioned, the case involved the

23  Debates as to the scope of EU law have mostly taken place, lately, in relation to the ­application of the Charter of Fundamental Rights of the EU. See for a tentative clarification by the Court of Justice: Case C-617/10 Akerberg Fransson EU:C:2013:208 and, more recently: C-198/13 Hernandez EU:C:2014:2055. 24  CHEZ RB (n 4). 25  Dir 2000/78 establishing a general framework for equal treatment in employment and ­occupation (2000) OJ L 303/16 was adopted just a couple months after Dir 2000/43. 26  CHEZ RB (n 4). 27  Belov (n 6).

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important problem of housing segregation and its impact on basic services provided in neighbourhoods where the Roma are concentrated. But the Court of Justice refused to consider the case, for the reason that the Bulgarian Commission for Protection against Discrimination (KZD), which referred the question, was not a ‘court or tribunal’ within the meaning of Article 267 of the TFEU. This decision indicated, as a matter of fact, that the Court (or, more precisely, the fourth chamber of the Court) was not inclined to deal with what the Advocate-General called a ‘particularly sensitive’ case. Against the idea that this solution was unavoidable, under Article 267 TFEU, it must be recalled that the opinions of the Advocate-General, the Bulgarian Government and the European Commission converged in considering that the KZD can be assimilated to a court or tribunal, and the Court of Justice had jurisdiction to give a ruling on the questions referred to it. To be sure, on the definition of a ‘court’ or a ‘tribunal’, under Article 267 TFEU, no strict conception prevails, in the case-law of the Court of Justice.28 Making the choice to evade the questions, for formal reasons, the Court of Justice also missed the occasion to contribute to the action of anti-discrimination bodies, which are major actors in combatting discriminations.29 In Belov, the questions raised before the Court of Justice involved all the key notions of anti-discrimination law: less favourable treatment, direct and indirect discrimination, the burden of proof and justification. One particularly crucial issue, as the opinion of the Advocate-General made clear, concerned the distinction between direct and indirect discrimination, and the impact of intentional adverse treatment on this distinction, when neutral measures are at stake. In other words, the situation in the case was an opportunity to broaden (or not) the notion of direct discrimination, by taking into account racial prejudices determining measures that do not refer to race, prima facie. Such prejudices are indeed rampant in the case of Roma. The concept of direct discrimination was eventually extended, just a couple years after Belov, in the CHEZ RB case.30 This time, the case was deemed important enough to be assigned to the Grand Chamber. According to the Court of Justice, direct discrimination exists, under Directive 2000/43, when ethnic origin determines the decision to impose the treatment.31 For a measure to constitute direct discrimination, it is sufficient to prove that it has been introduced and/or maintained for reasons relating to the ethnic origin of the persons concerned,32 even if ethnic origin is not explicitly taken into account. This solution is, w ­ ithout doubt, a sign that the Court is now willing to enforce anti-discrimination law

28 

For an example of extensive interpretation: Case C-69/96 Garofalo EU:C:1997:492. this aspect, see M Möschel, ‘Race discrimination and the Access to the European Court of Justice: Belov’ (2013) 50 CML Rev 1447. 30  CHEZ RB (n 4). 31  ibid, para 76. 32  ibid, para 91. 29  On

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rigorously: direct discrimination is indeed much harder to justify than indirect discrimination.33 Although Advocate-General Kokott was not in favour of this extension of the concept of direct discrimination, considering, rather, that there was a case of indirect discrimination, she nonetheless insisted, in her opinion, that strict scrutiny should apply in the case. In particular, she contended that the ‘stigmatising character of the contested practice’ should be taken into account in balancing the conflicting interests. Indeed, a practice that has consisted, for a quarter of a century, in placing meters to measure electricity consumption, in a whole district, at a height that excludes visual checks to avoid tampering with electricity meters and unauthorised electricity extraction, suggests that all the inhabitants of that Roma neighbourhood are criminals or potential ones. Prejudices determine such an inflexible, long lasting and overbroad practice, and stigmatisation is the outcome. For that reason, according to the Advocate-General, ‘purely economic considerations must take secondary importance and recourse must possibly be had to less cost-efficient measures’, which do not stigmatise the local population.34 In the CHEZ RB case, the marked preference of the Court of Justice for direct discrimination did not stop it from adding, in a development that looks very much like an obiter dictum, that, in case the national court would come to the conclusion that the practice at issue does not amount to direct discrimination on the ground of ethnic origin, it could consider the case as one of indirect discrimination, since the practice at stake also displayed the characteristics required to constitute such discrimination. In developing that line of reasoning, the Court relied on the opinion of the Advocate-General concerning stigmatisation: to determine whether the disadvantages caused by the practice at issue are proportionate to the aims pursued, and whether that practice does not unduly prejudice the legitimate interests of the persons inhabiting the district concerned, judges must ‘pay regard to the legitimate interest of the final consumers of electricity in having access to the supply of electricity in conditions which do not have an offensive or stigmatising effect’.35 In addition, according to the CHEZ RB case, stigmatisation must not only be taken into account in assessing whether indirect discrimination on ground of race can be justified: it is also to be considered in establishing evidence of direct discrimination. The existence of prejudices against the Roma population and stigmatisation of the members of the group are considered relevant in order to establish a presumption of discrimination,36 which is what Directive 2000/43 requires, when 33  As the Court recalled at para 76 of the CHEZ RB case, direct discrimination exists and is to be condemned, except when the situation is covered by the two exceptions of arts 4 and 5 of the Dir, relating, for the first one, to ‘genuine and determining occupational requirements’ and, for the second one, ‘to positive action by the Member States to prevent or compensate for disadvantages linked to racial or ethnic origin’. 34  para 134 of the opinion in the CHEZ RB case. 35  para 124 of the CHEZ RB case (n 4). 36  ibid, paras 81–84 of the case.

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persons consider themselves wronged because the principle of equal treatment has not been applied to them.37 Thus, the situation of the Roma suggests new paths in the mobilisation of the central concepts of anti-discrimination law. Patterns of exclusion and stigmatisation among national communities, as the CHEZ RB case illustrates, must be taken into account. To be sure, this recent case is an important contribution to the development of EU racial discrimination law, applied to the case of Roma. To resume to ­comparison with the developments taking place at the Court of Human Rights, it is interesting to note that the reasoning of the Court of Justice, in the case, borrows from the case-law of the Court of Human Rights. This type of borrowing from the other European court, in fundamental rights’ issues, is a well-known phenomenon, and constitutes a long-established tradition. But in times of tension concerning the relations between the two courts, on the issue of human rights protection,38 it should not be ignored that the Court of Justice relies heavily on the case-law of the Strasbourg court, when faced with a particularly sensitive case. In CHEZ RB, the case-law of the Court of Human Rights is used, explicitly, to decide whether Roma origin may be classified as ‘ethnic origin’ within the meaning of Directive 2000/4339 and, implicitly, to create a hierarchy between the different grounds of discrimination.40 Under this hierarchy, distinctions on the grounds of race or ethnic origin are considered so invidious that a strict interpretation of the concept of objective justification is required.41 Even if it can draw inspiration from the case-law of the European Court of Human Rights, and rely on the numerous precedents that this case-law constitutes, it is an uneasy task, for EU law, to address the Roma case through racial discrimination concepts. Obstacles stand in the way, when racial discrimination is concerned, which do not exist, for instance, in cases of sex discriminations. Thus, to mention an important one, indirect discrimination usually requires collecting data to measure the effects of acts or measures on a disadvantaged group. Even if Directive 2000/43 does not require statistical evidence and admits that ­indirect discrimination ‘can be established by any means including on the basis of

37  According to Art 8 of Dir 2000/43, persons who consider themselves wronged because the principle of equal treatment has not been applied to them only have to establish facts from which it may be presumed that there has been discrimination (and it is for the respondent to prove that there has been no breach of the principle of equal treatment). 38  cf Opinion 2/13 of the Court EU:C:2014:2454 on Accession of the European Union to the ­European Convention for the Protection of Human Rights and Fundamental Freedoms. 39  cf para 46 of the case. To decide that ‘the concept of ethnicity, which has its origin in the idea of societal groups marked in particular by common nationality, religious faith, language, cultural and traditional origins and backgrounds, applies to the Roma community’ the Court refers to Art 14 of the ECHR and judgments of the European Court of Human Rights in Nachova and Others v Bulgaria (2005), no 43577/98 and 43579/98 and Sejdi and Finci v Bosnia and Herzegovina (2009), no 27996/06 and 34836/06. 40  para 112 of the CHEZ RB case (n 4). 41  On recognition, by the Court of Human Rights, of the particular gravity of racial discrimination, which implies leaving a limited margin of discretion to states in this field see, for instance, Timichev v Russia (2005), no 802634.

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­statistical evidence’,42 as the CHEZ RB case illustrates,43 collecting data to establish statistical evidence, which is needed in a number of cases, is a particularly ­sensitive issue, as far as the Roma population is concerned. French livrets de c­irculation (circulation documents) imposed only on the Roma population, for ­public order purposes, were only considered unconstitutional in 2012.44 In Sweden, ­illegal registers of Roma were recently discovered.45 In Italy, the nomad emergency ­legislation of 2008 allowing the police to collect sensitive information on Roma, including fi ­ ngerprints, was considered illegal by the two superior courts in 2012.46 In this context, there is a likelihood that a requirement to collect data concerning the Roma population will trigger hostile reactions. This cannot be ignored, when looking at reasons explaining the relative inertia of EU anti-discrimination law, in the case of Roma. The CHEZ RB case may mark the sign of a new era, but it remains that EU anti-discrimination law has done little, thus far, for the recognition and protection of the Roma population as a stigmatised group. Up to a ­certain point, it seems more capable of giving rights to Roma, as individuals, against adverse measures affecting their free movement rights.

II.  Roma in the Light of Free Movement Law: Neutral Rights Against Racial Prejudices The Roma population has traditionally been associated with travelling, and mobility is often considered an element in the identification of the group called ‘the Roma’. Recently, because of high-profile cases of expulsions, from France to Romania namely, the situation of migrant Roma has shed light on the i­ mportance of EU free movement rules, for this particular segment of the Roma population, composed of both EU citizens, and travellers.47 This sub-group of the Roma population is smaller than public discourse often suggests. Nonetheless, it constitutes a category of persons for whom EU free movement law represents a rampart against discriminations based on the belonging to a stigmatised community, even if the incidental protection derived from individual right to free movement is not sufficient to overcome prejudices at the origin of unfavourable treatments of the Roma community.

42 

Preamble, para 15. In that case, the Court relied on the fact that ‘it is common ground, in the light of what is stated in the order for reference’, that the litigious practice ‘developed only in urban districts which … are inhabited mainly by persons of Roma origin’ (para 107). There was no doubt, obviously, about the system of segregation that prevailed, and, as a result, statistics were not required. 44  Conseil constitutionnel, Decision no 2012-279 QPC (2012). 45  See the report of the Fundamental Right Agency for 2013 (http://fra.europa.eu/en/­publication/ 2014/annual-activity-report-2013), 172. 46  ibid, 181. 47  On this theme see: FRA, The Situation of Roma EU Citizens Moving to and Settling in other EU Member States (Luxembourg, Office for Official Publications of the European Communities, 2009). 43 

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A.  Roma as Migrants? Who are Roma? There is no easy answer to this question. The terminology used by the Council of Europe has varied considerably since 1969, the date of the first text relating to the Roma communities: ‘Gypsies and other travellers’, ‘Nomads’ (1975 and 1983), ‘populations of nomadic origin’ (1981), ‘Gypsies’ (1993), ‘Roma (Gypsies)’ (1995), ‘Roma’ (1997, 2002), ‘Roma/Gypsies’ (1995, 1998, 2000), ‘Roma/ Gypsies and Travellers’ (2001), ‘Roma and Travellers’ (between 2004 and 2010), and ‘Roma’ since 2010.48 Since that date, the definition used by the Council of Europe that serves as a reference reads as follows: The term ‘Roma’ used at the Council of Europe refers to Roma, Sinti, Kale and related groups in Europe, including Travellers and the Eastern groups (Dom and Lom), and covers the wide diversity of the groups concerned, including persons who identify themselves as Gypsies.49

The Council of Europe estimates that there are around six million Roma living in EU Member States,50 among whom the vast majority (80 to 85 per cent) is sedentary. Among those who remain non-sedentary, many are considered to be moving towards a sedentary lifestyle.51 For some historians, considering Roma as nomads has become inaccurate since 80 per cent of them have not left their country of origin during the last two or three centuries.52 In addition, non-sedentary Roma, only a small proportion of the group, who have an itinerant lifestyle, do not ­necessarily travel across borders. All in all, when mobility is considered an element of the definition of the group of Roma, which is the case in France, as in other European countries,53 this ­conception mixes together different sorts of mobility. Many of them fall outside the field of EU free movement law: mobility from a settlement to another, within the same Member State, sometimes due to illegal occupation and police actions forcing people to move is merely one example. Whereas back and forth circulation, for instance between France and Romania or Bulgaria, is, indeed, covered by EU law. The terminology ‘gens du voyage’, used in France, blends together different categories of mobile populations, but refers to people who, for the most part, are French, and have not made use of the subjective right to free movement granted

48  On this evolution: Council of Europe (2012), Descriptive glossary of terms relating to Roma issues, version dated 12 May 2012, Strasbourg (a.cs.coe.int/team20/cahrom/documents/Glossary%20 Roma%20EN%20version%2018%20May%202012.pdf.). 49  ibid, 4. 50  ibid, 6. 51 ibid. 52  H Asséo, ‘Non, les tsiganes ne sont pas des nomades’ Le Monde diplomatique (Paris, 2012) 14. 53  Gisti ‘Roms, les nouveaux parias’ (2013) 99 Plein droit (on line: www.gisti.org/spip.php?article3369, last consulted on 2 Nov 2015).

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by EU law. Among the 400,000 estimated Roma in France,54 only 15,000 to 20,000 are migrants, according to recent estimates.55 Among them, 90 per cent would be Romanian, according to a recent report.56 These figures are important to put in perspective the phenomenon of the Roma mobility. They give sufficient reasons to cast out the discourse on ­massive migration flows. But they also indicate that there exists a sub-group of the Roma population, a minority within a minority, to be sure, which is covered by EU free movement law, and should be able to reap the benefits of subjective rights granted to mobile citizens. These rights stand as a robust, although not unwavering, defence against states’ restrictive immigration policies.

B. Scope and Limit of the Protection of Migrant Roma Under EU Free Movement Law Free movement rules create a shield against restrictions to the individual right, granted to EU citizens, to reside and/or work in another state. The requirement that any restrictive measure takes into account the individual situation of the person concerned provides a basis to challenge restrictive immigration laws or practices against the Roma population as a group. EU law can be opposed, for instance, to measures such as those taken in France, in the summer of 2010, when illegal Roma camps were shut and all migrants living in these camps were deported.57 In the face of the invidious treatment meted on these migrants of Roma origin, free movement rules look like a lifeline. To be sure, the requirement that particularly harsh restrictions such as expulsions be based on an individual assessment of the situation of the person ­concerned is not only enshrined in EU law, for the benefit of EU mobile citizens. As a ­fundamental right, it opposes collective deportations of all individuals, as stated, namely, by Article 19(1) of the Charter of Fundamental Rights. Beyond the frontiers of EU law, Article 4 of protocol number 4 to the ECHR ­concerning c­ ollective expulsion also guarantees that expulsion is based on a specific ­examination of the

54  V Reding, L Andor and C Malmstrom, ‘The Situation of Roma in France and in Europe: Joint Information Note’ 1 September 2010, 17 (www.statewatch.org/news/2010/sep/EC-Roma-Francereport.pdf). 55  O Legros, ‘Les pouvoirs publics et la “question rom” en Europe aujourd’hui—Perspectives de recherche pour une approche comparative’ (2009) Études tsiganes 43 (online: halshs.archives-ouvertes. fr/halshs-01015542). 56  Collectif National Droits de l’Homme Romeurope, Rapport sur la situation des Roms migrants en France (2010) 18 (www.romeurope.org/IMG/Rapport%20Romeurope%202009-2010.pdf). 57  On these events, see Human Rights Watch, ‘France: One Year On, New Abuses Against Roma’ (www.hrw.org/news/2011/09/29/france-one-year-new-abuses-against-roma) and Romeurope ‘Les Roms, boucs-émissaires d’une politique sécuritaire qui cible les migrants et les pauvres’ (www. romeurope.org/Les-Roms-boucs-emissaires-d-une,1066.html).

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case at hand. As such, in 2011, France was condemned for its collective d ­ eportation of groups of Roma by the European Committee on Social Rights, on the basis of the European Social Charter.58 However, EU law particular provisions concerning the mobility of EU citizens have strengthened the requirement of an individual assessment of the situation. First of all, there is an obligation to justify restriction to the right of residence in another State by the personal conduct of the individual concerned, according to Article 27(2) of Directive 2004/38.59 The same article requires, in addition, that the ‘personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. Lastly, ‘justifications that are isolated from the particulars of the case or that rely on considerations of general prevention’ are rejected. These provisions of EU law, which find their roots in the very early developments of the law on the free movement of persons,60 are strictly enforced by the Court of Justice. Even if recent judgments did not draw out the potential of these rules for the benefit of long-term residents, the Court of Justice strictly scrutinises, in most cases, restrictive measures against EU citizens, insisting, in particular, on the condition that the person must be a present and sufficiently serious threat to the fundamental interests of society, which means that past behaviour, even if it is a very serious criminal offense, is not a sufficient justification for deportation.61 Against this background, the recent decision of the French Conseil d’Etat to deport a woman of Roma origin, who was arrested because she was on the streets asking for money from passers-by for donations to a non-existent charity (a behaviour that falls under French criminal law, but had not led to any criminal sanction against the person concerned), would certainly not pass muster.62 Although the Conseil d’Etat accepted there was a sufficient serious threat to public order, it is very doubtful that this conduct would be considered an ‘actual threat to fundamental interests of society’, according to EU law. The same decision is also at variance with EU law requirements because it is marked by considerations of ‘general prevention’ against the Roma as a group. Indeed, the Conseil d’Etat mentioned, without this being necessary to assess the threat to public order, that the Romanian nationality of the person concerned, the collective nature of the behaviour (which leads to an aggravation of the offence), the belonging of the person to a group of 10 others, who were arrested by the police at the same time, and the residence of the person in a Roma camp were relevant factors in their assessment. This suggests that the measure is based on 58 

Centre on Housing Rights and Evictions (COHRE) v France (Complaint n° 63/2010). Dir 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (2004) OJ L 158/77. 60  Dir 64/221 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (1964) OJ L 56/850, and the case-law based on that text. 61  See, for instance: Case C-348/09 PI v Oberbürgermeisterin der Stadt Remscheid EU:C:2012:300. 62  Conseil d’Etat, 1 Oct 2014, no 365054. 59 

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a larger context, involving the Roma as a group. Only within this context does the individual behaviour acquire the seriousness that justifies expulsion. Such a solution conflicts with the authority of the old but important precedent in the Bonsignore case:63 reasons of ‘general preventive nature’ cannot allow a restriction on free movement. The other type of assessment that EU law requires refers to the personal situation of an individual. This requirement was introduced in the legislation by Article 28(1) of Directive 2004/38, according to which before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

When States order deportation of a large number of people, following police ­intervention in the Roma camps, there is no doubt that this practice constitutes a violation of Article 28(1) of the Directive. EU law provides a legal basis for ­challenging such measures before the Court of Justice, as the European Commission suggested, when it threatened France to take judicial action in 2010. In reply, France has, eventually, formally implemented the requirement of the Directive by introducing new Articles in the law, which repeat, word for word, Article 28(1).64 If, to date, these new provisions do not seem to have transformed police practices,65 this does not call in question the fact that EU free movement law allows actions to contest administrative measures against groups, which violate the requirement of an individual assessment of the situation. If personal conduct and one’s personal situation must both be taken into account by Member States when they adopt measures restricting the free movement of EU citizens, personal reasons for exercising the right to free movement are protected. Although the Court of Justice and Directive 2004/38 accept that Member States can legitimately combat frauds or abuses of rights, the case-law of the Court of Justice is not receptive to considerations related to the intentions of the person concerned. As long as the objective conditions for the creation of a right to free movement are fulfilled, intention is hardly a relevant consideration.66 This is another way to protect the individual right to free movement, by limiting investigations into subjective choices, that can be opposed to some recent attempts to limits Roma mobility. The law of a Member State, according to which the right of residence can be denied when renewed short-term residence serves

63 

Case 67/74 Carmelo Angelo Bonsignore v Oberstadtdirektor der Stadt Köln EU:C:1975:34. of 16 June 2011, introducing arts L 511-3-1 and L 521-5 into the French immigration code (code de l’entrée et du séjour des étrangers et du droit d’asile). 65  European Roma Rights centre, ‘France: Country profile 2011–2012’ 2014, 17 (www.errc.org/cms/ upload/file/france-country-profile-2011-2012.pdf). 66  For a recent example concerning the role of intention in deciding whether the person belongs to the category of workers: case C-46/12 LN EU:C:2013:97. 64  Act

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to ­circumvent the conditions applying to long-term residence,67 for instance, can hardly be reconciled with the EU law approach to fraud. This solution, of course, seems particularly appropriate when the legislation at stake aims to counteract a type of mobility associated with the mobility of non-economically active Roma, back and forth from their country of origin to the territory of that State. By forcing States to consider the individual, and not the community she belongs to, and accord rights to that individual, EU law can, without any doubt, advance the cause of the Roma population, or at least certain members of that group, not because they belong to the group, but against the use of that identity by courts as a legally relevant factor, which has an adverse and discriminatory effect on members of the Roma population. In this regard, EU law reflects nothing more than the ideal of ‘classical’ liberalism, which relies on the principles of liberty and equality, to create a society of individuals, but ignores the importance of groups and the conflicts between them, within the society.68 Thus, it comes as no surprise that the possible resistance to adverse treatment against the Roma population derived from the defence of individual rights, under free movement rules, is not without limits. As the Dano case illustrated, the right to reside in another Member State is subject to conditions.69 If Roma can obtain rights, as any other individuals, under that law, this is only in so far as they fulfil these conditions, in a neutral or ‘colour blind’ conception of law. In a formal approach of the conditions mentioned in Directive 2004/38, this means that non-economically active Roma can be denied the right to claim social benefits, in another Member State, on formally equal terms to all other European citizens, and thus, eventually, be forced to leave the territory of that State. Things could be different if the identification of the mobile citizen as a member of a disadvantaged group resurfaced, this time to challenge discriminatory denial of social assistance. This implies embedding anti-discrimination law in the fabric of free movement law.

III.  In Guise of Conclusion: Protection of Mobile Citizens as Members of Vulnerable Minorities: A Realistic Objective for EU Law of Persons? The case of the Roma illustrates two loopholes in some essential dimensions of EU ‘law of persons’. On racial discriminations, European Union law has remained

67 

cf Art 511-3-1 of the French immigration code. On this conception of ‘classical liberalism’ see, for instance, C Audiard, Qu’est ce que le libéralisme, Ethique, Politique, Société (Paris, Gallimard, 2009) esp 254. 69  Case C-333/13 Dano (2014) EU:C:2014:2358. On this well publicised case see: E Pataut, ‘Les ­limites de la solidarité en Europe’ [2015] Revue de droit du travail 161; D Thym, ‘When Union Citizens Turn into Illegal Migrants: the Dano Case’ (2015) 2 EL Rev 249, and P Rodière, ‘Circulation des personnes dans l’UE et assistance sociale: Après l’arrêt Dano de la Cour de justice de l’Union européenne (aff C-133/13)’ (2014) 1657 Semaine sociale Lamy 5. 68 

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practically inert, thus far, as compared to the sustained activity of the European Court of Human Rights, in this domain. Although the case-law of the European Court of Justice may evolve, in the future, it will remain impeded by the ­traditional resistance of EU anti-discrimination law to positive action, combined with the limited jurisdiction of EU law. In the area of free movement, although EU law can ensure substantial protection against adverse measures concerning members of the Roma community, it does not prevent States denying them access to social assistance, since the right to free movement is not granted without conditions, and a formal interpretation of these conditions side-steps the very real problem of prejudices affecting the community. What would happen if both threads of EU law, anti-discrimination law, which prohibits discriminations based on race, and free movement law, which allows EU citizens to circulate across national territories and national communities, were combined? Would a case like Dano take another direction if the mobile citizen demanding social benefits was identified as a member of the Roma population? In such case, denial of social assistance based on a restrictive interpretation of EU law could be envisaged as a possible case of indirect discrimination against Roma. The impact of such restrictive ‘judicial reconstruction of free movement law’70 on a racial minority would have to be assessed. It is, of course, not at all certain that indirect discrimination would be found: it would take showing a disproportionate impact of the new interpretation of the law on the stigmatised group. To support that claim, evidence, to be sure, is not readily available. But without going so far to consider concrete outcomes, suffice it to say, for now, that the Roma population, at the intersection of free movement and anti-discrimination law, makes the case for an evolution of the conception of the person in EU (free movement) law: in this process, the identity of EU citizens, entitled with free movement rights, would include their identification as members of stigmatised minorities.

70 

Thym, ibid 253.

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Part V

Personhood, Identity and Status

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12 Human Embryos as Persons in EU Law STÉPHANIE HENNETTE-VAUCHEZ*

I. Introduction The question of the beginnings of life, as well as that of its (non)-coincidence with the contours of the legal category of ‘persons’, is a constant refrain in the literature concerning biomedical law: when does life begin and are all live human beings legal persons? The issue of the legal qualification of human embryos is, thus, closely connected to debates relating to the delimitation and definition of the category of legal persons. As far as EU law is concerned, however, readers of this chapter, human embryos in European law, might well question the significance of, or relation between, EU law and biomedical law. Since by its very existence the present volume casts doubt on whether EU law has developed a category of legal persons at all, the likelihood of a category of the human embryo under EU law seems even more remote. It does seem, indeed, that EU law typically treats persons according to a functionalist logic: it categorises individuals either as workers, nationals (or non-nationals), companies, service providers and so on. EU law sometimes goes a little deeper, and classifies persons as pregnant workers, protected non-nationals, etc. It scarcely goes any further, however: the ontological register is not one familiar a priori to EU law. The present chapter will, however, suggest that counter-intuitive as might seem, EU law does step into a quasi-ontological mode when confronted with the issue of the legal qualification of human embryos. It is argued that there are at least two ways in which the EU, as a legal and political order, has become part of a conversation about the contours (if not the outright definition) of a concept of

*  I wish to thank the organisers of the conference ‘The Category of Person in EU law’ for inviting me to take part in what was as a very stimulating conversation. I do wish to insist, however, that the ideas that are sketched in this contribution are provisional in nature and should be read as a first step in a possible research agenda for scholars interested in the intersection between EU law and bioethics.

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‘human embryos’. This occurs in an implicit, indirect way (quite similar to the functionalist approach to ‘persons’ in general) as well as in a more straightforward manner (an orientation quite specific to the issue of embryos). These two routes correspond, more generally, to the two main ways in which the question of the legal status of the embryo may arise in legal orders or legal venues such as courts. In some instances, the question that legal actors are confronted with is that of the legal qualification of ‘life itself ’. This is the case, for instance, when they are confronted with the necessity of qualifying embryonic stems cells that a research unit wishes to import from another country;1 or when a judge needs to decide whether there are grounds for legal liability in cases where embryos that were being stored for potential (but uncertain) future use by a couple who had been involved in an IVF cycle are destroyed.2 The question of legal status can also arise when a Member State asks the Court of Justice of the E ­ uropean Union (CJEU) to give its interpretation3 of particular provisions of the 1998 Patents’ Directive4 as to whether embryonic stem cells should fall under the exclusions to patentability. In other cases, the question that arises is that of the qualification of what can be called ‘the Life Entangled’—by which I mean to underline the contrast with ‘life itself ’ and point to cases where the questions that arise do not pertain to the legal qualification of the embryo per se as much as they require a judicial articulation of its legal status with regard to other legal interests. This is case when, for instance, women seek abortions,5 or when the freedoms of movement (of persons or services, mostly) are used as means to obtain reproductive services6— such as in the Diane Blood case.7 In both hypotheses, indeed, a concept of ‘life’ is ­certainly at stake, as abortion or reproductive services (and rights) directly relate to either t­ ermination or production of life. In both hypotheses, however, the way

1  Cour Administrative d’Appel de Paris, 9 May 2005, no 03PA00950: here, however, the Court refused to answer the question framed and instead of providing a positive legal definition of the human embryo limited its ruling to the affirmation that embryonic stem cells could not be considered to be ‘embryos’. 2  Cour Administrative d’Appel de Douai, 6 December 2005, no 04DA00376: the Court ruled that the loss did not lead to liability for the hospital, because embryos are neither things nor persons (but it did not provide a positive legal definition of the embryo). 3 CJEU, Oliver Brüstle v Greenpeace [2011] I-09821. 4  Dir 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions. 5  As far as the EU legal order goes, see ECJ, Grogan v Society for the Protection of Unborn Children (SPUC), [1991] ECR I-04685. 6  US Legal scholar I Glenn Cohen has coined the term ‘circumvention tourism’: I Glenn Cohen, ‘Circumvention Tourism’ (2012) 97 Cornell Law Review 1309. For a recent and stimulating analysis of the legal stakes associated with reproductive tourism in the EU: B van Beers, ‘Is Europe “Giving in to Baby Markets?” Reproductive Tourism in Europe and the Gradual Erosion of Existing Legal Limits to Reproductive Markets’ (2015) 23(1) Medical Law Review 103. 7  R v Human Fertilisation and Embryology Authority, ex parte Blood [1997] 2 All ER 687. For comments: T Hervey, ‘Buy Baby: the European Union and Regulation of Human Reproduction’ (1998) 18 Oxford Journal of Legal Studies 207; JS Bergé, ‘Le droit communautaire dévoyé: le cas Blood’ (2000) 7 La Semaine Juridique 206.

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legal actors are confronted with ‘life’ is more indirect that direct. The question of the qualification of life itself (is it or is it not a legally protected value?) does not require an answer; rather, the issue is the determination of the extent of individuals’ freedom vis à vis life—its interruption and/or its production. In other words, it is not so much the legal status of the embryo that is at stake but the determination of the varying ways in which its legal status might be affected or altered by social and medical practices. These two manifestations that the issue of the legal qualification of ‘life’ may take are enlightened when read against the main teachings of contemporary political theory—especially those of its strands that are interested in the issue of biopolitics. As Foucault famously argued in six important pages of La volonté de savoir,8 an important shift in the nature of political power occurred when sovereign power no longer concerned itself with ‘making die and letting live’ than it did with ‘making live and letting die’. Modern power (biopower), Foucault argues, is situated and exercised at the level of life; and this evolution goes hand in hand with the decreased centrality of traditional tools of power (in particular, legal tools in their classical form of norms and punishments) and the emergence of new ones: ­discipline, knowledge, surveillance, technologies—among which, medical technologies play an important part. This theoretical framework is particularly stimulating for the study of the legal regulation of biomedicine and perhaps even more so at the level of the European Union,9 as the EU has no straightforward competence to legislate or regulate the field; as such, its intervention takes the shape of unexpected tools such as research policy, ethical opinions, of quality and safety-­oriented pieces of legislation that result from ethics-inspired modes of e­ laboration.10 At any rate, Foucault’s work may be read as an invitation to reflect on the profound political meaning of what may appear to be technical legal ­regulations, especially in the field of (bio)medicine. The two kinds of configurations sketched above (ie the legal qualification of the embryo pertaining either to life itself or to life entangled) further echo a distinction made by ancient Greek thought that Giorgio Agamben has famously revived in his classic in Homo Sacer: Sovereign Power and Bare Life:11 the distinction between zoe (the bare life, life as a biological fact that is common to human and other forms of life—animal and divine) and bios (life in so far as it has been politically qualified, in so far as it is ‘axiologically charged’, that is, life under the

8 

M Foucault, Histoire de la Sexualité, La volonté de savoir (tome I) (Paris, Gallimard, 1976) 181 ff. In addition, and to the extent that we see these questions emerging at the level of the EU, there is a strong trend in the literature in the field of science studies that claims that there is self-constituting effect of the production of legal discourses on life for the EU polity itself. See, for instance: S J­ asanoff, Designs on Nature. Science and Democracy in Europe and the United States (Princeton, Princeton ­University Press, 2005). 10  S Hennette-Vauchez, ‘Biomedicine and EU law: Unlikely Encounters?’ (2011) 38(1) Legal Issues of Economic Integration 5. 11  G Agamben, Homo Sacer, le pouvoir souverain et la vie nue (Paris, Seuil, 1997). 9 

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specific forms that is valued by polities).12 Agamben unearths, thus, the c­ lassical Aristotelian opposition between the polis in charge of bios (to eu zen), and the oikos in charge of reproductive life (to zen).13 He then moves on to revisit classical understandings of Aristotelian thought—including Foucault’s. Agamben argues, in particular, that contrary to Foucault’s thesis, the birth of biopolitics (ie the inclusion of zoe into polis) did not occur in modern times. Aristotle’s polis, he claims, attempts to transform zoe into bios. In Aristotle’s Politics, zoe is already implied in the polis (be it in the form of an exclusion).14 What Agamben claims is that the most salient feature of modernity, then, is ‘thanatopolitics’ more than it is biopolitics, by which he means not the inclusion of zoe into the polis but to the full absorption of bios into zoe. Thanatopolitics as the modern form of biopower lies in the permanence of the ‘state of exception’ (exemplified by ‘the [concentration] camp’), which is characterised by the erasing of any distinction between bios into zoe—the full absorption of the former by the latter. In Agamben’s reading, (bio) political power is no longer about transforming bare life into qualified life, but is directly exerted on bare life. How do these basic elements drawn from the literature on biopolitics shed light on EU biomedical law and especially, on the status of human embryos under EU law? In the present chapter it is argued that there are at least two ways in which the EU has contributed to designing—if not defining—a legal status of the human embryo, since there seems to be a legal discourse of EU law both on life entangled and on life itself. The chapter uses examples drawn from CJEU case-law to exemplify instances of both these discourses, and attempts to describe the differences that oppose them: while the former seems mechanical and implicit (section II), the latter is more crudely axiological (section III). The analysis of these two strands of EU legal discourse on the human embryo lead to concluding remarks in the form of questions related to the political stakes that are associated with legal discourses that attempt to define life.

II.  The Mechanical Production of the ‘Life Entangled’ There is something profoundly implicit, or indirect, in the effect of biopolitics à la Foucault and the extent to which it produces a standard of life entangled (or norms and standards of a ‘good life’; or bios). Technologies of self as well as 12 

Agamben mentions bios as referring to the ‘formes et façons de vivre propre à un groupe’: ibid, 9. ibid, 10. 14  ‘Si tout cela est vrai, il conviendra d’examiner plus attentivement la signification de la définition aristotélicienne de la polis comme opposition entre vivre (zen) et bien vivre (eu zen). Cette opposition, en effet, est également une implication du premier dans le second, de la vie nue dans la vie politiquement qualifiée’, ibid, 15. 13 

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technologies of power are less conspicuous, indeed, than former modes of expression of the sovereign power, as their grammar of discipline and surveillance is less straightforward than classical rules (norms and punishments). Foucault explains how practices and behaviours are discouraged (or encouraged) more than they are forbidden, how criminal sanctions are readily replaced by conditional suspensions thereof, etc. In this sense, the ‘life entangled’ only appears en creux and eventually it needs to be unearthed. At face value, then, one might well see nothing at all. Lawyers searching for a classical, positive definition of ‘life entangled’ (for instance, under the guise of a legal definition of human embryos) may not find anything clear-cut or conspicuous. This should not be equated, however, with the notion that there is none to be found; implicitly, albeit in a hidden fashion, life entangled is invested with normative authority—it has contours and a legal regime. The EU is a fascinating terrain for such an investigation. Not only is the very existence of EU legal and political norms in the fields of health, medicine, ­biomedicine, bioethics and so on more unlikely than in other legal orders,15 their substance is also remarkably different: instead of grand principles and acts of faith, EU legal norms in the field of bioethics are procedural, technical or at best, ­‘ethical’.16 It would be naïve, however, to fall into the trap of the EU’s ethical neutrality. All polities affirm, albeit by their silence or inaction, underlying values. As Wendy Brown states: ‘discourses posit and organize silences, as part of discourse, rather than as its opposite’;17 in other words, it may well be considered that silence is a constitutive part of discourse. In a less theoretical perspective, it is worth keeping in mind—as Bruno de Witte has aptly argued in various studies of EU legislation relating to the free market—that ‘economic integration [is] always also about something else’.18 In that sense, the unlikeliness, limitations or technical nature of EU legal norms in the field of bioethics should not hinder our ability to unearth the standards of ‘good life’ they convey. As this section of the paper focuses on excerpts of EU law regarding abortion and assisted reproduction, its aim is to highlight their mechanical (or allegedly ethically neutral) nature and unearth the values they affirm. The combination and simultaneity of both this apparent ethical neutrality (or mechanical nature) and the production of values (and, indeed, legal norms) relating to the life entangled encourages me to read this first line of illustrations as confirming the classical (Foucaldian) biopolitical frame of analysis. 15  See, for instance: T Hervey and J McHale, Health law and the European Union (Cambridge, ­ ambridge University Press, 2004); T Hervey, ‘Mapping the Contours of European Union Health C Law and Policy’ (2002) 8 European Public Law 69; Maastricht Journal of European and Comparative Law (2009) 16(1) (special issue, ed M Flear); T Murphy, AM Farrell and Mark Flear (eds), European Law and New Health Technologies (Oxford, Oxford University Press, 2013). 16  On this: Hennette-Vauchez (n 10). 17  W Brown, Edgework: Critical Essays on Knowledge and Politics (Princeton, Princeton University Press, 2009) 87. 18  B de Witte, ‘Non Market Values in Internal Market Legislation’ in N Nic Shuibhne (ed), ­Regulating the Internal Market (Cheltenham, Edward Elgar, 2006) 75.

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A. Abortion EU law’s stance on abortion—framed decisively early on in the 1991 Grogan ­ruling—is emblematic of this alleged ethical neutrality of EU law on the life entangled.19 Against a context where abortion was (and remains) unconstitutional under Irish law,20 students’ organisations in Ireland had initiated a policy of disseminating information about the accessibility of legally performed abortions in Great Britain.21 Because of the subversive nature of the information they were making available, an injunction was sought that ordered the students’ organisations to desist. As the students’ organisations petitioned the injunction, the Irish High Court received their claim that its compatibility with EU law was uncertain. Consequently, the Court refused to order the injunction and referred three questions to the European Court of Justice (ECJ):22 i.

can abortion be considered a ‘service’ under Article 60 (now Article 57 TFEU (Treaty on the Functioning of the European Union)?23 ii. is the injunction an invalid restriction under Article 59 (now Article 56 TFEU)?24 iii. is it invalid vis à vis fundamental rights?

19 ECJ, Grogan

v Society for the Protection of Unborn Children [1991] ECR I-04685. In 1983, an amendment to the Irish Constitution was adopted by referendum according to which ‘[t]he State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right’ (Irish constitution of 1937 art 40, as amended by the 1983 act). Admittedly, in July 2013, an Irish bill was voted into law (Protection of Life During Pregnancy Act), which allows abortion when the life of the woman is at risk. Although an important disruption of abortion politics in Ireland, this is merely the legalisation of the judicial solution of 1992 (Supreme Court of Ireland, 5 March 1992, Attorney General v X [1992] IESC 1; [1992] 1 IR 1). However, there is reason to believe that the death of 31 year old Savita Halappanavar in October of 2012 (caused by septicemia after she was denied abortion although the foetus she was carrying was unviable) was more instrumental to the reform than either the ECJ or the European Court of Human Rights case-law. For a recent analysis of the Irish abortion legal regime, see: P Garcia del Moral and A Korteweg, ‘The Sexual Politics of Citizenship and Reproductive Rights in Ireland: From National, International, Supranational and Transnational to Postnational Claims to Membership?’ (2012) 19 European Journal of Women’s Studies 413; and A ­Mulligan, ‘The Right to Travel for Abortion Services: a Case Study in Irish “Cross Border Reproductive Care”’ (2015) 22(3) European Journal of Health Law 239. 21  As abortion became legal in Britain in 1967, a so-called ‘abortion trail’ soon emerged, that is estimated to have led 72,000 Irish women to seek abortion there between 1970 and 1999: Garcia del Moral and Korteweg (n 20) 416. 22  On appeal, however, the Supreme Court maintained the referral but delivered an injunction. 23  Art 50 TFEU: ‘Services shall be considered to be “services” within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons. “Services” shall in particular include: (a) activities of an industrial character; (b) activities of a commercial character; (c) activities of craftsmen; (d) activities of the professions’. 24  Art 56 TFEU: ‘Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended’. 20 

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Of particular interest is the Court’s answer to the first question, found at ­paragraphs 17 to 21 of the ruling: 17. According to the first paragraph of (art 60), services are to be considered to be ­‘services’ within the meaning of the Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital or persons … 18. It must be held that termination of pregnancy, as lawfully practised in several Member States, is a medical activity which is normally provided for remuneration and may be carried out as part of a professional activity. In any event, the Court has already held in the judgment in Luisi and Carbone … that medical activities fall within the scope of Article 60 of the Treaty. 19. SPUC, however, maintains that the provision of abortion cannot be regarded as being a service, on the grounds that it is grossly immoral and involves the destruction of the life of a human being, namely the unborn child. 20. Whatever the merits of those arguments on the moral plane, they cannot influence the answer to the national court’s first question. It is not for the Court to substitute its assessment for that of the legislature in those Member States where the activities in ­question are practised legally. 21. Consequently, the answer to the national court’s first question must be that medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty.

At this central part of the ECJ’s reasoning, the Court proceeded to mechanically apply the technical definition of ‘services’ under EU law to abortions. After first recalling that ‘services’ are to be identified whenever they are normally provided for remuneration and then that, as a matter of principle, medical activities fall within the scope of the old Article 60 of the treaty (now Article 57 TFEU),25 the ECJ ruled that the termination of pregnancy, insofar as it is lawfully provided in several Member States for remuneration and as part of a professional activity, was a service. The European Court insisted, in particular, that moral arguments may not interfere with what, by contrast, it portrays as ‘pure’ legal reasoning (paragraph 20 of the excerpt above). The rest of the Court’s judgment logically stems from this instrumental move: to the extent that under EU law, services go along with the freedom of information pertaining thereto, the Court’s reasoning moved on to address the issue as to whether the British clinics’ freedom to provide services was violated or unduly restricted by the Irish authority’s injunction. However, since the injunction only targeted the Irish students’ associations—and not the British

25  This had been determined earlier by the Court, see ECJ, Luisi and Carbone [1984] ECR I-00377; see in particular para 16: ‘It follows that the freedom to provide services includes the freedom, for the recipients of services, to go to another member state in order to receive a service there, without being obstructed by restrictions, even in relation to payments and that tourists, persons receiving medical treatment and persons travelling for the purpose of education or business are to be regarded as recipients of services’.

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clinics—and absent any kind of link between the two, the Court could only find that the injunction against the associations did not amount to a violation of the clinics’ right to freedom of services. The answer to the second question was thus negative and so was the third, as the Court could not find that fundamental rights protected within the EU legal order were violated by the injunction, insofar as it had already determined, that the measure at stake (the Irish injunction to students’ associations) lay outside the scope of EU law.26 Encapsulated herein are two main features of the Court’s reasoning that illustrate its mechanical approach to an issue of the life entangled. First, ‘morals’ (ie values, axiology) are purportedly discarded as inappropriate references for legal reasoning; second, the full relevance of EU legal categories to the matter at stake is affirmed as the Court proceeds to fully apply EU law to the case. Now, precisely these features have led to this ruling receiving quite widespread, and sometime fierce, criticism. Certain authors have focused on its arguably unjustifiable d ­ iscarding of moral reasoning;27 others have insisted that its judgment as to the inapplicability of Article 59 was regrettable.28 My aim here is not to engage with these doctrinal discussions of the Grogan case, for they have been thoroughly rehearsed, but only to insist on what I have called a ‘Grogan template’:29 a mode of reasoning in which (i) the moral dimension of a sensitive issue is explicitly discarded and (ii) basic categories of EU law (here, ‘services’) are mechanically applied to the issue. Now, of course, this is not a judgment in which anything explicit is said about the life entangled (bios)—about standards of good life. Implicitly, however, as it ruled that medical services are services under EU law, and that there was no reason not to consider abortion as a medical service, the Court, implicitly but necessarily, states something about a form of compatibility of abortion with the political project that founds the EU as a polity.

B.  Assisted Reproduction Assisted reproduction is another case in point. In the 2008 Sabine Mayr case,30 the Court claimed the need to disregard national morals-inspired beliefs about

26  Here is not the place to recall the history of the EU’s legal engagement with fundamental rights (their initial absence from the European legal order, the anxieties voiced by several constitutional courts, their progressive incorporation, first throughout the Court’s case-law and ultimately in the treaties). Suffice it to say that European institutions and Member States are bound by the respect of the fundamental rights only if and when they either apply or derogate from European law. 27  See, for instance: DR Phelan, ‘Right to Life of the Unborn v Promotion of Trade in Services: the ECJ and the normative shaping of the EU’ (1992) 55 Modern Law Review 670. 28  H Gaudemet-Tallon, ‘Commentary’ (1992) Revue Trimestrielle de Droit Européen 163; L Dubouis, ‘Commentary’ (1992) Revue de droit sanitaire et social 48. 29  S Hennette-Vauchez, ‘Grogan v SPUC: Rereading the Case, Retelling the Story of R ­ eproductive Rights in Europe’ in F Nicola and B Davies (eds), EU Law Stories (Oxford, Hart Publishing, forthcoming). 30 CJEU, Sabine Mayr v Bäckerei und Konditorei Gerhard Flöckner [2008] ECR I-01017.

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assisted reproduction in order to answer a referral relative to the extent of ­protection offered by EU labour law and anti-discrimination legislation to a female worker enrolled in an IVF cycle. An employee of a bakery, Sabine Mayr had been informed of her dismissal a couple of days after the in vitro fertilisation of her ova had taken place—and shortly before the embryos were scheduled to be implanted. She sued her employer, arguing that pregnant workers were protected against dismissal. The national court referred the case to the ECJ in order to obtain guidance as to whether Sabine Mayr was to be considered ‘pregnant’. The Court used the Grogan template affirming, first, that it is not for the Court to engage in a moral assessment of the practices at stake and second, that is was to make full use of the relevant EU legal tools and categories. The ‘mechanical’ application of EU law that it applied led to remarkable results; although the Court admitted that it was impossible to award to Sabine Mayr the protection that EU law offers to pregnant workers (as she was not pregnant), nevertheless, the Court interpreted EU law in a broad manner in order to secure some form of EU protection for the claimant (paragraph 43: ‘even if Directive 92/85 is not applicable … the fact remains that, in accordance with the case-law of the Court, the Court may deem it necessary to consider provisions of Community law to which the national court has not referred in its question’). Invoking proprio motu Directive 76/207 on equal treatment of workers regardless of their sex, the Court then ruled that ‘dismissal of a female worker on account of pregnancy, or for a reason essentially based on that state, affects only women and therefore constitutes direct discrimination on the grounds of sex …’.31 Because IVF is a treatment that ‘directly affects only women’, it found that ‘the dismissal of a female worker essentially because she is undergoing that important stage of in vitro fertilization treatment constitutes direct ­discrimination on grounds of sex’.32 Thus, once again the Court does not directly refer to life itself (zoe): the crux of the matter is neither the legal status of the embryos that were to be implanted nor a principled position on the admissibility of assisted reproduction treatment (ART). Rather, the Court chose to distantiate from a value-led approach to ART and ­reasoned on the basis of its classical legal categories, namely anti-­ discrimination on the basis of sex, examining whether and under what conditions EU protects reproductive decisions. To that extent, the ruling can be read as a ­decision on the life entangled, ie on the good life (bios).

III.  The Axiological Production of Life Itself More recently, EU law has engaged a somewhat different path: that of producing a legal discourse on life itself (what could be coined, in Agamben’s terms, bare life). 31  32 

ibid, para 46. ibid, para 50.

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This strand of EU legal discourse is quite different from the former approach. It is no longer implicit, it does not need not to be unearthed; rather, it takes the form of a positive definition of life—as it is, a positive legal definition of the human embryo under EU law. The case in point is the much noted Brüstle case of 2011.33 Mr Brüstle was the holder of a German patent, which covered (i) neural cells (ii) cells produced on the basis of human embryonic stem cells (the patent application also included the processes for their production) (iii) with a potential for industrial application in the field of regenerative medicine. Technically, his claim as to the production of neural cells through the use of human embryonic material was very important. Mr Brüstle’s patented invention included a way to overcome one the main obstacles to the development of treatments of degenerative conditions such a Parkinson’s disease based on neural cells, ie their inaccessibility. As it proposed to use human embryonic stem cells for the production of neural cells for transplantation, it did indeed propose a way to overcome the obstacle.34 But on an application by Greenpeace, the German Bundespatentgericht (Federal Patent Court) ruled that the patent was invalid because it covered cells obtained from human embryonic stem cells that fall under exclusions of patentability. The defendant appealed the judgment and the Bundesgerichtshof (Federal Court of ­Justice) referred the case to the CJEU in order to obtain an answer to the ­question as to whether neural cells obtained from human embryonic stem cells were excluded from patentability by Article 6(2)(c) of the 1998 Patents Directive.35 To be sure, the Directive’s provision on exclusions of patentability protects human embryos; they cannot be used for commercial purposes. However, there was leeway in the determination as to whether human embryonic stem cells could be assimilated to ‘human embryos’ under Article 6(2)(c) of the Directive. The CJEU seized this referral as an opportunity to go well beyond the ­question referred (do human embryonic stem cells fall under the exclusion of patentability of article 6(2)(c)?)36 providing a positive legal definition of the

33 CJEU, Oliver

Brüstle v Greenpeace [2011] ECR I-09821. embryonic stem cells are cells that form the embryo in its very early stages. 6–8 days after fertilisation, the embryo is at the blastocyst stage: it is composed of 8 to 10 cells, all of which are pluripotent, which means that if detached from the embryo and cultivated, they can be programmed to develop into lines of specific cells such as neural, muscular, blood cells. The discovery of these cells and the possibility of their isolation and cultivation, at the end of the 1990s, has since then triggered high hopes for regenerative medicine. 35  Art 6: §1: Inventions shall be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality; however, exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation. § 2. On the basis of paragraph 1, the following, in particular, shall be considered unpatentable: (a) processes for cloning human beings; (b) processes for modifying the germ line genetic identity of human beings; (c) uses of human embryos for industrial or commercial purposes. 36 The referral to the CJEU is thus phrased the following way: ‘1. What is meant by the term “human embryos” in Article 6(2)(c) of [the Directive]? (a) Does it include all stages of the development of human life, beginning with the fertilisation of the ovum, or must further requirements, such as the attainment of a certain stage of development, be satisfied? (b) Are the following organisms also included:—unfertilised human ova into which a cell nucleus from a mature human cell 34  Human

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human embryo—thus placing itself in a position to speak on bioethics’s emblematically ‘hard question’, a question which constitutional courts and legislators across the world have tried at length to avoid for the past three or four decades. Of particular interest here is the fact that the Court did not have to give a positive definition of the embryo in order to answer the particular referral.37 The Court could have well limited itself to saying that neural cells are (or are not) embryos under the Directive—without giving a positive definition of what an embryo is. Arguably, however, the Court was faced with a question that went beyond ­classical functional EU law categories: ‘workers’, ‘providers’, ‘employers’ or ‘services’ were not a way out here—unlike in the cases pertaining to the life entangled that were described in the first section of this contribution. Rather than relying on national legal categories (for instance, award Member States a margin of appreciation in their interpretation of Article 6(2(c) of the Directive), it left behind the traditional terrain of legal categories and confronted directly the question of axiology ie values. In order to try to piece together the different elements of the reasoning that led the Court to this bold move, it is illuminating to read Advocate-General Yves Bot’s opinion. Starting from a non-mechanical, axiological even, premise, ­Advocate-General Bot stated that the issue at stake was ‘fundamental’ in nature and a common understanding throughout the EU of what an embryo was required. This led him to suggest that there needed to be an ‘autonomous notion’ of the human embryo throughout the EU legal order. Advocate-General Bot states: 4. In specifically asking the Court about the meaning and the scope of that exclusion from patentability, the Bundesgerichtshof (Federal Court of Justice, Germany) is in reality raising the fundamental question of the definition of the human embryo, even though that definition must be given only for the purposes of Directive 98/44, that is to say for the needs of the protection of biotechnological inventions. … 7. In this Opinion I will explain the reasons why I consider that the concept of a human embryo must be the subject of a common understanding in all the Member States of the ­European Union. I will then argue that Article 6(2)(c) of Directive 98/44 must be ­interpreted to the effect that the concept of a human embryo applies from the ­fertilisation

has been transplanted;—unfertilised human ova whose division and further development have been stimulated by parthenogenesis? (c) Are stem cells obtained from human embryos at the blastocyst stage also included? 2. What is meant by the expression “uses of human embryos for industrial or commercial purposes”? Does it include any commercial exploitation within the meaning of Article 6(1) of [the Directive], especially use for the purposes of scientific research? 3. Is technical teaching to be ­considered unpatentable pursuant to Article 6(2)(c) of the Directive even if the use of human embryos does not form part of the technical teaching claimed with the patent, but is a necessary precondition for the application of that teaching:—because the patent concerns a product whose production ­necessitates the prior destruction of human embryos,—or because the patent concerns a process for which such a product is needed as base material?’. 37 For more on this: S Hennette-Vauchez, ‘L’embryon de l’Union’ (2012) 2 Revue Trimestrielle de Droit 355.

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stage to the initial totipotent cells and to the entire ensuing process of the development and f­ ormation of the human body. That includes the blastocyst….38

The Court follows Advocate-General Bot by developing an autonomous notion. Paragraph 26 of the ruling is clear: Although the text of the Directive does not define human embryo, nor does it contain any reference to national laws as regards the meaning to be applied to those terms. It therefore follows that it must be regarded, for the purposes of application of the ­Directive, as designating an autonomous concept of European Union law which must be interpreted in a uniform manner throughout the territory of the Union.39

Interestingly, this mode of reasoning is clearly at odds with the stance ­previously taken by the Court in a 2001 ruling in which it had upheld the 1998 Patents’ ­Directive that was being challenged by the Netherlands and dismissed the notion that it was contrary to the human dignity principle. The CJEU had insisted that Article 6 of the Directive granted national authorities a wide margin of appreciation: as regards … art 6 of the directive, which rules out the patentability of inventions whose commercial exploitation would be contrary to ordre public or morality, it is common ground that this provision allows the administrative authorities and courts of the MS a wide scope for manœuvre in applying this exclusion …

And, second: that scope for manœuvre is necessary to take account of the particular difficulties to which the use of certain patents may give rise in the social and cultural context of each Member State, a context which the national legislative, administrative and court ­authorities are better placed to understand than are the Community authorities.40

Conversely, at paragraph 21 of the Brüstle ruling, the CJEU grounds its decision to construct an autonomous notion of the embryo on the determination that the Directive excludes national margins of appreciation in the interpretation of ­Article 6 exclusions regarding patentability: According to the referring court, having regard to the fact that Article 6(2) of the ­Directive does not allow the Member States any discretion as regards the fact that the processes and uses listed therein are not patentable (see Case C-377/98 Netherlands v Parliament and Council [2001] ECR I-7079, paragraph 39, and Case C-456/03 Commission v Italy [2005] ECR I-5335, paragraph 78 et seq), the reference made in the second sentence of Paragraph 2(2) of the PatG to the ESchG, particularly to the definition of an embryo which Paragraph 8(1) of that Law gives, cannot be regarded as the fruit of the task left to Member States to put Article 6(2)(c) of the Directive into concrete terms in that regard, even though the Directive did not expressly define the concept of embryo. The only p ­ ossible interpretation of that concept is European and unified. In other words, the

38  Opinion of Advocate-General Bot, 10 March 2011, Case C-34/10, Oliver Brüstle v Greenpeace (emphasis added). 39 ibid. 40 CJEU, Netherlands v Parliament and Council [2001] ECR I-07079, paras 37–38.

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second sentence of Paragraph 2(2) of the PatG and, in particular, the concept of embryo which it uses cannot be interpreted differently from that of the corresponding concept in Article 6(2)(c) of the Directive.41

What are the possible factors influencing this dramatic evolution in the Court’s mode of reasoning? It is contended that the evolution of the case-law relates to a shift from technical-mechanical reasoning to profoundly axiological reasoning— a shift that coincides with the fact that Court no longer qualifies bios (the life entangled), but zoe (bare life). Paradoxically, in his opinion in Brüstle, AdvocateGeneral Bot heavily insisted on the fact that the definition of the human embryo he w ­ as proposing was a ‘purely legal definition’. Paragraph 45 of his opinion is very ­interestingly phrased in this respect: 45. The question which the Court is asked is certainly a difficult one. However, it is ­exclusively legal in nature. The intrinsic difficulty in the question asked is accompanied by a reference, which is ever present in law but is particularly pregnant here, to the notions of ordre public, morality and ethics, as a result of the clarifications made by the legislature itself, for example in recital 16 in the preamble to Directive 98/44 or Article 6 of that directive, irrespective of the principles laid down in the Charter of Fundamental Rights which feed into all Union law.42

The remainder of the opinion clearly indicates, however, that his allegedly ­‘exclusively legal in nature’ definition is not detached from ethics or values. To the contrary, Advocate-General Bot further argues that the ‘Union is not only a market to be regulated, but also has values to be expressed’.43 In order to identify to relevant values that are to guide his reasoning, he turns to what he claims are ‘objective’ sources. There are two. On the one hand, he refers to the principle of human dignity.44 On the other hand, he invokes science. Both sources raise further questions undoubtedly: In my view, against this background only legal analyses based on objective scientific information can provide a solution which is likely to be accepted by all the Member States. The same concern for objectivity leads me to say that science’s silences or its ­failure to provide proof are also objective information which can form the basis for a legal analysis.45

Interestingly, Advocate-General Bot discards any possible relevance of human intent in his reasoning about the legal status of human embryos and offers the

41 

Brüstle (n 33) para 21. Brüstle (n 33). of Advocate-General Bot (n 38), §46: ‘These references expediently illustrate that the Union is not only a market to be regulated, but also has values to be expressed. Before it was even enshrined as a fundamental value in Article 2 of the EU Treaty, the principle of human dignity had been recognised by the Court as a general legal principle’. 44  R Brownsword and Derek Beyleveld, Human Dignity in Bioethics and Biolaw, (Oxford, Oxford University Press, 2001). 45  Opinion of Advocate-General Bot (n 38), §47 42 

43  Opinion

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principle of human dignity as the sole (or main) relevant guiding reference. He thereby promotes an objective (dignitarian) reading of human dignity as well as an absolute, a-contingent and decontextualised legal definition of the embryo. ­Advocate-General Bot argues that legal categories and norms should discard human intent and follow only biological processes. For instance, he refuses to grant any relevance, for the sake of legal qualification, to the distinction between embryos according to whether they are the result of in utero (‘natural’) or in vitro (‘artificial’) fertilisation. He contends that ‘intent’ should not be taken into account and, thus, that the legal definition of embryo ought to be dictated by the sole ­biological fact of the cell’s totipotence. This discarding of intent (and c­ orrelative reliance on ‘biology’) surely supports the hypothesis that Advocate-General Bot (and, indeed, the CJEU) is producing zoe (bare, biological life—life itself) more than it is producing bios (the life entangled, a concept of life that cannot be totally detached from human intention, hope, desire, will etc). These elements are crucial because they allow us to understand how the Court reached a positive definition of the embryo, crafting a solution (a legal definition of the human embryo) that amounts to a subsumption of many different ­realities under a single legal category. Interestingly, this approach contradicts much of what has been happening over the last decade as far as the legal apprehension of the embryo is concerned. Indeed, scholars and legal actors alike seem to have bid farewell to the notion that there could be a single valid notion of the embryo—one that would hold true and relevant always and everywhere. On the contrary, in recent years the notion of a multiplicity of regimes applying to the human embryo has gained purchase. It is increasingly accepted that depending on the circumstances (ie are embryos stored, implanted, given out for scientific research, destroyed or given out for procreative purposes) and, therefore, depending on human intent and on the relation between embryos and other legal subjects, different regimes should apply.46 In that sense, the CJEU ruling in the Brüstle case seems not only to be a legal discourse about zoe, but also a legal discourse of zoe absorbing bios and the anthropology clearly is subjected here to biology. Furthermore, the claim that science provides ‘objective information’ that is ­relevant for crafting a legal definition of the embryo is clearly challenged by legal epistemology and Science and Technology Studies (STS) alike. STS is based on the premise that science is, in part, a social construct and that the very notion of ­scientific ‘truth’ or ‘objectivity’ needs to be seriously challenged and questioned. Patent law is, of course, very amenable to these theoretical interrogations. To be sure, its core distinction between discoveries and inventions is highly dependent on what patenting and legal authorities understand to be nature or culture. Furthermore, the issue of the patentability of human genetic material needs to be

46  See F Bellivier and P Egéa, ‘L’être humain sans qualités’ in S Hennette-Vauchez (ed), Bioéthique, Biodroit, Biopolitique (Paris, Librairie Générale de Droit et de Jurisprudence, 2006) 121.

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examined against evolutions in contemporary biological science that call into question the very concept of the gene itself,47 thus challenging the core concept that rules of patentability have been elaborated upon.

IV. Conclusion The selection of cases on which the present analysis is built suggests that the Court’s reasoning is rather restrained as far as the life entangled goes, and on the bold side as far as life itself is concerned. When confronted with issues that relate to the life entangled, the Court seems happy to ignore the core issue of qualifying ‘life’ and its potential links with the category of legal persons. It only draws ­consequences of categories it is at ease with: workers, services and the like and leaves the issue of the relationship between human/biological life and legal life (ie legal persons) to national legal actors. But in Brüstle the Court has chosen to engage in a qualification of life itself and this strongly contrasts with this general posture. In other words, in Brüstle the Court stands on the bold side and chooses to engage with (moral) values rather than (social) functions. It chooses to conflate biological life with some form of legal existence and creates a heavily biologydependent category of the human embryo. What are the stakes associated with these two differing postures? To be sure, the first one is hardly value-neutral. In fact, Foucault’s framework of analysis helps us understand that modern political power, because the production and proliferation of life are necessarily its very objects, albeit indirectly or implicitly, produces standards of the life entangled—of la vie bonne—the good life. However, this chapter suggests that there is a leap between this first instance of the legal production of standards of the kind(s) of life that is valued in given political communities and the second, more bold and direct, route taken by the Court. Choosing to talk about life itself and to directly and positively determine what life is, regardless of the ways in which it relates to other legal and political interests, marks a rupture in legal reasoning—one that calls for caution, perhaps as Agamben argues, it may represent the full absorption of bios into zoe, a tipping point at which biopolitics slides into thanatopolitics.

47 M Morange, La vie, l’évolution et l’histoire (Paris, Odile Jacob, 2011); and the same author: ‘Déconstruction de la notion de gene’ in M Fabre-Magnan and P Moullier (eds), La génétique, science humaine (Paris, Belin, 2004) 104.

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13 Civil Registration Through the Prism of Gender: Revealing Discriminations ANNE-MARIE LEROYER

I. Introduction The aim of this issue is to illustrate how the designation of gender (and ­incidentally, first names) in civil registry records, and the way in which gender identity is taken into account, is an outstanding indicator of the multiple discriminations that t­rans-people,1 women and homosexuals still face within European Union countries. Gender designation in civil registry records2 and consideration of ­gender-binary identity has often been denounced for three main reasons:3 1. In its binary conception of gender, it is problematic for trans-people. 2. Because this way of classifying gender is an attempt to obstruct the evolution of the rights of homosexuals, especially with regard to access to filiation. 3. Because defining people in binary gender terms contributes to male ­dominance, thereby maintaining inequality between men and women. These arguments come within the framework of what is nowadays commonly referred to as ‘gender identity’. The use of the concept of gender helps to overcome the apparently biological notion of sexual identity. In this respect, we proffer a notion built on cultural, social and political aspects. The shift in terminology was established by many reports and studies, such as the 2007 Yogyakarta Principles4 1  See especially P Reigné, ‘Sexe, genre et état des personnes’ (2011) La Semaine Juridique 1140; F Vialla, ‘Du sexe au genre’ (2012) La Semaine Juridique 122. 2 See especially regarding those terms: MX Catto, ‘La mention du sexe à l’état civil’ in S ­Hennette-Vauchez, M Pichard and D Roman (eds), La loi et le genre (Paris, CNRS éditions, 2014), especially 29 ff. 3  See especially: D Borillo, ‘Pour une théorie du droit des personnes et de la famille émancipée du genre’ in N Gallus (ed), Droit des familles, genre et sexualité (Bruxelles, Anthemis, 2012) 7 ff. cp E Fondimare, ‘Le genre un concept utile pour repenser le droit de la non-discrimination’ (2014) 5 Revue des droits de l’Homme, accessible at http://revdh.revues.org/755http://revdh.revues.org/755. 4  Yogyakarta Principles on the Application of International Human Rights Law in relation to ­Sexual Orientation and Gender Identity, accessible at www.yogyakartaprinciples.org/principles_en.htm. These principles were adopted by a private expert panel especially established to decide on the matter.

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and, in Europe, the 2009 Thomas Hammarberg Issue Paper,5 and the 2011 Report of the European Commission on trans- or intersex people.6 In those reports, differentiation between sex and gender is clearly stated. Sex refers to biological conformation, in particular to primary and secondary sexual characteristics, genes and hormones whereas gender refers to a person’s inner ­perception, experience of masculinity and femininity as well as the social construction that associates certain types of behaviour with female or male role models. We also know that the scope of such a distinction is somewhat narrow, as gender is also a constructed category. This is, in fact, affirmed by the European Court of Human Rights’ case-law on trans-people, wherein sexual identity is defined as a thorough conviction that each individual experiences.7 This conception of gender has, also, progressively started to impose itself in the EU legal order. Discrimination law is the key through which EU law entered the debate as to the legal status of trans-people. Primary EU law forbids discrimination on the grounds of sex and sexual orientation (Article 19 TFEU (Treaty on the Functioning of the European Union)). Even more explicitly, the adoption of the new directive on discrimination means that secondary law now expressly forbids discrimination based on gender re-assignment.8 This new requirement derives from European Court of Justice (ECJ) case-law, since in various cases the Court affirmed that the protection against sexual discrimination applied to transpersons with regard to sexual re-assignment.9 This approach to discrimination has also been endorsed by the European Court of Human Rights (ECtHR).10 In national law, on the other hand, this conceptual distinction is hardly, if ever, made. In France, in particular, neither the law11 nor court decisions have distinguished between biological sex and gender. The relevance of this distinction, and its evolution, lies in the fact that it helps us understand the issues at stake where gender is mentioned in civil registry records. To be precise, the issues are three-fold. They allow us, first, the conceptual space necessary to escape the

5 T Hammarberg, ‘Human Rights and Gender Identity’ (2009) Council of the European ­ ommissioner for Human Rights CommDH/IssuePaper 2, 29 July 2009, accessible at https://wcd.coe. C int/ViewDoc.jsp?id=1476365. 6  S Agius and C Tobler, Trans and Intersex People—Discrimination on the Grounds of Sex, Gender Identity and Gender Expression, (European Commission, Luxemburg, 2011) accessible at http://www. teni.ie/attachments/35bf473d-1459-4baa-8f55-56f80cfe858a.PDF. 7  Goodwin v UK App no 28957/95 (ECtHR, 11 July 2002). 8  Directive 2006/54 of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), OJ L 204 of 26/07/2006, 23, Recital 3. 9 Case C-13/94 P v S and Cornwall County Council EU:C:1996:170; case C-249/96 Grant EU:C:1998:63; case C-117/01 KB v National Health Service Pensions Agency EU:C:2004:7; case C-423/04 Sarah Margaret Richards v Secretary of State for Work and Pensions EU:C:2006:256. 10  Gas v Dubois, 15 March 2012, App no 25951/07 (ECtHR, 15 March 2012); X and others v Austria App no 19010/07 (ECtHR, 19 February 2013); YY v Turkey, 10 March 2015, App no 14793/08 (ECtHR, 10 March 2015). 11  The 6 August 2012 Act on sexual harassment preferred the term ‘sexual identity’ (Loi no 2012-954, JORF, 7 August 2012, 12921).

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binary sex allocation established in national law, in order to better take trans- and intersex people into consideration; second, the distinction helps us understand how ­gender differences contribute to discrimination based on sexual orientation; third, to examine whether the absence of an indication of gender in a civil registry record, ie of sexual identification, may help all subjects of law to emerge from gender-based dominance. In summary, it is a question of whether or not and how gender-binary differences enshrined in civil registration are grounds for refusing recognition of transand intersex people, maintaining the complementarity of the sexes in institutions such as marriage and filiation that ensure male dominance. Those three issues will be tackled successively.

II.  Is it Possible to Surpass Binary Gender Differentiation: Civil Registration and Trans-identity? It is taken for granted, nowadays, that transgender people can change their name and gender on the civil registry record. It is also taken for granted that a transgender person has the right to marry, though this does not imply the right to stay married if same-sex marriage is not allowed.12 The fight against trans-identity-based discrimination is, therefore, widely engaged. However, one of the most significant questions, today, relates to official recognition of trans-identity, namely the way trans-identity is really taken into account at the level of civil registration and of all identification documents.

A.  French Law The prerequisites for the recognition of trans-identity were established by four decisions of the French Supreme Court (Cour de Cassation), two of which were handed down on 7 March 2012, the other two date from 13 February 2013.13 The judgments established the following principle: In order to justify a request for rectification of gender as mentioned in a birth certificate, the person involved must establish, as it is generally accepted by the scientific ­community,

12  A Schahmaneche, ‘Impossibilité pour une transsexuelle d‘officialiser son changement de sexe sans modifier son statut marital: CEDH, gr ch, 16 juill 2014, no 37359/09, Hämäläinen c Finlande’ (2014) 88(39) La Semaine Juridique 1684. 13  Cass 1ère civ, 7 June 2012, no 11-22.490 and no 10-26.947; Droit Famille 2012, comm 131, obs P Reigné. Cass 1ère civ, 13 February 2013, no 11-14.515 and no 12-11; Droit Famille 2013, comm 48, obs P Reigné.

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the transsexual syndrome he or she is suffering from, as well as the irreversible nature of the transformation of his or her appearance.

It should be noted that a request for a change of name is very often linked to a request for a change of sex.14 Two conditions necessary for rectification of gender are therefore declared: the diagnosis of the ‘transsexual syndrome’ and the irreversibility of the transformation of an individual’s physical appearance. Those cases are considered a cautious evolution, already foreseen by a circular of 14 May 2010,15 because sex reassignment surgery is no longer a requirement.16 However, the person in question must show evidence that he or she underwent irreversible medical treatment, which implies that he or she has become sterile; it also involves a course of psychiatric treatment. Such requirements were rightly criticised. They oblige a transgender person to become sterile. Moreover, they are based on a ­treatment which is never irreversible.17 Last but not least, they very frequently require the opinion of a medical expert before a court will rectify the civil register. This French requirement is, however, set to change due to a recent ­decision from the European Court of Human Rights.18 In YY v Turkey, the Turkish authorities refused a request for gender rectification to someone who was not sterile. The Court condemned Turkey for violating Article 8 of the European Convention. The Court stated that transsexuals fully enjoy the right to personal development and to physical and mental integrity, and this can not be regarded as a controversial issue. It also stated that respect for a person’s physical integrity is contravened by a requirement to undergo sterilisation treatment. In this case, the Turkish state violated the claimant’s right to privacy, refusing him/her the opportunity to access a sex change operation. If the scope of the decision is uncertain, it is nevertheless important because the Court implies that sexual reassignment can no longer be conditional on a requirement of sterilisation, which should lead to changes not only in French law, but the law of all States party to the Convention.

14 F Le Douet-Thomas, ‘Les normes relatives au prénom: une perméabilité des stéréotypes de genre?’ in Hennette-Vauchez, Pichard and Roman (n 2) 84 ff, especially 98 ff. 15  Circular which invited the judge to ‘issue a favourable opinion as regards the request of a civil status change from the moment the hormonal treatments aimed at a definitive physical or physiological transformation, and, where required, associated with plastic surgery operations (mammary glands prosthesis or removal, facial aesthetic surgery, …), led to an irreversible gender change, without further requiring genital cutting’. (Leroyer trans). Circulaire de la DACS no CIV/07/10 du 14 mai 2010 relative aux demandes de changement de sexe à l’état civil. 16  Decree no 2010-125, 8 February 2010 amending Annex of Art D 322-1 CSS relative to the medical criteria used to define a long-term health condition and long-term psychiatric health conditions, in order to remove the term ‘transsexualism’. 17  C Fortier and L Brunet, ‘Changement d’état civil des personnes trans en France. Du transsexualisme à la transidentité’ in Gallus (n 3) 63–113; J Mateu, M Reynier and F Vialla (eds), Les assises du corps transformé. Regards croisés sur le genre (Bordeaux, Les Etudes Hospitalières, 2010). 18  YY (n 10).

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B.  Is there an Alternative? A Comparative View A first question thus arises: would it be possible to accept a change in gender on the basis of the consent of the person involved, without requiring medical treatment as a condition for gender re-assignment, whether it be surgical or psychiatric? Thanks to the influence of the Council of Europe Commissioner for Human Rights,19 Member States’ legislation has developed, tending to abandon the requirement of sterilisation.20 This is, for example, the case with regard to the United Kingdom which enacted the Gender Recognition Act 2004, entering into force on 5 June 2005. These reforms have been placed on a legislative basis in Spain (5 March 2007) and Portugal (15 March 2011).21 Germany will follow this path, following the German Federal Constitutional Court, which on 28 January 2011 declared unconstitutional all requirements linked to the legal recognition of trans-people should gender recognition be based on permanent infertility (sterilisation) or on the use of surgery in order to modify a person’s external sexual attributes, such as to adapt the appearance of that person to his or her declared sexual identity. Luxemburg is currently preparing a new bill on the subject, following a ­parliamentary question asked to the Minister of Justice (question number 423) on 24 July 2014. The aim is, on the one hand, to abandon the prerequisite of sterilisation and, on the other hand, the requirement of undergoing psychiatric treatment. In these countries, thus, it is not necessary to go through re-assignment surgery before legal recognition as to a change of gender in official documents is granted. Trans-identity, however, must be evidenced, corroborated by medical evidence that the person suffers from gender dysphoria (it is, moreover, sometimes necessary to prove that the person underwent hormonal treatment). In France, a proposal for a new law dated 22 December 2011, submitted by Mrs Michèle Delaunay, proposed accepting a change in gender on the civil registry without requiring medical treatment. The National Consultative Commission for Human Rights (CNCDH) also declared itself in favour of such approach, in its opinion of 27 June 2013.22 In early September 2014, socialist MEPs tried to

19  The Parliamentary Assembly of the Council of Europe, in its resolution 1728 29 April 2010 calls all Member States to provide ‘official documents to reflect the chosen gender identity, with no ­requirement of prior sterilisation’. 20  Agius (n 6) 12; Sénat, note de législation comparée, no 223 May 2012; VM Bruggeman, ‘Modification de la mention du sexe à l’état civil: les enseignements du droit comparé ?’ (2012) 7(8) Droit Famille alerte 40; E Pierrat and C Lemarchand, ‘État du droit sur le transsexualisme en France et en Europe’ (2011) 20(3) Sexologies 191–96, 193–98; J Byrne, ‘License To be Yourself: Laws and Advocacy for Legal Gender Recognition of Trans People’ Open Society Foundations Report May 2014. 21  On 15 March 2011, Portugal adopted a law allowing gender change on civil registry records without requiring the person involved to be single (which implies that a married person has to divorce his or her spouse), nor to be sterile, nor to have undergone any other physical alteration requirements, such as hormonal treatment or gender reassignment surgery. 22  Advice 27 June 2013 (2013) La semaine juridique 861, obs P Reigné.

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s­ ubmit another proposal for a new law in order to allow a change in sex on the civil registry based on a request made to the public prosecutor, as long as the person involved can prove that his or her current gender matches ‘neither their intimate experience of their identity, nor the sex through which he or she is perceived in society’. Certain countries went a step further and recognised the possibility to change gender on the civil registry upon a simple declaration of the person involved. This is, in fact, what Argentina enacted, with Act number 26-743, dated 23 May 2012, whereby the right to gender identity is established. This law entitles persons over 18 and minor children with the consent of the legal guardians to request a change of gender, name and picture indicated on the civil registry, as well as in any other administrative documents, without it being necessary to establish total or partial genital re-assignment surgery, hormonal treatment, or any other psychological or medical treatment. The change of status is carried out by a civil registrar without resort to a court. The change must be recorded in all administrative documents where there is a gender statement. If one wishes to make a change again later on, he or she must on that occasion obtain judicial authorisation. In addition, with its Act dated 11 June 2014, Denmark now authorises the award of a new social insurance number to a person who has submitted a written statement in which he or she declares that his or her felt gender is opposite to the registered gender. The change concerns adults over 18, and becomes effective after a six-month period of ‘reflection’. The law also mentions the possibility to have an ‘X’ placed in one’s passport in the place of a gender designation. Very recently, an Andalusian law dated June 2014 was adopted with a view to combating discrimination related to gender identity and to recognise trans-people.23 Such a law based on gender selfdetermination also applies to minors. A second question that comes to mind is to know whether it would be better or not to move beyond the current binary logic linked to gender designation as registered in the civil registry. Two solutions may be therefore considered. The first possibility is to concede a third category in legislation, a neutral category.24 This is what Australia did in a recent case, in 2010, whereby Norrie May Welby was ­designated under the appellation of ‘no specified gender’. There is, however, a clear danger that such an approach might stigmatise trans-people. In other words, it might be feared that this ‘ternary logic’ will simply be more ‘repressive’.25 ­Nonetheless, it is this solution that was adopted by some states in respect of intersex people. The German federal law, of 13 January 2013, recognises the possibility to mention a ‘neutral’ gender in the civil registry insofar as intersex babies are

23  Ley 2/2014, de 8 de julio, integral para la no discriminación por motivos de identidad de género y reconocimiento de los derechos de las personas transexuales de Andalucía. 24  D Borillo, ‘Le sexe et le droit, de la logique binaire des genres et la matrice hétérosexuelle de la loi’ (2011) Jurisprudence Revue Critique 263. 25  P Reigné (n 22).

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concerned. Such recognition is vital in order to avoid post-natal mutilations and sex reassignment surgery. The second possibility implies the removal of all gender classification in the civil registry.26 To do so implies to think about the function of civil status. It is also cause to reflect on the role of gender as a legal category. Civil status is a civil police institution whose primary role is to provide the ability to identify persons and to produce evidence of such person’s identity. Public policy, which regulates the organisation of civil status and the principle of the inalienability of this identity, was justified in that way. Nevertheless, we assume that, by now, it is patent that such a civil police function combines with two other functions, one political, the other symbolic. From a political point of view, the civil status rules enabled and continues to enable the state to set up normative models: models of living such as marriage and legitimate filiation. A consequence of these normative models is that, for a time, natural children were excluded from civil status documents. Today, the French civil partnership (PACS) is still partially excluded. From a symbolic point of view, civil status has become an ‘identity institution’. Such an identity function was brought into focus during the adoption of the 2002 law on surnames. It is because ‘the surname is less an identification problem than an identity one, in relation to our inner selves’27 that it was possible to advocate for the free choice of one’s family name, ie surname. One could indeed say the same about gender, which is less an identification problem than an identity one. It is, therefore, understandable that civil status functions are ambiguous and induce in us an error. Were it simply a matter of identifying a person, we could use many other instruments, which would also ensure legal certainty, such as numbering, registration or even biometrics. Should we decide to go down that path, we would recognise the full symbolic function of civil status. Consequently, surname, first name and gender would only be apprehended as identity elements intended to subjectively translate a relation to our inner selves. In this regard, freedom should govern the process of certificate issuances. Entries made on those certificates should reflect an individual’s will. In other words, if we nowadays consider civil status not as a means of allowing the person to be identified but a means of establishing his or her identity, we must then admit self-determination in relation to those elements and, above all, to names and gender. We have to re-think gender reference in civil registry records and either maintain it in a non-binary logic or rule it out. In any case, we may wonder if such a liberal logic might have some beneficial effects that spill-over into the fight against discrimination related to sexual orientation.

26  D Borillo (n 24); P Maniglier, ‘Bien plus que cinq sexes: par delà le masculin et le féminin’ in J Birnbaum (ed), Femmes hommes, quelles différences? (Rennes, PU Rennes, 2008) 123 ff. 27  M Gobert, ‘L‘attribution du nom: égalité ou liberté?’ (2001) 102 Les petites affiches 4.

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III.  Civil Status and Discrimination Related to Sexual Orientation As has been seen, EU law has tackled the question of sexual orientation through the lens of discrimination. This approach raises many questions, including the most technical one regarding civil status registration. The recent discussion in France about same-sex marriage showed that civil status registration can lead to sexual discrimination issues. Two different questions arose in the French debate. One dealt with neutralising the way laws are written; the other one with civil status records. Surprisingly enough, those two questions—which did not have the same scope—were elided. With regard to the way laws are written, the controversy focussed on the removal of the terms ‘father’ and ‘mother’, ‘husband’ and ‘wife’, in order to replace them with ‘parents’ and ‘spouses’. The aim of these changes was not to advance g­ ender ­equality but rather to enable the implementation of married people’s rights, on the one hand, as well as the implementation of the rules governing adoption by homosexuals on the other hand. To a large extent, the change e­ nvisaged would have simplified a whole area of family law. In addition, these definitions had already been adopted without discussion in previous laws related to parental authority and matrimonial property regimes. Considering the opposition the proposed change gave rise to, it became necessary to adopt a special article in the Civil code, Article 6-1, stipulating that all relevant texts apply to spouses and to same-sex ­parents. That was intended to maintain a gender category in the laws. The question of civil status gave rise to even greater controversy. The suggestion was to write ‘spouse 1 – 2’ instead of ‘husband’ and ‘wife’ and ‘parent 1 – 2’ instead of ‘father’ and ‘mother’ in marriage and birth certificates. It was argued, s­ uccessfully, that this was an attempt to extinguish the distinction between the sexes. As a result, the attachment to a gender-binary distinction and to gender determination as an element of identity and identification was renewed. It is obvious that this terminological conflict reflects an ideological disagreement, in which proponents of the status quo favour a definition of marriage and filiation based on gender complementary. The promoters of the law advocated, therefore, to neutralise the notion of identity for parents and spouses in marriage and birth certificates. In the end, such neutralisation did not occur. However, it cannot be stated with certainty that the equalitarian ideology and the fight against discriminations related to sexual orientation were weakened. Today, another approach allows for the opposite approach. The fight against discrimination related to sexual orientation is an invitation not to conceal the sexual identity of the spouses and the parents but rather to highlight it. The reality created by the law must be borne in mind: the new legislation ­enables marriages between men or between women, along with a double maternal or paternal filiation. In the light of this, the fight against discrimination based on

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sexual orientation may take gender into consideration. In other words, it does not seem necessary to exclude gender identity from civil registry records in order to fight effectively against discrimination on the basis of sexual orientation.

IV.  Gender Identity and the Effects of Gender-based Domination Finally, in a more general sense, it is important to understand how the binary gender logic may constitute an obstacle to the equality of men and women. It is well known that there were animated discussions regarding whether gender was a useful vector of equality. The question cannot be answered simply by extolling universalistic human rights. Nor can it be assumed that the equality of men and women will only be obtained by the neutralisation of gender differences. It is true that legislation gradually eroded legal differences based on gender replacing them with gender neutral laws. This is evidenced by the evolution in French civil law of parental authority and matrimonial property regimes, which do not any more refer to ‘father’, ‘mother’, ‘husband’ or ‘wife’ but rather to the neutral terms of ‘parents’ and ‘spouses’. It is also clear that maintaining gender terminology often reveals modern inequalities. In fact, it is enough to read the French Civil Code to be convinced of the above-mentioned point: maintaining gender terminology reveals the inequalities related to filiation (presumption of paternity) or to naming (the law retains the principle that a child will be named after his or her father, in the absence of any other parental choice). However, it has been demonstrated on several occasions that the formulation of universal rules of law is not enough to ensure real and effective equality.28 This explains why EU discrimination law rules based specifically on sex remain necessary. Taking gender into consideration allows, above all, the promotion of equal opportunities. This is clear with regard to the adoption of measures aimed at preventing or compensating for disadvantages linked to sex. The same applies to parity laws.29 Combatting gender stereotypes linked to social functions, especially in the area of education, also implies taking the gender of parents into account.30 28  D Lochak, ‘Dualité de sexe et dualité de genre dans les normes juridiques’ (2011) Revue critique de jurisprudence 444 ff; D Lochak, Le droit et les paradoxes de l’universalité, coll Les voies du droit, (Paris, PUF, 2010). 29  Several laws have been adopted in France in order to advance equal promotion for men and women: 27 January 2011 Act (loi no 2011-103—JO 27 janvier 2011)—22 July 2013 Act (loi no 2013660, JO 23 juillet 2013, 12235)—4 August 2014 Act (loi no 2014-873, JO 5 aout 2014, p 12949). 30 See to that effect Konstantin Markin v Russia, 25 March 2012, no 30078/06 (ECtHR) condemning Russia for denying a soldier the right to parental leave. Case C-104/09 Roca Alvarez (2010) EU:C:2010:561 holds as contrary to equal treatment principles the refusal of a breastfeeding leave toward an employee working father. See especially D Roman, ‘Les stéréotypes de genre, Vieilles lunes ou nouvelles perspectives pour le droit?’ in S Hennette-Vauchez, M Möschel and D Roman (eds), Ce que le genre fait au droit, coll A droit ouvert (Paris, Dalloz, 2013) 93 ff.

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­ aternity leave, introduced by the Social Security Financing Act 2002, was actually P ­implemented in order to strengthen fathers’ role in childcare and to encourage a better sharing of family tasks between fathers and mothers. It is consistent with the Social Security Financing Act 2012, which established a ‘welcome leave’ open to persons living with a child’s mother. In such a way a mother’s partner is entitled to paternity leave31 (this provision does not apply equally to fathers).32 Finally, an Act of 4 August 201433 reformed the parental leave process, extending it to a six month period provided it is shared between parents, with the aim of encouraging fathers to benefit from such leave. Without doubt, gender is also a vital issue in criminal law, especially if we want to effectively combat violence against women (femicide).34 Certain people may argue that equality should include positive discrimination. But the implementation of a programme of positive discrimination would not mean that we would stop considering a person from a gender-binary logic in the civil registry. This is the big question. Should we agree to view civil status as having no more identification function? Should we agree to view it as an identity institution? Whatever the solution, gender may be specified or not. But then, the question becomes: in order for a person to benefit from specific rights attached to his or her gender, how will that person evidence that he or she actually belongs to that gender? In such a case, the only privacy-friendly a­ lternative is to allow a person to release a simple statement. Therefore, this short presentation on civil registry through the prism of gender is what we should focus our attention on: accepting a person’s self-determination of his or her own gender in a very liberal philosophy.

31 

Civ 2, 11 March 2010, no 09-65853. Art 14 of 2012-1404 Act, 17 December 2012 on Social Security Financing. Loi no 2014-873, du 4 aout 2014 pour l’égalité réelle entre les femmes et les hommes. 34  J Gaté, ‘Genre et droit pénal: illustrations choisies’ in Hennette-Vauchez, Möschel and Roman (n 30) 47 ff. 32  33 

14 The Legal Subject, Social Class and Identity-based Rights HANS-W MICKLITZ1

I.  Back to the Future? ‘From status to contract to status’—is this what we are currently experiencing?2 From the primacy of status dependence during feudalism, broken by 200 years of autonomy and independence towards an uncertain future, one in which the link between status and rights becomes (again) crucial. With the rise of social rights during industrialisation the category of the legal subjects redefined workers’ rights. Where the breadth and depth of ‘rights’ in the consumer society are inherently linked to the individual as a producer, a supplier, a consumer, a digital subject or even more sensitive to gender or to the life span, child or elderly or the mental or physical conditions. Does all the differentiation and fragmentation hollow out the legal subject or can the concept of the legal subject still hold all the variations of economic activities, of physical or mental conditions together? Do we even have to re-think the legal subject? René Demogue examines the term of the legal subject from the perspective of legal theory.3 One might want to add to this an historical perspective on the legal subject and, especially, the legal subject in light of industrialisation, this is what Demogue has in mind. During the late nineteenth century the link between individual rights and the legal subject began to falter because the ‘social q ­ uestion’ led to the rise of a concept of legitimate interests, to advance the interests of the working class, for which a legal subject had yet to be found. Demogue anticipates

1 The chapter develops ideas and concepts published first as HW Micklitz ‘Bürgerstatus und ­ rivatrecht’ in S Grundmann, HW Micklitz and M Renner, Autoren und Herausgeber, ­Privatrechtstheorie, P Band 2 (Mohr Siebeck, 2015) 1381–405. This is particularly true with regard to the analysis of R Demogue. 2  H Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and its Relation to Modern Ideas (London, John Murray, 1861). 3  R Demogue, ‘La notion de sujet de droit: caractère et conséquences’ (1909) 8 Revue Trimestrielle de Droit Civil 611–31.

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a discussion, which today gathers pace under new auspices in Duncan Kennedy’s third phase of legal globalisation.4 The third phase of legal globalisation is said to be no longer characterised by the search for the concept of a legal subject central to the first globalisation, constitutive for the rise of the industrial society of the nineteenth century, nor by the twentieth century fight to find a legal category for the rights granted to the working class, but by ‘identity-based rights’.5 Identity-based rights differ from the nineteenth century legal subject and they surpass the desperate twentieth century search for a holder of social rights. All this will have to be clarified. What unites these scholars, Demogue and Kennedy, is the conviction that private law is concerned with weighing diverging legal positions with no right assumed to take priority in advance. For Demogue this concerned the nature of private law, for Kennedy this is a description of private law today. Historically speaking, it was not Philip Hecks’ jurisprudence of interests (Interessenjurisprudenz), but Demogue who recognised the irrevocable contradiction that is inherent in the weighing process.6 Together with Oliver Wendell Holmes, Demogue and Heck rank among the founders of the so-called balancing approach, which rejects Begriffsjurisprudenz,7 which is characteristic of the third globalisation and which so overtly dominates legal systems in advanced democracies around the world. This is what I will try to elaborate: I will first explain the socio-economic context of the legal subject and how it ran into difficulties with the rise of ‘the Social’ first in the productive then in the consumptive sphere. Herein the scene is set, using mainly European law as the focal point of the debate. In the next step, I will discuss Demogue’s understanding of the legal subject in order to show that he raises the crucial questions which still require an answer, not only with regard to the ever important social rights but also with regard to the third globalisation. Turning from Demogue to Kennedy allows me to give shape to identity-based rights. I will again use EU law and mainly the case-law of the European Court of Justice in order to demonstrate the extent to which the nineteenth century ­understanding of the legal subject has been dismantled.

4 D Kennedy, ‘Three Globalizations of Law and Legal Thought: 1850–2000’ in D Trubek and A Santos (eds), The New Law and Economic Development: A Critical Appraisal (Cambridge, Cambridge University Press, 2006) 19–73. 5  K Carr, Deconstructing and Reconstructing Family Law through the European Legal Order (Florence, Phd EUI, 2014) who uses the approach to reconstruct the subjects of the new family. 6  Regarding Demogue and Heck see D Kennedy and MC Belleau, ‘La place de René Demogue dans la généologie de la pensée juridique contemporaine’ (2006) 56 Revue Interdisciplinaire d’Etudes Juridiques 163, 181. 7 On similar problems in the application of the now ubiquitous proportionality principle: KH Ladeur and R Prelle, ‘Judicial Control of Administrative Procedural Mistakes in Germany: A Comparative European View on Environmental Impact Assessments’ in KH Ladeur (ed), The ­Europeanisation of Administrative law: Transforming National Decision-Making Procedures ­(Dartmouth, Aldershot, 2002) 93.

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II.  The Legal Subject—Production, Consumption, Nation States and the EU The essential achievement of the French Revolution, as reflected in the French civil code, was the abolition of a legal order that was aligned with the status of the holder of rights. The privileges of aristocracy, aristocratic class society and feudalism, were eliminated. Status-based rights were replaced by the formal equal treatment of all people.8 Almost 100 years later, the German civil code (BGB) stated emphatically in Article 1: ‘The legal capacity of a human being begins on the completion of birth’. It has to be complemented as follows: ‘regardless of the status in which the individual was born’. Through his or her birth, each individual automatically becomes the bearer of rights. By 1900 when the BGB was enacted, the legal revolution of 1804, which granted equal civil rights to all, thus separating civil society from the state, no longer appeared a revolutionary achievement. Nevertheless, the question arises as to how and why private law creates subjects and subjectivity and as to why the legal subject is of such outstanding importance. From a politico-economic point of view, the answer results from the transformation of the aristocratic class society to a society of citizens, in which everybody enjoys equal rights. It was only by means of this equal treatment and the linking of the subject to the possession of rights that productive forces could be released, which helped the emergence of the unprecedented dynamic of the capitalistic ­economic order in the nineteenth century. According to Wieacker, from a legal and historical-cultural perspective, the first constant of the European legal culture was thus created: personalism; the separation of subject and object; the conceptualisation of the human relation in the ‘vis-à-vis’ and not in the ‘we’, which go back to Christianity and Judaism.9 One may wonder whether this is still correct. Are we discovering a merger of subject and object? This is the first question to keep in mind throughout the genealogy of the legal subject. The industrialisation of England and, since the second half of the nineteenth century also of Germany, entailed a massive upheaval of the economy and society. The latter not only provided the subject with unexpected possible actions and ­liberties, but led at the same time to the division, precisely analysed by Marx, between producers, who had the means of production and their workers, who kept the industrial production process going with their manpower. At the latest, towards the end of the nineteenth century, the ‘social question’—what Duncan

8  F Wieacker, Privatrechtsgeschichte der Neuzeit 2nd edn (Göttingen, Vandenhoeck & Ruprecht, 1967). 9  Or the separation of the ‘right’ and the ‘good’. T Hobbes, Leviathan (London, Crooke, 1651) ch XI, 60: ‘For there is no such finis ultimus (utmost aim), nor summum bonum (greatest good), as is spoken of in the books of the old moral philosophers’.

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Kennedy simply coined ‘the Social’—became more important.10 States had to deal with the political claims of workers (today we use the more distinguished term ‘employees’). If these claims did not aim at the abolition of the capitalistic economic order, they targeted improvements of working conditions, which were also reflected in private law in the shape of demands for balanced labour contracts. In the spirit of the French Revolution, the French civil code and—later on—the BGB, they asked to be treated as subjects with their own rights. They wanted to participate in the ‘added value’ of society. This marked the birth of status-based property rights. To speak in modern day language, the members of the working class, which were newly established, required a special private law—a right, which is linked to the worker’s status and which gives imperative property rights. The French civil code could not yet deal with labour law, since the economy in France was agrarian and was barely, if at all, familiar with manufacturing. When the German professorship started to elaborate the two drafts of the BGB following the mandate of the Prussian ministry, the world had already changed. The failure to observe the social question—one need only think of Otto von Gierke’s11 famous expression of the lacking drop of socialistic oil—and the complete exclusion of the special features of the labour contract were one of the central points of attack of the BGB’s critics.12 If the founding fathers of the BGB—there were only fathers—had dealt with the social question, they would have had to ask themselves how the liberty in Article 1 BGB, which is so empathically proclaimed, can be reconciled with the principle of equality. Whether a modern order of private law—an order which not only facilitated the capitalist economic order, but already embody, ‘contract’ and ‘status’—in which liberty and equality do not remain mere formal rights, has to strive for balance. The materialisation of private law, which is identified and analysed by Max Weber,13 is addressed to legal subjects, which benefit from these social values. Most of the twentieth century was, until the breakdown of communism, ­characterised by the fight over the social question. The first half led to a special ­private law for employees in industrial states which, however, was not implemented into the official codifications in either France or Germany—unlike in Italy (1942). The private law, which was outsourced from the codifications, did not question the fundamental structures of the two civil codes—contract instead of status remained the predominant ideology of private law. A seemingly ­identical development repeated itself in Europe after the Second World War with the emergence of the consumer society. What was unthinkable 100 years ago has today

10  HW Micklitz, ‘Social Justice and Access Justice in Private Law’ in HW Micklitz (ed), The Many Concepts of Social Justice in Private Law (Cheltenham, Edward Elgar, 2011) 3–60. 11  O von Gierke, Die soziale Aufgabe des Privatrechts (Berlin, Springer, 1889). 12  Revealing with regard to the enormous tension: HU Kantorowicz, ‘Was ist uns Savigny’ (1911)1 Recht und Wirtschaft 47 ff as well as 76 ff. 13  M Weber, Wirtschaft und Gesellschaft 5th edn (Tübingen, Mohr Siebeck, 1972).

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turned into reality. Private consumption forms a central pillar of the economies of all d ­ eveloped democracies in Europe and throughout the world. Less ­dramatically, since it is not linked to the claim of a new ‘socialistic’ economic order, the old ‘social’ question arises in a new guise, no longer in production, no longer with regard to social justice in the labour relations sphere but in the consumption sphere with regard to social justice in consumer contract and tort law. Do c­ onsumers need distinct rights or can their problems, whether they are of an individual or of a collective nature, be solved by means of the existing instruments of private law?14 The answer was the same for all Western industrial countries. Based on the model of labour law, urgent problems were codified in extremely detailed special acts. The basic structure of private law—contract instead of status—remained. Where a codification of consumer law did, indeed, take place, it was a question of a mere compilation of laws.15 In countries like the Netherlands and Germany, where consumer law became an integral part of the Wetboek and the BGB respectively, it remained ‘outside the code’.16 However, a systematic penetration of both legal fields, especially with regard to ‘contract’ versus ‘status’, did not take place. Whether consumer law as an autonomous subject can or even must exist independently and in an internally coherent way, whether and to what extent the consumer differs from the legal subject continues to be theoretically and conceptually unsettled.17 With Kennedy one might argue that consumer law theory was too much caught in ‘class thinking’ in drawing parallels between the working class and the consumer class, in focusing on the clash between the stronger against the weaker parties, thereby overlooking the newness of the consumer society which bridges the move from the second to the third globalisation. It is enlightening to shift perspective from the nation state—Demogue and the social welfare thinkers of the twentieth century—to the European integration process where ‘the Social’ underwent a transformation, the left would argue towards neo-liberalism, conservatives (liberal) would argue towards the ­re-­establishment of values like freedom and economy. Kennedy, however,

14 HW Micklitz, Brauchen Konsumenten und Unternehmen eine neue Architektur des ­ erbraucherrechts? Gutachten A zum 69. Juristentag (Munich, Beck, 2012); in English: ‘Do C V ­ onsumers and Business Need a New Architecture for Consumer Law? A Thought Provoking Impulse’ (2013) 32 Yearbook of European Law 266–367. 15  For instance, in Belgium, Italy—G Vettori, Commentario a cura, (Padova, CEDAM, 2007) (new edition in preparation) and V Cuffaro, Commentario a cura, (Milano, Giuffrè, 2012)—as well as France: J Calais-Auloy and H Temple, Droit de la Consommation 8th edn (Paris, Dalloz, 2010). 16  But see E Hondius, who rejects such a reading with regard to the Netherlands: E Hondius ‘Against a New Architecture of Consumer Law—A Traditional View’ in K Purnhagen and P Rott (eds), Varieties of European Economic Law and Regulation, Liber Amicorum for Hans Micklitz, (Switzerland, Springer, 2014) 599–610. 17  With regard to the attempts in France: J Calais-Auloy, Proposition pour un nouveau droit de la consommation, rapport de la commission de la refonte du droit de la consommation au secrétaire d’État auprès du ministre de l’Économie, des Finances et du Budget chargé du Budget et de la Consommation (Paris, Documentation Française, 1985); with regard to Germany, N Reich, ‘Zivilrechtstheorie, ­Sozialwissenschaft und Verbraucherschutz’ (1974) 7 Zeitschrift für Rechtspolitik 187–94.

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would focus on the ­transformation itself and stress the overall move towards the parameters of the third globalisation which can neither be caught in left or ­conservative (­ liberal) language. At the surface level the transfer of competences in consumer law-­making from Member States to the EU led to a new structure of legal ­relations in private law, which is aligned with the status of the participating parties.18 It looks like a move from status to contract to status—from the feudal subject—to the legal subject in classical legal thought—to status-related rights granted, for example, to workers and to consumers. The economic analysis of law, particularly in the shape of behavioural science and behavioural economics, however, questions status-based regulation of private law from the point of view of economic efficiency and practical effectiveness.19 Rules in private law, which refer to employees and consumers, could and should be replaced by situational protection mechanisms, which are oriented towards the cognitive abilities of employees and consumers. Thus, the petition for the abolition of the notion of employee or consumer is ­obvious.20 This does not mean, however, that we are on our way back to nineteenth century thinking to the revitalisation of the legal subject in the first globalisation or even further back to a new form of a quasifeudalistic legal order.21 Along the line of the herein defended hypothesis one might understand the gradual faltering of the consumer status as a move from ‘class thinking’ towards ‘identity-based rights’. The EU is sitting in the driver’s seat and it faces strong opposition from both sides, from consumer activists who join forces with neo-liberal critics and from conservative (liberal) forces trying to transform the European legal order into a nineteenth century nation state model. The rise and failure of the two grand projects, the European Constitution and the European Civil Code, helps us to understand the transformative power of the third globalisation, to demonstrate that there is no safe way back, neither to the nineteenth century model of classical legal thought (the first globalisation), nor the twentieth century social model of the welfare state (the second

18 H Rösler, Europäisches Konsumentenvertragsrecht, Grundkonzeption, Prinzipien und ­Fortentwicklung (Munich, Beck, 2004); S Weatherill, EU Consumer Law and Policy (Cheltenham, Edward Elgar, 2005); M Tamm, Verbraucherschutzrecht (Tübingen, Mohr Siebeck, 2011); M Tamm and K Tonner (eds), Verbraucherrecht, Rechtliches Umfeld, Vertragstypen, Rechtsdurchsetzung, Beratungsbuch (Baden-Baden, Nomos, 2012). 19  O Bar-Gill, Seduction by Contract: Law, Economics, and Psychology in Consumer Markets (Oxford, Oxford University Press, 2012) with a discussion by H Collins, book review (2014) 77(5) MLR 1030; O Ben-Shahar and CE Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure (Princeton/Oxford, Princeton University Press, 2014). 20 In this spirit, M Engel and J Stark, ‘Verbraucherrecht ohne Verbraucher’ (2015) Zeitschrift­ für Europäisches Privatrecht 32. 21  But see S Deakin, ‘The Return of the Guild? Network Relations in Historical Perspective’ in M Amstutz and G Teubner (eds), Networks, Legal Issues of Multi-Lateral Co-operation (Oxford, Hart Publishing, 2009) 53–74.

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globalisation). Until the failure of the Constitution, due to the referenda in France and the ­Netherlands and the European Civil Code project shortly thereafter, the EU tried to become a federal state, largely modelled on the United States of America. This does not mean that political actors were in favour of such a model, but it means that the minds of politicians and academics were caught in federal state thinking, in a binary code of ‘do we create a United States of Europe or not’. The c­ ommon market was upgraded to the internal market, the European legal order to a European constitutional order with a small ‘c’. The EU moved gradually towards a Social Union, each round of treaty amendments added a (quite often rather small) addendum to the social dimension. The internal market, according to the dominant understanding, could only be realised by including a social dimension. ‘The Social’ was back on the agenda, politically stronger than ever in the rhetoric against the growing neoliberalism of the US/UK, post-2000 in the EU, which was moving away from the social welfare paradigm. The most prominent signal of EU state-building can certainly be identified in the concept of the ‘EU citizen’. The European Civil Code, in particular the Draft Common Frame of Reference, was shaped following the model of nineteenth century continental codifications, built around the ideology of a coherent civil code, systematic and self-contained, with two exceptions: status related rights for consumers and women. These exceptions would have attracted Demogue’s attention as they question the homogeneous idea of the legal subject as the constitutive element of the European civil order. The ‘not’—the no federal state, the no European Civil Code—was always there, came to pass after the failure of the grand projects and requires, more than ever, a deeper analysis of the potential of the EU and EU law to cope with basic changes in the legal systems. I understand the European Union as a laboratory for the post-nation state, for a supranational legal order beyond the state, for experimenting with the legal ­subject in a territorial environment that looks like a state, but is not a state, a legal subject that is broken down into a broad variety of subjects, producer, supplier, worker, consumer, men, women, children, disabled, digital subject, each of them having a legal definition under EU law. The constitutional legacy has left its traces too, in the producer citizen, the worker citizen and the consumer citizen. Thus, the EU covers the whole genealogy of the legal subject, from its classical ­conception enshrined in the Member States’ legal orders, on which the EU is built, in the rise and the transformation of the Social with all its implications for the potential ­holders of rights, last but not least for what I would call the fragmentation of the legal subject and what Kennedy calls identity-based rights. What I will do in the rest of the chapter, is first to introduce Demogue’s concept as it allows the ­development of the set of questions which lead us to structure the debate on Duncan Kennedy’s concept of ‘identity-based rights’, always having in mind the EU and the EU law as a blueprint, against which these theoretical insights can be tested.

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III.  René Demogue’s Legal Subject and the Social Challenge In 1909, René Demogue wrote ‘La notion de sujet de droit’,22 two years before his masterpiece entitled ‘Les notions fondamentales du droit privé’.23 Why start from a contribution from 1909—a text that is more than 100 years old and only seems to be directly linked to the role of the ‘individual’ and ‘his legal position’ in a rapidly changing, state environment?24 Demogue does not belong to the c­ ollective memory of French civilians.25 The key positions in the history of private law are held by others: Carbonnier, Duguit, Gény, Henri Capitaint, Josserand, Ripert, Saleilles. Duncan Kennedy26 has brought to light Demogue’s potential for today’s debate on the position of the legal subject. Demogue asks the crucial question—does a legal subject exist behind the social question and, if so, what would such a legal subject embody and how could it be justified? The radicalism of his questions, his legal realism, but especially his rejection of the arguments of those who stressed the need to re-interpret the French civil code in light of ‘the social’ led to Gény reproaching him for being a legal nihilist in 1911.27 Recently, his reflections on the legal subject seem to attract interest in France as well.28 In order to understand the context of his considerations, it is necessary to integrate Demogue in the framework of the time in which he wrote. It is only through such a retrospective that it is possible to fully grasp the topicality of his thinking. There is a direct line from asking who is behind the social question to who is behind all the fragmented actors to which particular rights are assigned by law. Demogue moves within the mainstream of his time, which was characterised by attempts to align the French civil code with the changing legal reality of the

22 

Demogue (n 3). Demogue, Les notions fondamentales du droit privé: essai critique pour servir d’introduction à l’étude des obligations (Paris, Rousseau, 1911). 24  L Azoulai, S Barbou des Places and E Patout, ‘The Category of the Person in EU Law’, conference from the 10th to 11th November 2014, European University Institute and Panthéon-Sorbonne University. 25  C Jamin, ‘Demogue et son temps—Réflexions introductives sur son nihilisme juridique’ (2006) Revue Interdisciplinaire d’Etudes Juridiques 5. 26  Kennedy and Belleau (n 6). 27  F Gény, ‘Les Notions fondamentales du droit privé, essai critique’ (1911) 8 Nouvelle revue historique de droit français et étranger 110, 125: ‘On pourrait craindre que sa propagation (Demogues) ne fît tort aux méthodes d’investigation indépendante par le nihilisme décourageant qui s’engage’, quoted by Jamin (n 25) 11. An analysis of the historical background and the references of legal nihilism, with regard to Nietzsche concerning American Realism as well as with regard to the Critical Legal Studies can be found in Kennedy and Belleau (n 6) 198–211. For a deeper insight in the debate on legal ­nihilism, see P Mechem, ‘The Jurisprudence of Despair’ (1936) 21 Iowa Law Review 669, 670–72; as well as P Schlag, ‘Missing Pieces: A Cognitive Approach to Law’ (1989) 67 Texas Law Review 1195. 28  R Demogue and MA Hermitte, La notion de sujet de droit (Paris, Dalloz, 2015); cf also Kennedy and Belleau (n 6), who especially discuss his influence in the United States, but also his interconnection with P Heck. 23  R

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nineteenth and the beginning of the twentieth centuries. How can and should the ‘social question’, from the perspective of civil law how should and could the risks of the industrial age be incorporated into a liability law, which was based on individual fault29 and even deeper, how should and could the individualism of the bourgeois nineteenth century be reconciled with the requirements of solidarity of the twentieth century? The predominant opinion was that the French civil code was insufficient to handle these challenges. The necessary results could not be deduced from it. The idea of the judge as ‘bouche de la loi’ was stretched to its limits. Gény searched for the answer by developing a scientifically justified interpretation, which attributed a central role to the courts and conceded a leading position to the professorship.30 It was not by coincidence that the French authors at the beginning of the twentieth century relied on a comparative legal analysis, especially German private law jurisprudence, where adaptation through interpretation was preferred and turned into a successful exercise.31 A legal comparative analysis served the ‘scientification’ and the objectification of the method. Unlike his contemporaries, Demogue added a (self-)critical note to the ­discussion on the adaption to the realities of the industrial society. Thus the ­addition to his masterpiece about ‘les notions fondamentales du droit privé—essai critique’—his article of 1909—is of distinctive significance. Demogue agrees with the necessity to adapt the French civil code to social realities. However, he does not share the belief and the hope that there is a possibility to substitute the objective law, which is anchored in statutory law, with general rules of interpretation or with ‘notions fondamentales’.32 Neither professorship nor judiciary would be able to realise this adjustment in an objective way. Despite all efforts to find the ‘right method’, subjective evaluations would become a part of legal interpretation. This may not sound very exciting in the light of the discussion about methods of the 1970s.33 A crucial conclusion is arrived at by Jamin34 and Kennedy35 which enables us to dare to build a direct bridge between American Legal Realism and

29  In the French context, L Josserand, L’évolution de la responsabilité (conférence donnée aux Facultés de Droit de Lisbonne, de Coimbre, de Belgrade, de Bucarest, d’Orades, de Bruxells, à l’institut français de Madrid, aux centres juridiques de L’Institut des Hautes Études marocaines à Rabat et á Casablanca) ­(Évolutions et Actualités Conférences de Droit Civil: Receuil Sirey, Paris, 1936) 29–51. 30  F Gény, Méthode d’interprétation et sources en droit privé positif 2nd edn (Paris, Librairie générale de droit et de jurisprudence, 1919); as well as by the same author: Science et technique en droit privé positif: nouvelle contribution à la critique de la méthode juridique (Paris, Sirey, 1913). 31  F Wieacker demonstrates how the courts in the first 60–70 years of the 20th century adapted the German Civil code to the social question, Wieacker (n 8) para 30, 586. 32  There is a need to clarify what Demogue understands by objective law; this is explained later in the text. 33 From a German perspective J Esser, Vorverständnis und Methodenwahl in der Rechtsfindung, (Frankfurt am Main, Athenäum Verlag, 1970). 34  Jamin (n 25). 35 Precisely in D Kennedy, ‘A Transnational Genealogy of Proportionality in Private Law’ in R Brownsword, L Niglia, HW Micklitz and S Weatherill (eds), The Foundations of European Private Law (Oxford, Hart Publishing, 2011) 195–97.

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Critical Legal Studies.36 According to Demogue, private law would irretrievably lose its inner coherence by opening up towards social reality. The tensions between individualism and (collective) solidarity cannot be reconciled. This evaluation left Demogue with the reproach of legal nihilism, inspiring Gény to pen his renowned work.37 Perhaps not in the language of nihilism but in the confrontation between system theory (Niklas Luhmann) stressing the limits of materialisation and communication theory (Jürgen Habermas) relying on law as a means to find an answer to the social question, Demogue’s observation constantly reappears. System theory had to face the critique of legal formalism, communication theory of overstressing the capacity of the law, thereby undermining its integrity.38 It is only against the background of the ‘social challenge’ that the importance for our contemporary discussion of ‘La notion de sujet de droit’ comes to light. Demogue concentrates on the analysis of the tensions between the rights that the individual can exercise as legal subject as opposed to collective interests, which must be protected by ‘objective law’. As a legal realist, Demogue recognises that collective interests eventually need a legal subject as well. The question is when and under which conditions. First identified by Jhering, Duguit had referred to the protected legal position as a necessary point of departure for the existence of a subjective right, in which (collective) protected interests are reflected. Legal relations could not be understood as interactions between legal subjects. This is Duguit’s position in the words of Demogue: ‘il est inutile, pour expliquer que ses situations sont juridiquement protegées, de supposer l’existence de ces sujets et de dire: si cette situation est protégée, il y a des sujets de droits’. Demogue clearly rejects this perspective. ‘Nous pensons qu’il y a dans la notion de sujet de droit au moins un vocable commode et nous allons chercher à l’examiner et à l’apprécier’.39 This does not mean that Demogue approved of a formal, legal-positivistic perspective. His clear view of social realities and contradictions, which can be found in applicable law, prevents him from doing so. He is seeking the legal subject behind those who argue in defence of the social question. This is what he calls ‘un vocable commode’. The holders of subjective rights in the French civil code are typically natural persons. However, there are two exceptions: unborn, but fathered children can become entitled to subjective rights as well as legal entities which, under the influence of Savigny (according to Demogue), were for a long time described as legal fictions.40 It is on these exceptions, on the social realities and the considerations of legal

36 

Precisely to this problem Kennedy and Belleau (n 6) 191. cf Jamin (n 25) 11–12. Dworkin, ‘Integrity’ in Law’s Empire (Cambridge MA, Harvard University Press, 1986) 176; A Somek, Cosmopolitan Constitutionalism (Oxford, Oxford University Press, 2014). 39  Demogue (n 3) 612 and 613. There is strong stream of scholarship that defends the idea that subjective rights simply do not exist, are ‘metaphysical creatures’. For Duguit only objective law is an object worthy of exploration: see L Duguit, L‘Etat, le droit objectif et la loi positive (Paris, Ancienne Librairie Thorin & Fils, 1901). 40  von Gierke (n 11). 37 

38  R

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theory that stand behind these exceptions, that he focuses and where he seeks the concept of the legal subject. Demogue develops arguments in order to submit them to question, subsequently, by means of highlighting exceptions and inherent contradictions. He unfolds his argument in several steps. He examines the relation of legal subject and legal purpose and concludes that the legal subject cannot be derived from its purpose; he then proclaims that it should rather be asked, which are the principles that we consider reasonable? The determination of the legal subject—this is his conclusion—is a problem of mere legal technique (technique juridique); a finding that he underpins through a variety of examples. For Demogue the question of the legal subject represents, implicitly, the question of for which purpose law exists (by referring to Bernatzik, he does not mention Jhering in that context). He distinguishes between two categories: law as object of enjoyment (les sujets de jouissance) and law as object of disposition (les sujets de disposition). Law as object of enjoyment is far-reaching, since it is a question of the protection of the interest in enjoyment and not a matter of wanting, or, of being allowed to want. Herein the proximity to Duguit and Jhering becomes apparent. Animals and, more generally, all beings can be holders of rights, provided they show feelings and emotions. ‘Le droit poursuit une fin matérielle, faire vivre les hommes, mais aussi et surtout une fin psychologique’.41 In light of the high importance which behavioural economics (BE) attributes to psychology, this is a rather modern statement. Even more so as BE does not prioritise the i­ndividual as a beneficiary but the collective (everybody’s) interests. The only ones excluded from the enjoyment of law are those who only benefit from a legal reflex (Rechtsreflex).42 The distinction between third parties as addressees of law and those who are concerned by a legal reflex intensively preoccupied the jurisprudence in the twentieth century, not only with regard to those behind the social question but also with regard to whether trees and animals should have ­standing.43 In contrast, law as object of disposition (sujet de disposition) is ­distinctly narrower. It always requires a reasonable person, since only such an individual is able to accomplish legal transactions. Demogue explicitly avoids discussing the role of the will, which dominated German private law theory at the time. In line with his consistent efforts to highlight possible contradictions in legal concepts, Demogue points to the inadequacy of even his own distinction, since a disposition also represents a form of enjoyment since the human being can attribute feelings to objects, although one might add the enjoyment is/could be a different one. Enjoyment linked to the protection of interests, the interest in pleasurable holidays for instance or the interest

41 

Demogue (n 3) 619. In German legal theory there is a 100 year old debate on rights granted to individuals and mere legal reflexes that do not empower those affected. 43  O Stone, Should Trees Have Standing 3rd edn (Oxford, Oxford University Press, 2010). 42 

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in driving a car,44 is a collective interest shared by many in their particular roles as travellers, tourists or motorists, whereas enjoyment resulting from a disposition, the transfer of, for example, property, is very much linked to a particular person. The difficulty in drawing a clear distinction between the object of enjoyment and the object of disposition leads Demogue to the conclusion—contrary to Jhering—that purpose is of limited help in the search for the determination of the legal subject. However, this does render the category useless. On the one hand, the distinction between objects allows him to involve social realities (interests, purposes, enjoyment); on the other hand, it enables him to point out that the enforcement of the interest requires a ‘titulaire d’exercise’, ie a person who exercises this right.45 Before discussing the titulaire, it is crucial to clarify why Demogue is convinced that Duguit and Jhering, though both from totally different perspectives, Duguit in rejecting the individual as a ‘créature métaphysique’ and Jhering instrumentalising the individual for realising the purpose of the law (Zweck im Recht), raising the most relevant question when they ask whether it is desirable under the existing circumstances to qualify a being (être) as a legal subject, because the purpose is worthy of protection: [I]l s’agit en effet de savoir, étant donné des résultats qui nous semblent raisonnables, quels sont les principes qui peuvent les appliquer tous et dont probablement pour l’avenir on pourra, pour les cas auxquels nous le songeons pas, tirer des déductions qui paraîtront heureuses, sauf d’ailleurs à les modifier et à modifier ensuite la construction technique, si cela paraît plus conforme au classement donné aux divers intérêts présence. Autrement dit le problème est de pure technique juridique (by referring to Michoud and Gény HWM).46

The cause of confusion is said to be found in the fact that no distinctive line can be drawn between the content of the objective law (reasonable principles) and the legal technique (technique juridique). Mere techniques can develop into principles, if they manifest themselves as ideas, as it is the case with regard to fundamental and human rights, as we have learned in the second half of the twentieth century. ‘Reconnaître que tout homme est sujet de droit, c’est faire pénétrer le droit en sa personne de sorte qu’il soit sa chose, qu’il soit en lui, qu’il fasse corps avec lui et, par suite, ne puisse lui être arraché’.47 Is it not this development, exactly, which is characteristic of our times where the protection of individual rights has turned into the predominant feature in our society, perfectly in line with Durkheim’s argument of the ‘cult of the individual’?48 Subjective rights and the legal subject 44  Both ‘interests’ have been recognised as being protected by law and entitling the right holder to ask for compensation if the right to ‘enjoyment’ is injured. 45  Demogue (n 3) 645. 46 622. 47 623–24. 48  Thereto Ch Marske, ‘Durkheim’s Cult of the Individual and the Moral Reconstitution of the ­Society’ (1987) 5(1) Sociological Theory 1. It might be worth stating that unfinished business in ­Durkheim’s analysis is said to be the link between the moral individualism and justice. Although ­Durkheim makes a connection to the latter, he does not elaborate this link at 13.

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are then inherently—and maybe too narrowly—intertwined, perhaps shaping a new ‘identity’? Demogue opposes the rather individualistic social philosophy lying behind the idea of the declaration of human rights, which is orientated towards the needs of individual security, which has to be guaranteed to everybody and which grants human beings a predominant position (maîtres de la nature des animaux etc), maybe even against the ‘state’.49 One might want to add the following with regard to Demogue’s perspective and in line with his overall argument: overemphasising subjective rights might endanger the ‘objective order in terms of reasonable rules’.50 The construct of ideas collapses, since another concept of the legal ­subject ultimately results from the confusion of content and technique, of idea and principle, of law as enjoyment (jouissance) and law as disposition (disposition), of subjective rights and legal subject. Demogue speaks of the slightly diffuse idea of ‘conception différente (he intends to say droit subjectif) de celle admise ­communément’. Demogue uses the distinction between legal reflexes and the subjective right (in the public interest) to illustrate the consequences, which result from this over-individualisation. He is concerned about the existence of an ‘objective order’ (that remains diffuse) and which cannot be guaranteed by means of an unlimited expansion of the subjective right.51 This is all the more relevant today! Fundamental and human rights have found their way into private law to the benefit of the individual, who obtains by means of such a strong legal position a higher ‘­enjoyment’, but which is at the expense of the objective order, produces contradictions and implicates complex weighing processes of diverging legal p ­ ositions.52 This is the moment to stress the differences between the role and function of fundamental and human rights in the national and in the transnational context. In the national context, human rights and fundamental rights originally aimed at limiting the power of the Leviathan gradually turned into a tool to enforce social rights against the state. In the transnational context, or in the supranational context of the EU, human rights and fundamental rights tend to serve as a substitute for the non-existent state. The positive side of the development is that subjective rights

49  This seems to be behind the reference in the footnote at Demogue (n 3) 624 where he stresses the hidden German affinity with the ‘panthéisme hégélien’ referring to Bernatzik and Jellinek. 50  Demogue does not use the term, he does not really explain what such an order should look like. ibid, 624, he speaks of: ‘Il s’agit simplement, étant donné la construction de notre esprit, qui a besoin d’ordre et de clarté, d‘y classer des solutions et de créer un instrument, imparfait et dangereux d’ailleurs, de découverte, qui nous gardera du moins de la confusion et de l’imprécisions’. This corresponds to the thinking in the categories of French rationalism. Jamin (n 25) argues that Demogue did not really believe in something like ‘ordre juridique’. 51  Demogue (n 3) 625. Again: Demogue criticises this tendency, he has a critical stand towards them, but it does not become clear what he wants to defend. He surely would have defended himself against the accusation of legal nihilism. He constantly has a legal order in mind, which has to be upheld. Even if it is not the legal order of ‘conceptual jurisprudence’. 52  The two contributions of Kennedy (n 6) and (n 35) and N Reich, ‘Balancing in Private Law and the Imperatives of the Public Interest: National Experiences and (Missed?) European Opportunities’ in Brownsword et al (n 35) 221–48.

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can be connected to the legal subject beyond territorial boundaries, protecting the individual against the ‘transnational public/private Leviathan’, p ­ rovided the rights can also be enforced against private parties.53 The down-side of the transnationalisation is that the respect for fundamental and human rights, imposed on a nation state, may limit its sovereignty.54 Demogue poses a rhetorical question: are there no easier ways to determine the legal subject? His search leads him back to the category of the will (volonté), without which it would not be possible to give shape to the legal subject. He chooses Bernatzik as his starting point: ‘Le sujet de droit est le support du but humain que l’organisation juridique régnante reconnaît come but en lui-même, par cela qu’elle confère la force juridique à la volonté nécessaire à sa réalisation’. Demogue concludes: ‘Ainsi le sujet de la volonté n’est pas sujet de droit, et le droit n’est pas un Wollendürfen’.55 This would be the only way to bypass the pitfalls of Jhering and Duguit. Objective order and legal subject fall apart: ‘La qualité de sujet de droit appartient aux intérêts que les hommes vivant en société reconnaissent ­suffisamment importants pour les protéger par le procédé technique de la ­personnalité.’56 Without going any further into the matter of the importance of a person’s will at this stage, Demogue lists a whole series of examples to illustrate that the determination of the legal subject is based on a mere technique, which can be solved by the use of traditional means of legal argument. Successively, he deals with the legal position of dead people, of the unborn, of legal entities, of animals, of objects (buildings), concluding with the following words: sujets de droit, ne sont que des mots, des images, et tout au fond, dans chaque cas se réduit à une appréciation des intérêts en présences. … Nous croyons qu’ainsi comprise la notion de sujet de droit, si vigoureusement attaqué par M. Duguit peut résister à ses assauts. Comprise comme notion touchant au fond du droit, elle mérite des reproches [because there are legitimate interests as well]. Mais conçue comme notion technique, …c’est un instrument utile malgré ses dangers.57

The decisive question is, and remains, how to differentiate between classic ­individualistic legal positions, which materialise in a legal subject, and those which cannot easily be assigned to a legal subject, since they hide collective interests, to quote Demogue, since they sit on the shoulders of an undetermined number of

53  With regard to the US position on private responsibilities see Kiobel v Royal Dutch Petroleum Co 569 US (2013), accessible at https://su preme.justia.com/cases/federal/us/569/10-1491; for a different reading: L Azoulai, ‘The Court of Justice and the Social Market Economy: The Emergence of an Ideal and the Conditions for its Realization’ (2008) 45 CML Rev 1335. 54  O De Schutter and M Salomon, ‘Legal Brief Prepared for the Special Committee of the Hellenic Parliament on the Audit of the Greek Debt (‘Debt Truth Committee’): “Economic Policy C ­ onditionality, Socio-economic Rights and International Legal Responsibility: The Case of Greece 2010–2015”’ (15 June 2015) available at http://cadtm.org/Legal-Brief-Prepared-for-the. 55  Demogue (n 3) 627. 56  ibid, 630. 57  ibid, 639.

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right holders (titulaires des personnes encore indéterminées). Demogue should be able to manage this distinction from a technical and legal point of view. But his legal realism makes him realise that each attempt at a definition of collective interests involves a weighed classification of social realities (classement satisfaisant des intérêts en présence). The search for a ‘ranking of profit participation rights’ leads him to the d ­ ifferent attempts of Planiol, Barthelemy, Orlando, Jellinek, Michoud and Jhering. Due to Jellinek’s distinction between interests that are worthy of protection and mere legal reflexes, Demogue feels most connected with the latter.58 His solution lies in the tension as to whether the advantage of an undetermined number of persons is the causal purpose of the law (in his words, ‘l’avantage de ces personnes’ is the ‘cause finale’) or simple causality, a simple result (‘simple causalité, simple r­ ésultat’).59 The European Court of Justice (ECJ) has been working precisely like this for ­decades, but it resorts to an artifice, to the reference to the ‘effet utile’, which allows a broad interpretation of the legislative objective in favour of the justification of an undetermined variety of subjective rights.60 Thus Demogue’s prediction comes true. The courts become obstetricians (les tribunaux donnent aux droits embryonnaires sa forme pratique, en feront en quelque sorte l’accouchement).61 Demogue realises that this line of thought has to lead to an expansion of the protection of collective interests by means of individual rights. Unlike the authors to which he refers and that he uses to justify his own considerations, Demogue reverts to the distinction between the two objectives of law (enjoyment and disposition) and considers the determination of the person who exercises the right (titulaire d’exercise) as a counterparty (contre-partie). It is my understanding that the right of enjoyment and the right of ­disposition exist in tension in the reasoning of the Court of Justice of the E ­ uropean Union (CJEU). The right of enjoyment reaches far and can be boundless, depending on the understanding of its purpose. The effet utile can be mobilised beyond all boundaries to stretch the right of enjoyment into ever new areas of the law.62 Only the right of disposition, the exercise of which requires a rational person, sets the

58 

ibid, 641. ibid, 642. 60  More generally, N Reich, Bürgerrechte in der Europäischen Union, Subjektive Rechte von Unionsbürgern und Drittstaatsangehörigen unter besonderer Berücksichtigung der Rechtslage nach der Rechtsprechung des EuGH und dem Vertrag von Amsterdam (Baden-Baden, Nomos, 1999); most prominent in the field of environmental protection, where the Court granted rights to individuals, where a number of national legal orders (in particular, Germanic legal orders) would refrain from involving individuals in litigation. For those who read German see issue 9 of September 2015, Natur und Recht, vol 37, which provides for an inspiring discussion as to how the ECJ has placed pressure on the German understanding of subjective rights, opening the courts to a much broader category of persons beyond the category of those directly affected. 61  Demogue (n 3) 643. 62  HP Schwintowski, ‘Informationspflichten und effet utile—Aru der Suche nach einem effektiven und effizienten europäischen Sanktionssystem’ in R Schulze et al (eds), Informationspflichten und ­Vertragsschluss im Acquis communautaire (Tübingen, Mohr Siebeck, 2003) 267–90. 59 

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necessary limits as to scope of the right of enjoyment. Again, it is a matter of far more than legal technique, it is a question of ‘la force des choses’, of the cohesion of the exercise of rights and the ‘objective order’. The boundaries of the right to enjoyment, ie the right of disposition, seems to be another way to say the ‘private’ in private law. Whereas, the right of enjoyment appears to be its public function, the ‘public law in disguise’. Demogue mentions the following terms in the same breath without clearly distinguishing between them: les sujets de disposition de droit, titulaire d’exercise and les sujets de gestion de droit. There are no doubts about the direction of impact. The legal subject, who exercises the right to which an undetermined variety of persons is entitled, becomes a social authority (devient une véritable autorité sociale). Demogue explains in a plausible manner how it is possible that the exercising of one individual right, if an undetermined variety of persons is entitled to it, can have such a broad impact. The exercise of a subjective right, which concerns collective interests and which unavoidably turns many undetermined persons into potential beneficiaries, making the individual disputant a mandataire ‘mandataire’.63 His credo is the following: ‘tout droit doit avoir un sujet d’autorité et de disposition’.64 From this idea a direct path leads to the concept, which is of a dominating nature in France, that syndicates which represent a collective interest, have to register themselves, as it is already the case for consumer organisations.65 From France this idea has made its way into EU law, where ‘entities’ representing the legitimate interests of consumers have to register first at the national level.66 The tensions between the legal subject and the ‘objective order’ clearly come to light. If the citizens of a state can take the use of their (social) rights into their own hands, and in a purely individual way, this come closes to direct democracy and maybe also to syndicalism.67 In agreement with many of those that he criticises, Demogue considers the courts to be in a prominent and responsible position. He does not, maybe he could not yet, discuss the political consequences of a ‘juristocracy’.68 For the time being I will not discuss Demogue any further. It might suffice to point to a number of key formulations which will accompany us for the rest of this chapter: ‘le sujet de droit … est un vocable commode’— ‘reconnaître que tout homme est sujet de droit, c’est faire pénétrer le droit en sa personne de sorte qu’il soit sa chose, qu’il soit en lui, qu’il fasse corps avec lui et, par suite, ne puisse lui être arraché faire’—‘tout droit doit avoir un sujet d’autorité et de disposition’.69 Herein

63 

Demogue (n 3) 653. ibid 654 (emphasis added). J Calais-Auloy and H Temple, Droit de la Consommation 9th edn (Paris, Dalloz, 2015). 66  Dir 1998/27/EC, now Dir 2009/22/EC. 67  Demogue (n 3) 649. 68  R Hirschl, Towards Juristocracy (Harvard, Harvard University Press, 2007); JA Majoral, ‘The Judicial Construction of Europe in Time of Crisis: A Move Towards European Juristocracy’ (2014, author has manuscript). 69  Emphasis added. 64  65 

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is the bridge to Duncan Kennedy. I will start by highlighting the basic characteristics that shape identity-based rights. I will then use Demogue and Kennedy to provide an account of how and where to classify the ECJ’s understanding of the legal subject, class and identity-based rights.

IV.  Duncan Kennedy’s Identity-based Rights In order to locate Duncan Kennedy’s contribution to the transformation of the legal subject, it is necessary to recall that he distinguishes between three stages of legal globalisation. The first two, Classical Legal Thought and The Social, are already at the core of Demogue’s analysis. This is all the more striking as at the time of Demogue’s writings the second globalisation was still in an embryonic stage. The third globalisation which is claimed not to be a synthesis of the first and second, is titled ‘policy analysis’ (the ongoing management of classic legal thought (CLT) and social desiderata),70 ‘neoformalism’ (institution building to handle ­conflicting policies and emergence of transcendent values directed against the ­status quo) and ‘adjudication’ (the key role of constitutional courts and judges as the heroes).71 What, then, does the third globalisation contribute to the debate on the legal subject? In order to locate the concept of identity-based rights, it is necessary to examine the basic characteristics of the legal order in the third globalisation. The key to understand Kennedy’s third globalisation is his conclusion that there is not, and that there cannot be, a coherent legal order anymore: ‘What there is not is a new way of conceiving the legal organization of society, a new conception at the same level of abstraction as CLT or the social’.72 Demogue was already struggling with the idea of objective law, he seems to be quite critical towards the idea of ‘a legal order’, but nowhere does he distance himself from the idea of a legal order such as the one enshrined in the Code Civil. There is no way back— this is ­Kennedy’s claim—to the classical legal formalism that attempted to shape constitutions and private legal orders as coherent and self-contained systems. Neoformalism is ‘neo’ as it transfers the CLT, meaning private law thinking to the public sector, to policies and institutions without taking into account that ‘policy analysis’ is structurally subject and object bound and that coherence or something similar can be achieved, if at all, in narrow policy fields that are kept distinct from overarching influences from other policy fields. This fits nicely with Luhmann and

70  Kennedy (n 4) 21: overview, explained from 63, 64 on policy analysis and neoformalism, 67 on adjudication. 71  This goes back to Dworkin (n 38). 72 Kennedy (n 4) 63, seen in the affirmative M Reimann, ‘The American Advantage in Global ­Lawyering’ (2014) 78(1) Rabels Zeitschrift für ausländisches und internationales Privatrecht 1.

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Teubner who stress, constantly, the irreversibility of the differentiation and fragmentation of society or with Kaarlo Tuori who has coined the term, ‘[the] many constitutions of the European Union’.73 Kennedy explicitly rejects the idea that human and fundamental rights can serve as a substitute for the vanishing formalism of the private legal order that could hold the different policies together and could turn into a kind of a legal order, even a transnational or supranational one. The strongly promoted references to human and fundamental rights in national and transnational legal documents ‘presupposes either a mystical union of natural and positive law or the mode of deduction from abstractions effectively trashed by early social theories’,74 they are the ‘hypostatisation’ of this trend (to turn rights into a universal legal unit), operating as universals, at once natural and positive, in a way oddly analogous to the operation of right, will and fault in CLT private law.’75 This is Kennedy’s account of the human rights discourse in the light of the three globalisations: Human rights play the same role in contemporary legal consciousness that ‘private rights’ played in CLT and ‘social rights’ played in the Social. Identity played the role that the individual played in CLT and that classes and national minorities played in the Social. The contemporary ideal is a legal regime that is pluralist, not in the sense of CLT, which co-ordinated atomized individuals through universally valid abstract rules, nor in that the Social, preoccupied with finding and supporting the ‘valid’ ‘living’ law of subcommunities as a path toward an idea of distributive justice. But in the sense of appropriately recognizing and managing ‘difference’.76

What we can draw from Kennedy is that the holder of human rights is not a legal subject in the meaning given to it during the heyday of the Classical Legal Thought. Demogue had destroyed the myth that social rights could be brought into line with ‘la notion de sujet de droit’. In this respect, Kennedy pushes Demogue’s argument one step further, from the second to the third globalisation. Human rights and fundamental rights—this is the lesson to be learnt from Demogue, Heck and others—are a tool to manage ‘difference’. That is why it is so tempting to deduce out of the management process ‘elements of a higher legal order’. Herein I have difficulties to subscribe to the impossibility, as it seems as if it is possible to deduce out of the messy landscape of human rights, fundamental rights, primary community and secondary community law a ‘European legal order’, however, which is held together by leading ‘principles’.77 This should not be confounded with coherence or any idea of a legal system. The European legal order is characterised

73 

K Tuori, European Constitutionalism (Cambridge, Cambridge University Press, 2015). Kennedy (n 4) 65. 75  ibid 66. 76  ibid 65. 77  See N Reich, General Principles in EU Civil Law (Cambridge, Intersentia, 2014); my ‘Introduction’ to HW Micklitz (ed), Constitutionalisation of European Private Law Collected Course of the European Academy of Law, European University Institute (Oxford, Oxford University Press, 2014) 1–25. 74 

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through managing difference and through incoherence.78 However, I will leave the debate for another occasion and come back to the transformation of the legal subject in the third globalisation. Kennedy does not define, expressly, how he understands identity-based rights and in what way they are different from the legal subject or social class and what the consequences are for law, for the legal system and the legal order. However, he provides for a number of hints that allows us to highlight where the third globalisation via identity-based rights introduces a new layer in the genealogy of the legal subject. This is what we find—in his own words: Contemporary legal consciousness organizes rights claimants according to their plural cross cutting identities. Identity represents at once an extension of and a total transformation of the categories—social class and minority—through which the social jurists disintegrated the Savignian ‘people’, is typically the descendent of the social preoccupation not with dominant but with subordinated or discriminated or persecuted identities, is the basis of a claim against the ‘majority’ or the ‘dominant culture’, is in fact a true lingua franca, just as applicable to the law of the market. On the side of the typical beneficiaries of identity discourse are ‘weak parties’ now even the ‘poor’ understood as identity rather than as a class. On the side of ‘strong parties’ employers, creditors, sellers, there has been a sustained effort to reconfigure property and contract rights as parallel to minoritarian identity/rights.79

This account speaks for itself and might be shared by many, empirically and theoretically. Individuals can easily change their roles, from producers to consumers, from citizens to travellers. They have many identities and each of our respective identities can be connected with a particular right. Children have rights and the elderly have rights, consumers and women have rights.80 More and more, these

78  This explains the impossibility to identify consistency in the case-law of the ECJ, let us say on citizenship, Reich (n 77) or consumer rights F Della Negra, ‘The Uncertain Development of the Case Law on Consumer Protection in Mortgage Enforcement Proceedings: Sánchez Morcillo and Kušionová’ (2015) 52 CML Rev 1009, on difference O Gerstenberg, ‘Justification (and Justifiability) of Private Law in a Polycontextural World’ (2000) 9(3) Social & Legal Studies 419. 79  I have taken the freedom to put his own words together, cutting out here and there bits and pieces, to make it more readable. But all words are ‘his’ words and all are on 66, Kennedy (n 4). 80  Carr (n 5) 118: ‘It is important to state from the outset, and as we will see this becomes a fundamental element in terms of the resolution of peripheral family law cases, that this third globalization is founded on an identity-based notion of rights. We can think about rights for women and as illustrated, for consumers and other “vulnerable” groups. This relates to our discourse in terms of the reconstruction of the path to asserting one’s rights. For example during the first globalisation we can safely say that the path to be followed was one based on a formalistic consensus of wills—full stop. The social, in making some moves towards the integration of social justice made room for collective considerations and utilitarian approaches to the settlement of disputes. Here, however, we see an identity-based notion of rights ie I am a woman and a consumer and therefore I possess certain rights, not I possess rights per se. This differs from the Social in that it reintegrates the social into the legal system at the level of arguments about constitutional rights and balancing policy and identity. What are political disputes are portrayed as legal disputes about the scope of ones rights but they take the Social into account due to their sensitivity towards potentially disadvantaged groups, for example, employment legislation in Ireland that contains anti-discrimination clauses about travellers, women, ethnic ­minorities etc’.

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rights are not only ‘normal positive rights’, but are upgraded to a higher level of value by reference to human rights and fundamental rights. The mushrooming of human rights and fundamental rights nationally, in Europe and internationally renders it possible to give more or less each and every positive right ‘a human right or a fundamental right touch’. In other words, for each identity there is a bundle of rights available. What they have in common is that identity-based rights always start from an element of weakness. This is true even for property right owners who claim compensation for the infringement of their rights via third world countries with the help of the WTO (World Trade Organization). Sociologically speaking, the rise of identity-based rights goes hand in hand with the victimisation of the ‘individual’, with the fragmentation of societal roles (no classes) and sectors of the economy (consumer and customer) and with the elimination of the average person as a normative legal category. The centre of society remains empty. In the nineteenth century the legal subject as an autonomous self-responsible person formed the core of the normative legal system. In the twenty-first century the individual appears as the holder of a whole bundle of identity-based human and fundamental rights which he or she can play out according to current needs, where he or she may claim the enforcement of individual rights or where he or she defines himself or herself as member of a particular group of weaker parties, affected by a particular economic, social or political circumstances.81 Linking Demogue and Kennedy together and inserting identity-based rights into the genealogy of the legal subject, the conclusion looks like this: Classical Legal Thought requires the legal subject as object of disposition. This is the ‘person’ the codified and the non-codified private legal orders of the nineteenth century had in mind. In the twentieth century ‘the Social’ shifts the focus from the object of disposition to the object of enjoyment. Behind the object of enjoyment are not so much individuals but ‘mandataires’ in whom social rights are crystallised. Policy analysis, neoformalism and adjudication push enjoyment ever further, yield fragmentation of ever more identities to which particular rights are connected. I will now use the case-law of the ECJ as testing ground to demonstrate the legal and societal consequences of the transformation of the legal subject in the third globalisation.

V.  The European Legal Subject—Mandataire and Identity-based Fundamental Rights Holder Demogue could not yet discuss the European (Union) legal subject, Duncan­ Kennedy does not discuss the concept. He downplays a possible genuine E ­ uropean

81  Telling the contributions from G Commandé, A Colombi Ciacchi, M Bell, O Cherednychenko, Ch Godt, Ch Mak, in HW Micklitz (n 77), with a word of a warning from H Collins on the risk of proliferation.

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dimension and highlights the ‘Unitedstatesean genealogy’82 of ‘each trait’ of the third globalisation. This goes along with what Mathias Reimann termed the American Advantage in Global Lawyering.83 My concern is different. Along the lines of my understanding of the EU as a ­laboratory I start from the premise that the EU and EU law allows us to shed light on the transformation of the legal subject in much more outspoken and explicit way due to two particularities: the European ‘stateness’ and the almost s­imultaneity of globalisations. First and foremost, the EU is a genuine supranational quasi-state built on the history of the nineteenth century nation states and on the presupposition of common European culture.84 Despite all the rhetoric of the ECJ on the constitutional character of the EU, it is still unclear what the genuine legal order (not system) looks like or resembles. For relevant context, it might suffice to stress the openness of the European legal project, its laboratorial character. It is the ­second particularity that requires our attention. Kennedy’s genealogy of the three globalisations does not really ‘fit’ the EU. Historically, the EU was established in the middle of the second globalisation. The Social had to be taken into account right from its beginning. The foundational treaty from the early 1950s relied on a separation of responsibilities, market building at the EU level and the Social at the Member States level. Within less than 60 years—1957 until today—the EU had to go through the three stages of globalisation. The relatively quiet formative years 1957 to 1986, market building, resemble developments in the nineteenth century along the lines of Classical Legal Thought in continental Europe. The rise of the Social started with the adoption of the Single European Act in 1986 in an attempt of the Member States to catch up at the EU level with the development of the welfare (nation) states that go back to the beginning of the twentieth century and ended in half-hearted attempts to transform the EU into a Social Union.85 The Social did not really find its way into the EU legal order. It has to be recalled that that the rise of the Social at the EU level went hand in hand with a decline of the Social at the Member States level. Thus, quite necessarily the ‘Social’ at the EU must have a different outlook. The third stage of globalisation ‘policy analysis’, ‘neoformalism’ and ‘adjudication’ gained pace in the aftermath of the Single European Act and the shift from modelling a federal Europe to a crafting Europe through governance. The ECJ turned into the ­intellectual, the political and the legal hero of the EU. The Social and the third globalisation coincide by and large in one. Due to this dense parallelism and

82 

Kennedy (n 4) 67. Reimann (n 72). 84 See F Wieacker, Voraussetzungen europäischer Rechtskultur (Bursfelder universitätsreden, ­Göttinger, 1985), translated into English in F Wieacker and E Bodenheimer, ‘Foundations of European Legal Culture’ (1990) 38(1) The American Journal of Comparative Law 1. 85 Relatively optimistic but before the 2008 meltdown K Tuori, ‘European Social Constitution between Solidarity and Access Justice’ in Purnhagen (n 16) 371–400. 83 

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­ verlapping of developments, it is more difficult to assign a particular legal subject o to a particular stage of globalisation. Against this short sketch of the EU history, I would like to distinguish between two stages in the formation of the European legal subject, what I will call the formative stage and the ongoing stage, the first could be attributed to the legal subject as a mandataire in the meaning of Demogue, the second to the legal subject as identity-based rights holder in the meaning of Duncan Kennedy. The story of the formation of a genuine legal order via the ECJ has been told endless times, perhaps most excitingly by Eric Stein.86 Less attention has been devoted to the facts behind Van Gend en Loos and Costa Enel, in particular the parties that were ­deriving i­ ndividual enforceable rights from a supranational Treaty in order to challenge national statutory restrictions that impede free trade in the, then, ­Common ­Market.87 The Treaty did not grant ‘persons’ standing. In this respect, the parallel to the private legal orders of the nineteenth century is misleading. All that can be said—and that is why ‘resemblance’ might be the appropriate word—is that the ‘interests’ of the parties in nineteenth century France/Germany and in twentieth century EU resemble each other. In both constellations the private legal order aims to enlarge the freedom of economic actors. Statutory restrictions imposed by national legal orders were pushed back in the name of individual economic rights. What is different in the EU legal order is the ‘legal subject’. Private legal orders granted persons an explicit status and established a legal subject equipped with rights. The European legal order could only develop through the decisive move from legal subject to mandataire. Opening the EU market necessarily entails an economic and societal dimension that reaches far beyond the position of the individual behind the right claimed. The reference point is not a contract that can be enforced nor the national context. The reference point is the market per se which is opened or closed depending on whether the right behind the person is enforceable or not. The transborder dimension of contracting allows for an instrumentalisation of ‘contract’ as a device to shape markets.88 Contrary to Classical Legal Thought and the circumstances of market building in France or Germany, it is not the person into which the legal subject penetrated but the (legitimate) interest that the person represents. (Demogue: reconnaître que tout homme est sujet de droit c’est faire pénétrer le droit en sa personne de sorte qu’il soit sa chose).89 The legal subject as ‘mandataire’ is constitutive for the building of the European legal order. However, the ‘mandataire’ within Van Gend en Loos or Costa Enel does not represent a social

86  E Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’ (1981) 75 American Journal of International Law 1. 87  M Maduro and L Azoulai (eds), The Past and the Future of EU Law—the Classics of EU Law Revisited on the 50th anniversary of the Rome Treaty (Oxford, Hart Publishing, 2010). Case 26/62 Van Gend en Loos EU:C:1963:1; Case 6/64 Costa EU:C:1964:66. 88  This is behind the statement of G Davies, ‘Freedom of Contract and the Horizontal Effect of Free Movement Law’ in S Weatherill and D Leczykiewicz (eds), The Involvement of EU Law in Private Law Relationships (Oxford, Hart Publishing, 2013) 53–71. 89  Demogue (n 3) 623–24.

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class or a group of social right holders—which was Demogue’s ­concern, the ‘mandataire’ stands for the overall political objective to move towards a c­ ommon market without national borders and without illegitimate national statutory restrictions. The ECJ instrumentalises the ‘mandataire’ for the self-defined o ­ bjective (the genuine European legal order), whether or not the person behind the ‘mandataire’ gets what he or she wants. The final decision is left to the national courts. One might argue that the European Treaty allows for breaking down the legal subject into two dimensions, first the ‘mandataire’ with regard to the European legal order, secondly the legal subject in the meaning of CLT to enforce a particular individual position under the concrete circumstances of the case.90 Personally, I see the ECJ at the forefront of promoting and developing identitybased (human and fundamental) rights. The short rise of ‘the EU Social’ did not really concern the working class and worker rights, contrary to the political and legal debate in the EU Member States in the early twentieth century. The ‘Social’ in the EU takes a very peculiar form, embracing not so much ‘the Social’, but different policy fields with a social dimension, such as anti-discrimination law, environmental law and consumer law. I have argued elsewhere that the EU is generating its own pattern of justice, a pattern which is much closer to the third globalisation than to distributive justice which reflects early twentieth century thinking in labour law and, later on, in consumer law.91 The different policy fields, roughly united under the umbrella of the Social, show many characteristics of the third globalisation: (1) policy building in ever more fragmented areas of the society and the economy, (2) neoformalism through institution building—one of the major characteristics of the promotion of divergent policies92 and through the promotion of genuine European values—wrapped into categories that are familiar in the national context anti-discrimination, ­environmental protection and consumer protection, though gain a different twist through Europeanisation;93 (3) adjudication through the ECJ as a constitutional court operating in all three (and more) policy fields as the key actor for managing ‘difference’. In these policy fields the legal subject appears indeed in all sorts of identities exactly in the way Duncan Kennedy describes it. EU anti-discrimination law, EU environmental law and EU consumer law defines identities, discriminated men and women, discriminated minorities, the citizens harmed through air pollution, water pollution, the consumer ‘harmed’ through unfair commercial practices, unfair contracts, travellers affected through delayed or cancelled flights. Each of the three fields defines its own scope of application ratio materiae but also ratione personae. If we follow Luhmann, Teubner or Kennedy, there is no way

90 With regard to functional subjectification see M Rüffert, ‘Rights and Remedies in European Community Law: a Comparative View’ (1997) 34 CML Rev 307; T Eilsmanberger, ‘The Relationship between Rights and Remedies in EC Law: In Search of the Missing Link’ (2004) 41 CML Rev 1199. 91  Micklitz (n 10). 92  See A Ottow, Market and Competition Authorities (Oxford, Oxford University Press, 2015). 93  Many references could and might be made here.

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back to a uniform legal subject such as envisaged by the Draft Common Frame of ­Reference. Or, if such an attempt is made it has to exclude such a broad variety of identities, such as the service customer, the creditor, the private investor, just to name those areas which were not integrated into the stock taking exercise prior to the development of the Draft Common Frame of Reference (DCFR). The ostracism of different ‘identities’ underpins the understanding of the DCFR as a nineteenth century project. In the end, it all boils down to the simple fact that the EU due to its shaky statutory outlook and its limited competences is only able to operate through policies, the typical means of the third globalisation. Once the ECJ comes in, it is faced with a situation that resembles Van Gend en Loos or Costa Enel. There are ‘people’ in the EU who define themselves as weak parties who mobilise EU anti-discrimination, environmental protection and consumer law to enforce compartmentalised and fragmented social policies. It is, then, for the ECJ to develop under ever stronger reference to the Charter of Fundamental Rights whether and to what extent these secondary EU rules grant ‘rights’ to these ‘people’. The interpretative technique the ECJ applies had already been correctly identified by Demogue, Jhering, Jellinek and transferred by Norbert Reich to the EU legal order.94 What matters is that the ‘people’ behind the claims are more than mandataires in the meaning given to it by Demogue or in the way the ECJ uses private parties as mandataire for the building of the European legal order and for shaping the internal market. These ‘people’ act through constantly changing identities, from environmentalist to discriminated gender and from there to a cheated consumer or customer. The ECJ connects and has to connect—because this is the regulatory logic—the identity of the person to the particular policy field from which the respective rights have to be deduced. The person should not be understood as an individualised individual, it can easily represent a group of concerned private investors such as in Mohamed Aziz95 or energy customers in RWE.96 The identity and the policy field merge into one. This is already indicated in the way the identity-based right holders are named—the consumer relates to consumer protection, the environmentalist to environmental protection—the discriminated to anti-discrimination. One may wonder whether identity-based rights are setting an end to personalism as one of the basic pillars of the Western European legal culture. The rise of identity-based fundamental rights seem to underpin the basic finding of Duncan Kennedy that there is no coherence, no abstract legal order,97 not even certainty within a particular fields as adjudication may produce as many results as there are adjudicators. Decision-making through adjudication is no

94 

However, without discussing Demogue, instead focusing on Jellinek, Natur und Recht (n 60). Case 415/11 Mohamed Aziz EU:C:2013:164. Case 92/11 RWE EU:C:2013:180. 97  I partially disagree. However, this is not the right place to engage in a discussion about how to classify the legal order in the third globalisation. 95  96 

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more than managing differences, differences in the respective policy field itself in weighing consumer rights and the rights of the suppler or service provider, differences between policy fields, for example, weighing environmental protection rights against consumer protection rights, but also managing differences between identity-based rights where the holder of the rights has merged with the policy field into an indivisible conglomerate (the collective and the societal dimension) and the real persons standing behind the identity-based right and claiming justice with respect to their case (personalism). Mohamed Aziz might be taken as an example.98 Mr Mohamed Aziz belongs to the group of the ‘poor’, cheated house owners who have signed up mortgage contracts that allowed for an easy eviction. In that sense, the ‘poor’ house owners form a collective identity that is given rights through the ECJ. These rights have gradually gained human and fundamental rights status. The bulk of the case-law before the ECJ has generated a new microcosm99—the distribution of rights and responsibilities of banks and house owners around Europe in the aftermath of the 2008 crisis. However, then there is Mr Mohamed Aziz himself who wants to stay in his house despite his inability to pay the mortgage. What can be observed is that the ‘individual’ vanishes behind the collective dimension of the conflict—the ‘weak’ against the ‘strong’. Mr Mohamed Aziz though a hero in the fight against injustice is de-personalised and de-subjectified at the same time. The EU legal order, as well as the political class (the European Commission, the European Parliament, the national governments, the national legislators), focuses on the societal dimension, the individual being merged with the policy issues that he has brought to the judicial and political fora. It is the irony of identity-based rights that the holders of these rights ‘the real persons behind the right’ due to the merger with the policy objectives from which they derive their rights are literally ‘vanishing’. Do they vanish also legally? The lesson to be extracted from all the public interest litigation appears to be that national courts alone cannot bear the burden to re-establish the individual. In managing difference the judge-heroes look much more like regulatory agencies than problem solvers who decide a ‘case’. This is, perhaps, the most striking c­ onsequence of the third globalisation.

VI.  (No) Conclusions The overall picture is not yet complete. I have left out the role and function of technology, in particular of the internet which opens up new ways of shaping and establishing virtual identities. I will leave this for another time. What remains

98  HW Micklitz, ‘Unfair Contract Terms—Public Interest Litigation before European Courts: Case C-415/11 Mohamed Aziz’ in V Colaert and E Terryn (eds), Landmark Cases of EU Consumer Law—in Honour of Jules Stuyck, (Antwerp, Intersentia, 2013) 615–34. 99 I Domurath, HW Micklitz and G Comparato (eds), ‘The Over-indebtedness of European ­Consumers—a View from Six Countries’ EUI Working Paper Series EUI-ERC 2014/08.

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from our excursion into history, from contrasting Demogue and Kennedy, from using the ECJ and the transformations of the European legal subject as the blueprint? Both help us to better understand the transformations and to rediscover the potential of the European legal order and of the case-law of the ECJ to get a clearer picture as to what identity-based rights in a transnational legal order really mean. But what are the consequences for law as such? What are the consequences for the law and for the idea of a constitution if judges turn into regulatory bodies that are no longer deciding cases but are managing policies far beyond the case by way of using the open texture of human rights and fundamental rights as their toolbox? Duncan Kennedy leaves us with an optimistic message: The left and right political ideologies pursued through contemporary legal c­ onsciousness are no more internally coherent than the legal dogmatics of CLT or the organicist dogmatics of the social. This point is an important antidote to the tendency to see a discussion of the politics of law, like the one above, as reducing law to politics. By analogy with Carl Schmitt, it seems to me also true that politics is law by other means, in the sense that politics flows as much from the unmeetable demand for ethical rationality in the world (DK refers to Max Weber, Politics as a Vocation HWM) as from the economic interests or pure power lust with which it so often discursively associated.100

If politics is law by other means, political science will have to get much deeper into law, legal sciences and legal institutions than ever before. This is what we can observe everywhere in European law and more broadly in transnational law. The third globalisation seems to operate in favour of political science to the detriment of legal sciences with far reaching consequences on both disciplines. Following Duncan Kennedy, political science in taking ‘law’ on board will have to realise that its societal responsibilities have considerably increased. Political science has to integrate ‘values’ and ‘rationalities’ formerly left to law into their own discipline.

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Kennedy (n 4) 72.

15 A Family Status for the European Citizen? ETIENNE PATAUT*

I. Introduction Family law is now a part of European legislation and many regulations have been adopted in this field. It was possible to adopt these regulations only by extending the competence of the Union, not to substantive family law, which to a large extent is still beyond the reach of European legislators, but to private international law. This competence, bitterly debated in France, is no longer contested and has enabled the adoption of international judicial law or conflicts of law rules in family matters, which are of such importance today. There now seems to be two approaches available to family law in Europe. The first, substantive family law, is national, while the second, private international law, is largely European. Between the two, however, lies a third option. Substantive Union law has long focused, albeit rather indirectly, on family law. The free movement of persons, in particular, had an effect on family law as, when extended to family members, it forced legislators to clarify what the term means. Similarly, the rules relating to equal treatment and non-discrimination have at times called into question the legitimacy of treating different family types differently.1 On the whole, however, these rules remained relatively specific, difficult to extend beyond the specific facts of a case, which brought them into being and, as such, the influence of Union law on the family remained quite modest overall. This situation changed utterly with the introduction in Union law of a concept that at first glance was far removed from both family law and private international law: European citizenship. European citizenship has been at the heart of European integration since its insertion in the Treaties in 1992, and has given rise to a wealth of legal literature, as * 

Professor at the Sorbonne Law School (University of Paris 1). all these issues see, in particular, J Meeusen et al (eds), International Family Law for the ­ uropean Union (Antwerp, Intersentia, 2007). E 1 On

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abundant as it is essential. European citizenship forms part of the stated ambition to both build a European body politic and give legal meaning to each individual’s membership of the European area.2 At first, the family seems to be some distance away from this objective. However, through a succession of ­judgments, the Court of Justice has had a profound impact. By considerably enriching its content, the Court has increased, progressively, significant points of contact between citizenship and family law to the extent that nowadays reasoning specific to this field must be included to understand the sources of changes in family law in Europe. Two examples will suffice to demonstrate this: surnames (section III) and civil s­ tatus (section IV). Before this, however, it is necessary to understand, in broad terms, the links between citizenship, private international law and family law ­(section II).

II.  Citizenship, Private International Law and Family Law The concept of the European citizen is extremely capacious and often its legal consequences are unclear. In political discourse in the Union, it is very often invoked and can be used to justify almost anything. However, in the Treaty it has a precise meaning because it is the criterion for applying the rights listed in Article 20 TFEU. Of these rights, the first and most important is, of course, free movement; after that comes the right to vote, the right to diplomatic protection and the right to petition. Naturally, the list continues to grow, because of the open-ended wording of Article 20, the second paragraph of which confirms that citizens shall enjoy ‘inter alia’ the rights listed. Nonetheless, the rights expressed in Article 20 are ­precise and limited and, therefore, do not form a unified legal regime—far from it. However, from Article 20 and its predecessors, the Court of Justice has ­progressively built up a highly innovative legal regime that extends well beyond the original narrow framing of citizenship envisaged by the drafters. Indeed, in 2001, in the famous Grzelczyk judgment, the Court articulated for the first time a keystone of citizenship, which it has repeated in each decision on citizenship, namely the Court stated that citizenship is now ‘the fundamental status of nationals of the Member States’.3 In this area, all of the judgments of the Court of Justice over the last 10 years or so has involved providing a precise legal content to this ­fundamental status.

2  There is extensive literature on all the above—see in particular M Benlolo-Carabot, Les fondements juridiques de la citoyenneté européenne (Bruxelles, Bruylant, 2007), and D Kochenov, ‘The Citizenship Paradigm’ (2012–13) 15 Cambridge Yearbook of European Legal Studies 196. See also the critical assessment of the EU case law by K Hailbronner, ‘Union Citizenship and Access to Social Benefits’ (2005) 42 CML Rev 1245. 3  CJEU, Case C-184/99, Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] I-06193.

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The central concept is that of ‘status’, which, seen from the standpoint of family law, itself refers to the idea of ‘personal status’. These terms, however, are rarely used today, such that they might appear a little dated. Today, private international law is one of the only areas where the term ‘personal status’ is used to describe the vast category of personal and family law issues. But as this category is now itself very fragmented, if the term is used, it is generally to underline its out-dated nature owing to the category’s vagueness.4 In accordance with the well-known dictum whereby the categories of private international law reflect the categories of domestic law, the category of ‘personal status’ is gradually disappearing from conflicts of law because the very idea that a ‘status’ of persons could exist in personal and family law has today been largely abandoned. There is no longer any status but different legal regimes, all corresponding to different legal situations or issues. The very idea of ‘personal and family status’, which appears to imply that there is only one family type, induces an ironic smile today, because family and family law are completely liberalised and multiple family types exist with no hierarchy presumed between them. Therefore, the fact that the Court of Justice has returned to this term when referring to the European citizen may surprise some observers. In fact, the use of the term is deliberate but involves a profound conceptual change. The aim first and foremost is obviously political. In asserting the idea that there is a ‘status’ of European citizen, the Court is asserting the specific legal existence of this new ­figure and is thus contributing to the formation of that unique body, which is also a political body: citizenship of the Union. However, unification came about at the expense of a radical change of meaning. Status in no way reflects a unique substantive legal regime. In fact, in the Court’s case-law, citizenship is not only the criterion for accessing rights or a predetermined legal regime. The solution would also be incongruous in family law because there is no competence in family law. In this instance, status does not reflect a ­particular regime but merely guarantees the stability of a regime already formed. In combining freedom of movement, equal treatment and citizenship, the Court of Justice’s reading has led to the increasingly broad guarantee that people can move around freely and that they can do so not alone but with their family. At the outset, freedom of movement permitted people to enter and stay in the territory of another Member State. Combined with equal treatment, it allows people to access the same social benefits as the nationals of other Member States.5 Now, combined with citizenship, it guarantees that any family status developed in a Member State is recognised in another Member State. Again, this is not a ­particular development of family law. It is simply a means of ensuring that the

4  See, in particular, D Bureau and H Muir Watt, Droit International Privé 2nd edn (Paris, PUF, 2010) para 269, who reject the term, preferring ‘personal sphere’ and ‘family sphere’. 5  Due to recent case law, this question is now under intense doctrinal scrutiny, on which see, in particular, D Thym, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for ­Economically Inactive Union Citizens’ (2015) 52 CML Rev 17.

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rules of family law applied in a host State do not in any manner infringe the right of European citizens to move freely. Therefore, the issue is not that of applying any one particular regime, but the recognition in a Member State of the regime applied to a citizen in another Member State. This idea of recognition is now at the heart of methodological discussions of private international law.6 Therefore, we will content ourselves with underlining just one point: in the Court of Justice—one of the leading and main instigators of change—the method of recognition was not developed using the tools of private international law but with those of substantive Union law. This means that cases concerning family law, which are the most extreme end of this case-law, have been developed in view of considerations that are not directly linked to the family but rather more directly to freedoms of movement. Therefore, in contemporary private international family law, two different methods of reasoning, different but complementary, must be reconciled. The first is the ‘localising’ reasoning of traditional private international law. This line of ­reasoning, contrary to what might have been thought when the application of the law of the country of origin was being debated, has never been abandoned. All major regulations in private international law that have been or will be adopted incorporate conflict of law rules that, while adapted, are relatively conventional: mostly bilateral conflict rules, result-oriented conflict rules at times, selecting a particular connecting factor to find the applicable law. This is nothing new, apart from judicial and administrative cooperation, which will not be discussed here. The intent is always to coordinate systems in order to ensure international coordination of laws. However, this line of reasoning is supplemented by another: the ‘mobility’ ­reasoning of the European Union, arising out of the freedoms of movement. Herein, the aim is no longer the abstract aim to coordinate laws but a concrete aim to ensure possession and exercise of specific rights. The aim is to allow a particular person to access particular rights, in the name of freedom of movement. Simply put, with the rise of European citizenship, this reasoning of access to rights has become more abstract because it is no longer a question of guaranteeing a particular right to a particular citizen in another Member State (the right to vote, for example), but more widely to allow her to move about without any impediment, which should be understood as implying that a citizen can remain wedded to her own legal regime. The free movement reasoning of Union law and the coordinating reasoning of private international law thus come together around a fundamentally common objective: ensuring the unity of the status of persons. European Union law speaks readily of recognition, whereas private international law tends to refer to the international harmony of solutions. But in both cases the final objective is the same: to

6  For a summary of the discussions on this topic in Europe see, in particular, P Lagarde (ed), La reconnaissance des situations en droit international privé (Paris, Pedone, 2013).

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ensure that a person who is called Dupont and is married in Germany does not become a divorced Durand in France. Hence, both methods of reasoning complement each other and lead to a relatively profound reconstruction of the mechanisms and rules of law that allow a person to cross a border holding on to her personal and family characteristics and, therefore, lead to a complete reconstruction of the rules of private international family law. This reconstruction is not without consequences for substantive family law, even if these are to date of a piecemeal nature. Facilitating the recognition of both decisions and situations amounts to favouring the approximation of laws, in the sense of liberalisation, as it becomes easier to obtain in another State what was difficult to obtain in one’s own State. Commentators have rightly referred to divorce7 and the combination of criteria of broad competence and the liberalisation of divorce rulings has undeniably made a prohibition on divorce almost illusory in Europe. Divorce is now permissible, albeit in a more or less liberal form, in all European Union countries. The same debate is now taking place as regards the reserved portion of an estate (reserve héréditaire) and, more generally, maintaining specific national features in matters of succession after the implementation of the EU Succession Regulation.8 It is too early to say exactly what effect this regulation will have on substantive succession law but there can be no doubt that it will be impactful. Therefore, despite the Union’s lack of competence in family law, we are now witnessing if not the emergence of substantive European family law, at least the incontestable convergence of systems, facilitated by recognition and ­coordination mechanisms. However, this reconstruction primarily affects private international f­ amily law, the focus of this piece. This is what we now will investigate, leaving the fairly abstract terrain followed up to now to provide two well-known and o ­ ft-discussed examples of the impact of the right to freedoms of movement on private i­nternational ­family law: surname and civil status.

III. Surnames The influence of freedom of movement on surnames is doubtless one of the most famous interactions between substantive Union law, private international law and family law and it has long attracted intense attention in the literature.9 7  B Ancel and H Muir Watt, ‘La désunion européenne: le règlement dit “Bruxelles 2”’ [2001] Revue Critique de droit international privé 403; see also P Mankowski and U Magnus, European Commentary on the Brussels 2 Regulation (Munich, Sellier, 2012). 8  M Grimaldi, ‘Brèves réflexions sur l’ordre public et la réserve héréditaire’ [2012] Defrénois 755. 9  See on this point the premonitory reflections of M Scherer, Le nom en droit international privé, Etude de droit comparé français et allemand (Paris, LGDJ, 2004). For a summary of the changes, see recently C Kohler, ‘La reconnaissance de situations juridiques dans l’Union européenne: le cas du nom patronymique’ in Lagarde (n 6) 67.

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Through the intermediation of European citizenship, the Court of Justice, wholly unexpectedly, has progressively ventured into the area of surnames. In the first stage, the Court did not stray from its traditional economic considerations. Extending its case-law to include the mutual recognition of qualifications,10 it deemed that the principle of mutual recognition should be extended to civil status documents of other Member States, which as such are presumed to be consistent ‘unless their accuracy is seriously undermined by concrete evidence relating to the individual case in question’;11 similarly, the entry of a surname in the civil registers has been challenged before the Court because poor transliteration infringed the freedom of establishment of the person concerned.12 Thus, even though this ­constituted an intrusion by Union law into the sphere of the law of persons, ­case-law remained relatively measured, related to economic activity and ultimately limited to an obligation of mutual recognition of administrative deeds. However, this trend was most significantly accelerated and profoundly transformed by the concept of European citizenship. The Garcia-Avello case13 and more especially the Grunkin-Paul case,14 both of which related to surname issues, demonstrated the full scope of this change. The latter ruling, which we will focus on exclusively, related to the refusal by the German authorities to recognise the name given to the child of a German couple by the Danish authorities, the state in which the child had been born and was living. The surname given to the child by the Danish civil registration system combined both the child’s father’s and mother’s surnames. The German authorities were of the view that the naming should be governed by the national law of the interested party and insisted on applying the provisions of German law, which does not allow double-barrelled surnames. Believing that the compatibility of the regulation with Union law could be c­ hallenged, the German authorities referred the question to the Court of Justice for a preliminary ruling. The Court found in favour of the parents, basing its ruling on the former ­Article 18 of the Treaty establishing the European Economic Community (now Article 21 TFEU). The rights attached to the capacity of European citizen would in effect be called into question if the child bore a different surname in two countries with which he had close ties. The German authorities were required, therefore, to ­recognise the surname as determined by Danish law. This solution is of considerable importance. While the Garcia-Avello ruling could lead to substantial divergences in interpretation, the solution of the Grunkin-Paul

10 

On this, see P Rodière, Droit Social de l’Union Européenne 2nd edn (Paris, LGDJ, 2014) para 219. CJEC, case C-336/94 Eftalia Dafeki v Landesversicherungsanstalt Württemberg, 2 December 1997, I-06761: this case revolved around determining the age of a person who wished to join an early retirement scheme. 12  CJEC, case C-168/91 Christos Konstantinidis v Stadt Altensteig, 30 March 1993, I-01191. 13  CJEC, case C-148/91 Carlos Garcia Avello v Belgian State, 2 October 2003, I-11613. 14  CJEC, case C-353/06 Stefan Grunkin and Dorothee Regina Paul, 14 October 2008, I-07639. 11 

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ruling is, for its part, perfectly clear. Founded solely on citizenship, independent of non-discrimination and the difficulties inherent in dual nationality, it requires a Member State to recognise a family situation legally constituted in another Member State, regardless of the conflict of laws rules of the State addressed. When exercising their freedom of movement as guaranteed under the Treaty, Union citizens must be assured that their situation is permanent and any challenge to what has previously been constituted could be a potential barrier to that situation. Admittedly, the solution is not without limit, Sayn-Wittgenstein15 and ­Runevič-Vardyn,16 two judgments of 2010 and 2011 respectively, show otherwise. The issue in both cases was the extent to which States can invoke limits to s­ upport their refusal to recognise a name or title given in another State. The first case related to a German aristocratic title, which was turned down for registration in the ­Austrian civil register, the second was the refusal to transcribe a Polish name on the L ­ ithuanian civil register with the preferred spelling of the party concerned. In both cases, the Court acknowledged that the constitutional traditions of States could oppose the recognition of a name or title given in another State. The reasoning deployed by the Court is the same as that which it generally uses in the event of an obstacle: first characterise the obstacle, then check if there is any justification for it and if this is proportionate. As this test was passed in both cases, the States were allowed to raise their objection to recognition. The aim, therefore, is to balance the right of every citizen to have their surname recognised with the right of States to maintain their basic rules, which are a fundamental part of their national identity. This reasoning is certainly traditional in Union law. However, it completely differs from traditional private international law—its reasoning is based on the more conventional terms of conflict of laws. As the Grunkin-Paul case imposed another mode of reasoning, the exact consequence of this on the conflict rule remains uncertain. The German legislator involved in that case opted for minimum transcription, which is now enshrined in Article 48 Einführungsgesetz zum Bürgerlichen Gesetzbuche (EGBGB). In substance, this article allows anyone whose name is governed by German law to choose the name she would have been given in another EU Member State, unless this choice is manifestly incompatible with the essential principles of German law. This type of solution is perhaps overly restrictive,17 particularly as it relates only to names governed by German law, whereas the requirement for recognition is in fact insensitive to this consideration and could also relate to a name subject to other laws. The solution, nevertheless, takes note of the changes imposed by the

15  CJEU, case C-208/09, Ilonka Sayn-Wittgenstein contre Landeshauptmann von Wien, 22 December 2010, I-1369. 16  CJEU, case C-391/09, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija et al, 12 May 2011, I-03787. 17  On this analysis and the various options that were open to the German legislator, see Kohler (n 9) 73 ff.

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Court of Justice, subject to the reservation of the ‘essential principles of German law’. This new Article 48 thus indeed reflects a profound change of method to take account of the ‘fundamental status of nationals of a Member State’, which constitutes European citizenship. Thus, under these Court of Justice rulings, the status of the citizen took on a more concrete meaning, which was further clarified in the Sayn-Wittgenstein and Runevič-Vardyn rulings.18 The surname of a citizen must be recognised but not just because of the requirements of free movement law, which is closely determined by entry and residence conditions. It is also because what it as stake is the very identity of the European citizen. Beyond the technique of recognition, there is therefore a more profound requirement: enshrining the identity of citizens, an identity that must be accepted as it is without modification in the host State. We can perceive, thus, that although it has not entirely disappeared, conflictual reasoning has profoundly changed. This solution heralds major changes and the adoption of a text on civil status seems likely to accentuate these changes even further.

IV.  Civil Status As we have seen, the Court’s progressive interference in surname issues comes under the technical issues relating to civil status. The logical consequence for the Court is to facilitate recognition of European Union civil status documents that would be independent of any international agreements to which Member States might be party. It is this fundamental point that is currently at the heart of legislative debate. Since 2010 and its initial report on European citizenship,19 the Commission has aimed to simplify the administrative situation of citizens. This proposal gave rise some months later to a green paper, the title of which alone is enough to indicate its programmatic nature: ‘Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status’.20 In turn, the green paper led to a proposal of major significance: the ‘Proposal for a regulation on promoting the free movement of citizens and ­businesses by simplifying the acceptance of certain public documents in the European Union’ dated 24 April 2013.21

18  CJEU, case C-208/09, Ilonka Sayn-Wittgenstein contre Landeshauptmann von Wien, 22 December 2010, I-1369; CJEU, case C-391/09, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija et al, 12 May 2011, I-03787. 19  COM(2010) 603 final. 20  COM(2010) 747 final. 21  COM(2013) 228 final.

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The proposal is highly ambitious because it proposes abolishing any formal procedure in place (whether legalisation, apostille or any other certification procedure) that is currently a prerequisite to a civil status document having effect in another country. It also aims to create effective administrative cooperation and proposes a series of multilingual standard forms that could be used throughout the European Union. The text therefore goes further than the 1961 Hague Convention, known as the Apostille Convention, which with 105 signatory states is one of the major successes of the Hague Conference. By simply abolishing any obstacle to the acceptance of civil status documents from one Member State in another Member State, the text would obviate any recourse to the Convention’s mechanism. It is likely, therefore, to infinitely reduce the red tape which nationals of Member States have to go through when they have to produce public documents drawn up in their country of origin when going about their daily business in their country of residence. Potentially, therefore, it very well fulfils the aims set by the Union’s institutions, that is to say to improve the situation of citizens in a visible and concrete manner when they ­exercise their freedom of movement. This justification explains the legal basis retained: Article 21(2) TFEU. Thus, building directly on European citizenship, the Commission is proposing a text which explicitly aims to promote the essential prerogative of the citizen: access to the broadest possible freedom of movement.22 Despite its incontestable ambition, the text nonetheless falls short of the Commission’s initial proposal. The green paper raised two questions: the ‘free movement of public documents’ on the one hand and the ‘recognition of the effects of civil status’ on the other. Of these two questions, the second was evidently the most important as it aimed to go beyond simply recognising the authenticity and probative value of public documents and endeavoured to give effect to the content of the legal situation recorded in the document. Most likely owing to significant political difficulties, the solution eventually retained dealt only with the first question, which the text outlines in the clearest fashion: It is important to stress that the proposal does not address the issue of recognition of public documents between the Member States nor does it introduce full harmonisation of all public documents existing in the Member States or situations in which they are needed in cross-border scenarios by EU citizens and businesses. The Union multilingual standard forms to be established by this proposal will not produce legal effects as regards the recognition of their content in the Member States where they will be presented.23

Therefore, only the movement of instruments is envisaged, not that of their ­content. Further, the proposal says nothing about exactly what probative value should be given to a document from another Member State, nor about where

22 For more extensive discussions on this issue, see E Pataut, ‘Vers un état civil européen?’ in C ­Pamboukis et al (eds), Mélanges en l‘honneur de Spyridon Vrellis (Nomiki Bibliothiki, Athens, 2014) 635. 23  COM(2013) 228 final, 1-3-2 (emphasis added).

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any dispute on the substantive legal relationship which the document records (marriage or parentage for example) should be brought. The clear inference is that any such dispute would not be affected by this proposal and that it could be brought before any European court competent to rule on the substantive issue. The proposal relates only to the official form of the document, not the substance of the legal status of persons. It is this modesty—as well as a recurring debate on whether the c­ oncept of recognition can even be used with public documents24— which explains why the very term recognition has now been abandoned for another term, more ­neutral but also more vague: ‘acceptance’.25 This presentation should not, however, hide the fact that, despite its limited scope, the impact of this text will likely be much more important in the long term. A regulation on the movement of civil status documents would by necessity have an impact well beyond the simple question of the probative value of the ­documents, in terms of the recognition of the very content of the public ­documents in q ­ uestion. There are two reasons for this. The first and most evident relates to the very mechanism set up via the proposal. The text actually proposes to set up rules that would facilitate the movement of civil status documents to an extraordinary extent. This kind of harmonisation would have an effect on the recognition of the type of situations recorded in the documents. First, through the use of standardised forms, the authorities of the host State would be able to know the exact nature of the document submitted for recognition, beyond national traditions as regards civil status documents. In case of doubt, they would have the legal means to check the legality of the document with the original administration. Consequently, it is reasonable to assume that disputes relating to these documents would become even rarer than is the case today. In fact, any remaining divergences would come under one of three headings: marriage, surname and parental name, and biological or adoptive name. As cases in which marriages performed on the territory of another Member State are denied recognition are extremely rare today, it is questionable whether this is a real difficulty. True, it could become more so, with the introduction of same-sex marriages, which could trigger a public policy procedure in States that have not adopted these marriages in their own system of law. Nonetheless, the major difficulty lies in surnames and parental name. In these areas, there remain significant differences between Member States, in terms of both substantive law and conflict of laws rules. This means that an EU citizen could have another name in another State or that parentage established in one

24  For more on this see, in particular, M Buschbaum, ‘La reconnaissance de situations juridiques fondées sur les actes d’état civil?’ (2011) 16 Recueil Dalloz 1094, and C Nourissat, P Callé, P Pasqualis and P Wautelet, ‘Pour la reconnaissance des actes authentiques au sein de l’espace de liberté de sécurité et de justice’ (2012) 68 Petites Affiches 6. cp E Pataut, ‘La reconnaissance des actes publics dans les ­règlements européens de droit international privé’ in Lagarde (n 6) 147. 25  On the use of this term in notarial documents, see P Callé, ‘L’acceptation des actes authentiques’ [2012] JurisClasseur Périodique, editions notariale 1085.

A Family Status for the European Citizen?

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State is not recognised in another. Under these assumptions, recognising the authenticity of a civil status document would not change anything: what would pose a problem would not be the document, which no-one doubts complies with the requirements of the country of origin, but the legal situation itself which the host country would be refusing to recognise. Thus, divergence is seen to be much more profound because simple administrative cooperation could not overcome the difficulty. Nevertheless, apart from these divergences stated above, in all other areas, facilitating the movement of civil status documents would incontestably, in turn, facilitate the movement of the substantive situation which it records. The second reason relates to the legal basis. It should be noted that the proposal is founded not on Article 81 TFEU, which is the usual basis in matters of private international family law, but on Articles 20 and 21 TFEU—European citizenship. Naturally, the reasons behind this are opportunity and qualified majority. The fact remains that the choice of this legal basis has powerful legal consequences. If it adopted the text on such a legal basis, the European legislator would be recognising, in the most explicit way, that freedom of movement should be understood as freedom of movement with one’s civil and family status. Apart from the surname, all the legal elements of this status could be implicated, including parentage and marriage. Therefore, the text on the acceptance of public documents involves more than a merely technical issue. Such a text would in fact definitively establish an extensive interpretation of freedom of movement based on citizenship, as yet limited by the Court. Beyond the controversies on the exact extent to which public documents would be recognised, in practice the regulation would establish an interpretation of EU competence that is by no means self-evident. In asserting the interpretation of the Court of Justice on a firm legislative basis, the text could therefore, in turn, lead to much more widespread recourse to the recognition method. This would mean that secondary law and EU case-law would complement each other to impose the substantive recognition of family situations effectively enshrined in the law of a Member State. It would no longer be necessary to digress into recognising the content of public documents. Public documents would play their essential role—a probative one, as the requirements of freedom of m ­ ovement interpreted on the basis of European citizenship would then take precedence, ensuing that the substantive situation recorded in the document would indeed be recognised without challenge in the host State. Apart from surnames, it can be assumed that if the text were adopted, the refusal to recognise a parental relationship lawfully established or a marriage lawfully performed in a Member State would constitute an infringement of the free movement of citizens as interpreted by the Court and, subsequently affirmed by the legislator. The interpretation offered includes of course a measure of conjecture and does not settle the most sensitive question of how public policy could or would intervene to prevent the recognition of certain situations that could raise eyebrows in the legal system of the host State (same-sex marriage, surrogacy, medically assisted reproduction, etc).

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The fact remains that adopting a text on the acceptance of civil status documents explicitly founded on the free movement of European citizens suggests that the stakes are political rather than technical. What is heralded here is not just the birth of European civil status but a true ‘status; for citizens who move, in the sense that they can move with their family situation intact.

V. Conclusion These examples—particularly regarding civil status, because of the potential it holds—show the progressive influence of European Union law and, in p ­ articular, European citizenship, on private international family law. As we have seen, the impact of citizenship is first and foremost one of method. In substituting the finalistic, concrete reasoning of the enjoyment of rights for the neutral, abstract reasoning of the conflict of laws, citizenship leads to the imposition of a new method—recognition. The aim is no longer simply to coordinate systems but rather to ensure in the most concrete manner possible that a European citizen who has acquired a certain status in a Member State will retain that status when crossing a border. The right guaranteed to citizens is not that they can acquire a certain status; it is that they can retain it once acquired; this status is now part of their identity and Union requirements impose that this status is respected in all other EU Member States. The fundamental status of the European national is, therefore, a true ‘right to an identity’26 and it is in this sense that we can speak about the ‘personal status’ of European citizens.

26  On this issue, see A Bucher, ‘La dimension sociale du droit international privé’ (2009) 341 Recueil des cours de l’Académie de droit international de La Haye 282 ff.

INDEX

Abortion  264–66 Alienation analysis of elementary relations effects of economic power  38 those involved in moneymaking  39–40 community in alienated form  41–43 convergence with despair  45–48 dependant nature of free-agency  48–50 effect of emancipation  207 effect of EU law  52–53 introductory remarks  35–36 locus classicus of Marx’s elaboration  36–38 looming prospect  78 mode of personalisation  208 presupposition of ‘essentialism’  43–45 self-alienation  40–41 ways of overcoming  50–52 Anti-discrimination see Non-discrimination Assisted reproduction  266–67 Citizenship departure from citizen-foreigner paradigm  146–48 emancipation through the law  23–24 EU’s quasi neo-mediaevalism  148–49 family status concluding remarks  322 introductory remarks  311–12 private international family law  312–15 recognition of civil status documents  318–22 surnames  315–18 free/unfree distinction  136 impact of financial crisis demise of political citizenship  85–87 downscaling of fundamental rights  83–85 impairment of constitutional subject  87–88 restructuring of EU law  79–80 weakening of collective identity  80–83 inherent ambiguity of conceptions of personhood academic reconstructions  127–30 concluding remarks  130–31 methodological approach  124–25 puzzle at the heart of European project  125–27

persona of EU law case study in responsible citizenship  100–105 ‘fundamental’ quality of EU law  96 restructuring effects of integration  216–19 rise of integration  179 social integration paradigm duty of respect  236–40 operational principle  225–27 overview  227 regulation of crime  228–32 role in criminal justice  232–36 subjectification of the individual capacity of constitutional subject to participate  65–67 human rights as common source of inspiration  62–64 introductory remarks  55–56 process of alignment  56–58 re-founded national communities after WWII  59–62 synergy between constitutional subject and economic subjectivity  67–68 transformation towards ‘advanced liberalism’ competition between economic and constitutional subjectivities  78–79 corrosion of political citizenship  75–78 period of profound change  68–69 reframing of national political communities  69–72 transformational pressures on national welfare states  72–75 Civil registry records gender-based domination  283–84 introductory remarks  275–77 sexual orientation  282–83 transgender people alternative approaches  279–81 French law  277–78 Class see Social class Crime criminal justice system crime as wrongdoing  234–36 rehabilitation  233–34 social integration paradigm  232–33 duty of respect  236–40 ‘enlisted terrorists’  162

324 

Index

European Arrest Warrants  228–30 expulsion  230–31 importance of personhood  9 imprisonment  231–32 key questions for Court  188–89 lack of ‘ feeling of Union citizenship  217 social integration paradigm regulation of crime  227 Democratic deficit  78, 146, 151 Despair convergence with alienation  45–48 relevance to EU law  53 Discrimination see Non-discrimination Duty of respect  236–40 Economic power  38 Emancipation dangers of alienation  207 defined  32 departure of EU social policy from original tenet  75 ‘enlisted terrorists’  161 EU law  196 EU law as site of domination  30–32 experiencing alienation  44 Hegel’s theory of the State  216 mobility rights of workers  64 modern women  199–200 ‘multinational women’  194 negative space for freedom  16–20 nineteenth century civil law codes  115 reduction of national ties  203–4 role of institutions  28–30 routes of availability  32–33 through the law capacity to amplify realisations of life  21–23 inclusion of more citizens  23–24 overview  15–16 problemisation and rationalisation of public power  24–27 Embryos see Human embryos ‘Enlisted terrorists’ defined  159–60 incorporated objects of international law depriving them of judicial review  166–70 depriving them of their agency means  162–66 functional category  162 incorporation into EU law  160–61 institutionalised subjects of EU law affirmation of constitutional identity  171–74 disruptive effect of EU law  170 interactions with international law  174–76 Equality see Non-discrimination

‘Essentialism’  43–45 European Arrest Warrants  228–30 Expulsion  230–31 Family emancipation  23 the individual as part of collective entity  209–11 market integration  64 market rationality  184–86 ‘multinational women’  194 reunification  119, 181–83 social individuals  193 status for European citizen concluding remarks  322 introductory remarks  311–12 private international family law  312–15 recognition of civil status documents  318–22 surnames  315–18 workers’ rights  181 Financial crisis demise of political citizenship  85–87 downscaling of fundamental rights  83–85 formation of European legal subject  309 impairment of constitutional subject  87–88 restructuring of EU law  79–80 weakening of collective identity  80–83 Free movement contribution to inequality  73 elitist instrument  26 emancipatory purpose  22–23 influence on surnames  315 institutional mechanisms  120 migrants  64 persona of EU law  93 prioritisation  69 puzzle at the heart of European project  125–27 re-interpretation of EU law  6–8 Roma population difficulties for mobile vulnerable minorities  254–55 introductory remarks  249 Roma as migrants  250–51 scope and limit of protection  251–54 Treaty provisions  121–25 Fundamental rights see also Human Rights assisted reproduction  271 civil equality as founding principle  60, 65, 67 commitment of constitutionalism  19 cultures of protection and promotion  168–70 effect of upgrading  304 ‘enlisted terrorists’  166, 168–70, 174 European legal subject  304–9

Index impact of financial crisis  83–85 institutionalisation of social issues  58 link to ‘non-trade’ areas  7 place of individual  3–4 relationship between individuals and governments  55 Roma population  248 substitute for non-existent State  297 Treaty provisions  98 Gender citizenship belonging  58 overcoming of internal exclusions  60 civil registry records gender-based domination  283–84 introductory remarks  275–77 sexual orientation  282–83 transgender people  277–81 discrimination  198 emancipation  26–27 employer assumptions  108 EU statutory outlook  308 rights in the consumer society  285 Globalization  25 Human embryos bare life  267–73 concluding remarks  273 introductory remarks  259–62 mechanical production of the ‘life entangled’ abortion  264–66 assisted reproduction  266–67 profound implications  262–63 Human rights see also Fundamental Rights basic category of law  111–12 citizenship-foreigner-cleavage  124–27 common source of inspiration  62 ‘enlisted terrorists’  170, 173, 175 founding value of EU  170 non-discrimination  143 personhood  10 basic category of law  111–12 historical and conceptual background  112–15 international human rights law  115–17 Roma population  242–45, 248, 255 substitute for vanishing formalism of private legal order  302 techniques developing into principles  296–98 underlying concept of the individual within EU law  118–21 Identity-based rights see also Gender; Personhood concluding remarks  309–10

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‘enlisted terrorists’ affirmation of constitutional identity  171–74 as legal subjects  174–76 historical background achievements of French Revolution  287 impact of industrialisation  287–88 twentieth century developments  288–89 theoretical perspectives Duncan Kennedy  301–4 formation of European legal subject  304–9 introductory remarks  285–86 shifting perspective from nation state  289–90 transformative power of the third globalisation  290–91 Immigration see Migration Imprisonment  231–32 Individuals see also Emancipation; Personhood and action  3–4 as agents  4–6 critical assessment of self  8–9 and integration  6–8 as part of collective entity introductory remarks  203–5 personal implications  214–21 trans-institutional individuals  205–14 subjectification capacity of constitutional subject to participate  65–67 concluding remarks  88 human rights as common source of inspiration  62–64 introductory remarks  55–56 process of alignment  56–58 re-founded national communities after WWII  59–62 synergy between constitutional subject and economic subjectivity  67–68 underlying concept within EU law doctrine of direct effect  118 human rights  118–21 ‘personhood’ in the text of Treaties  121–24 Institutions ‘enlisted terrorists’ as institutionalised subjects of EU law affirmation of constitutional identity  171–74 disruptive effect of EU law  170 interactions with international law  174–76 impact of financial crisis demise of political citizenship  85–87 downscaling of fundamental rights  83–85

326 

Index

impairment of constitutional subject  87–88 restructuring of EU law  79–80 weakening of collective identity  80–83 mechanisms for free movement  120 restructuring effects EU law as anchor for self-identification  215–16 individuals deprived of integration  219–21 overview  214–15 reliance upon citizenship  216–19 result of emancipation  28–30 trans-institutional individuals family  209–11 marketplace  206–9 society  212–14 ‘Integrated’ wo/man  192 Integration concluding remarks  202 EU law challenge to market rationality  184–86 judicial interpretation of ‘degree’  189–90 rise of integration  179–84 social and moral turn in EU law  186–89 identification of new rights beneficiaries ‘integrated’ wo/man  192 ‘multinational’ wo/man  194–95 the social individual  193 the individual as part of collective entity fragile construction  221–23 introductory remarks  203–5 personal implications  214–21 trans-institutional individuals  205–14 negative outcomes conservatism  201–2 emancipation  199–200 migration controls  197–99 solidarity  200–201 overview  6–8 as part of collective entity fragile construction  221–23 positive outcomes  195–97 social integration paradigm duty of respect  236–40 operational principle  225–27 overview  227 regulation of crime  228–32 role in criminal justice  232–36 Legal subjects concluding remarks  309–10 ‘enlisted terrorists’ harmonisation of Member States outside EU  174–75 margin of appreciation  175–76 historical background achievements of French Revolution  287

impact of industrialisation  287–88 twentieth century developments  288–89 integration  206 persona of EU law  92–93 theoretical perspectives formation of European legal subject  304–9 introductory remarks  285–86 René Demogue and the social challenge  292–301 shifting perspective from nation state  289–90 transformative power of the third globalisation  290–91 Market ‘advanced liberalism’  68, 78 alienating effects economic power  38 moneymaking  39–40 challenge of integration to market rationality  184–86 dominance of Internal Market  4–6 effect of contractual cooperation  35, 37 effect of integration  185–86 emancipation of the individual  17 emergence of range of nonmarketized institutions  25 emergence of working man  191 impact of financial crisis demise of political citizenship  85–87 downscaling of fundamental rights  83–85 formation of European legal subject  309 impairment of constitutional subject  87–88 restructuring of EU law  79–80 weakening of collective identity  80–83 impact on human dignity  63 the individual as part of collective entity  206–9 ‘market citizens’ defined  121 solidarity  200–201 overarching features of EU law  98–99 problems of nationality  145 rationality  184–86 role of workers  64 transformation towards ‘advanced liberalism’ competition between economic and constitutional subjectivities  78–79 metamorphosis of national welfare states  72–75 values  271 Migration see also ‘enlisted terrorists’ development of EU law  7 emancipation  194 emergence of domination in the EU  30

Index free movement rights  64 integration effect of immigration control  197 rights granted in name of  185 rise of social integration  187 public perceptions  100 reframing of security and public order  75 regulation of crime crime as wrongdoing  234–36 criminal justice  232–33 duty of respect  236–40 European Arrest Warrants  228–30 expulsion  230–31 imprisonment  231–32 overview  227 rehabilitation  233–34 Roma population Roma as migrants  250–51 scope and limit of protection  251–54 sense of integration  181 social integration paradigm  225 welfare and membership policies  212 ‘Multinational’ wo/man  194–95 Names see Surnames Nationality belonging  59 emancipation  26–27 European Arrest Warrants  228–30 human rights  117 integration  182–85 ‘market citizens’  121 non-discrimination  23 official EU story of personhood  144–46 social integration paradigm  237 Treaty provisions  145 Non-discrimination official EU story of personhood  143–44 rise of integration  23 Roma population beginning of new era  245–49 difficulties for mobile vulnerable minorities  254–55 persisting imbalance in EU Courts  243–45 sexual orientation  282–83 Personhood see also ‘enlisted terrorists’; Individuals; Integration basic category of law  111 civil registry records gender-based domination  283–84 introductory remarks  275–77 sexual orientation  282–83 transgender people  277–81 ‘enlisted terrorists’ defined  159–60

 327 incorporated objects of international law  162–70 incorporation into EU law  160–61 EU’s quasi neo-mediaevalism  148–56 human embryos bare life  267–73 concluding remarks  273 introductory remarks  259–62 mechanical production of the ‘life entangled’  262–67 importance  9 inherent ambiguity of conceptions academic reconstructions  127–30 concluding remarks  130–31 methodological approach  124–25 puzzle at the heart of European project  125–27 mediaeval paradigm shift concluding remarks  156–57 free/unfree distinction  136–42 introductory remarks  133–36 official EU story departure from citizen-foreigner paradigm  146–48 inclusion of nationality  144–46 key principles and values  142–43 non-discrimination  143–44 relationship with human rights historical and conceptual background  112–15 international human rights law  115–18 as status  9–11 in the text of Treaties  121–24

Rehabilitation  233–34 Respect  236–40 Roma population free movement difficulties for mobile vulnerable minorities  254–55 introductory remarks  249 Roma as migrants  250–51 scope and limit of protection  251–54 introductory remarks  241–42 non-discrimination beginning of new era  245–49 difficulties for mobile vulnerable minorities  254–55 persisting imbalance in EU Courts  243–45 Self-alienation  40–41 Sexual orientation civil registry records  282–83 emancipation  26 Social class alienation  39

328  discrimination  198 economic power  38 effect of globalization  25 EU as a class project  81 focus of EU law on national  27 historical background achievements of French Revolution  287 impact of industrialisation  287–88 twentieth century developments  288–89 impact of integration  180 theoretical perspectives Duncan Kennedy’s identity-based rights  301–4 introductory remarks  285–86 shifting perspective from nation state  289–90 transformative power of the third globalisation  290–91 Social freedom concluding remarks  53 ways of overcoming alienation  50–52 Social integration paradigm criminal justice system crime as wrongdoing  234–36 independent meanings  232–33 rehabilitation  233–34 European Arrest Warrants  228–30 expulsion  230–31 imprisonment  231–32 operational principle  225–27 overview  227 Society concern for normative foundations  189 creation of identity  10 emancipation  20, 21 emergence of consumer society  288–89 identity-based rights  301 impact of industrialization  287, 293 the individual as part of collective entity  212–14 ‘multinational women’  194 normative structure  17–18 notions of integration  181, 184 promise of integration  199 recognition of alienation  44, 53 René Demogue and the social challenge  292–301 solidarity  200–201 status-orientated approach  113 Solidarity ‘market citizens’  200–201 René Demogue and the social challenge  294 Surnames centrality in EU law  213 civil registry records  281 concept of European citizen  315–18

Index Terrorism approach to crime  235, 239 ‘enlisted terrorists’ defined  159–60 incorporated objects of international law  162–70 incorporation into EU law  160–61 institutionalised subjects of EU law  170–76 restructuring of security  75 Third country nationals (TNC) compliance with integration measures  181 exclusion from rights  143, 148 judge-made separation  144 restructuring effects of integration individuals deprived of integration  219–21 reliance upon citizenship  216–19 rise of integration  179, 182 Transgender people alternative approaches  279–81 French law  277–78 Values axiological production of life itself  267–73 basic constitutional concepts  124, 131 citizenship  218–19, 240 criminal activity  217, 232 ECJ approach to integration  188–89 effect of secular values  26 emancipative values  19, 28, 32 EU legal persona  96, 98–99 expulsion and residence rights cases  238 immigrants  201, 211 importance  4, 9, 11 institutions  221 ‘integrated’ wo/man  191–92 legal subjects  288–89, 301 official EU story  142 political science  310 public security  231 threats from advanced liberalism  78 Treaty provisions  170 Workers see also Free movement agents of market integration  64 assisted reproduction  267 connection with nationality  145 equal pay  107–8 family membership  210 ‘freedom and dignity’  6 integrated wo/man  192 non-discrimination  23 part of Internal Market  5 ‘personhood’  121–23 redefined rights  285, 290 rise of integration  181