Supranational Citizenship and the Challenge of Diversity : Immigrants, Citizens and Member States in the EU [1 ed.] 9789004260764, 9789004260559

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Supranational Citizenship and the Challenge of Diversity

Nijhoff Studies in EU Law VOLUME 4

Series Editors

Prof. Fabian Amtenbrink Erasmus University Rotterdam

Prof. Ramses A. Wessel University of Twente

Nijhoff Studies in European Union Law is a refereed scholarly monographs series dedicated to the critical analysis of the current state and development of European Union law in a broad sense. Apart from constitutional, institutional and substantive issues of EU law, the series also embraces state-of-the-art interdisciplinary, comparative law and EU policies research with a clear link to European integration. Titles in the Nijhoff  Studies in European Union Law series will be of particular interest to academics, policy makers and practitioners dealing with EU law and policies, as well as national and international (non) governmental institutions and bodies.

The titles published in this series are listed at brill.com/seul

Supranational Citizenship and the Challenge of Diversity Immigrants, Citizens and Member States in the EU

By

Francesca Strumia

LEIDEN • BOSTON 2013

Library of Congress Cataloging-in-Publication Data Strumia, Francesca.  Supranational citizenship and the challenge of diversity, immigrants, citizens, and member states in the EU / by Francesca Strumia.   pages cm. -- (Nijhoff studies in EU law, ISSN 2210-9765 ; v. 4)  Includes bibliographical references and index.  ISBN 978-90-04-26055-9 (hardback : alk. paper) -- ISBN 978-90-04-26076-4 (e-book) 1. Citizenship--European Union countries. 2. Emigration and immigration law--European Union countries. 3. Marginality, Social--European Union countries. 4. Citizenship--United States. 5. Supranationalism--European Union countries. 6. European Union countries--Social policy. 7. World citizenship. I. Title.  KJE5124.S77 2013  342.2408’3--dc23 2013027768

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISSN 2210-9765 ISBN 978-90-04-26055-9 (hardback) ISBN 978-90-04-26076-4 (e-book) Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

CONTENTS List of Tables and Figures��������������������������������������������������������������������������������������vii Acknowledgments����������������������������������������������������������������������������������������������������ix Introduction: Citizenship, Diversity, and Divides���������������������������������������������1 1 The Quest of Distinctiveness and Inclusion-A Comparative Analysis of Internal Borders and Divides in the US and the EU���������������������������������������������������������������������������������������������������������������9 1.1 Introduction����������������������������������������������������������������������������������������������������9 1.2 Frame of Analysis���������������������������������������������������������������������������������������� 12 1.2.1 Citizenship through the Lens of Nationality, Immigration and Free Movement����������������������������������������������� 12 1.2.2 3 Notions of Internal Borders������������������������������������������������������� 16 1.2.3 Preliminary Notions on Legal Membership and Central Authority����������������������������������������������������������������������������� 19 1.3 Immigration, Nationality, Free Movement: A Map of US and EU Internal Frontiers������������������������������������������������������������������������� 34 1.3.1 Immigration Regimes��������������������������������������������������������������������� 35 1.3.2 Nationality and Inclusion�������������������������������������������������������������� 53 1.3.3 Free Movement Regimes��������������������������������������������������������������� 63 1.4 Membership and Divides in the US and the EU�������������������������������100 2 Citizens and Others in the EU: Legal Sameness, Societal Difference�����������������������������������������������������������������������������������������������������������107 2.1 Introduction����������������������������������������������������������������������������������������������107 2.2 Citizenship and Sameness in the Compliance Perspective���������111 2.2.1 The Literature on European Identity�������������������������������������111 2.2.2 The Peculiarity of the Citizenship Norm������������������������������116 2.2.3 The Compliance Approach��������������������������������������������������������130 2.3 Dynamics of Legal and Societal Sameness in the European Union����������������������������������������������������������������������������������������150 2.3.1 Dynamics of European Citizenship and the Evolution of Legal Sameness�������������������������������������������������������������������������150 2.3.2 The Dilution of Societal Sameness in the EU�����������������������162 2.3.3 Towards the Mismatch����������������������������������������������������������������200 2.4 The Mismatch��������������������������������������������������������������������������������������������202 2.4.1 Episodes of Resistance������������������������������������������������������������������203

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2.5 Legitimacy and Acculturation: Reconciling Legal and Societal Sameness�������������������������������������������������������������������������������������219 2.5.1 European Interactions, Dissonance and Acculturation into European Sameness�������������������������������������������������������������220 2.5.2 Triggering Acculturation through Legitimacy�����������������������225 2.5.3 Citizenship and Belonging Moments���������������������������������������229 2.5.4 A Critical Mass of Sharing�����������������������������������������������������������236 2.5.5 The Weaknesses of the Sameness Approach�������������������������245 2.6 From Societal Sameness to Identity: the Problem of Voice and Exit��������������������������������������������������������������������������������������������248 3 Insider/Outsider Divides in the EU�������������������������������������������������������������258 3.1 Immigrants������������������������������������������������������������������������������������������������258 3.2 Member States�����������������������������������������������������������������������������������������266 3.3 Citizens������������������������������������������������������������������������������������������������������273 4 Supranational Citizenship as Mutual Recognition of Belonging�������278  4.1 Searching for the Rationale of Belonging behind EU Citizenship������������������������������������������������������������������������������������������������280 4.1.1 First Proposition����������������������������������������������������������������������������281 4.1.2 Second Proposition����������������������������������������������������������������������284 4.2 Mutual Recognition of Belonging and the Substance of the Rights of European Citizenship������������������������������������������������285 4.3 The Logic of Mutual Recognition of Belonging��������������������������������288 4.4 Immigrants and Mutual Recognition of Belonging�������������������������291 4.4.1 The Operation of Rules of Mutual Recognition in Respect of Immigrants������������������������������������������������������������292 4.4.2 Procedural and Substantive Issues Concerning the Extension of Mutual Recognition��������������������������������������296 4.5 Mutual Recognition as the Theory of Belonging behind EU Citizenship�������������������������������������������������������������������������������������������300 4.6 A Further Hypothesis of Mutual Recognition: Rights of Political Participation at the National Level��������������������������������������303 4.7 Mutual Recognition of Belonging and Insider/Outsider Divides���������������������������������������������������������������������������������������������������������308 4.7.1 Immigrants��������������������������������������������������������������������������������������308 4.7.2 Member States��������������������������������������������������������������������������������310 4.7.3 Natives����������������������������������������������������������������������������������������������314 Conclusion��������������������������������������������������������������������������������������������������������������317 List of Works Cited�����������������������������������������������������������������������������������������������319 Index�������������������������������������������������������������������������������������������������������������������������331

LIST OF TABLES AND FIGURES Tables 1–1. Reflections on Membership from Immigration, Nationality and Free Movement�������������������������������������������������������������� 15 1–2. Internal Borders Classification����������������������������������������������������������������� 19 1–3. Naturalization Requirements in the EU������������������������������������������������� 64 1–4. The Map of Internal Borders��������������������������������������������������������������������� 99 2–1. Cultural Match��������������������������������������������������������������������������������������������141 2–2. The Pool of Candidates for European Citizenship��������������������������������������������������������������������������������151 2–3. Enlargements ����������������������������������������������������������������������������������������������157 2–4. Features of the EU Population at Large������������������������������������������������166 2–5. Collective Identities of the European Union Member States��������������������������������������������������������������������������������������������170 2–6. Demographic and Social Features of European National Societies���������������������������������������������������������������������������������������192 Figures 1. Legal and Societal Factors of Sameness����������������������������������������������������120 2. Concrete Dynamics of Legal and Societal Sameness in the EU����������������������������������������������������������������������������������������140

ACKNOWLEDGMENTS The path to writing a book is long and winding. It entails several demanding hours of research and writing, of getting lost and finding the thread yet again, of pursuing the glimpse of an idea, and being led to multiple other ones. In my case, several people have contributed throughout the past years, with their suggestions and comments, to make these hours more productive. And several people have contributed with their affection to make them lighter. While any mistakes are mine only, for the results I owe a heartfelt thank you to all these people, who are many more than I can mention in these pages. In particular, my deepest gratitude goes to Daniel Meltzer, for his guidance and inspiration, and for constant engagement in his role as a “counterpuncher”; to Gerald Neuman, for being such a rigorous guide, and for reading my writing with incomparable care; to Ryan Goodman, for several inspiring conversations and for leading me to new and exciting research paths, and for his unmatched ability to always make sense of my thoughts, even when they did not make sense to me either; to Peter Lindseth, for showing me the process of European integration under a new light, for providing so many helpful hints and for always looking for the “hidden gems” that he said were somewhere in there. For suggestions, inputs and advice at several times during these years, which have proved precious to my work and to my intellectual choices, I am grateful to Gráinne de Búrca, Daniela Caruso, Fernanda Nicola, Joanne Scott, Jeffrey Checkel, Patrick Weil, Francesca Bignami, Gianmaria Ajani, Enrico Grosso, Mario Comba, Daryl Levinson, Wojciech Sadurski, Dieter Grimm, Miguel Maduro. For inspirational conversations and exchanges I also owe a thank you to Asha Kaushal, Ermal Frasheri, Vlad Perju, Jillian Sinnott, and to all my SJD and PhD colleagues. For funding support for a chapter of this book, and for providing the opportunity to share an initial version of that chapter, I owe a thank you to the American Enterprise Institute. Thank you also to Dimitry Kochenov, Catherine McCauliff, Takis Tridimas, Alexander Somek, and to all the participants at the panel Doubting the Essence of EU Citizenship, at American University Washington College of Law in March 2013, for providing a wonderful forum to test the argument of mutual recognition of belonging. To Tudor Farcas, thank you for his excellent job at making my thoughts sound more fluent.

x

acknowledgments

To the friends of my Harvard years I owe a thank you for providing a community of belonging, and an experience of diversity, which no citizenship could ever equal. To the friends of all times, I owe a thank you for brightening up several writing days and for proving that even if everything changes, everything stays as it used to be. As for many other things in my life, I owe a thank you to my family, my siblings, my niece Virginia, my parents, for being my first and foremost circle of warm and unquestioned belonging. To my parents in particular, I owe a thank you for material and emotional support at several times, and for always inspiring me, with their example, to live a life of learning and exploration. To Alberto I owe a thank you for choosing to learn what is to be learnt, and to explore what is to be explored, with me. Without him, this book would not have a list of works cited, and my efforts would not have a purpose. This book is dedicated to Professor Richard E. Speidel. Sitting in his London summer class several years ago was a turning point in my life, and without him I would not be where I am now. As an inspiring teacher and mentor, affectionate supporter and loyal and warmhearted friend, he has left an empty space I can never fill, a debt of gratitude I can never pay, and several indelible memories, which will accompany me always.

INTRODUCTION

CITIZENSHIP, DIVERSITY, AND DIVIDES For the project of European integration, “unity in diversity” is at the same time a motto, a description, and a conditio sine qua non. Coexistence despite diversity has become an existential challenge for the European Union, whose agenda for the next future encompasses several divisive issues, such as dealing with a sovereign debt crisis and its roots, fostering economic growth, and integrating immigrants from third countries. All these issues cast different sets of interests, and different ways of life, one against the other. On this background, understanding the potential of a notion of supranational citizenship, such as that embodied by European citizenship, for filtering diversities and fostering their coexistence, becomes all the more important. This book undertakes the task. It investigates the way supranational citizenship interacts with multiple levels of diversity in the European Union, and questions the way in which it may contribute to the mission of unity in diversity. European citizenship operates at the intersection of two levels of diversity, which characterize the “people of Europe” and confront the European project of integration. The first level deals with the internal diversity among the 27 member nations, among their cultures and languages, their traditions and societal habits, their institutions of government and decision-making. While the second level is concerned with external diversity, which separates the core population of the EU nations from their immigrant population, who import their language, values, culture and habits from their respective countries. Both levels of diversity are important to the wealth of Europe and to its project of integration. The protection of internal diversity expresses a continuing commitment to taming the excesses of the nation state.1 Internal diversity works as a mechanism of checks and balances against the danger of the EU itself turning into an entity with a homogeneous super national

1 See Joseph Weiler, The Transformation of Europe, 100 Yale L.J. 2403 (1991) at 2480–81; also see Joseph Weiler, To be a European Citizen: Eros and Civilization, in Journal of European Public Policy 495 (1997) at 506.

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introduction

culture2 and the political ambitions of a nation state. In contrast, external diversity, while further enriching the multi-cultural aspect of integrated Europe, promises to help European states to deal with the consequences of their expected demographic decline.3 This stems from the fact that the immigrant population brings in a younger work force and at least in the first generation has higher fertility rates. In this sense, immigration may contribute to alleviating the pressure on the now unaffordable welfare systems of the EU member states. Also, in the long run, by keeping up the population numbers of the European people, it may help European states in preserving their voice and influence, both internally within the European institutions, and externally, on the global stage. Diversity however poses delicate issues of harmonious coexistence within the shared legal and political space of the Union. The challenge of diversity demands a strategy for protecting shared values while at the same time accommodating cultural differences; for overcoming fear and prejudice of the “other” while also avoiding social unrest; and for expanding existing notions of solidarity and providing effective avenues for upward social mobility in order to avoid creating second class citizens. Mishandled diversity may ultimately generate disintegration. Institutional expectations attached to the legal construct of European citizenship reflect in part the palpable need to guard against the disintegrative potential of diversity. Discourses about the notion of common citizenship often echo lofty goals such as “fostering a sense of ownership” in Europe on the part of the European people,4 or providing an approximation model for the condition of third country nationals.5 The naked European citizenship however, divested of all the surrounding majestic discourses, is a skinny legal construct, which operates by grafting the logic of membership onto a limited set of economic and labor rights in the European market.6 2 Not allowing for nation to nation differentiation. 3 Fertility rates in the EU range from 1.23 in Hungary to 2.05 in Ireland. Also see Jo Shaw, The Transformation of Citizenship in the European Union: Electoral Rights and the Restructuring of Political Space (2007) at 213–214. 4 See European Commission, DG Culture and Youth, Citizenship, http://ec.europa.eu/ citizenship/index_en.htm (last visited May 2012). 5 See Conclusions of the 1999 European Council in Tampere http://www.europarl .europa.eu/summits/tam_en.htm, (last visited May 2012). 6 The rights connected to European citizenship are currently listed in art. 20 to 24 of the Treaty on the Functioning of the European Union; see Consolidated Version of the Treaty on the Functioning of the European Union, of 30 March 2010, 2010 OJ C 83, 47, (hereinafter TFEU); citizens have the right to move and reside in any other member state; if residing in



citizenship, diversity, and divides3

The literature on European citizenship is vast, ever growing and replete with important findings and hints. It explores common citizenship from several different sides. Such as: European citizenship as fragmented citizenship;7 market rights and impoverishment of citizenship;8 the democratic side of European citizenship and its weakness;9 European citizenship as a way of opening up the welfare spaces of the member states;10 the weak relationship of European citizenship and identity;11 the relationship

member states other than their own, they have active and passive electoral rights for the European Parliament and in municipal elections; they have rights to diplomatic protection in third countries, rights to petition the European Parliament, to apply to the Ombudsman and to write to the institutions.   7 See e.g. Seyla Benhabib, The Rights of Others, Aliens, Residents and Citizens (2004) in the sense that European citizenship represents the disaggregation of the traditional model of “unity of residency, administrative subjection, democratic participation and cultural membership”.   8 See Michelle Everson, The Legacy of the Market Citizen in New Legal Dynamics of European Union (Jo Shaw, Gillian More eds. 1995); Elizabeth Meehan, Citizenship and the European Community (1993); Dominique Schnapper, The European Debate on Citizenship, 126 Daedalus 199 (1997).   9 See e.g. Craig Calhoun, The Democratic Integration of Europe-Interests, Identity and the Public Sphere in Europe Without Borders-Remapping Territory, Citizenship and Identity in a Transnational Age (Mabel Berezin, Martin Schain eds. 2004), arguing in favor of a more complex vision of the European public sphere where a new European social imaginary might be built; Carlos Closa, Requirements of a European Public Sphere, Civil Society, Self and the Institutionalization of Citizenship in European Citizenship between National Legacies and Postnational Projects (Klaus Eder, Bernard Giesen eds. 2001); Jo Shaw, The Transformation of Citizenship in the European Union: Electoral Rights and the Restructuring of Political Space (2007), who uses “the case of electoral rights for non nationals as a basis for a broader enquiry into the transformation of the nature of citizenship in contemporary Europe”. 10 See e.g. Maurizio Ferrera, The Boundaries of Welfare, European Integration  and the New Spatial Politics of Social Protection (2005); Stefano Giubboni, Free Movement of Persons and European Solidarity, 13 ELJ 360 (2007). 11 The Europeanization of National Polities? Citizenship and Support in a Post-Enlargement Union, (David Sanders, Paolo Bellucci eds. 2012), considering European citizenship as a set of attitudes and investigating the structure of the beliefs that people hold on Europe, Dora Kostakopolou, Ideas, Norms and European Citizenship, 68 Modern Law Review 233 (2005), exploring the role of European citizenship as an institution on social reality; Elspeth Guild, the Legal Elements of European Identity-EU Citizenship and Immigration Law (2004), underlining that European citizenship is unrelated to any theory of acculturation, assimilation, integration; Lisa Conant, Contested Boundaries: Citizens, States and Supranational Belonging in the European Union, in Boundaries and Belonging, States and Societies in the Struggle to Shape Identities and Local Practices (Joel S. Migdal ed. 2004), in the sense that European citizenship is missing a convincing notion of supranational belonging; Jacqueline Bhabha, Belonging in Europe: Citizenship and Post-national Rights, 11 Int’l Soc. Sci. J. 11 (1999), reconnecting the lack of identity in the European citizenship dimension to the poverty of this citizenship in terms of fundamental rights.

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between European citizenship and nationality;12 and the underinclusiveness of European citizenship with respect to immigrants.13 There is little written however on the challenge of simultaneously dealing with the double diversity (internal and external), which is particular to European citizenship.14 European citizenship needs to protect internal diversity while accommodating external one. Only by successfully 12 See e.g. Joseph Weiler, To be a European Citizen, supra at note 2, arguing for decoupling supranational citizenship, intended as a form of belonging in civic terms, and nationality; Costanza Margiotta, Olivier Vonk, Nationality Law and European Citizenship: the Role of Dual Nationality, in Globalization, Migration and the Future of Europe (Leila Simona Talani eds. 2012); Karolina Rostek, Gareth Davies, The Impact of Union Citizenship on National Citizenship Policies, European Integration Online Papers, 4 July 2006; Gerard Rene de Groot, The relationship between the nationality legislation of the member states of the European Union and European citizenship, in European Citizenship: An Institutional Challenge (Massimo La Torre ed. 1998); Jörg Monar, A dual citizenship in the making: the citizenship of the European Union and its reform, in European Citizenship: An Institutional Challenge (Massimo La Torre ed. 1998); Ruth Rubio Marin, Equal Citizenship and the Difference that Residence makes, in European Citizenship: An Institutional Challenge (Massimo La Torre ed. 1998); Rainer Bauböck, Why European citizenship? Normative Approaches to Supranational Union 8 Theoretical Inquiries in Law 453 (2007), in the sense that European citizenship can provide the first concrete model of a supra- or post-national citizenship, allowing for democratic participation and free movement beyond the borders of the nation; Carlos Closa, EU Citizenship at the 1996 IGC, in Dual Nationality, Social Rights and Federal Citizenship in the US and Europe: The Reinvention of Citizenship (Randal Hansen, Patrick Weil eds., 2002), underlying that European citizenship has the potential to express the decoupling of nationality and citizenship; Dimitry Kochenov, The essence of EU citizenship emerging from the last ten years of academic debate: beyond the cherry blossom and the moon? 62 Int’l. & Comp. L. Q. 97 (2013). 13 See e.g. Andreas Føllesdal, Third Country Nationals as European Citizens, in Whose Europe? The Turn towards Democracy (Dennis Smith, Sue Wright eds. 2000); Lauren Gilber, National Identity and Immigration Policy in the US and the European Union, 14/1 Columbia J Eur L. 99 (2007); Clara Smyth and Donncha O’Connell, The Irish Citizenship Referendum of 2004: A Solution in Search of a Problem? in Migration, Diasporas and Legal Systems in Europe (Prakash Shah and Werner Menski eds 2006); Marco Martiniello, European Citizenship, in From Migrants to Citizens : Membership in a Changing World (Thomas Alexander Aleinikoff, Douglas Klusmeyer eds., 2000); also see Randall Hansen, A European Citizenship or a Europe of Citizens? Third Country Nationals in the EU, 24 Journal of Ethnic and Migration Studies 751 (2001), emphasizing the need for harmonization of nationality laws throughout Europe, rather than a discourse of common citizenship. 14 For an approach in part in this sense see Jo Shaw, The Transformation of Citizenship supra at note 4, who considers both the political exclusion of European citizens in member states other than the ones of their nationality, and the exclusion of third country nationals, and considers the common issues in domestic law and EU law approaches to this problem of exclusion; also consider Rainer Bauböck, Why European citizenship, supra at note 13, who distinguishes 4 statuses that are relevant to Europe, first country nationals, second country nationals, third country nationals and European citizens abroad; he considers the treatment of each one of these statuses under respectively a statist, a unionist and a pluralist approach to European citizenship. See id. at 474–480.



citizenship, diversity, and divides5

resolving this tension, can European citizenship live up to the ambitious demands that institutional actors and scholars have placed upon it, when pondering about European diversity. This book proposes to explore how European citizenship handles this tension through a systematic investigation of how it alters insider/outsider divides in the EU. In looking at divides, it focuses on three perspectives: the perspective of immigrants from third countries (TCNs), the perspective of member states, and the perspective of native citizens. With respect to TCNs, who are on the outer side of the citizen/non-citizen divide, options to cross this boundary and pass through to the other side may change through EU citizenship. With respect to member states, these divisions may change in the sense that the presence of a Europe-wide notion of insiders and outsiders may affect their power to select their own citizens and thus their own “insiders”. Finally, with respect to citizens, there is the perceived divide between those that are members of the same group of members and those that are the “other”, which may shift in conjunction with the ripening of European logics of membership. To tackle these issues, the book relies on two distinct notions of citizenship, and it borrows analytical tools from different methodologies. The first part of the book explores the case of TCNs and member states through the lens of comparative federalism, and it refers to citizenship as a membership status and as a bundle of rights. The second part of the book investigates divides as perceived by native citizens. Here the analysis refers to citizenship as a marker of a bounded community and it borrows key interpretive concepts from the international relations literature on the diffusion of norms. This combination of methodologies allows to look beneath the surface of supranational citizenship and to reveal the hidden way that citizenship constitutes and acts on insider/outsider divides, as a result of often concealed interactions between immigration, nationality and free movement law. At first glance, the rules of European citizenship do not appear to induce any significant shifts in divides. Member states select their own national citizens according to distinct nationality laws. Immigrants and their children may pass the outsider/insider divide only by meeting the requirements of one of 27 different nationality laws. The natives’ sense of “sameness” and otherness relies on cultural and societal factors well insulated from European citizenship. However, looking more closely at the relevant rules, it becomes clear that European citizenship, by extending a right to move and resettle throughout the EU to anybody who is national of a member state, limits the exclusionary effect of national nationality

6

introduction

laws. By opening up national borders to some extent, it shuffles around the results of the ius soli and ius sanguinis rules of inclusion, thereby altering the nature and the boundaries of the community of fellow citizens. And by changing others into fellow citizens in conjunction with the mechanisms of free movement and of EU enlargement, it puts pressure on existing feelings of bonding. After exploring the hidden effects and implications of supranational citizenship for the constitution of insider/outsider divides, the book explores the concept of “belonging” on which notions of European citizenship currently rest. For European citizens, the fact of belonging as members in one member state entails consequences in terms of the rights and opportunities enjoyed in other member states. Logics of mutual recognition of belonging inform the notion, and operation, of supranational citizenship. This mutual recognition of belonging is suggestive of a normative aspiration for the future of European citizenship, which the last part of the book explores. This exploration considers how European citizenship may soften while preserving existing insider/outsider divides and thus contribute to achieving unity in diversity. The first two chapters of the book consider the three parties involved in  the citizenship/diversity relationship, member states, immigrants and  citizens. These chapters, albeit through distinct methodological approaches, tackle the common question of how European citizenship affects insider/outsider divides for each one of these categories. Chapter 1 considers the point of view of immigrants, and of member states. Through the lens of comparative federalism, it analyzes how, in the EU and the United States, the interests of, respectively, immigrants and states, are expressed and allocated through regimes of immigration, nationality and free movement. Immigration generates a potential pool of future citizens, nationality governs access to citizenship and free movement is conceived both in the EU and the US as a right of citizenship. Relevant regimes thus touch upon immigrants’ interests in achieving the status of citizens and in enjoying the full rights of citizenship, and upon states’ interests in defining the boundaries of their community of citizens. The way these competing sets of interests play out depends in part on the role of authorities of different levels in decision-making and implementation as well as on the consistency or divergence of relevant rules in different subunits of the federal and/or supranational community. It depends, in other words, on the “thick or thin” nature of relevant internal borders. The chapter draws a map of these internal borders in the European Union and the United



citizenship, diversity, and divides7

States, and it explores how both supranational and federal citizenship respectively influence the appearance of this map. Chapter 2 turns to “native” European citizens and questions whether the mechanisms of European citizenship are likely to have any impact on citizens’ perceptions of insider/outsider divides. On the assumption that European citizenship is an international norm pushing for a sense of “groupness” at the domestic level, this part borrows three tools from the literature on compliance with international norms: the concepts of cultural match, legitimacy and acculturation. Applying these concepts to the experience of supranational citizenship in the EU, the chapter argues that the dynamics of immigration and enlargement make for a growing mismatch between legal and societal notions of “groupness”, with a detrimental effect on the pull to compliance of the supranational citizenship norm. Alternative paths to compliance, passing through notions of legitimacy and acculturation, are then tested and assessed. Legitimacy and acculturation may help the ripening of a sense of civic sameness in the EU. The emergence of a full-fledged European identity, comprised of both sociopsychological and political elements, remains however highly unlikely. A Hirschmanian approach to the issue of identity shows that while in the EU there are plenty of options for socio-psychological exit, options for political voice are very limited. Chapter 3 highlights the main findings of the previous two chapters and elaborates on the issue of how European citizenship affects the experience of divides, for immigrants, member states and native citizens. With respect to immigrants, the combination of free movement law and nationality law requirements results in less effective opportunities for free movement than those enjoyed by nationals, with corollaries in terms of fairness. With respect to member states, the interaction through European citizenship of regimes of nationality and regimes of free movement entails a loss of effectiveness in their power to independently select their citizens, and a loss of legitimacy in relation to their decisions to grant rights to EU citizens while excluding non EU citizens. For native European citizens, finally, dynamics of extension of European citizenship promote inertia in their sense of otherness in respect of fellow European citizens, with the result that diversities easily result into reactions of resistance, rejection and retrenchment into nationalism. Chapter 4 considers how European citizenship might better serve the goal of coexistence within the EU and assert a better balance between the competing interests of immigrants and member states, without

8

introduction

neglecting the sense of civic sameness of the natives. The chapter explores the concept of supranational citizenship as mutual recognition of belonging, as hinted by current rules on common citizenship. It questions the prospects for, and the substantive and procedural implications of, a potential extension of this concept to novel areas of decision-making and adjudication on common citizenship. And it considers how a reinforced notion of mutual recognition of belonging could help in rationalizing, and softening, existing insider/outsider divides.

CHAPTER ONE

THE QUEST OF DISTINCTIVENESS AND INCLUSIONA COMPARATIVE ANALYSIS OF INTERNAL BORDERS AND DIVIDES IN THE US AND THE EU 1.1. Introduction In polities organized on multiple levels of governance, such as the European Union and the United States, insider/outsider divides potentially cast the interests of the sub-polities (the member states in the European Union and the states in the United States of America), and of immigrants against one another. Sub-polities are interested in maintaining a measure of control over such divides, or in other words they are interested in retaining a sphere of autonomy when drawing and policing their own borders. Immigrants on the other hand are interested in permeable insider/outsider divides, in having a status that allows them to easily access and leave any sub-polity and in enjoying comparable rights in each sub-polity.1 Differences in the rules dealing with admission, nationality and free movement, and in the allocation of the power to decide on these rules, result into a different treatment of the competing interests of sub-polities, and of immigrants. Depending on these rules, and on the relevant power allocation choices, internal borders, the ones among the sub-polities, may be thick, and thus benefit the sub-polities desire for autonomy, or rather be thin, and thus benefit the aspirations of immigrants to achieve a smooth and full inclusion. On the basis of these considerations, this chapter sets out to explore the structure of the internal borders in the European Union and the United States. It questions, in particular, how the rationales of supranational citizenship on one hand, and of federal citizenship on the other, contribute in shaping such borders.

1 A shortened version of the reflections and analysis exposed in this chapter to support considerations on distinctiveness and inclusion has been published by the author as a separate article. See Francesca Strumia, Tensions at the Borders in the US and the EU: the Quest for State Distinctiveness and Immigrant Inclusion, 25 Am. Univ. Int’l L. Rev. 969 (2010).

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chapter one

Why the United States and the European Union? Europe and the US have similarities yet rival each other in a number of ways. To some extent, they have sprung from each other and from the experience of reciprocal colonization. They share the same system of values, yet they look at it from different sides: individualism on the one hand and collective solidarity on the other. They both have been called empires at different stages in their history and have confronted rival cultures that they then had to integrate. Legal comparative studies of the US and the European Union often focus on the affinity between the federal institutional structure of the former and the supranational institutional structure of the latter.2 While the EU and the US are just two of many polities, which may have adequately lent themselves to a comparative analysis from the point of view of federalism,3 with regard to the diversity challenges that they face and have faced in the course of their evolution, they are unique. Both the US and the EU have experienced and are experiencing subsequent waves of immigration, which make their societies multi-ethnic, multicultural, and contribute to their continuously transforming demography.4 Both are dealing and have dealt with a level of internal diversity dependent on the coexistence in their territory of racially, ethnically and nationally heterogeneous communities. From the point of view of internal diversity they are also distinct from one another. Taking into account Patrick Weil’s distinction between countries of immigrants and countries of immigration,5 the US would indeed qualify as a sample of the former category, while the EU would fit in the latter class. The United States were born from colonization on the part of different groups of immigrants, coming from different countries in Europe. There is no core population, in this sense, in the US, even if it is possible to distinguish between groups of older versus more recent immigrants. The immigrant founders themselves differed in origin, language, religious affiliations. In the European Union, waves of immigration instead have been met with a predominant core population of native Europeans, who differ 2 See e.g. Daniel J Meltzer, Member State Liability in Europe and the United States, 4 International Journal of Constitutional Law 39 (2005); Daniel Halberstam, Comparative Federalism and the Issue of Commandeering, in The Federal Vision – Legitimacy and Levels of Governance in the United States and the European Union (Kalypso Nicolaidis, Robert Howse eds. 2001). 3 See Rainer Bauböck, Why European citizenship, supra Introduction, at note 12 at 465. 4 See Reed Ueda, Immigration in Global Historical Perspective in The New Americans, A Guide to Immigration since 1965 (Mary C. Waters and Reed Ueda eds 2007) at 14. 5 Patrick Weil, Access to Citizenship-A Comparison of 25 Nationality Laws, in Citizenship Today, Global Perspectives and Practices (Aleinikoff, Klusmeyer eds. 2001) at 21.



the quest of distinctiveness and inclusion11

culturally between themselves and have had different histories, but whose origins can be traced back to the two great “local” ancient civilizations: those of the Greeks and the Romans. In part because of this fundamental distinction, newcomers find different options for integration in the two entities, but the resistance, which arises around issues of diversity, is similar in US and EU and calls for similar responses. These responses are based in different fields of law and policy, and they certainly do not only find expression in rules of admission, access to citizenship and free movement.6 These rules however provide a valuable entry point in mapping the structure of internal borders in the two polities and in understanding, both how insider/outsider divides are drawn in each of them and how the logic of membership informs such divides. The structure of internal borders differs between the US and the EU, and the competing interests sub-polities have in autonomy, and immigrants have in inclusion are balanced in different ways. This reflects the different role notions of citizenship play in filtering diversity and a fundamental difference within the same notion of citizenship: federal citizenship in the US and Union citizenship in the EU, despite often being the focal point of comparative outlooks, express two fundamentally different conceptions of belonging. Section 1.2 sets forth a frame of analysis for regimes of nationality, immigration and free movement in multi-tiered polities. It also introduces some preliminary observations on the features of legal citizenship and central authority in the US and the EU. Section 1.3 conducts an analysis of rules of immigration, nationality and free movement and draws a map of permeable, or thin, and impermeable, or thick, internal borders with respect to their operation. Section 1.4 concludes by outlining the nature of relevant divides and membership rationales.

6 Both the US and the EU for instance have developed strong doctrines of non discrimination and equal protection, which represent another fundamental legal tool in containing the disaggregating effects of the encounter of diversities in a polity: these doctrines find their basis in the US in the equal protection clause of the XIV amendment to the US Constitution; in the EU art. 18 of the Treaty on the Functioning of the European Union codifies a principle of non discrimination on the basis of nationality in matters within the scope of Community competence; in addition a race directive and an equal treatment directive have been adopted (respectively Council Directive 2000/43/EC of 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, 2000 O.J. L180, 22; and Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation, 2000 O.J. L303, 16).

12

chapter one 1.2. Frame of Analysis 1.2.1. Citizenship through the Lens of Nationality, Immigration and Free Movement

Citizenship equals membership in a political and legal community. Citizenship status draws a distinction between insiders and outsiders in that community. This distinction between insiders and outsiders becomes concretely operative by means of rules in the fields of immigration, nationality, free movement and other rights stemming from citizenship. These rules give flesh to the notion of membership in the community. A landmark decision of the Court of Justice of the European Union (in the following European Court of Justice or CJEU) on European citizenship, the 2004 Chen case,7 provides an exemplary overview of the way immigration, nationality and free movement rules may blend into the discourse of citizenship and membership. Mrs. Chen, a Chinese national, delivered her baby in Belfast, Northern Ireland so that her child would acquire Irish nationality at birth under the Irish nationality law in force at the time. This would also automatically make the child a European citizen at birth under the rule of art. 17 E.C. (now art. 20 TFEU). Mrs. Chen subsequently applied for a residence permit for herself and the baby in the UK8 After the UK government denied the requested permit,9 the case came to the attention of the CJEU, as Mrs. Chen was claiming a residence right for her daughter, Catherine, as a European citizen exercising her rights under European law in the UK The CJEU supported Mrs. Chen’s claim: Catherine was indeed a European citizen and she was validly claiming a right of residence under art. 18 E.C. 7 See case C-200/02, Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department, 2004 E.C.R. I-9925. 8 Mrs Chen’s husband was working for a Chinese undertaking but traveled frequently for business purposes to the United Kingdom. So his wife went on purpose to Belfast, Northern Ireland, to deliver, so that the ius soli rule for citizenship under Irish law would apply and Catherine would be an Irish citizen (and thus a European citizen) at birth. The family had resources available to live on and Catherine was receiving child care in the United Kingdom at her family expense. See id. at 7–13. 9 The UK government denied the requested residence permits on the ground that Catherine had not exercised any rights under the European Treaties and thus could not claim residence under the free movement provisions as a European citizen. Her mother on the other hand had no entitlements to residence of her own. In particular the UK government contention was that Catherine’s situation was a purely internal one, as she had never moved between two member states. Northern Ireland, where Belfast is located, is indeed part of the United Kingdom, even if Irish nationality laws apply there. See id at 12–14 and 18–19.



the quest of distinctiveness and inclusion13

since her situation could not be considered a purely internal one. Catherine was indeed a national of a member state born on the territory of the host member state.10 More importantly, the Court held that in order to effectively meet Catherine’s right to move and reside in the UK as a EU citizen, her mother/parent-care taker, was entitled to a co-extensive residence permit in the UK11 The European citizenship frame was thus being used to confer rights upon an immigrant notwithstanding her not being national of a member state. This case represents the first effort on the part of the CJEU to stretch European citizenship rationales, in order to reconnect the regime of citizenship and the regime of immigration in the EU.12 The judgment takes into account the right to free movement European citizens possess, the right to citizenship under a ius soli rule of nationality, and the right to entry and abode of an immigrant. In this way, it contributes in shaping the notion of European citizenship by relying on at least three fields of law: free movement law, nationality law, and immigration law. Hence, the Chen case mirrors the main areas of concern which merge into discourses of citizenship: selecting insiders through rules of nationality, granting special privileges, such as free movement to those insiders, and accommodating the claims of immigrants. Nationality and immigration concerns were also at work in the behind the scenes of the Chen case, in extra-judicial settings. While the Chen case was on the CJEU docket a referendum was held in Ireland, and as a result relevant constitutional provisions regarding nationality were amended. Ireland was qualifying its traditional ius soli rule for the conferral of citizenship, by specifying that if neither of the parents was an Irish citizen at the time of a child’s birth, additional conditions would apply in order for the child to be a citizen.13 Ireland had thus renounced its pure ius soli rule 10 Id. at 19. The European Court of Justice also considered that Catherine had sickness insurance and sufficient resources available, and it did not matter for the purposes of application of the relevant European provisions, that those resources were not personally owned but provided by her parents. A European citizen child does not face any age threshold for being able to exercise her rights depending on this status. Id. at 20, 28 and 41. 11 Id. at 45–46. 12 The Court has brought this rationale further in the Zambrano case, where it has recognized a right of residence to the parent caretaker of a minor European citizen, in a situation where no free movement rights had been exercised. Case C-34/09, Gerardo Ruiz Zambrano. v. Office national de l’emploi (ONEm), 2011 E.C.R. I-01177. 13 See Clara Smyth and Donncha O’Connell, The Irish Citizenship Referendum of 2004: A Solution in Search of a Problem? supra Introduction, at note 13 at 132. A new Citizenship and Nationality Act was adopted in the fall of that same year, which specified that a child only gets Irish nationality at birth, if at that time at least one of the parents had been

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chapter one

of nationality, which had been the last such rule surviving in Europe. This change came in part as a result of the Chen case, and in part as a response to a status of discomfort at the presence of large numbers of illegal immigrants, who were giving birth to babies that were automatic citizens in the territory of the Republic.14 The Chen case provides words of wisdom with respect to the mutual relationship of regimes of immigration, nationality and free movement. The fact that they belong to different fields of law, that they are planned and implemented by different authorities, and that they respond to different policy outlooks, may suggest at first glance that they operate in independent and insulated contexts. On the contrary they protect interests, which often clash, and they often interfere with each other’s scopes and goals. The logic of membership contributes in providing some order to the chaos of their interaction, as illustrated in this case. In turn, immigration laws, nationality laws, and free movement laws have become fundamental descriptors of membership rationales in a community. The way insider/ outsider divides are concretely drawn in the community depends on the interaction of these regimes. Immigration rules, by allocating admission options and residence rights, create a pool of potential candidates for citizenship and membership. Nationality rules set the criteria according to which people belonging to that pool, or else born on the territory of the community, may qualify for inclusion through citizenship and thus come to share in the full membership of the community. Thus, both immigration and nationality rules shed light on membership as right. Free movement law, while obeying rationales and policy reasons which are in part disconnected from citizenship, also mirrors one of the fundamental rights of membership in a community: the right to move unconstrained in the territory comprised within its borders and to resettle and build one’s own life project in any section of that territory.15 Free movement rules thus shed light on membership as a source of rights. resident in Ireland for 3 of the previous 4 years. The 2004 Act can be consulted at http:// www.oireachtas.ie/documents/bills28/acts/2004/a3804.pdf (last visited August 2012). 14 See id. at 135. 15 This right may be considered to have beneficial effects in respect of the coexistence of diversity. See Krystyna Romaniszyn, Migration, Cultural Diversification and European­ ization in Europeanisation, National Identities and Migration-Changes in Boundary Constructions between Western and Eastern Europe (Willfried Spohn, Anna Triandafyllidou eds. 2003) at 105 suggesting that interpersonal contact between newcomers and natives in a host society can “sometimes dismantle barriers of ignorance and indifference, bring the members of the two societies and cultures closer together, and, hence, link the involved societies”.



the quest of distinctiveness and inclusion15

From a human rights perspective, the right to move within the borders of a state is actually disconnected from membership logics and assured to any person in the territory of the state.16 In the context of federal, or multitiered polities however, the right to move tends to often be represented in constitutional provisions and in judicial opinions as a right of citizenship, even if an authentic inclusion/exclusion rationale is not always attached to the exercise of this right. Table 1–1. Reflections on Membership from Immigration, Nationality and Free Movement. Notion of Membership

Relevant Regime of Rules

Membership as source of rights Membership as a right

Free movement rights Immigration, Nationality

Exploring the notions of membership in a community thus entails exploring concrete insider/outsider divides, by looking at the interaction of immigration, nationality and free movement rules. The scenario of interaction among the rules of immigration, nationality and free movement in the shade of membership logic becomes more complex in polities organized on more than one level of governance such as organizations, confederations, federations, administratively decentralized entities. In this case, decisions on admission and inclusion are potentially taken at different levels, and by different branches of governmental authority. The relevant rules may differ in substance and scope, between one subunit of the polity and another. Exercising citizens’ rights to free movement also entails passing through the perimeters of internal borders, potentially undergoing checks at those borders, and at the very least remaining subject to possibly divergent regulations on each of the two 16 The Universal Declaration of Human Rights, at art. 13 actually lists the right to free movement within the borders of a state as a universal human right of everyone. Also see Protocol n. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto of 16 September 1963 at art. 2, http://www.echr .coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf (last visited August 2012): “Everyone lawfully within the territory of a state shall, within that territory, have the right to liberty of movement and freedom to choose his residence”. The US right to travel doctrine and the European free movement of persons doctrine tend however to refer these rights primarily to citizens.

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sides of the borders. The rights to membership and the rights of membership become potentially fragmented and intertwined, and at this point including the category of internal borders in the analysis of the interactions of rules and shifting divides may help in solving their puzzle. 1.2.2. 3 Notions of Internal Borders Multi-tier polities are characterized by the presence of two levels of borders. There is an external loop of common borders, which divide the wider polity from the rest of the world as well as a web of internal borders, which identify the physical and political perimeters of the internal sub-polities or regions.17 The evolution of a multi-tier polity, whether in the direction of increasing integration and interdependence or rather in the direction of the increased autonomy of the subparts, can be thought of as a process of continuous reshuffling in the relevance of these two border perimeters, internal and external whereby external borders consolidate and thicken to some extent while internal ones thin, or vice versa. The focus here is on internal borders. It is their tightening or loosening, which determines an increase or decrease in the legal integration of the participating sub-polities. Borders can be thought of as imaginary lines, which mark geographical, political, and social spaces.18 While they are imaginary, those lines have a tangible consistency, which may be captured by focusing on three peculiar notions of borders. Each one of those three notions relates to a relevant set of questions, and the answer to those questions in turn helps to assess the strength, or thickness, of the border. The first notion is that of physical borders. The relevant question here is how permeable borders are, who and what can pass through them, and what type of controls they are associated with. Physical borders weaken, or thin, when more people or more goods are able to pass through them more readily, and when control posts are dismantled or perform merely routine tasks. They strengthen, or thicken, when controls become more demanding on those who are passing through them. The second notion of internal borders is that of regulatory borders. The relevant question here is whether borders identify a

17 See William Riker, Federalism (1964), identifying as characteristics of federalism the coexistence of two levels of government and the guarantee of autonomy for the composing constituencies. 18 On the concrete and symbolic value of borders in the EU see Rethinking EuropeSocial Theory and the Implications of Europeanization (Christian Rumford, Gerard Delanty eds. 2005) at 31–36.



the quest of distinctiveness and inclusion17

separate and homogeneous space of regulation.19 Regulatory borders blur, or thin, when regulations are adopted centrally, are harmonized throughout the internal sub-polities, or when regulation in one sub-polity is given equal recognition in the other ones.20 They thicken on the other hand, where different regulatory authorities adopt regulations and these regulations differ in substance among the component sub-polities.21 The third notion is that of definitional borders. Borders also mark a certain idea of polity. The polity enclosed within a segment of internal borders could conceive of itself as of an autonomous community, with a distinct identity in social, political and cultural terms. In the alternative it could be conceived as a subset of the wider central polity. The answer to the question of how a polity thinks of itself also sheds light on where its definitional borders are traced and on how thick they are. Internal definitional borders thin if the political and cultural identity of a sub-polity tends to increasingly overlap and merge with the one of neighboring polities. This type of borders thickens if the polity maintains or introduces legislative and societal requirements, which tend to reaffirm and preserve its local identity. These three notions of internal borders may influence and qualify the concrete interaction of regimes of immigration, nationality and free movement in a multi-level polity. If internal borders are clearly marked, it is possible that admission visas and residence rights for immigrants will be limited to a portion of the comprehensive polity’s territory. Rights of free movement may become conditional and subject to preliminary checks depending on the presence of internal borders. 19 Physical and regulatory borders are not independent of each other; to some extent they can be represented as two faces of the same coin, as physical borders can be the place of implementation of regulations which account for regulatory borders. Their overlap is however an imperfect one, and their reciprocal relation is comparable to the one between the walls of the city and the commands of the king: the walls bring physical order to the metaphysical space where the king rules; physical borders bring order to the metaphysical space where the laws have effect. This distinction justifies their separate treatment: questions that are pertinent to physical and regulatory borders are sensibly different in most areas of regulation in which a notion of borders is relevant. 20 In the European Union an example of thinning of internal regulatory borders can be found in the principle of mutual recognition enunciated with respect to the regulation of goods for free movement purposes in the famous Cassis de Dijon case, case 120/78, ReweZentral v. Bundesmonopolverwaltung für Branntwein, 1979 E.C.R. 649. In the United States, the dormant commerce clause doctrine by providing a set of tests for what kinds of regulation states can adopt without building illegitimate internal regulatory frontiers provides a possible representation of the idea of internal regulatory borders. 21 The exercise of health and police power on the part of the states in the US can be considered an example of thick internal regulatory borders. See e.g. Maine v. Taylor, 477 US 131 (1986).

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Specific questions need to be asked as regards the operation of regimes of immigration, nationality and free movement if one considers the web of internal borders. With respect to immigration and nationality rules, the thickness of internal borders depends on whether the internal borders mark autonomous spaces of regulation with respect to issues of membership, both in terms of the authorities who are competent to decide their perimeters and in terms of the substantive harmonization or divergence of the relevant regulations. States’ interests in setting their own insider/ outsider divides are rewarded by thick borders in this sense, while immigrants benefit if borders are thin. Internal borders might also be either thick or thin in definitional terms depending on the quality of inclusion and integration requirements, which are imposed on entrants. Immigrants’ interests in inclusion find different accommodation depending on whether each sub-polity can set its own, distinct integration requirements. Rules for access to citizenship might be uniform throughout the subpolities or differ in different sections of the wider polity, giving voice to different nationalities coexisting in the multi-tier entity. They might give access to a peripheral, sub-central status of citizenship, from which common citizenship derives according to a rule of automation or derivation. Or vice versa, they may give access to a common status of citizenship, which is then complemented by a peripheral citizenship based on residence in a section of the polity. Sub-polities and immigrants fare differently in their interests with respect to insider/outsider divides, depending on the nature of these rules. With respect to free movement rights for people inside the polity, the thickness of internal borders can be evaluated by considering first, whether physical internal borders represent a direct burden to the movement of persons throughout the territory of the polity, for purposes of either temporary sojourn or resettlement. Secondly, regulatory internal borders may represent an indirect burden on the exercise of free movement rights, and thus be thick, if diverging regulations in different subpolities make resettlement harder for internal migrants. The thickness of internal regulatory borders might differ for members and non-members, if the rights of free movement are made to be more difficult for the latter category to exercise. If internal borders are thick as regards free movement rights, sub-polities cherish stronger opportunities to guard themselves against outsiders, while contextually the immigrants’ claim for inclusion faces a tougher opposition. Before turning to explore these questions in the US and EU settings, the next section introduces some preliminary notions on legal membership



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and central authority in the two entities, notions which may be of help in subsequently drawing and interpreting a relevant map of internal borders. Table 1–2. Internal Borders Classification. Internal Borders Physical Thin: Permeable to people and goods

Thick: Impermeable to people and goods

Regulatory Thin: Central regulation, harmonized regulation, mutual recognition

Thick: Local regulation, divergent regulation

Definitional Thin: Overlapping identities of the sub-polities

Thick: Distinct identity for subpolities

1.2.3. Preliminary Notions on Legal Membership and Central Authority 1.2.3.1. Citizenship in the US and the EU Before delving into the exploration of how borders affect notions of membership, it is important to consider how membership is defined in relevant legal instruments in the United States and the European Union. In particular, this section focuses on the relationship between the two levels of legal membership, state citizenship and union/federal citizenship in each one of the two entities. It considers whether possession of one status entails automatically possession also of the second status, and whether there is a rule of derivation of one from the other.22 1.2.3.1.1. United States Citizenship “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside”, according to the 14th amendment to the United States Constitution, adopted in 1868. This rule codifies the principle of ius soli as pertains to the conferral of citizenship. Everyone born in the territory (see below for some exceptions) is a citizen. Federal citizenship is according to this rule the primary status. Birth or naturalization in the territory and being subject to the jurisdiction of the United States makes a 22 See Rainer Bauböck, Why European citizenship, supra Introduction, at note 12 at 482.

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person a United States citizen, first of all, and as an automatic consequence, also a citizen of the state in which that person resides. The rule seems to leave no space for state citizenship without federal citizenship: the two notions coincide in origin, and the dominant one is federal citizenship. The relative weight of federal and state citizenship has changed significantly since the 18th century. Neither the Articles of Confederation, nor the Constitution of 1787, contemplated a definition of national citizenship. The states initially had a prominent role in regulating immigration and establishing requirements for conferring state citizenship. The change in and subsequent clarification of the relationship of state citizenship to federal citizenship arose during the period in and around the Civil War. In the decades leading up to the war, the idea that federal citizenship flowed from state citizenship created tensions and difficulties especially in the Southern states, which would not accept the practice of non-slave states beginning to admit black free men to state citizenship.23 The tension reached its zenith with the decision in the Dred Scott Case.24 The Supreme Court was confronted in this case with the claim of a slave, who was asserting his right to freedom based on a two-year period of residency in a state and a territory where slavery had been abolished.25 The Court declined jurisdiction to hear his case because it held that a slave cannot be a citizen, and thus a federal court could not have jurisdiction on diversity of citizenship grounds.26 It was held that the Constitution, when referring to “The People of the United States”, a term which had to be considered synonymous to the term “citizens”, did not include in this description members of the African race.27 Everybody who was a citizen of the several states at the time of the adoption of the Constitution became with its adoption also a citizen of the new political community that the Constitution created. Slaves of African origin and their descendants however were not part of the political community of the several states at that time.28 A distinction was drawn between rights of citizenship, which states may confer within their limits, and rights of citizenship as a member of

23 Id. at 738. 24 Dred Scott. v. Sanford, 60 US (19 How.) 393 (1856). 25 Id. at 394. 26 Id. at 427. 27 Id. at 405. 28 Id. at 406–407.



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the Union. According to the Court, after the adoption of the Constitution and the investing of Congress with the power to establish a uniform rule of naturalization, states could still confer their own citizenship on aliens as they deemed appropriate. However, these people would not for that reason alone, be “citizens,” as this term is defined under the Constitution.29 […] no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own.30

The emptying of state citizenship as a meaningful independent condition began here.31 The Dred Scott ruling stood for the disempowerment of state citizenship, whose conferral has no effect for purposes of membership in the political community of the Union at large. It also stood for the idea that slaves could not be part of that political community, and could not be recognized as citizens within its borders. In the aftermath of the Civil War, federal citizenship became a crucial tool used in reversing the position adopted in this ruling. The post-war constitutional amendments brought about the express prohibition of slavery32 and the codification of the relationship between state and federal citizenship. The Civil Rights Act of 1866 clarified that federal citizenship was to be the primary status in the United States of America, and the XIV amendment confirmed the primacy of federal citizenship over state citizenship, specifying the rule of inclusion described above. The rules of inclusion and derivation set forth by the XIV amendment are not however to be taken as absolutes. The rule of inclusion, according to which everybody who is born or naturalized within the territory of the US is a citizen, finds a set of limitations in the expression “subject to the jurisdiction thereof.” The rule of derivation, according to which everybody who is a citizen of the United States is also a citizen of “the state wherein 29 Id. at 405. 30 Id. at 406. 31 The Court did not stop at state citizenship in any case; Scott was also claiming that he had been freed by being brought into the Territory of Missouri, where slavery had been prohibited by Act of Congress. The Court then held unconstitutional the Missouri compromise, according to which Congress had prohibited slavery in the territories north of a certain latitude. This would have amounted to a violation of the right of property in a slave, which is affirmed in the Constitution. See Dred Scott. v. Sanford, 60 US (19 How.) 393 (1856) at 451–52. 32 Constitution of the United States of America, Amendment XIII.

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they reside” should be qualified by considering that some US citizens experience some limits on their social and political rights depending on their place of residence. Native American tribes have long been exceptions to the rule of inclusion.33 Native American tribes have been regarded as distinct political communities within the United States34 and in an 1884 case, the Supreme Court held that the XIV amendment did not confer citizenship upon children born within the tribes, as they are not subject to the jurisdiction of the United States.35 Members of the tribes, born within the tribe’s jurisdiction, have been regarded for a long time as non-citizen nationals, who had American nationality in an international sense, but did not benefit of the full rights of citizenship. In the 20th century however, members of the tribes have been granted full United States citizenship.36 With regard to the rule of derivation, residence is relevant as a limit to the full rights of US citizenship in several cases. US citizens who are not residents in a particular US state lose their state citizenship; they are only US citizens. Thus, they cannot sue in federal courts on the basis of diversity jurisdiction, but have to rely on state courts.37 In addition both 33 Three other categories of people are also held not to be subject to the jurisdiction of the United States at birth for purposes of the XIV amendment: children born to foreign diplomats, children born on foreign public vessels in territorial waters, children born to women accompanying an invading army. See Gerald Neuman, Nationality Law in the US and Germany in Paths to Inclusion, The Integration of Migrants in the United States and Germany (Peter Schuck, Rainer Münz eds. 1998) at 252. 34 Worcester v. Georgia 31 US (6 Pet.) 515, 559 (1832): “The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed: and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term ‘nation,’ so generally applied to them, means ‘a people distinct from others.” Also see, Thomas Alexander Aleinikoff, Semblances of Sovereignty-The Constitution, the State and American Citizenship (2002) at 19. 35 Elk v. Wilkins, 112 US 94 (1884) at 102: “Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indiana tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.” 36 Gerald Neuman, Nationality Law in the US and Germany, supra at note 33 at 252. 37  See Wright and Miller, Treatise on Federal Practice and Procedure, sect. 36.2.



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inhabitants of the US territories and citizens, who reside in the federalcontrolled District of Columbia, face limitations to their citizenship rights. The situation with respect to the territories is a varied and complex one. According to a doctrine dating back to the beginning of the 20th century, a distinction was drawn among territories incorporated for statehood, where the Constitution was to apply in full as opposed to unincorporated territories, where only fundamental constitutional rights were to be applied.38 Inhabitants of the unincorporated territories have long been considered non-citizen nationals, in a situation analogous to the one of tribal members before they received the grant of full citizenship. In the course of the 20th century, citizenship has been extended by statute to most territories, and today only the inhabitants of American Samoa are still considered non-citizen nationals.39 The rights of citizens, residing in the territories are however subject to certain limits.40 In this sense, residence, which is equivalent in the states to state citizenship, has the effect of limiting in certain instances the scope of federal citizenship. Residence represents a limitation to the full rights of citizenship also for American citizens residing in the District of Columbia.41 According to article I, section 8 of the Constitution, the federal government exercises exclusive power in the District of Columbia. However residents in the District have only limited representation in Congress. For a century, between 1874 and 1973, the District had no local government.42 In the 20th century, District residents have seen some improvement in their opportunities for political participation, but they are still not treated the same as citizens residing in the states.43 38 The distinction arises out of a series of cases decided in 1901 and commonly referred to as the Insular Cases. (DeLima v. Bidwell 182 US 1 (1901); Goetze v. United States 182 US 221 (1901); Dooley v. US 182 US 222 (1901); Armstrong v. US 182 US 243 (1901); Downes v. Bidwell 182 US 244 (1901); Huus v. New York & Porto Rico SS Co. 182 US 392 (1901); Dooley v. US 183 US 151 (1901); Fourteen Diamond Rings v. US 183 US 176 (1901); see Gerald L. Neuman, Strangers to the Constitution-Immigrants, Borders and Fundamental Law(1996), at 83–89. 39 Thomas Alexander Aleinikoff, Semblances of Sovereignty , supra at note 49, at 50; Gerald Neuman, Nationality Law in the US and Germany, supra at note 33 at 252–53. For the rule on non-citizen nationals see 8 USC par 1408. 40 The situation of Puerto Ricans provides a valuable example in this sense. In terms of social inclusion, Puerto Ricans do not pay federal income taxes, but they receive welfare benefits at lower levels. With regard to political participation, they are allowed only non voting delegates in Congress and cannot participate in presidential elections; see Thomas Alexander Aleinikoff, Semblances of Sovereignty , supra at note 34, at 78–80. 41 Gerald L. Neuman, Anomalous Zones, 48 Stanford L Rev 1197 (1996) at 1214–15. 42 Id. at 1217. 43 Id. at 1218. The 23rd amendment in 1961 granted to the District of Columbia the right to be represented in the electoral college, so that residents became presidential electors.

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These exceptions to the congruence between federal citizenship and state one (or residence), and to the link between territory and federal citizenship, contribute to the drawing of additional, subtle borders in the geography of American membership. They stand for the fact that rules are rarely pure, and they should not be forgotten in thinking about American membership. Even if the rules qualify the inclusiveness and primacy of federal citizenship to some extent, it is still fair to assert that federal citizenship is the primary condition in the United States, and state citizenship is a derivation of it. Reference to members of the United States, throughout the remainder of this work, should thus be interpreted as reference to federal citizens. 1.2.3.1.2. European Citizenship According to article 20 of the Treaty on the Functioning of the European Union (hereinafter TFEU), “Every person holding the nationality of a member state shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship”.44 The rule of derivation in the EU is thus the opposite of the one in the US. The primary citizenship is national citizenship, conferred according to the nationality laws of the several member states, which differ in requirements and informing principles. Citizenship of the Union follows automatically from having nationality in one of the member states. European citizenship is an alter ego of national one; the former can be found only when the latter is present. The European rule, similar to that of the United States, is not pure. A declaration attached to the Treaty of Maastricht, which introduced the provisions on European citizenship into the European Community Treaty, clarified that the determination of who is a national for community purposes is left exclusively to the member states and to their nationality laws.45 Complexities in the nationality laws of some member states have resulted into exceptions to the rule of congruence between the nationality In 1970, the District also obtained the right to elect a non voting representative in the House and in 1973 some form of local government was reintroduced. 44 See TFEU, supra Introduction, at note 6. 45 Member states are also allowed to deposit declarations indicating who is to be considered a national of their state for Community purposes; see Declaration on Nationality of a Member State annexed to the 1992 Treaty on European Union, http://eur-lex.europa.eu/ en/treaties/dat/11992M/htm/11992M.html#0098000022 (last visited August 2012); also see Gerard Rene de Groot, The Relationship between the nationality legislation of the member states of the European Union and European Citizenship in European Citizenship an Institutional Challenge, supra Introduction, note 12 at 120.



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of a member state and that of European citizenship. This is the case ­particularly with regard to nationals who live in overseas territories or former colonial possessions of a member state. United Kingdom nationality law, for instance, distinguishes among six types of members: British citizens, British overseas citizens, British overseas territories citizens, British nationals overseas, British protected persons and British subjects. Of these six categories, only three are considered UK nationals for Community purposes: British citizens, British subjects and British overseas territories citizens, who acquire their citizenship from a connection with Gibraltar.46 Danish nationals living in the Faroe Islands and in Greenland also pose some issues;47 similarly, doubts exist with regard to the status of Dutch nationals living in the Netherlands Antilles and Aruba.48 These situations also prove that for European citizenship, derivation from nationality of one of the member states is not an absolute. There are some marginal cases, in which having the nationality of a member state does not yield European citizenship. The European Court of Justice, which has adopted an activist role in adjudicating the rights of European citizenship, has maintained a hands-off approach with respect to nationality as a source of European citizenship. While it has indeed held that member states cannot add conditions for nationals of other member states to exercise EU citizenship rights on their territory,49 it has also upheld member state reservations with respect to their own nationals or quasi-nationals residing on overseas territories.50 ***

46 See Declaration on Definition of United Kingdom “nationals” for european community purposes, http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/ nationalityinstructions/nichapter13/ch13annexa?view=Binary. 47 It has been suggested that while Danish Greenlanders are nationals for Community purposes, the inhabitants of the Faroe Islands are not. See Gerard Rene de Groot, Towards a European Nationality, in 8.3 Electronic Journal of Comparative Law 2004, http:// www.ejcl.org/83/art83-4.html#N_1_ (last visited August 2012). 48 Id. 49 Case C-369-90, Mario Vicente Micheletti and others v Delegación del Gobierno en Cantabria, 1992 E.C.R. I-04239. 50 In Spain vs. UK (case C-145/04, 2006 E.C.R. I-07917) for instance, the Court held that the right to be active electors for the European Parliament can be extended by a member state to people who are not properly nationals and thus European citizens, but who have in any case a close link to their nation. On the other hand, according to the holding in Eman and Sevinger (case C-300/04, 2006 E.C.R. I-08055) it is ok for a member state to exclude from voting for the European Parliament a national and European citizen who resides on an oversea territory.

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Rules of derivation are inverted in the US and Europe and thus at first sight insider/outsider divides are differently placed. In the US the main insider/outsider divide is a central one. Anybody who holds federal citizenship is not foreign in any part of the US, notwithstanding (subject to the above mentioned exceptions) where he holds residence and thus state citizenship. In the European Union, the main insider/outsider divide is still peripheral: only nationality in one of the member states makes a person “insider” at the European level. Even when this happens, there is still room left for outsiderness, since that person, despite being a European citizen, is still a foreigner in any member state other than the one in which he has nationality. Even if at the core of the polity they are opposed, insider/outsider divides get more nuanced and thus closer at the margins both in the US and the EU. The overseas territories, such as Puerto Rico and American Samoa for the US, Aruba, Netherland Antilles, Gibraltar, Greenland and Faroe Islands in the EU represent grey areas, where nationality, residence, civic belonging and rights get split and reshuffled. Membership rationales that seem so divergent at the core, assume similar colors on the periphery. This indicates already that simple citizenship rules do not faithfully mirror actual insider/outsider divides and are not a transparent representation of the logic of membership in the polity. Immigration, nationality, free movement rules may have more insightful tales to tell in this respect. 1.2.3.2. Central Authority in the US and Europe The role of central and peripheral authorities in handling immigration and providing for citizenship rights will be discussed extensively in the course of this work. To better contextualize this discussion it is helpful to consider the origin and direction of the debate on central authority in the US and the EU In both polities, a central authority has been at some point in history super-imposed onto the local ones, either through the frame of a Constitution or that of a Treaty. This superimposition has in turn sparked an ever vital debate on the limits of central authority, and on its underlying legitimacy.51 While it is impossible here to follow all the lines of 51 For the debate in the US see among others David L. Shapiro, Federalism: a Dialogue (1995); Herbert Wechsler, Political Safeguards of Federalism, 54 Colum L Rev 543 (1954); Paul Peterson, The Price of Federalism (1995), Samuel Beer, To make a Nation-The Rediscovery of American Federalism (1993); for the debate in the European Union, see among others Joseph Weiler, The Transformation of Europe, supra Introduction, at



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thought, which have animated these debates over the course of decades and centuries, the following paragraphs propose to illustrate their main tenets. 1.2.3.2.1. Central Authority in the US Central authority is represented in the US by the federal government. According to article I of the US Constitution, this is a government of enumerated powers. Judicial doctrines have also outlined limits to the ways, in which the federal government can act: it cannot commandeer the states for instance, and it cannot hear suits, in its courts, in which defendants are states.52 As it happens, constitutional practice in the US has led to a continuous expansion of the role of the federal government and of its powers.53 It is in part this dynamic of federal growth, which has kept alive the debate over the nature and frontiers of central authority. This is a debate which can be traced back to the contrasting positions of the Federalists and the Anti-Federalists in the context of the adoption of the US Constitution. The discussion over the proper make-up of federalism and a convenient conception of the role of the central authority was induced at the time by disillusionment with the confederate model. The Confederation had failed to effectively represent the several states in external relations and had not prevented the insurgence of localism. It was thus felt that a “shift in power” was needed, together with a “stronger basis of legitimacy” for the federal authority.54 Two opposing theories offer an interpretation of the role and source of central power in the constitutional model. First, according to the compact theory, the states are the center of political life not the nation as a whole. There does not exist only one “people” of the United States of America, but several, each expressing their political will through the mediating role of the states. The kernel of political legitimacy thus is to be found in the state as a political entity, and not directly in the people of the nation.55 While, according to the national theory, “America is one nation served by two note 1; Andrew Moravcsik, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht (1998); Craig Parsons, A certain Idea of Europe (2003); Peter L. Lindseth, Power and Legitimacy: Reconciling Europe and the Nation State (2010); Koen Lenaerts, Federalism: Essential Concepts in Evolution – the Case of the European Union 21 Fordham Int’l L. J. 746 (1997–1998). 52 See Daniel J. Meltzer, State Sovereign Immunity: 5 Authors in Search of a Theory, in 75 Notre Dame L. Rev 1011 (1999–2000) at 1013. 53 See Barry Friedman, Valuing Federalism, 82 Minn L. Rev. 317 (1997–1998), 323–24. 54 Samuel Beer, To make a Nation, supra at note 51 at 249. 55 See id. at 20–21.

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levels of government”.56 The remedy for the failure of the Confederation could only be found, according to Madison, one of the forefathers of national theory, in a political constitution by which the federal states would become one sovereign power, and whose ultimate source of authority would be directly in the people.57 National theory is conducive to an expansive vision of the role and powers of the federal government. National and compact theories have at alternate periods gained momentum with the courts, as they have informed the view of different judges in some key opinions on American constitutional doctrines. Justice Thomas’s dissent in Term Limits58 represents a clear tribute to the compact theory. In his words, “the ultimate source of the Constitution’s authority is the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole”59 and “even at the level of national politics, there always remains a meaningful distinction between someone who is a citizen of the US and of Georgia, and someone who is a citizen of the US and of Massachusetts”.60 The words of Justice Kennedy, in that same case,61 strike a different tone which rather expresses sympathy with the national theory: “in my view it is well settled that the whole people of the US asserted their political identity and unity of purpose when they created the federal system”62 and “there can be no doubt, if we are to respect the Republican origins of the Nation and preserve its federal character, that there exists a federal right of citizenship, a relationship between the people of the Nation and their National Government, with which the states may not interfere”.63 Compact and nation theories inspire the views of different justices and seem to provide the theoretical background for alternate streams of constitutional doctrines, either promoting decentralization or on the contrary increased 56 See id. at 21. 57 Id. at 253. 58 United States Term Limits v. Thornton, 514 US 779 (1995), Justice Thomas dissenting. 59 Id. at 846. 60 Id. at 859. 61 See id., Justice Kennedy concurring. 62 Id. at 838. 63 Id. at 844. Justice Kennedy position on federalism as expressed here is said to find inspiration in the so called transformative nationalism of which the opinion of Justice Marshall in McCulloch v. Maryland is an example. According to justice Marshall, “No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves.” McCulloch v. Maryland 17 US 316 (1819) at 403. Also see Daniel J. Meltzer, State Sovereign Immunity: 5 Authors, supra at note 52 at 1042.



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centralization. Centralization has been brought about by the development of several strands of case law in the 20th century.64 In recent years however some cases have seemed to go counter to the trend in this respect, by grounding new limits for the powers of the federal government.65 In sum, in the constitutional history of the United States, federal power has had inconsistent luck. Despite these alternate trends, the idea of the nation has continuously provided a powerful unitary framework in the US, and has survived three difficult trials, the Civil War, the industrialism and great depression, and racism.66 Central authority, supported by the idea of the nation, is seen in the US with a mixture of respect and diffidence. This is due in part to the commitment of the US polity to a level of internal diversity, which the federal government cannot threaten. In the compact vision, diversity is embodied in the continued existence of the states as autonomous political entities.67 In the national vision, diversity is grounded in a pluralist conception of the American people. It is the national will of the people, conveyed through a process of rational deliberation, which legitimates central authority.68 In the words of Sam Beers the genius of the nationalists was seeing what could be done with diversity. They not only tolerated diversity, they welcomed it, making its dynamic influence the ground of liberty and progress. They saw that by rational discourse different opinions could be brought into agreement and diverse interests fitted together in the public interest.69

1.2.3.2.2. Central Authority in the EU The 1957 Treaty of Rome70 envisioned and aimed at achieving a common market among the six initial member states.71 While the project of 64 A good example of this trend is the commerce clause case law between the 1937 NLRB v. Jones & Laughlin Steel Corp., 301 US 1 (1937) and the 1995 US v. Lopez, 514 US 549 (1995). Another example can be found in the spending power doctrine under the lines of South Dakota v. Dole 483 US 203 (1987). See Barry Friedman, Valuing Federalism supra at note 53. 65 See e.g. Garcia v. San Antonio Metropolitan Transit Authority, 469 US 528 (1985), US v. Lopez, 514 US 549 (1995), Printz v. US, 521 US 898 (1997), Seminole Tribe of Florida v. Florida, 517 US 44 (1996); also see Daniel J. Meltzer, State Sovereign Immunity: 5 Authors, supra at note 52 at 1012. 66 Samuel Beer, To make a Nation, supra at note 51 at 8–20. 67 For the autonomy of the states, and their boundaries not representing merely the borders of implementing units, see David Shapiro, Federalism a Dialogue, supra at note 51. 68 Samuel Beer, To make a Nation, supra at note 51 at 290. 69 Id. at 391. 70 Treaty Establishing the European Community, version of 10 November 1997, 1997 O.J. (C 340), 3 (hereinafter EC Treaty). 71 The six initial signatories were Belgium, the Netherlands, Luxembourg, the Federal Republic of Germany, France and Italy.

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integration was mainly crafted in economic terms, ideals that went beyond market building also informed the Treaty of Rome.72 The European Communities arose in the aftermath of one of the darkest periods in European history, and making economic destines communal was seen as a recipe for ensuring the establishment of ‘an ever closer Union among the people of Europe’ as the Preamble to the Treaty of Rome suggests.73 The powers entrusted to the central organs of the European Communities (and now, after the Treaty of Lisbon, of the European Union) were enumerated in the Treaty.74 Notwithstanding the reference to the people of Europe, the ‘atom of sovereignty was split’75 in Europe in a different way than the US. There was no doubt originally, that the principals in Europe were the member states and that the Community had no legitimate independent authority. The Treaties prescribe the powers of the EU, which exercises different kinds of competences in different areas. In a few limited fields, better defined by the jurisprudence of the CJEU, EU competence is exclusive. In most areas its power is shared with the member states. While, in still other areas, the EU either sets the minimum common standards in order to foster harmonization in the relevant national legislation or it complements the action of the member states.76 In the European practice of central power, as in the American one, the trend has been towards a de facto enlargement of the powers of the EU.77 A limit to the unchecked 72 See Jo Steiner, Lorna Woods and Christian Twigg-Flesner, Textbook on EC Law (2003) at 3; also see Paul Craig and Grainne De Burca, EU Law, Text, Cases and Materials (2003) at 7–8. 73 For the idea that economic cooperation was a means to the end of ensuring peace, see the Schuman Declaration of 9 May 1950, http://europa.eu/abc/symbols/9-may/decl _en.htm (last visited August 2012). 74 With the founding treaties, three distinct communities were established: the European Steel and Coal Community, which expired in 2002; the European Atomic Energy Community (Euratom) which still exists as a distinct entity, and the European Economic Community, later renamed European Community with the Treaty of Maastricht. With the Treaty of Maastricht, the European Union was introduced as a frame for intergovernmental cooperation, in a number of areas additional and distinct from those entrusted to the European Communities. With the Treaty of Lisbon, the European Community ceased to exist and legal personality was transferred to the European Union. 75 The expression is borrowed from Justice Kennedy concurring in United States Term Limits v. Thornton, 514 US 779 (1995) at 838. 76 Damian Chalmers, European Union Law (2006) at 188–193. Also see TFEU, articles 3–4. 77 Different provisions and mechanisms have led in this direction. One important tool in this sense has been the provision of art. 95 EC (now art. 114 TFEU), which entrusts the Community with the power to adopt by majority measures to approximate laws and regulations in the member states for purposes of establishing and improving the functioning of



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expansion of European power comes from the principles of subsidiarity and conferral, which inform and orient the relationship between the Union and the member states. According to the principle of conferral, the Union only acts within the limits of the competences conferred upon it by the member states.78 The principle of subsidiarity demands that the Union act only, when the scale or the effect of the proposed action make intervention on its part more desirable than intervention of the member states.79 European intervention over the years has changed in both quantity and quality. In quality mainly through the doctrines of the CJEU, in particular three landmark pronouncements have introduced constitutional undertones in the discourse of European integration. In the Van Gend en Loos case of 1963,80 the court introduced the doctrine of direct effect. According to this judgment, the treaties, which establish the Community’s legal order, imply more than just the reciprocal obligations among the signatory states. They confer upon individuals rights, which are directly effective and can be claimed in front of the national courts.81 A few years later, in Costa vs. Enel, the CJEU went one step further and defended the supremacy of European law over domestic law.82 The Internationale Handelsgesellschaft the internal market. This provision had the potential to give the Community a general power of regulation with respect to the internal market. The Court of Justice has set limits to this power however in the famous Tobacco Advertising case, Germany v. Parliament and Council, C-376/98, 2000 E.C.R. I-8419. See Chalmers, supra at note 76 at 470–72. Also see Joseph H.H. Weiler, The Transformation of Europe, supra Introduction, at note 1, for the role that the doctrine of implied powers played in the expansion of the Community enumerated powers. 78 Art. 5(2) of the Treaty on European Union, consolidated version of 26 October 2012, 2012 O.J. C 326 (in the following “TEU”). 79 Art. 5(3) TEU (formerly article 5(3) of the EC Treaty) says in relevant part “In areas, which do not fall within its exclusive competence, the Community shall take action in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member states and can therefore by reason of the scale or effects of the proposed action be better achieved by the Community”. Several protocols have subsequently endeavored to clarify the breadth of this principle and to define its concrete take: the most recent protocol, annexed to the Treaty of Lisbon emphasizes the role of Commission consultations before the advancement of legislative proposal, and the involvement of national Parliaments in the legislative process as a means to the end of keeping decisionmaking as close as possible to the citizens. 80 Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration, 1963 E.C.R. 1. 81 Id., sect II b; according to this holding, the European Communities bring about a new kind of legal order, whose subjects are both states and individuals. 82 Case 6/64, Flaminio Costa v. Enel of 15 July 1964, 1964 E.C.R. 585; the Court found that the member states by adhering to the order of the European Communities have accepted to limit their sovereignty and to be bound, together with their nationals, by

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judgment of the early 1970s continues and completes this gradual erosion of the role of the member states as autonomous legal orders, by holding that the provisions of European law cannot be tested against national standards for protection of fundamental rights, but rather must comply with European fundamental rights as derived from the traditions of the various member states.83 These doctrines have laid the basis of a potential European constitutionalism, defining the relationship between the ­central and peripheral authority in the EU and pushing for the central authority to gain independent and autonomous legitimacy. This kind of transformation has raised concerns however as the EU mechanisms for popular legitimacy and accountability have never been clearly spelled. Theories of European integration reflect these concerns on the role and limits of European authority. The concept of ‘the center’ varies significantly among these theories. Inter-governmentalists have traditionally placed the center within the governments of the member states, whose concerted action by the rule of unanimity propels integration forward.84 According to an alternative view, the catalyst of integration, instead, has to be found in transnational activity itself. The growing interaction between cross-border networks of technocrats makes for a ‘sticky’ form of supranational governance, which in the long run tends to overcome even the member states preferences.85 In yet another reading, legal actors, judges, lawyers and their entourages have been the main engine for the progress of Europe. These groups have indeed crafted the discourse of integration in legal terms, thereby alienating to some extent politicians and their preferences, and involving them in a web of legal commitments, from which it would later be hard to disentangle.86 Inter-governmentalists, institutionalists and theorists of legal integration differ as to the level of control on European central authority legislation enacted by European institutions; allowing subsequent national legislation incompatible with provisions of European law to stand would be in contrast with the character of the European Union. 83 Case 11/70, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, 1970 E.C.R. 1125. With the Treaty of Lisbon, the European Charter of Fundamental Rights has become a binding instrument and is now the main source of fundamental rights law for the European Union and its institutions. 84 See Andrew Moravcsik, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht (1998). 85 See European Integration and Supranational Governance (Wayne Sandholtz, Alec Stone Sweet eds., 1998) at 17–19. 86 Anne-Marie Burley and Walter Mattli, Europe before the Court: A Political Theory of Legal Integration, 47 International Organization 41 (1993).



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that they acknowledge belongs to the member states. According to intergovernmentalists, member states are the decision makers in Europe. While for the latter two strands of thought the European project at some point slid out of the hands of the member states, and European central institutions acquired a life of their own. If in the United States the idea of the nation inspired and supported the constitutional project, and provided a justification for central authority, in the European Union the slow transformation from a common market into a political entity was accompanied by the gradual shaping of a ‘certain idea of Europe’. Craig Parsons considers that the idea of Europe that charismatic leaders, with relevant political leverage, held at some key points during the integration process was the fuel propelling integration forward.87 This idea of Europe was however an elitist one, a vision of the leaders, who skillfully translated it into concrete political steps. What was always missing in Europe-building was an authentic constitutional moment,88 a time in which the people of Europe would provide their endorsement of the European project, and ground the authority of European institutions in sound democratic legitimacy. The failed Constitution89 of 2003 was thought of as a remedy to this issue. Doubts remain in any case as to whether, had it been adopted, the Constitution would have provided an effective solution. It has been observed that what is commonly referred to as the European democratic deficit, is a complex defect, resulting in both institutional weaknesses and in more profound shortcomings. It is dependent in part on the European aspiration to depart from the logic of statehood without renouncing the desire to reap its benefits.90 A textual Constitution would not have provided an answer to many of the open questions of democratic insufficiency in the EU. In the face of unresolved issues of legitimacy in Europe, the Treaty of Lisbon91 undertook the task of clarifying the limits of European central 87 See Craig Parsons, Showing Ideas as Causes: The Origins of the European Union, 56 int’l org 47 (2002), at 52–52 and at 75–77. In his view, stickiness, in the form of institutionalization of what had been already achieved, prevented any backward moves on the part of subsequent entrants in the European game, possibly hosting diverging views. 88 The expression is borrowed from Bruce Ackerman. 89 See Treaty Establishing a Constitution for Europe, 2004 O.J. C310. 90 See Joseph Weiler, Does Europe Need a Constitution? Reflections on Demos, Telos and the German Maastricht Decision, 3 ELJ 219 (1995) for the many sides of the democratic deficit; also see Joseph Weiler, The Transformation of Europe supra Introduction, at note 1, at 2480, underlining that if integration brings towards the unity vision of Europe, then Europe is subject to falling back into the categories of the nation state. 91 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, 2007 O.J. C-306 at 01.

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authority, as well as that of reinforcing the control function of the member states. It introduced the above mentioned principle of conferral, thereby reaffirming and strengthening the rule that European competences are only those specifically granted by the member states;92 also, it gave national Parliaments an institutionalized role in the process of adoption of European legislation.93 All of this seems to place the derivative authority of European institutions at the disposition of the principal member states governments.94 In want of a sign of agreement among the phantom European demos,95 central European institutions are more easily seen as delegated agents of the member states.96 This is not to deny that, with the support of the CJEU, the EU has in its practice claimed and achieved a level of self-legitimacy and independence from the member states. In Europe however, where the idea of the nation is alive and healthy, even if it stops abruptly at the external frontier of the member states, the sources of legitimacy for that kind of unchecked central authority are still shaky. *** With this preliminary drawing of the relationship between central and peripheral citizenship, and the central and peripheral authority in the US and EU in mind, and equipped with the set of questions and conceptual tools, physical, regulatory and definitional internal borders, introduced earlier in this chapter, this work now proceeds to analyze issues of immigration (admission and treatment of outsiders), nationality and free movement in the European Union and the United States. 1.3. Immigration, Nationality, Free Movement: A Map of US and EU Internal Frontiers This part gradually draws a map of the thickness of internal borders throughout Europe and the US as regards issues of membership; in 92 See articles 4–5 TEU. 93 See id. at art. 12. 94 But see id. at art. 10; this provision focuses on representative democracy and specifies a principle of double representation, according to which citizens are represented in the European Parliament, while member states are represented in the European Council and in Council of Ministers. 95 Often, when the European people are consulted, the result is rather a sign of disagreement as happened with the initial Irish negative vote in the referendum on the Treaty of Lisbon held on June 12, 2008. 96 See Peter. L. Lindseth, Democratic Legitimacy and the Administrative Character of Supranationalism: The example of the European Community, 99 Columbia L. Rev. 629 (1999), for the thesis that European integration represents the ultimate product of



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­ articular it focuses on three regimes of rules that are relevant in this p respect: immigration rules, which comprise both rules of admission of immigrants and rules on the treatment of outsiders; rules of inclusion through access to nationality; and rules of free movement or right to travel. 1.3.1. Immigration Regimes Rules of admission and of treatment pending inclusion are two fundamental components of regimes and policies of immigration. Rules of admission contribute in creating a pool of potential citizens. Rules of treatment of immigrants while they remain outsiders in the polity provide an important mirror image of the membership condition. Mapping both sets of rules on internal borders evidences to what extent internal frontiers mark autonomous spaces of exclusion/inclusion and discrimination. Any non-member in legal terms, in a multi-tier polity, who is not born in the territory of the polity, will be allowed in by physically passing through the external loop of common borders.97 Internal regulatory frontiers will be important to any such immigrant. First of all because these borders will determine whether he has the potential of gaining admission on the same terms at any segment of the borders, be it air land or sea because of the common regulations of a central authority. The borders also affect whether he has the potential of gaining admission on similar terms, at any such segment, depending on the harmonized regulations of autonomous sub-central authorities operating in coordination; or whether he faces divergent admission conditions according to the independent determination of multiple sub-central authorities. On the other hand, internal borders may also be relevant with respect to the kind of treatment that non-members receive in the interval between admission and inclusion. Do they enjoy similar rights and suffer similar limitations in any and all subsections of the polity? Which authorities decide on their rights while they are non-members? Does their group

administrative delegation as evolved through the post-war constitutional settlement; also see Peter Lindseth, Power and Legitimacy supra at note 51. 97 This work does not focus on illegal immigration, and targets only the escalation to membership in legal terms, even if, in many cases, even the illegal passage of physical borders can result into a regulatory escalation to membership, for instance, through amnesties. The handling of illegal immigration, while often reflecting the competences of who decides on legal admission, calls for value choices and instrumental decisions according to rationales that go in part beyond the logic of escalation to membership, and this is why they are not made object of research here, as the goal of this chapter is to consider how citizenship, and not immigration policies in general, can be made a tool to handle diversity.

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represent a negative image for the group of members, or is their status fragmented by the effect of internal frontiers? Many rights of resident non-members will be directly connected to the source of their right to admission. This will be the case in most scenarios, with regard to residence rights as well as right to access the labor market in the host polity. Other rights, such as family reunification rights, are granted to non-members as a function of their alienage, and in this sense, they provide a viewpoint on how internal borders affect their condition. 1.3.1.1. Immigration Regimes in the US 1.3.1.1.1. Admission The power of handling immigration in the US is a plenary power of the federal government.98 From a historical perspective, this was not always the case. Immigration regulation was, at least for the first half of the 19th century, handled by the states both in terms of providing for the inspection and acceptance of immigrants, and of screening off certain categories of immigrants, mainly on the basis of wealth, health, and race considerations.99 Courts initially upheld the power of the states to regulate in the field of immigration.100 A reversal came only in 1875 with the case of Henderson v. New York,101 which established that all state law regulating immigration is unconstitutional as it impinges on the exclusive power of Congress to regulate commerce.102 As a result, in the 1880s, the federal government became a more intrusive actor in the business of regulating immigration, and soon became the exclusive player in this field. The exclusivity of the federal immigration power makes the external frontiers of the United States the sole locus for admission experiences and decisions.   98 The Supreme Court has reiterated the plenary and exclusive character of federal power in immigration matters in the recent case of Arizona v. United States, decided on 25 June 2012. The Court held in this case that provisions of Arizona law which (i) imposed a state law penalty on an alien’s failure to follow a registration procedure provided by federal law (ii) made it a misdemeanor for undocumented aliens to seek and engage into work in Arizona and (iii) allowed state officers to arrest an alien without a warrant based on probable cause that such alien would be removable under federal law, were preempted by federal law. Arizona v. United States, 567 US ___ (2012).   99 See Gerald L. Neuman, The Lost Century of American Immigration Law (1776–1875), 93 Columbia L Rev 1833 (1993) at 1841. Also see William S. Bernard, Immigration: History of US Policy, in Harvard Encyclopedia of American Ethnic Groups (Stephan Thernstrom, Ann Orlou, Oscar Handlin eds. 1980) 486 at 488. 100 Mayor of New York v. Miln 36 US (Pet. 11) 102 (1837); Also see William S. Bernard, Immigration: History of US Policy, supra at note 99, at 488. 101 Henderson v. Mayor of New York, 92 US 259 (1876). 102 See William S. Bernard, Immigration: History of US Policy, supra at note 99, at 489.



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Admission can take place on the basis of two broad categories of visas, immigrant and non-immigrant. In order to gain admission, both immigrant and non-immigrant entrants are required to comply with specific requirements and not be deemed ineligible due to any of the inadmissibility grounds listed in relevant legislation.103 Outsiders, who enter on a nonimmigrant visa, are considered temporary visitors. Those who come in on immigrant visas instead immediately become permanent residents and are on the track to qualifying for citizenship.104 There are four broad categories for admission as immigrants: family-sponsored,105 employmentbased,106 diversity,107 and refugees and asylum seekers.108 Each one of these categories faces an annually established numerical limit, with the exception, in the field of family-sponsored immigration, of immediate relatives of US citizens, who face no annual quotas.109 There are thus several legal channels available in order to be admitted to the United States. All of these channels are based on federal legislation, so that notwithstanding which segment of the US borders (air, land or sea) an immigrant physically passes through, his entitlement to admission will not change. In this respect internal regulatory borders in the US have thinned since the 19th century almost to the point of vanishing. 1.3.1.1.2. Treatment While Outsiders As the rule of admission into the United States suggests, the class of outsiders here is split into two: visitors, who are in the US for temporary stays, and legal permanent residents (LPR), whose status most resemble that of citizens.110 Both statuses and their connected residence rights are a 103 See Immigration and Nationality Act (INA), sect. 212a. 104 See Thomas Alexander Aleinikoff, David Martin, Hiroshi Motomura, Immigration and Citizenship-Process and Policy (2003) at 265. 105 INA 203a. 106 INA 203b. 107 INA 203c; Under this heading every year a certain number of immigrant visas are awarded through a lottery to applicants of qualifying nationalities and who meet certain minimal requirements. The goal of the diversity lottery is to preserve the pluralist, multinational image of the United States as a country of immigration; thus the qualifying nationalities for the lottery are determined each year through a formula, which takes into account the immigration statistics of the previous five years, and tends to exclude nationalities, which have been overrepresented in recent immigration fluxes. See Thomas Alexander Aleinikoff, David Martin, Hiroshi Motomura, supra at note 104 at 275–82. 108 INA 207. 109 Thomas Alexander Aleinikoff, David Martin, Hiroshi Motomura, supra at note 104 at 274. Also see INA 201. 110 LPRs have rights different from citizens mainly in the following fields (in addition to welfare rights as a result of the 1996 reform described in the following): political rights,

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result of immigration decisions made at the federal level. As this analysis considers outsiders in the context of their escalation to membership, the  focus of what follows will be on the condition of LPRs, the only category of non-members in the United States, which can properly be considered to be on path towards citizenship. Two questions come to mind here, from the point of view of the relevance of internal borders. First, what does the federal government do to shape the status of outsiders after having admitted them? Second, to what extent and in what ways, can the several states and their governments affect the condition of visitors and LPRs? With regard to the first question, the answer is very little. Federal involvement in a direct way, in terms of shaping the status of outsiders and actively promoting their integration is limited. From time to time, programs have been put in place at the federal level to foster the learning  of the English language, to detect discrimination against foreigners with regard to employment, and to reimburse schools, states and localities  which have to provide aid to relevant groups of immigrants. The active  commitment to integration of immigrants is however left to the states.111 On the other hand, with the 1996 Welfare Reform Act,112 the federal government has significantly reduced the eligibility of aliens for welfare benefits, both the federal and state variety, contributing in this way in shaping the status of outsiders, and making it one of pronounced exclusion.113 With regard to the second question, states are allowed to adopt policies favorable to aliens, making them eligible for state provided benefits and rights to serve on federal juries, to access high elective offices and some appointive offices, rights to sponsor family members as immigrants (as explained in the following); also, aliens are subject to deportation. See Peter H. Schuck, The Re-evaluation of American Citizenship, in Citizens, Strangers and In-Betweens: Essays on Immigration and Citizenship (1998) at 187–89. 111 See Michael Fix and Wendy Zimmermann, After Arrival: An Overview of Federal Immigrant Policy in the United States, in Immigration and Ethnicity: the Integration of America’s Newest Arrivals (B. Passel, J. Edmonston eds. 1994)at 269. 112 See Personal Responsibility and Work Opportunity Act, of 22 August 1996 110 Stat. 2105; in particular see 8 USCA 1601–1645. 113 Under the new legislation, aliens who are not permanent residents and do not belong to a few other privileged categories are not eligible for any kind of federal public benefit 8 USCAs 1611; Ineligibility for supplemental security income and food stamps is extended even to permanent residents 8 USCAs 1612; Federal means tested public benefits are only available to aliens, even permanent residents, five years after entry into the United States 8 USCAs 1613; State and local benefits are categorically foreclosed for aliens, who are not permanent residents or non-immigrant aliens; for these latter two categories, states remain free to decide eligibility on their own. 8 USCAs 1621–1622.



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providing for targeted means of inclusion.114 They can thus be particularly protective of outsiders and promote their integration. Can they also draw additional lines of exclusion in their respect, and thus make internal regulatory borders relevant by negatively affecting their status? Due to the XIV Amendment, they cannot. As pointed out above, the equal protection doctrine protects aliens and citizens alike. The federal government, vested with plenary power in immigration policy, can draw lines between aliens and citizens without incurring any judicial test more rigorous than the rational basis test for equal protection purposes.115 However, state-based discrimination of aliens is considered inherently suspect and subject to strict scrutiny in court. In Graham vs. Richardson,116 the Supreme Court held that state statutes, which make access to welfare benefits dependent upon citizenship or upon a durational residency requirement for aliens, are unconstitutional as they conflict with the equal protection clause.117 According to the Court, aliens are insular minorities, and thus classifications, which target them, are subject to strict judicial scrutiny.118 As will be seen in greater detail later in this chapter, strict scrutiny of state measures targeting aliens is also one of the elements, which ensures them a right to travel in terms analogous to citizens. State regulatory borders cannot thus demark areas of heightened exclusion or resistance to aliens in legal terms. Rights to family reunification provide an additional important test case for the relative role of the federal and state governments in affecting the treatment of outsiders. Here, indeed, at least two sets of laws, family laws and immigration laws, become relevant, and their interaction potentially translates into an overlap of local and central regulatory competences. Protecting the unity of the family is an informing value for US immigration policy, and the admissions for family reunification each year represent the largest slice of admissions into the US.119 It is not only those persons who are already insiders that receive the right to sponsor family 114 See Nathan Glazer, Governmental and Non-governmental roles in the Absorption of Immigrants in the US in Paths to Inclusion, The Integration of Migrants in the United States and Germany (1998), at 67–70. 115 See Mathews v. Diaz, 426 US 67 (1976). 116 Graham v. Richardson, 403 US 365 (1971). 117 State ownership of resources no longer represents, under Graham, an ipso facto public interest justifying restriction of their enjoyment to citizens only; aliens live potentially long term in the territory of the state and contribute to tax revenues. Id. at 376. 118 Id. at 372. 119 Hiroshi Motomura, The Family and Immigration: a Roadmap for the Ruritanian Lawmaker, 43 American Journal of Comparative Law 511 (1995) at 535.

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members for entry. Many admission categories, both in the immigrant and non-immigrant sector, allow for derivative entry rights for spouses and children.120 Citizens and outsiders face some differences in their opportunities to be joined by their family. Spouses and children of US citizens can enter as immediate relatives, with shorter waiting periods and no annual numerical ceilings.121 Spouses and children of legal permanent residents face longer waiting periods and an annual numerical ceiling.122 Also, US citizens can sponsor a wider category of family members, even though only spouses and children can apply as immediate relatives with no annual quotas. Married sons and daughters, parents and siblings of US citizens are the subject of different preference categories for immigration.123 They might have to wait, but eventually they will be allowed to enter. The same categories of relatives of LPRs however, do not qualify for family based immigration rights.124 The apparent harsh differentiation between citizens and outsiders in this respect is mitigated if one thinks of LPRs from the point of view of their escalation to membership. They are not relegated into a second class membership permanently but they are waiting to qualify for full inclusion, at which time they will benefit from the more generous family reunification treatment awarded to citizens.125 Family reunification calls for a notion of family, which can either be established in the immigration laws or borrowed from the field of family law. Family law is largely state-based in the US, which opens up the opportunity here for internal regulatory borders to play a role in the treatment of outsiders.126 Marriage is the legal link which is the basis of the family 120 Under section 203 (d) INA, this is the case for immigrants in the employment categories and also for immigrants under one of the family preference categories, so that the entrant family member can in turn bring with her spouses and children. See Hiroshi Motomura, The Family and Immigration supra at note 119 at 513–14. 121 See INA 201a2Ai. 122 See INA 203 a(2). 123 See INA 203a. 124 See id. at 512–13. 125 In addition, in 2000, a new non immigrant visa category, the V visa, was introduced specifically to remedy the hardship caused to family of LPRs by long waiting periods for family based admission. With the V visa, spouses and children of LPRs can enter the US immediately as non immigrants qualified to work, while they wait for their status as immigrants sponsored by a family member LPR to be determined. See Thomas Alexander Aleinikoff, David Martin, Hiroshi Motomura, supra at note 104 at 422. Also see Hiroshi Motomura, The Family and Immigration supra at note 119 at 528. 126 Arguably family definitions, which have a bearing on immigration determinations, affect both the condition of citizens and that of aliens, in their capacity as immigration sponsors. Such definitions can be seen as particularly relevant to outsiders though, because



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relationship and provides a valuable testing ground in this respect. The general rule is that marriage is valid for immigration purposes if it was valid in the place where it was celebrated.127 This rule has some exceptions, with regard to unions, which might be considered offensive to public policy concerns at the destination.128 Thus, polygamous marriages are considered for instance to offend US public policy.129 The Immigration and Nationality Act in addition to this specifically disqualifies certain kinds of marriages for purposes of obtaining immigration rights.130 As a result, the test to determine whether a marriage is valid for immigration purposes has been described as having two steps. Firstly, it must be determined whether the marriage in question is valid under the relevant state law. Secondly, one must determine whether such a marriage is also valid for purposes of the Immigration and Nationality Act.131 In terms of which regulatory borders are relevant for the immigration-tied concept of family, the rule has in practice cut both ways, depending on the issue at hand. For same sex marriages, for instance, case law held until recently that, while some states allow them, the Immigration and Nationality Act could not be interpreted to include them.132 However, a recent Supreme Court holding, invalidating in relevant part the federal Defense of Marriage Act, which, for purposes of the interpretation of federal acts and statutes, explicitly defined marriage as a heterosexual union calls into question this strand of case law.133 Incestuous unions also pose a challenge to the traditional while the sponsor can be either a citizen or an outsider, on the other side of the relevant family relationship there is always an outsider, who is trying to get admission into the polity. 127 See C. Gordon, S. Mailman and S.Yale-Loehr, Immigration Law and Procedure (2003) at par. 36.02.2 (a); also see Thomas Alexander Aleinikoff, David Martin, Hiroshi Motomura, supra at note 104 at 302. 128 Note, Developments in the Law-the Law of Marriage and Family, 116 Harvard L Rev 2004 (2003) at 2035–36. 129 This was held in the case of two Jordanians, one LPR and his spouse. They were not able to secure immigration status for the non LPR spouse because one of them was married already, and even if this was allowed under Jordanian law, this is not the case in the US. See Matter of Darwish, 14 I&N Dec. 307 (BIA 1973); also see Thomas Alexander Aleinikoff, David Martin, Hiroshi Motomura, supra at note 104 at 303. 130 This is the case for instance for so called proxy marriages See INA 101(a)35; also see see Thomas Alexander Aleinikoff, David Martin, Hiroshi Motomura, supra at note 104 at 303. 131 See Adams v. Howerton, 458 US 1111 (1982); also see Thomas Alexander Aleinikoff, David Martin, Hiroshi Motomura supra at note 104 at 305. 132 See id. 133 US v. Windsor, 570 US __ (2013).This judgment indeed opens the way to the recognition of same sex marriages for purposes of the Immigration and Nationality Act.; also see Federal Defense of Marriage Act (DOMA) Pub. L. No 104-199, 110 Stat 2419.

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concept of marriage: here, on the contrary, state categories and internal regulatory borders seem to come back on the scene and play a pivotal role in the treatment of outsiders. In several relevant cases, it has been held that incestuous marriages may be valid for immigration purposes if they are valid in the place of celebration and in the state of destination, or if the cohabitation of the spouses in the state of destination would not give rise to criminal sanctions.134 For instance, in the case of a US citizen and a Portuguese citizen, uncle and niece, married in Portugal, where this kind of union is allowed, the Board of Immigration Appeals (BIA) held that the marriage conferred immigration status on the Portuguese spouse: indeed in California, their state of proposed residence in the US, they would not have incurred any criminal sanction for cohabiting.135 In another case, however, two first cousins, one of US nationality and one of Italian nationality, got married in South Carolina, in order to avoid the prohibition of incestuous marriage in place in Wisconsin, the state where they resided. Here, the BIA held that the marriage could not confer immigration status on the Italian spouse.136 While arguably these cases are marginal, they account for the curious way, in which internal regulatory borders acquired an influence for purposes of federal immigration decisions, and can affect the status of outsiders. The cases at hand are focused on unions between US citizens and non-US citizens’ spouses, but similar reasoning would apply to unusual marriages contracted between LPRs and foreign spouses. The status of the outsider thus appears split between a predominant federal dimension, and a more subtle but not irrelevant state one. Different states might provide more or less welcoming environments. In some cases, the state of settlement might also affect the ability of an outsider to sponsor family members. While internal borders are generally thin thus, their thickness is irregular to some extent and tends to increase in unexpected ways. 1.3.1.2. Immigration Regimes in the EU 1.3.1.2.1. Admission In the European Union, admission rights are the result of the overlap and combination of national and EU competences. Even EU competence 134 See C. Gordon, S. Mailman and S.Yale-Loehr, Immigration Law and Procedure supra at note 127 at par. 30.02.5a. 135 Matter of E, 4 I&N Dec. 239 1951. 136 Matter of Zappia, 12 I&N Dec, 439 (BIA 1967).



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in this area has long been fragmented, as the main provisions in terms of immigration have initially been adopted through the intergovernmental frame of the Schengen agreements among a restricted group of member states. The Schengen Agreement was entered into in June 1985 between France, the Federal Republic of Germany, Belgium, the Netherlands and Luxembourg.137 Within a framework of intergovernmental cooperation, the participating states agreed on measures having the immediate effect of relaxing controls on persons and goods crossing internal borders among the signatory states.138 Other provisions in the agreement set forth the terms for a gradual approach to complete elimination of checks at internal borders139 and introduced harmonization measures for issues relevant to the handling of common external ones.140 Other member States joined the Schengen system in subsequent years, including Italy in 1990 and Spain and Portugal in 1991. The 1985 Schengen Agreement was integrated and implemented with a 1990 Convention,141 providing among other things for the complete abolition of controls at internal borders, with exceptions provided only for reasons of public policy and national security.142 The Schengen system operated in a universe parallel and separate from that of the European Treaties until the late 1990s. In 1992, the Treaty of Maastricht contributed to expanding the scope of the project of European integration, by adding to the first pillar regarding the internal market, a second pillar, where inter-governmentalism was to be the rule,143 and a third pillar on cooperation in justice and home affairs, which touched 137 Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders of 14 June 1985, 2000 O.J. L239, at 13. 138 Id. art. 1–2. 139 Id., art. 17 and following. 140 Id. art. 7–16. 141 Convention Implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders of 19 June 1990, 2000 O.J. L239, at 19. 142 Id., chapter 1; measures for cooperation with respect to the handling of external borders are also specified, in particular by providing for common standards for checks and for conditions of legal entry for periods not exceeding three months; common visa arrangements are devised for short term visas, while national sovereignty remains intact for purposes of the issue of long term visas. For a comprehensive analysis of the Schengen implementing convention see David O’Keeffe, The Schengen Convention: A suitable model for European Integration?, 11 Yearbook of Europ. Law 185 (1991). 143 TEU, Title V and Title VI.

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upon themes relevant to the concrete handling of borders and immigration.144 The subsequent 1997 Treaty of Amsterdam,145 ‘communitarized’ borders and immigration policy by introducing a new title IV devoted to these subjects in the European Community Treaty.146 The Treaty of Amsterdam also incorporated the Schengen acquis, meaning the original agreement and convention, and all the measures adopted on their basis, into the Treaties system. This was done in the form of a separate protocol  attached to it. It was an important step forward as it made measures  adopted in the fields of immigration and the handling of borders subject to ordinary legislative procedures, judicial review and European Parliament challenges. The Treaty of Lisbon has brought about some additional changes in the Community competence over borders and immigration, expanding the use of the ordinary legislative procedure, based on qualified majority voting, in the field of borders and immigration.147 The evolution of the Schengen system and the expansion of the Title IV competence of the European Community (now Title V competence of the European Union under the TFEU) have certainly brought about an increased harmonization in the regulatory borders for admission, but not to the extent of replacing a national competence with a EU one. The Schengen agreement has resulted in uniform visas for short stays in the Schengen area, while under the Schengen provisions, visas for stays exceeding three months have remained a competence of the nation states. In addition to this, under Title IV of the EC Treaty, instruments have been adopted which provide for uniform terms of admission for certain categories of entrants. Such is the case for students, school pupils and trainees under a 2004 directive and for researchers under a 2005 directive.148 Third country nationals who are family members of European citizens are also 144 See David O’Keeffe, Can the Leopard Change its Spots? Visas, Immigration and Asylum-Following Amsterdam, in Legal Issues of the Amsterdam Treaty (David O’Keeffe and Patrick Twomey eds 1999) at 271–273; also see Georgia Papagianni, Institutional and Policy Dynamics of EU Migration Law (2006) at 16–21. 145 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and related Acts, 1997 O.J. (C340). 146 See EC Treaty, Title IV; the approach here is mainly programmatic and with some exceptions, unanimity remains the rule for decision-making in this area. 147 See TFEU art. 77–80. 148 Council Directive 2004/114 of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, 2005 O.J. L375, at 12; Council Directive 2005/71 of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research, 2005 O.J. L 289, at 15.



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entitled to admission into the European Union on harmonized terms under the 2004 directive on free movement of citizens.149 A certain level of harmonization is also in place with regard to admission for humanitarian reasons, in such cases the instruments adopted on the basis of art. 63 EC (now article 78–79 TFEU) provide for minimum standards for the grant and withdrawal of the status of refugee and for the reception of asylum seekers.150 For these categories of people, arguably, internal regulatory borders are thinning, and it is the external ones, which have come to represent the main barrier to entry. The situation is quite different with respect to economic migration, where to date internal borders remain the principal frontier. While at this time, there is no piece of legislation in force, which provides for admission on common terms for labor immigrants, a need for harmonization is certainly felt in this field and has been expressed in several instruments in recent years.151 The Treaty of Lisbon, by expanding EU competence in immigration policy and easing the methods of decision-making in this area indirectly paves the way for EU action in the field of economic migration as well.152 An important exception however, reasserts the relevance of internal borders for issues of admission. Member states remain

149 Parliament and Council Directive 2004/38 of 29 April 2004 on the right of the citizens of the Union and their family members to move and reside freely within the territory of the Member States, 2004 O.J. L158, at 77. They must be family members of migrant European citizens however in order to benefit of this directive. 150 See e.g. Council Directive 2005/85 of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, 2005 O.J. L 326, at 13; Council Directive 2004/83 of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, 2004 O.J. L304, at 12; Council Regulation 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum  application lodged in one of the Member States by a third-country national, 2003 O.J. L050, at 1. 151 The European Commission proposed in 2001 a directive on common standards and procedures for the admission of third country nationals for the purposes of employment. The proposal never made it into law however. Proposal for a Council Directive on the conditions of entry and residence of third country nationals for the purpose of paid employment and self-employment economic activities, COM (2001) 386 final, 11/7/2001. Also in 2004 the Commission laid down the rationales and justifications for harmonization in economic immigration provisions in a green paper; Green Paper on an EU approach to managing economic migration, COM(2004) 811 final, 11 january 2005. 152 The Treaty of Lisbon has given to the Community the task of organizing an actual immigration policy, touching upon conditions for entry and residence, standards for visas  and long term residence permits and rights of third country nationals; see TFEU, art. 79.

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competent to determine the volume of admission of third country nationals coming into their territory for the purposes of employment.153 In May 2009, the EU adopted a directive establishing a fast-track procedure and favorable conditions for the admission of third country nationals for purposes of highly qualified employment.154 The directive defines highly qualified employment as that, which requires a higher education or at least three years of prior professional experience.155 According to the directive, qualifying applicants shall receive a blue card, issued by the member states, which allows them to enter and re-enter the relevant member state and to pass through the other member states.156 The directive certainly contributes significantly in shifting power within the sphere of the rights of admission into the European Union towards the EU. Even this directive, in any case, does not lead to the abandonment of a system of categories in the European law of admission rights, and one provision in the directive reasserts the right of member states to decide on the volumes of admission.157 The European scenario of admission appears thus to be one in which internal regulatory borders are gradually thinning, but in a spotty and irregular way to the benefit of only certain categories of entrants. EU immigration policy concurs with the immigration policies of the member states. The co-existence of these two policy levels makes for multiple and overlapping categories of admission. It also results in the opening of segments of internal regulatory borders, with the contextual persistence of other tangible ones. In a way this is analogous to what happened with free movement rights. Thus, the thinning of internal borders is happening ­category by category.

153 See TFEU, art. 79(5). 154 Council Directive 2009/50, of 25 May 2009, on the conditions of entry and residence of third country nationals for the purposes of highly qualified employment, 2009 O.J. L 155, at 17. 155 Applicants must have a work contract for qualifying employment for the duration of at least one year, and the salary under the contract must meet a minimum threshold established by each member state in observance of the directive requirements. See id., art. 2 and art. 5. 156 Blue card holders are restricted in their access to the labor market of the member states for the first two years of their stay, but they have favorable conditions for family reunion and for possibilities of movement to a second member state. See id., art. 12, 15 and 18. 157 Id. at art. 6.



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1.3.1.2.2. Treatment While Outsiders The European outsiders are called third country nationals (TCNs). The term “third country national” has been used more and more extensively to refer to anybody who enters, lives, works in one of the countries of the European Union, without being a national of any of them.158 The term identifies duality of alienage. First, there is alienage as regards the member States and second, alienage towards the European Union itself. It is curious that the term “third country nationals” has taken hold, because using a negative phrase and labeling this class of people as “non-European citizens” would achieve no significant difference.159 Identifying the collective group by the term “third country nationals” emphasizes the second component of their condition, alienage to the member states. Because members of this class are not nationals of any of the member states, they are thus nationals of a third country. They are also outsiders in Europe. As underlined above, admission rights have a spotty character in the European Union, and to the extent that the condition of being an outsider is a mirror image of the admission condition, the rights of outsiders are also spotty throughout Europe. Their specific status, their residence permits, their family status all depend on the way they were admitted, whether under national or domestic law. The fragmented, but still persisting internal regulatory borders for admission cast their long shadow to color even the status of outsiders. The questions to be asked with regard to outsiders in Europe, in order to determine how relevant the internal regulatory borders are with respect to their treatment and in the course of their possible escalation to membership, are thus slightly different from the ones posed in the United States. Do provisions of European law somehow exercise a pull towards normalizing the many statuses of outsiders throughout Europe, by bringing them under a European umbrella of rights and protections? Do these provisions somehow constrain the freedom of the member states to discriminate between their own citizens, and TCNs? The answer to these questions provides the basis for understanding whether there is a common European status of 158 See for instance Council Directive 2003/109 of 25 November 2003 concerning the status of third-country nationals who are long term residents, 2004 O.J. L 16, at 44; also see articles 77 and 79 TFEU, which use the term “nationals of third countries” and the term “third-country national”. 159 Anybody who is within the European Union without being national of one of the member states is a “non-European citizen”. To be precise, everybody who finds himself in this situation is two different things: a “non-European-citizen” and “not-a-nationalof-any-of-the-member-states”.

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non-membership, due to which the thickness of internal regulatory borders is decreasing. First signs of a European commitment to outsiders can be found in the conclusions of the European Council meeting in Tampere in 1999. One of the targets emphasized during this council for the immigration framework of the European Union was to provide for an approximation of the status of third country nationals to the status of European citizens.160 The Union thus ignores the goals of full inclusion but undertakes to equalize the condition of third country nationals throughout the European Union.161 In this direction, two directives were adopted in 2003, providing for rights of long term residence and rights to family reunification for TCNs:162 as a result of this legislation, there is now a minimal harmonization of rights that TCNs entering the EU enjoy, notwithstanding which part of the Union they have settled in. Traditionally in Europe residence rights have been within the domain of the member states. Under the new regime, third country nationals are entitled to an EU-law provided long term residence permit after 5 years of lawful residence in one member state, provided that they can satisfy certain resources requirements.163 While the European long term residence permit emphasizes the European dimension in the status of an outsider, its regulation surrenders to the pull of internal borders in some relevant respects. The primary condition one must meet in order to qualify for the long-term permit of residence is not simply having resided in Europe for 5 years, but having been a continuous resident in a certain member state for 5 years.164 In addition, a permit of permanent residence, obtained in such a way is valid exclusively in the member state where it was granted.165 160 “A more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens”. (Conclusions of the Presidency of the European Council, October 1999 at 18); “The legal status of third country nationals should be approximated to that of Member State nationals”, id. at 21; also see Damian Chalmers, European Union Law, supra at note 76 at 619. Also see Council Directive 2003/109 of 25 November 2003 supra at note 158, second whereas. 161 See Georgia Papagianni, supra at note 144, at 176–80. 162 Council Directive 2003/86 of 22 September 2003 on the right to family reunification, 2003 O.J. L 251, at 12 and Council Directive 2003/109 of 25 November 2003 supra at note 173. 163 Council Directive 2003/109 of 25 November 2003, supra at note 158, art. 4. 164 According to the directive on European blue cards, a more favorable treatment is granted in this respect to TCNs holders of European blue cards; they are indeed able to cumulate their periods of residence in different member states for purposes of reaching the five years required residence. European Commission. 2007. See Council Directive 2009/50, supra at note 154, art. 16. 165 Id. at art. 9.



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With regard to family reunification, European law provides for the relevant rights to the benefit of both family members of third country nationals and family members of migrant European citizens.166 Family members of European citizens are protected under European law only if the sponsoring European citizen is exercising his rights of free movement throughout the Community. The rights of TCN family members of European Union citizens residing in the member state of their nationality are subject in principle to domestic law, even if the case law of the CJEU has made some room for recognizing rights to family members of EU citizens who have never moved throughout the EU.167 European law provisions in this area are, in any case, additional and complementary with respect to domestic regimes, and allow member states to either apply more favorable conditions or to specify the conditions laid down in the European provisions for purposes of accommodating national elements of family policy. This picture underlines how fragmented the condition of TCNs is with respect to family reunification. By creating a net of European rights in this area, EU legislation contributes in mitigating in part the effects of internal regulatory borders. TCN family members of migrant European citizens face more favorable conditions than TCN family members of TCNs. TCNs can sponsor family members if they have a lawful residence permit in a member state, valid for at least one year, and reasonable prospects of obtaining the right of permanent residence. If so they can sponsor their spouses and children.168 Member states may require that the sponsor show the availability of sufficient resources, health insurance and proper accommodation for himself and the family members who will join him. They may also require the family members to comply with integration measures and they may extend up to two years the residence waiting period for the sponsoring TCN to apply for family reunification. Family members, once admitted, may be restricted in their labor market access for a period of up to 12 months.169 The main differences within the regime for TCN family members of migrant European citizens are related to the requirements for admission 166 See Parliament and Council Directive 2004/38 on the right of the citizens of the Union and their family members, supra at note 149. 167 See Case C-34/09, Gerardo Ruiz Zambrano. v. Office national de l’emploi (ONEm), supra at note 12. Also see infra par. 4.2. 168 Council Directive 2003/86 of 22 September 2003 supra at note 162, art. 3–4. 169 Id. at art. 7 and art. 14. Also after five years of legal residence in a member state, the sponsored family member is entitled to an independent residence permit. Id. at 15.

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of family members and to the consequences of the divorce or break up of the relationship, which is the basis of sponsorship for immigration. With regard to family members of migrant EU citizens, member states may require that the sponsor show sufficient resources and health insurance, but there is no mention of proper accommodation or integration requirements. Also no waiting period applies to either European citizens when sponsoring a family member, or to their family members, once admitted, for entrance into the labor market of the host member state.170 In case of break-up of the family relationship, TCN family members of migrant European citizens have the right to retain their residence provided that certain conditions are met.171 The break-up of the qualifying relationship may have harsher effects for TCNs family members of TCN sponsors. Member states have flexibility here in deciding on the future of the sponsored family members. They may indeed limit the grant of independent residence permits to spouses and unmarried partners in the case of a break-up and they may refuse to grant or renew a residence permit, where it is found that the sponsor and sponsored person no longer live in a marital relationship.172 A right that family members of migrant European citizens possess, and in this context an obligation for the member states, remains a mere possibility for the family members of third country nationals, and in this context an option for the member states. This distinction depends in part on the different nature of the rights of family reunification in the two cases. The rights of family members of TCNs belong to the category of immigrants’ rights, rights related to the treatment of outsiders. The rights of family members of migrant Union citizens are, as mentioned above, functional to the rights of the Union citizens themselves. They exist to reinforce and make effective the right of free movement of the Union citizen, who might be deterred from migrating if that choice entailed separation from his family.173 170 Parliament and Council Directive 2004/38 on the right of the citizens of the Union and their family members, supra at note 149 at art. 7. 171 Id. at 12–13.The entitling relationship had lasted at least three years, of which one spent in the host member state, or the TCN family member has custody or access to children by court order or the termination of the relationship is due to particularly difficult conditions such as for instance family violence. The death of the sponsoring European citizen does not determine loss of residence status for the TCN family member, who has resided at least one year in the host member state and for children and parents who have their custody. 172 Council Directive 2003/86 supra at note 168 at 15–16. 173 See in this sense Case C-127/08, Metock and others v. Minister for Justice, Equality and Law Reform 2008 E.C.R. I-06241, which in striking down the additional conditions



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The objective of effectively protecting the rights of Union citizens prevails upon the objective of providing an equal status, approximated to that of citizens, for all TCNs. Both European legislation and its adjudication, show confidence when providing rights somehow connected to European citizenship. However, in the realm of pure rights of outsiders as outsiders, they are more hesitant and leave ample leeway to the member states, and to their internal regulatory borders.174 Other than through specific provisions for the treatment of third country nationals, does European law constrain member states ability to discriminate between their own nationals and third country nationals? European provisions on equal treatment can provide an answer to this question. The most far-reaching expression of non-discrimination concerns in the Community can be found in article 18 of the TFEU, which prohibits discriminations on the basis of nationality in any subject within the scope of application of the Treaties.175 A good part of the case law applying this principle however, focuses on situations involving nationals of different member states, rather than nationals of third countries.176 imposed in an Irish regulation for TCNs family members of Union citizens to be granted a right of residence, underscored repeatedly that the rationale of the right to family reunification under directive 2004/38 is to make Union citizens’ right to move more effective (see e.g. par. 92). 174 Indeed many of the prospective rights for family members of TCNs are expressed in a language that leaves an option to the member states of whether to pursue them or not in their legislative choices: member states may choose whether to impose or not the entry requirements specified in the directive, they may decide to refuse entry on grounds of public health, public policy or public security, they may decide to extend the waiting period imposed on the sponsoring TCN. Also, they may extend the class of family members eligible for sponsorship to include first degree relatives in the ascending line, when they are dependent on the sponsor, and adult unmarried children, who cannot provide for themselves in the country of origin. (Directive 2003/86 art. 4(2)) Family and marriage are not defined in the relevant directive, which seems to also leave the member states free to establish what qualifies as family; member states are free to include in the list of family members unmarried partners and registered partners, but they cannot allow the entrance as family member of a second spouse in the event of polygamous marriages. (Directive 2003/86 art. 4, (3)); also see Adam Luedtke, The European Union Dimension: Supranational Integration, Free Movement of Persons, and Immigration Politics in Immigration and the Transformation of Europe (Craig A. Parsons and Timothy M. Smeeding eds 2006) at 437 for the argument that the language of possibility in the instruments on the treatment of TCNs was the result of negotiations in which member states made a point not to be submitted to hard legal obligations. 175 E.C. Treaty, art. 12. 176 See e.g. case 71/76 Thieffry v. Conseil de l’Ordre des Avocats à la Cour de Paris, 1977 E.C.R. 765 and case 186/87 Cowan v. Le Trésor Public, 1986 E.C.R. 195; also see Stephen Weatherill, Cases and Materials on EU Law (2007) at 444–445.

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In  addition, under the legislation dealing with third-country nationals, long-term residents benefit from a guarantee of equal treatment with the nationals of the member state where they reside.177 This non-discrimination right becomes effective, however, only when the TCN has acquired long term residence status, after five years of legal residence in a member state. Pending qualification as long term residents, third country nationals can at most benefit from the provisions of the race directive178 and the framework directive on equal treatment,179 which apply, within the scope of Community power, to all persons.180 Because of the kinds of discrimination that these instruments target, and because of the fields in which they are applied, they are likely to constrain the ability of member states to extend less favorable treatment to TCNs than to their own nationals.181 Both directives however explicitly exclude from their scope differences in treatment on the basis of nationality, so that whatever member states are able to classify as a difference based on nationality rather than on race or ethnicity, should pass master under the directive.182 177 Equal treatment regards access to employed and self-employed activities, education and vocational training, social security, tax benefits, access to goods, services and housing Council Directive 2003/109 supra at note 158. 178 Council Directive 2000/43/EC supra at note 6. 179 Council Directive 2000/78/EC supra at note 6. 180 See art 3 of both above directives. 181 The race directive is aimed at implementing equal treatment irrespective of racial and ethnic origin, and it applies to sets of rights connected to the labor market: access to employment, access to vocational training, employment and working conditions, membership and involvement in organizations of workers and employers, social protection, access to goods and services including housing (art. 3). The directive requires that national provisions in these fields, which are incompatible with the objective of the directive be abolished. The framework directive targets in roughly the same fields (with the exception of social advantages, education, access to goods and services, see art. 3) discrimination on grounds of religion, belief, disability, age or sexual orientation. 182 See art. 3(2) of both directives. Also see Damian Chalmers supra at note 76 at 895. One of the first judicial applications of the race directive in 2008 seems however to bypass this textual limitation. In this case, the publicly rendered statements of a business owner, who was expressing his intention not to hire immigrants as his customers would not want immigrant workers in their houses, was subject to scrutiny under the race directive and found to conflict with the provisions of this instrument. Strangely enough, neither the Advocate General in the case, nor the Court considered the problem of the explicit exclusion and discrimination on the basis of nationality from the scope of the directive. The unexpected outcome of the case may signal a desire on the part of relevant legal actors to expand in practice the scope of the directive. This is done by operating on the silent assumption that discrimination against immigrants implies racial or ethnic discrimination, while the limitation of discrimination on the basis of nationality might be read as referring only to discrimination among internal EU nationalities, against which other legal  tools of protection are available. The case may simply signal a gap in protection against discrimination, therefore discrimination against immigrants, which lies at the



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All these non-discrimination tools limit to some extent member states discretion in reserving benefits and rights for their own nationals, but they do not reach the breadth of the Graham vs. Richardson doctrine in the United States.183 The EU has moved a few steps closer towards reshaping the status of otherness in European terms, and in doing so it has certainly induced a thinning impulse for regulatory internal borders. However, the tying of benefits and opportunities to residence in a single member state, the discretion that member states retain in implementing family reunification provisions and their ability to treat TCNs less favorably than their own citizens all contribute in preserving the role of internal regulatory borders in determining the status of outsiders throughout the EU. In light of all of this, as regards the treatment of others in the EU, the best characterization of the status of internal borders is perhaps one that highlights their ‘optional thinning’. 1.3.2. Nationality and Inclusion Rules on inclusion through nationality identify, in the pool of admitted people, those eligible to become members of the polity, to participate in  its decision making, and to cherish its identity. The questions of who  decides on inclusion; whether this happens through the grant of a  central or peripheral citizenship; and whether the requirements for intersection of discrimination on the basis of nationality, and discrimination on the basis of racial or ethnic origin, runs the risk of remaining unchecked. Only the approach of the European judges in further cases that they might be called upon to decide can in any case shed some light on the applicative destiny of the race directive. Case C-54/07 Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV, 2008 E.C.R. I-05187. Advocate General Miguel Maduro actually reported the statement under discussion in a fuller form in his opinion, letting clearly emerge that the refusal to hire was referred to potential employes classified as immigrants, and later as immigrants from Morocco, but not referred to as part of any racially or ethnically distinct class. The Advocate General however did not explicitly pick up on the issue of the limited scope of the directive in his opinion. In the judgment of the Court, the relevant statements are not even reported in full; the reasoning revolves around whether statements rendered in the course of a public interview may be considered discrimination independently of their reflecting an actual situation of fact. The further issue of the kind of discrimination that they represent is completely left out of the Court’s reasoning. The way the question is posed by the referring court (and thus probably through it by the lawyers for the parties) seems conducive to this result. 183 In addition to these instruments, article 21 of the Charter of Fundamental Rights contains a more extensive and less constrained list of prohibited grounds of discrimination. See Charter of Fundamental Rights of the European Union, 2000 O.J. C 364 of 18 December 2000 at 3, art. 21.

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naturalization are consistent or differ throughout the sub-polities are all indicators of the role of internal regulatory borders. Also some of the requirements for naturalization target the integration of the entrant into the host polity and his familiarity with its values and culture. The quality of these specific requirements sheds light on the definitional value of internal borders in inclusion decisions. 1.3.2.1. Regime of Nationality in the US For legal permanent residents in the US being an outsider is only a temporary status, as it leads in a matter of years to qualifying for naturalization.184 Naturalization marks the moment in which the immigrant outsider is allowed, and chooses to, become a full member of the legal community of the polity. Testing whether internal borders play a relevant role in this phase requires examination of at least three different issues. First, into which kind of membership is the outsider naturalized, central or peripheral? Second, under what authority are decisions about rules and requirements for naturalization made? And third, what is the target of these requirements, are they mainly aimed at proving inclusion into the single states or into the union at large? As the rule of derivation indicates in the US, aliens here are naturalized into federal citizenship and as a consequence of this they also receive citizenship in the state where they reside. Today the rules on nationality and naturalization are decided at the federal level. The history of American citizenship suggests however that the relative role of the states as well as that of the federal government in providing inclusion into the American polity has significantly changed over time.185 In the aftermath of the American Revolution, each state was free to set forth its own criteria, according to which its residents, previously classified as British subjects, could re-qualify as citizens of the new independent polities.186 This early 184 It is then of course up to the LPR to decide whether to naturalize or to remain a permanent resident. According to governmental data, the rate of naturalization as a percentage of the total of LPRs within the first 10 years of residence in the US varied roughly between 60% and 45% between 1973 and 1995. See http://www.dhs.gov/xlibrary/assets/ statistics/publications/ntz_rates508.pdf (last visited August 2012). 185 See above par. 1.3.1.1. 186 James H. Kettner, The Development of American Citizenship 1680–1870 (1978) at 213–216 “the dissolution of the imperial bonds in 1776 gave the authority to admit members to the community to the individual state governments”. While the various citizenship acts were the result of exercise of independent sovereign power and they were aimed at the grant of state citizenship, common elements may be found in many of them: qualifications for citizenship were everywhere targeted at detecting and proving allegiance of the



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naturalization power of the states did not correspond to the strictly separated and autonomous conditions of state citizenship. State citizenship rather provided a bridge to membership in the common polity of which all the newly independent states participated.187 Despite the fact that during the entire first century of constitutional history in the United States, the states themselves maintained an admission power,188 they rapidly lost the naturalization power to the federal government. The Constitution of the United States in fact grants to Congress the power to establish a uniform rule of naturalization.189 In the years immediately following the adoption of the Constitution, Congress began to exercise its immigration power. Thus, several naturalization acts were subsequently adopted, between 1790 and 1952, extending or reducing the required residence period to qualify for naturalization, and enacting requirements, which were more or less stringent, in keeping with the political moods of the time.190 The rule of naturalization thus offered inclusion to entrants on the same terms, notwithstanding the area of the common polity in which they initially arrived or subsequently settled. Despite losing the power to legally include, the states consistently with the

newcomers to the political community, in which they were being admitted; the taking of an oath of allegiance was often prescribed, durational residence requirements were set forth for newcomers to qualify for offices and the naturalization procedures saw courts involved in the role of providing certificates of good demeanor or good moral character; see id. at 216. 187 Id. at 219“The states’ preoccupation with the qualifications for citizenship obscured the ill-defined nature of the status itself. Individual states naturalized foreigners-they would continue to do so into the 1790s-but naturalized citizens seemed to become members of a community that transcended state boundaries. 188 See above page 56. 189 See Constitution of the United States of America, art. 1 sect. 8. 190 The first Naturalization Act was passed in 1790, and it required a minimum residence of 2 years in the United States in order to qualify for naturalization. This requirement was increased to 5 years with a 1795 act, and significantly harsher rules replaced the pre-existing ones with the Alien Act of 1798, passed by the Federalist government, which increased the minimum required period of residence for naturalization to 14 years. The Republican Party eventually passed another act in 1801, bringing the threshold residence for naturalization back to 5 years. See William S. Bernard, Immigration: History of US Policy, supra at note 99, at 489. Requirements for naturalization also included racial components for a long time. Between 1790 and 1870, naturalization was only available to Whites. Later naturalization statutes reflected hostility towards Asian and particularly Chinese people, who were for a long time disqualified from naturalization. Only the 1952 Immigration and Nationality Act eventually removed any racial bar on naturalization. See Ian F. and Haney López, Racial Restrictions in the Law of Citizenship in Thomas Alexander Aleinikoff, David Martin, Hiroshi Motomura supra at note 104 at 57–58.

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early relevance of state citizenship, had a say in determining the rights of naturalized citizens. Thus, the rights could potentially differ from state to state. These differences depended on the relative weight of state and federal citizenship in the early United States.191 With the federal citizenship gradually overshadowing the state citizenship, remnants of state power in matters of inclusion were rapidly lost. Under current rules,192 legal permanent residents are entitled to naturalize after five years of continuous residence in the United States.193 This period is reduced to three years for spouses of US citizens.194 All applicants for naturalization must be at least 18 years of age and they must show proficiency in the reading, writing and speaking of the English language.195 They must prove that they possess some knowledge of US history and civics,196 and they must be of good moral character.197 The requisite knowledge of the language, history and the system of government of the United States suggests that the relevant polity, into which 191 See Reed Ueda, Naturalization and Citizenship in Harvard Encyclopedia of American Ethnic Groups (Stephan Thernstrom, Ann Orlou, Oscar Handlin eds. 1980) at 736. 192 To be found in the Immigration and Nationality Act of 1952. Naturalization requirements have been the object of several subsequent statutes, but some of them have remained fairly constant; that is why reference in the following goes to judicial precedents which antedate the current 1952 naturalization statute. 193 8 U.S.C. par. 1427 (a) (1); during the five years immediately prior to filing the petition, she must have been physically present in the US for at least half the time and she must have resided in the district where she filed the petition for at least 3 months. Absence from the  US for less than six months during the statutory 5 years period does not affect naturalization. 194 8 U.S.C. par. 1430 (a); other requirements for naturalization are proof of good moral character for the duration of the residency period, a demonstrated ability to read, write and understand English and familiarity with the basic history and principles of the United States. 8 U.S.C.par 1423. In general on all of this see Richard A. Boswell, Essentials of Immigration Law (2006) at 177–178. 195 INA (312)(a)(1). Exceptions are granted to people over 50 years of age and lawfully admitted for permanent residence for periods totaling 20 years or over 55 years of age and having lived in the US in LPR status for over 15 years. There are also exceptions for disabled people. 196 Applicants must show “knowledge and understanding of the fundamentals of the history and of the principles and form of government of the US” INA 312(a)(2). This requirement is met by submitting applicants to an oral test. Special consideration is to be given to people over 65 years of age and who have been living in the US for at least 20; also see Thomas Alexander Aleinikoff, David Martin, Hiroshi Motomura supra at note 104 at 66. 197 INA 316a. While there is no direct definition of this, INA includes a non-exclusive list of acts, which establish a lack of good moral character. There is no fixed standard to assess moral character, it does not coincide with either behavior or reputation, but both may be considered in assessing it. See Thomas Alexander Aleinikoff, David Martin, Hiroshi Motomura supra at note 104 at 67.



the quest of distinctiveness and inclusion57

applicants must demonstrate that they deserve inclusion, is the one comprising all the several states. The absence of any requirement on the part of the applicant for naturalization to show that they belong to the specific polity of a state proves that internal definitional borders have little role here. Indeed the most meaningful requirement from the point of view of the ideal value of inclusion, is the one according to which prospective citizens must show that “they are attached to the principles of the Constitution of the United States and well-disposed to the good order and the happiness of the United States”.198 In the words of a judge, these constitutional principles have been described as follows: […] among them [i.e. principles of the Constitution, within the meaning of the Nationality Act] are at least the principle of constitutional protection of civil rights and of life, liberty and property, the principle of representative government, and the principle that constitutional laws are not to be broken down by planned disobedience. I assume also that all the principles of the Constitution are hostile to dictatorship and minority rule; and that it is a principle of our Constitution that change in the organization of our government is to be effected by the orderly procedures ordained by the Constitution and not by force or fraud.199

Generally, this requirement is considered to imply an understanding of the process of law making in the country and a willingness to abide by the laws that are so enacted, together with understanding and acceptance of the means of change that the Constitution prescribes and allows.200 In addition to all these requirements, people undergoing the process of naturalization have to swear allegiance to the United States, by taking an oath in which they agree to submit themselves to the United States Constitution and to renounce any previous allegiance.201 This demand for a mixture of allegiance and affection, expressed in both the requirements of attachment to the Constitution and of submitting an oath, raises the doubt of how much room for disagreement is left to the prospective citizen with

198 INA 316(a). 199 Stasiukevich v. Nicolls, 168 F.2d 474 (1948) at 478. 200 Disobedience of the laws in itself however has not been found sufficient to show a disposition contrary to the good order of the United States. Yin Shing Woo v United States, 288 F.2d 434 at 435 (1961): here the Second Circuit, in a case regarding the refusal of a naturalization application, because an LPR had been arrested for not answering 23 tickets for unlawful parking, held that disobedience to these laws did not sufficiently show a disposition contrary to the good order of the United States. 201 See INA 337(a) and Thomas Alexander Aleinikoff, David Martin, Hiroshi Motomura supra at note 104 at 80.

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respect to the ideals that the Constitution represents.202 In particular, one is inclined to wonder whether this allegiance should be undivided and considered incompatible with any remaining ties, emotional or rational, to cultural and political origins that the applicant is leaving behind. In the course of a proceeding for denaturalization, it was suggested that naturalization into the US does not demand the rescission of those affective links, which one brings along from childhood and youth.203 The subject of the proceeding was a naturalized citizen, who had been accused of having retained allegiance to Germany, his original “Fatherland”, and of having expressed sympathetic views for the German Reich. The court, in rejecting the request for denaturalization, drew upon the language of openness towards the expression of views in potential contrast with American ideals: Expression of views which may collide with cherished American ideals does not necessarily prove want of devotion to the Nation. It would be foolish to deny that even blatant intolerance toward some of the presuppositions of the democratic faith may not imply rooted disbelief in our system of government.204

Beyond some allowed measure of disagreement with the ideals embodied in the Constitution, the commitment one undertakes by pronouncing the solemn words is not in contrast with the preservation of other affective links. Gaetano Salvemini, an Italian politician and anti-fascist effectively captures the intent of the oath, in the description of his own experience of naturalization in the United States: There is in this country a wider area of generosity than in any other country—at least in Europe. It is this feeling that one is at home here that conquers you little by little. And one fine day you feel that you are no longer an exile but a citizen in your own country. When I took my oath I felt that really I was performing a grand function. I was throwing away not my intellectual and moral but my juristic past. I threw it away without any regret. The Ethiopian war, the rape of Albania, the Spanish crime, and this last idiotic

202 Political activity supporting a change of government is not incompatible with naturalization, provided that however, this is not aimed at establishing a completely different form of government. Specific disqualification from naturalization is prescribed for individuals belonging to the Communist party or other totalitarian groups and persons who advocate the overthrow of the US government by force or violence. See INA 313(a)4 and Thomas Alexander Aleinikoff, David Martin, Hiroshi Motomura supra at note 104 at 68. 203 Baumgartner v. US, 322 US 665 (1944) at 674. 204 Id. at 674.



the quest of distinctiveness and inclusion59 crime, had really broken my connection with sovereigns, potentates, and all those ugly things which are enumerated in the formula of the oath. It is a wonderful formula. Your pledges are only juridical and political. You are asked to sever your connections with the government of your former country, not with the people and the civilization of your former country. And you are asked to give allegiance to the Constitution of your adopted country, that is, to an ideal of life.205

Attachment and allegiance are due to the United States and to the common values as expressed in the Constitution. The ideal of a life to which the entrant citizen subscribes is one the several states have in common. It is quite immune to the peripheral pressures of local subcultures, which will certainly play a role in the concrete integration of the immigrant into the US. The states however will have little to say with respect to his achievement of citizenship. Internal borders are transparent here, both in their regulatory and definitional value. The inclusion process that ultimately leads to federal citizenship only deals with the external, common ring of borders of the United States. 1.3.2.2. Nationality and Inclusion Regime in the EU Under the definition of European citizenship, which can be found in article 20 of the TFEU (formerly article 17 TEC), a third country national passing the common external borders and initiating a life in the EU has no pathway to European citizenship open to him, that is not mediated by the achievement of national citizenship. The level of government, which decides about naturalization regimes, the similarity or divergence in content among these regimes, and the kind of requirements that an applicant has to meet all bear witness to the role of internal borders in the EU with respect to inclusion. Each member state sets forth its own naturalization rules and these tend to be widely different in the quality and quantity of their requirements. First, every member state requires that an applicant for naturalization reside legally in the territory of that member state for a certain period of time. The length of the residency requirement varies from state to state from a minimum of 3 to a maximum of 10 years.206 In addition, some 205 See Gaetano Salvemini, 1941 Radcliff Quarterly at 8–9, quoted in Baumgartner v. US supra at note 203, at footnote 3. 206 See Table 1–3; also see art. 21–26 of the French Civil Code, specifying that for purposes of acquisition of nationality in France, residence in France may be equaled to residence in certain countries in customs union with France, as specified by decree.

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states consider legal residence on any basis as valid for purposes of the requirements for naturalization, while others refer exclusively to periods of residence on a permanent residence permit for this requirement.207 Some states allow dual nationality, while others make renunciation, release or loss of any previous citizenship a requirement for naturalization.208 Some naturalization laws also prescribe that the prospective citizen have sufficient and stable resources to maintain himself and possibly his family, while others ignore wealth as a requirement for inclusion.209 The corner of Europe, in which a parent naturalizes, affects also the future of his children born in the host member state. Some naturalization statutes allow for children of immigrants to acquire nationality at birth if at least one parent has been resident for a specified period of time in the state into which the child is born. Other member states only allow minor children to co-naturalize at the time their parents naturalize. While yet other member states allow children born in the territory of the state to naturalize independently of their parents once they reach majority.210 Even once immigrants have obtained, through a variety of means, a European national citizenship, and thus contextually a European citizenship, the status they have earned, though nominally equal, is not equally secure. Some member states indeed provide for naturalized citizens to be stripped of their citizenship (including European citizenship) upon the occurrence of certain events, including in two cases, absence from the territory of the naturalizing state for periods of seven years or longer, without a positive statement of the intent to remain a citizen.211 It looks as if there is not only one European citizenship, but several different ones. Depending on which specific segment of the land, air or sea external borders of the EU an immigrant has first passed through, his subsequent life experience and his opportunities for inclusion will vary widely. Acquisition of citizenship marks not only a change in legal status but also an admission into a political and affective community, which claims a right to self-definition. This is why many naturalization laws also include integration requirements, which target one applicant’s familiarity with It is unclear whether this provision applies to EU countries (which seems unlikely as the article was introduced in 1973 and again modified in 1998, so if it were to apply to EU countries, it would probably say explicitly). 207 Id. 208 Id. 209 Id. 210 Id. 211 This is the case for naturalized citizens of Cyprus and Malta.



the quest of distinctiveness and inclusion61

the cultural, linguistic, constitutional features of the receiving polity. The quality of these requirements in European naturalization laws illustrates whether the member states of Europe think of themselves as European polities, or as distinct national polities. In other words, the focus of integration requirements provides a glimpse of the self-image that each polity harbors. Where the integration requirements no longer lay claims, the definitional borders of the polity have been surpassed. Three kinds of integration requirements may be distinguished in European naturalization laws. These are: language proficiency requirements, requirements that a prospective citizen possess knowledge of the history, culture, and the laws of the polity, and requirements that he render a solemn declaration of allegiance to the polity. 19 out of 27 member states (20 out of 28 as of 1 July 2013) require that prospective citizens prove their knowledge or command of (one of) the national languages. Tests and interviews, and in some cases the completion of a certain level of education in the specific member state are used to prove the requisite knowledge of the language. Of the three kinds of integration requirements, language is perhaps the one whose ideal value can be easily reduced to a matter of pragmatism. In most cases, familiarity with the local language is a prerequisite for an applicant to properly function in the future society of belonging, to get an education, to work in the host society, and to interact with its members. On the other hand, language is also the gate, which provides access to the culture, literature, collective memory and generally the collective heritage of the host polity. The prospective European faces not one language but 25 official ones, not one culture but 28. The fragmentation of his inclusion experience begins here, where he is called to prove that there is one society in the EU, one polity, whose language he speaks and whose literature he can read. To the extent that the EU speaks all 25 languages, with a remarkable cast of interpreters, busy in translating each European endeavor into 25 versions of the same thing, a prospective citizen who proves his familiarity with the language of a member state also proves his familiarity with the language of Europe. However, the part of Europe with which he has established a communication bridge remains but a fraction of the entire thing. Twelve member states also require that those who seek to become naturalized show a knowledge of the history, the culture and/or the Constitution and relevant laws of their country. Such knowledge is tested through actual ‘citizenship tests’. Some countries provide tentative lists of questions that candidates can practice on, or even full-fledged preparatory courses. Citizenship is portrayed as an art to be skillfully learned, but

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here more than anywhere else, the culture, history, laws that one is required to familiarize one’s self with represent first of all a nation, and only secondarily Europe. A direct reference to Europe can be found only in Austrian legislation, which provides in relevant part that “to evaluate the integration of a foreigner into Austria, her attitude towards the social, economic and cultural life in Austria should be taken into account together with the basic values of a European democratic state and its society.”212 Many naturalizing immigrants are also required to profer in different parts of the EU., oaths and declarations of allegiance. Despite the varying languages, some elements contained in these oaths are constant. The oaths ask for loyalty to the naturalizing state and commitment in protecting its interest. What if the national interest comes into conflict with the European Union interest, to which, to some extent, the immigrant is also swearing fealty? The solemn words of the oaths ignore these potential tensions or at most give an implicit indication that the nation prevails over everything. The prospective Lithuanian for instance has to swear “to be loyal to the Republic of Lithuania, to observe the Constitution and Laws of the Republic, to defend the independence of Lithuania, and to protect the territorial integrity of the state.” He also swears to “respect the state language of Lithuania, its culture and customs, and to strengthen the democratic Lithuanian state”.213 A prospective Hungarian would rather express his allegiance in the following words: “I do solemnly swear that I shall consider Hungary my country. I shall be a loyal citizen of the Republic of Hungary, shall honor and observe the Constitution and laws thereof. I shall defend my country as far as my strength allows, and shall serve it according to the best of my abilities”.214 While the Latvian to be would say: “I pledge that I will be loyal only to the Republic of Latvia. I undertake to fulfil the Constitution and the Laws of the Republic of Latvia in good faith and with all vigour to protect them. I undertake without regard to my life to defend the independence of the State of Latvia and to live and work in good faith, in order to increase the prosperity of the State of Latvia and of

212 Austria is also one of the few countries, which provide a shortened residence requirement for European citizens (and citizens of the European Economic Area) to naturalize. 213 See art. 3 par. 2 Law on Citizenship, 17 September 2002, N. IX 1078, as amended by law 18 July 2006, N.X-768; available in English at http://www3.lrs.lt/pls/inter3/dokpaieska .showdoc_l?p_id=285786 (last visited August 2012). 214 The text of the oath is available at http://www.mfa.gov.hu/kulkepviselet/US/en/en _Konzuliinfo/en_ki_magyarallampolgarsag.htm (last visited June 2013).



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the people.”215 And the future Romanian would say: “I swear devotion to the Romanian country and Romanian people, I swear to defend the rights and national interest, to respect the Constitution and the laws of Romania”.216 It is true that many of these words have more of a symbolic and ceremonial significance, rather than representing the concrete undertaking of a task. Yet, one is left pondering who, if anybody, realizes that at the same time they proffer these words and seal their contract of belonging with Lithuania, Hungary, Latvia or Romania, these people are also sealing their contract of belonging to the European Union and being invested with the ghostly European citizenship? The integration requirements, the language, the culture and history, and the solemn declarations are certainly a safeguard of local identities and local political autonomy. They are at the same time a flag, which marks where the idea of the polity exhausts itself. And this tends to happen, in the EU, at the frontier of the nation state. As a result those third country nationals that European law addresses as a homogeneous group are not facing one, but several, disparate experiences of inclusion into the multi-tiered European polity. The accidents of their admission and the contingencies of their geographical, employment, and economic conditions while outsiders will ultimately be the determinant of their chance to become citizens, even if in the eyes of Europe, they are all similarly situated third country nationals, who have passed through the common external borders. The divergence in naturalization laws among the member states signals that internal regulatory borders, with respect to inclusion, are thick. And similarly powerful are the definitional internal borders throughout the EU. Requirements of affinity with the nation, its language, its culture, its laws shape the idea of the polity into which the entrant has to prove membership. In other words, integration requirements can be seen as the tangible expression of the circuit of definitional internal borders. 1.3.3. Free Movement Regimes While the previous two sections on immigration and nationality provided a viewpoint on membership as right, this section on free movement offers

215 The text of the oath is available at http://unpan1.un.org/intradoc/groups/public/ documents/untc/unpan018407.pdf (last visited June 2013). 216 The text of the oath is available at http://www.romanianpassport.co.il/english/ romanian-citizenship-law/ (last visited June 2013).

6 years of uninterrupted residence or co-naturalization with parent (if legitimate child or if mother is being naturalized)

30 years of uninter­rupted residence to have a claim for legal citizenship (reduced to 6 for EEA citizens); 10 years, of which 5 with permanent residence permit, to apply for natural­ization at the authorities discretion

Austria Knowledge of German Positive attitude towards Austria Knowledge of the basic elements of the democracy, of Austrian history and the history of the Land of residence

Integration Requirements

Other requirements: Renunciation of previous nationality Availability of means of support Notes Citizenship by application available to long term residents (30 years or 15 years with proof of integration into Austrian society) Naturalization can be extended with eased conditions to the spouse also

Other Requirements/Notes

217 These are the general rules; most states provide for exceptions for peculiar categories of people and most states provide for shortened residence requirements for spouses of citizens. Also a minimum age, usually the age of majority, is required for naturalization in most states. Most states grant citizenship to children of unknown or stateless parents, or children whose citizenship cannot otherwise be determined. Most states make past convictions or subjection to criminal proceedings an element of disqualification for naturalization. Also the table does not consider rules for naturalization by ius sanguinis, meaning for people born abroad of citizen parents or born on the territory from at least one citizen parent. Sources: for Austria, Bundesgesetz über die österreichische Staatsbürgerschaft (Staatsbürgerschaftgesetz 1985), last modified 2006, available at http://www.unhcr.org/refworld/country ,,,L EGISLATION,AUT,,3dda341c4,0.html (last visited August 2012); for Belgium Code de la nationalité belge, 1984 artt. 11–13; for Bulgaria, law for the Bulgarian citizenship, prom. SG 136 1998; Amend. and suppl. SG 41 2001; also see http://www.bulgarianembassy.org.uk/citizenship/BGCitizenshipAct1 .html (last visited May 2013); for Croatia, law on Croatian citizenship, http://eudo-citizenship.eu/NationalDB/docs/CRO%20Law%20on%20Croa tian%20Citizenship_consolidated%2028_10_2011_ENGLISH.pdf (last visited June 2013); for Cyprus, Civil Registry Law, n. 141/2002, http://eudo-­citizenship .eu/admin/?p=file&appl=currentCitizenshipLaws&f=CYP%20Civil%20Registry%20Law%20No%20141_I_2002_ENGLISH.pdf (last visited June 2013); for the Czech Republic, Act on the Acquisition and Loss of Nationality 1993 (as amended 2003), http://eudo-citizenship.eu/admin/?p=file&appl=current

Access to Citizenship for Minor Children of Foreigners who are Born in the Territory

Residence Requirement for Naturalization

State

Table 1–3. Naturalization Requirements in the EU.217

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(Continued)

CitizenshipLaws&f=CZR%20Consolidated%20as%20of%202003%20%28English%29.pdf (last visited May 2013); for Denmark, Consolidated Act on Danish Nationality n. 422 of 7 June 2004, http://www.nyidanmark.dk/NR/rdonlyres/52136BD4-FA62-4818-AABB-5709AABAC6A6/0/consolidation_act _no_422_7_june_2004.pdf (last visited August 2012); also see http://www.nyidanmark.dk/en-us/coming_to_dk/danish_nationality/, (last visited August 2012); for Estonia, see Act on Citizenship of 19 January 1995, last amended 2006, RT, I 995, 12, 122, http://eudo-citizenship.eu/admin/?p=file&appl=curre ntCitizenshipLaws&f=EST%20Citizenship%20Act%201995_as%20amended%202006_ENGLISH.pdf (last visited May 2013); for Finland, Finnish Nationality Act 359/2003 as amended by act 974/2007, http://www.finlex.fi/fi/laki/kaannokset/2003/en20030359.pdf (last visited May 2013); for France French Civil Code, art. 21–7 to 21–18. For integration requirements see art. 21–24 introduced by Law 1119 of 26 November 2003. An English translation of the French civil code is available at http://www.legifrance.gouv.fr/content/download/1950/13681/version/3/file/Code_22.pdf (last visited August 2012); for Germany Staatsangehörigkeitsgesetz (StAG), of 22 July 1913, last amended 2012, http://bundesrecht.juris.de/rustag/BJNR005830913.html, (last visited August 2012); art. 10 for naturalization requirements; art. 4 for children; for Greece, Code of Greek Citizenship, Law 3284/2004, as amended 2010, http:// eudo-citizenship.eu/admin/?p=file&appl=currentCitizenshipLaws&f=GRE%20Citizenship%20Code%20%28as%20of%202010%2C%20English%29 .pdf (last visited June 2013); for Hungary, Act LV of 1993 on Hungarian citizenship, as amended 2009, http://eudo-citizenship.eu/admin/?p=file&appl= currentCitizenshipLaws&f=HUN%20Act%20LV%20of%201993%20%28as%20of%20Jan%202009%2C%20English%29.pdf (last visited August 2012); also see http://eudo-citizenship.eu/docs/CountryReports/recentChanges/Hungary.pdf (last visited August 2012); for Ireland, Irish Nationality and Citizenship Act 1956, http://www.inis.gov.ie/en/INIS/ConsolidationINCA.pdf/Files/ConsolidationINCA.pdf (last visited February 2013); for Italy, law n. 91 of 1992 of 5 February 1992, Nuove Norme sulla Cittadinanza, in 1992 OJ 38, available at http://www.interno.gov.it/mininterno/site/it/sezioni/servizi/ legislazione/cittadinanza/legislazione_30.html (last visited June 2013); for Latvia http://www.mfa.gov.lv/en/service/consular-services/4727/ (last visited May 2013); an unofficial English translation of Latvian citizenship law can be found at http://unpan1.un.org/intradoc/groups/public/documents/untc/ unpan018407.pdf /last visited May 2013); for Lithuania, Law on Citizenship, 17 September 2002, N. IX 1078, as amended by law 18 July 2006, N.X-768, http://eudo-citizenship.eu/admin/?p=file&appl=currentCitizenshipLaws&f=LITH_XI%201196_as%20enacted_ENGLISH.pdf (last visited May 2013); for Luxembourg, Law of 23 October 2008 on Luxembourg nationality, Official Journal of Luxembourg, A 158 of 27 October 2008, available at http://www .legilux.public.lu/leg/a/archives/2008/0158/a158.pdf#page=2, (last visited May 2013); also see http://eudo-citizenship.eu/admin/?p=file&appl=current CitizenshipLaws&f=LUX%20Nationality%20Law%2023%20oct%2008%20%28English%20with%20commentary%29.pdf (last visited May 2013); for Malta, Maltese Citizenship Act 1964, lastly amended 2007 http://justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=8702&l=1 (last visited May 2013); for the Netherlands, Netherlands Nationality Act, as in force on 13 April 2010 http://eudo-citizenship.eu/admin/?p=file&appl=current CitizenshipLaws&f=NL%20Netherlands%20Nationality%20Act%20%28consolidated%202010%2C%20English%29.pdf (last visited May 2013); for Poland, Polish Citizenship Act 2009, effective August 2012 and amending the Statute on Polish Citizenship of 15 February 1962, http://eudo-citizenship .eu/admin/?p=file&appl=currentCitizenshipLaws&f=POL_Citizenship%20Act%202009_as%20enacted_ENGLISH.pdf (last visited May 2013); also see http://www.msw.gov.pl/portal/en/81/793/Ways_of_acquiring_Polish_citizenship.html (last visited May 2013); for Portugal, Portuguese Nationality Act, Law 37/81, amended by Organic Law 2/2006; http://eudo-citizenship.eu/admin/?p=file&appl=currentCitizenshipLaws&f=POR%20Law%2037 %2081%20as%20consolidated%20by%20Law%202%2006%20%28English%29.pdf (last visited May 2013); for Romania, law n. 21 of March 1, 1991 on Romanian citizenship, http://eudo-citizenship.eu/admin/?p=file&appl=currentCitizenshipLaws&f=ROM%20Citizenship%20Law%201991%20%28 English_consolidated%20version%2017%20June%202010%29.pdf (last visited May 2013); for Slovakia, Law of Slovak National Council of 19th January

the quest of distinctiveness and inclusion65

Residence Requirement for Naturalization

By discretionary decree if 3 years on a nontemporary residence permit By declaration if resident for 7 years

State

Belgium

Table 1–3. (Cont.) Integration Requirements

At birth if one parent was born in Oath of allegiance Belgium and has resided there for at least 5 of the 10 years preceding birth By parental declaration submitted before child turns 12 if child has resided since birth and parents have resided for 10 years prior to submitting declaration By declaration of declarant between the age of 18 and 22, who (i) was resident in Belgium from age 14 to age 18 or (ii) was resident in Belgium for 9 years, and has resided in Belgium for 12 months preceding declaration By declaration at majority if declarant has resided in Belgium since birth or by co-naturalization with one parent if child is minor

Access to Citizenship for Minor Children of Foreigners who are Born in the Territory

Notes Residence abroad may be equated to residence in Belgium by showing of strong links to Belgium Nationality can be obtained by declaration in a simplified way for people who have particularly strong ties with Belgium either because of birth and residence, permanent residence or birth to one Belgian parent

Other Requirements/Notes

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8 years and granted permanent residence

Croatia

8-year residence requirement, language and culture familiarity requirement and age requirement (18 years) waived for person born and granted permanent residence in Croatia.

At birth if one does not acquire another citizenship by origin By co-naturalization with both parents if still minor when this happens. After 3 years of residence Other requirements Release of previous citizenship Financial means Absence of convictions/subjection to Criminal proceedings Notes Possible grant of citizenship for special service to Bulgaria

Knowledge of Croatian Other requirements language Release of previous citizenship Familiarity with Croatian culture and social arrangements Respect for legal order and customs of the Republic of Croatia

Command of Bulgarian language

(Continued)

1993, n. 40/1993 regarding Citizenship of Slovak Republic as amended 2010, available at http://eudocitizenship.eu/admin/?p=file&appl=currentCitizens hipLaws&f=SLK%20Act%2040_1993_ENGLISH_CONSOLIDATED%20VERSION_as%20last%20amended%20by%20Act%20250_2010.pdf (last visited May 2013); for Slovenia, Citizenship of the Republic of Slovenia Act, ZDRS-UPB1, http://www.mnz.gov.si/fileadmin/mnz.gov.si/pageuploads/SOJ/word/ brosura_za_azil_-_angleska_1_.pdf, (last visited May 2013); for Spain, Código Civil Espaňol, art. 22–25, http://civil.udg.edu/normacivil/estatal/CC/ INDEXCC.htm (last visited August 2012); for Sweden, Act on Swedish Citizenship, Swedish Code of Statutes 2001:82 with amendments up to Swedish Code of Statutes 2006:222 available at http://www.sweden.gov.se/sb/d/574/a/29191 (last visited May 2013); also see http://www.migrationsverket.se/ info/276_en.html (last visited August 2012); for the United Kingdom, British Nationality Act 1981, as amended by Nationality, Immigration and Asylum Act 2002, http://www.legislation.gov.uk/ukpga/1981/61 (last visited February 2013).

5 years on a permanent resident permit

Bulgaria

the quest of distinctiveness and inclusion67

Residence Requirement for Naturalization

5 years aggregate within previous 7, and last year before application continuously (7 for certain categories of aliens and their families, including students and nurses and self-employed workers who are in the Republic only for purposes of work)

5 years and having a permanent residence permit

State

Cyprus

Czech Republic

Table 1–3. (Cont.)

Oath of loyalty

Integration Requirements

By co-naturalization Proficiency in Czech with one parent language or According to regular naturalization rules even before majority (with possible waiver of residence requirement if child obtains permanent residence permit)

Access to Citizenship for Minor Children of Foreigners who are Born in the Territory

Other requirements Loss of previous nationality Oath

Notes Citizenship by registration with eased conditions is available to nationals of the UK, colonies or Commonwealth countries Good character

Other Requirements/Notes

68 chapter one

9 continuous years and being on a permanent residence permit at time of application

8 years, of which the last 5 before application on a long term or permanent residence permit

6 continuous years or a total of 8 years since age 15, the last 2 before application being continuous (2 years residence for citizens of Nordic countries)

Denmark

Estonia

Finland Co-naturalization with parent: if under 15 years of age, must be resident in Finland; if over 15 must be resident in Finland and either i) have been resident for 4 previous years or ii) have been

Parents legal resident in Estonia for at least 5 years can apply for citizenship on behalf of child born in Estonia after February 26, 1992 or Child may co-naturalize with one parent

Unmarried child living in Denmark is co-naturalized with parent (provided child loses/ renounced other nationalities subject to some exceptions)

Other requirements Availability of legal means of support Other Requirements Oath Renunciation of other citizenships Notes Possible grant of citizenship for special services to Estonia

Other requirements Renunciation/loss of previous nationality Declaration of allegiance Having been self supporting (i.e. not on public benefits) for 4 of the previous 5 years Not having overdue public debts Notes Eased conditions for acquisition of citizenship by a Nordic national (through declaration)

(Continued)

Knowledge of Finnish or Other requirements Swedish or Finnish sign Availability of means of support language Proof of identity Not having overdue public debts

Knowledge of Estonian Language Knowledge of Estonian Constitution and Citizenship Act Loyalty to Estonian state

Knowledge of Danish language Knowledge of Danish history, society and culture (to be proven through citizenship test)

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State

Residence Requirement for Naturalization

Table 1–3. (Cont.)

resident for 6 years total since age 7 In addition same naturalization requirements as for adult apply As an alternative citizenship by declaration if between 18 and 23 years of age and resided 6 years in Finland as permanent resident (residence in Norway, Sweden, Iceland or Denmark is equaled to residence in Finland at some conditions)

Access to Citizenship for Minor Children of Foreigners who are Born in the Territory Integration Requirements

Notes Children of refugees may be granted citizenship at birth Granting of naturalization is discretionary and naturalization may be refused if against the best interest of state/jeopardizes security of the state/person has no real intention to settle in Finland Exceptions to the naturalization requirements are provided for (e.g. for aliens who have resided 2 years and face unreasonable difficulty in obtaining permanent full time job without citizenship) Eased conditions for Nordic citizens (Iceland, Norway, Sweden or Denmark) to naturalize in Finland Sufficient connection with Finland required to retain Finnish citizenship together with another one after age 22

Other Requirements/Notes

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5 years residence (2 for services to France and students in degree program)

8 years with qualifying residence permit

7 years

France

Germany

Greece

Commitment to Germany and democracy Knowledge of German language Knowledge of German laws, society and living conditions

Assimilation in French community, proved through knowledge of French language, and of the rights and duties of French citizenship

Double ius soli or if both parents Knowledge of Greek have been permanent residents language, history and of Greece for five years at time of civilization child’s birth Co-naturalization with parent if minor at the time

At birth, if one parents has resided for 8 years with qualifying residence permit or is a citizen of Switzerland with a permanent residence permit Also for co-naturalization with parent

Automatic at majority if resident in France for min 5 non continuous years since age 11 By declaration, if resident for at least five non continuous years since age 11 and still minor By declaration of parent if resident for 5 non continuous years since age 8 Also, double ius soli If born in France with unclear citizenship

(Continued)

Other requirements Absence of criminal convictions for certain crimes Oath

Other requirements Renunciation or loss of previous nationality Financial means Absence of criminal convictions and grounds for deportation

Notes Possible grant of citizenship for special services to France

the quest of distinctiveness and inclusion71

Residence Requirement for Naturalization

8 years

5 years (1 immediately preceding application plus 4 non continuous within the previous 8) NB Grant of naturalization is in any case at the absolute discretion of Minister for Justice, Equality and Law Reform

State

Hungary

Ireland

Table 1–3. (Cont.)

At birth if one parent has been living in Ireland for at least 3 of the 4 years preceding birth or if one parent had permit to stay indefinitely in either Ireland or the UK at time of birth, or if one parent was born in Ireland or the UK.

5 years residence Residence requirement may be waived for co-naturalization with parent

Access to Citizenship for Minor Children of Foreigners who are Born in the Territory Exam in basic constitutional studies to be undertaken in Hungarian language

Integration Requirements

Other requirements Good character Declaration of loyalty to the nation

Other requirements Availability of means of support Oath or solemn promise of allegiance Naturalization must not interfere with interests of Hungary Since 2010 requirement of non interference of naturalization with public security/national security Notes Shortened residence requirement for naturalization of person whose child is Hungarian

Other Requirements/Notes

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10 continuous years (4 for EU citizens)

5 years on permanent residence permit

Italy

Latvia If born after 1991 and permanently resident in Latvia may be registered as citizens by parents at least one of whom has permanently resided for at least 5 years in Latvia or upon turning 15 can register themselves if able to prove they have attended school in Latvia/knowledge of language Possible co-naturalization with parents

At majority by declaration if resident in Italy continuously since birth Or by naturalization by decree of the President of the Republic if one has been a resident legally for at least 3 years Or co-naturalization with parents Knowledge of Latvian language Knowledge of Latvian history, Constitution and text of national anthem (all to be proved by a written and oral test)

(Continued)

Other requirements Availability of legal means of subsistence Renunciation of previous nationality Pledge of allegiance Notes Possible grant of citizenship for special contributions to Latvia Special links with former USSR or KGB, or the fact of having advocated totalitarian ideas are disqualifying elements for naturalization

the quest of distinctiveness and inclusion73

10 years and permanent residence at time of application

Lithuania

Luxembourg 7 continuous years

Residence Requirement for Naturalization

State

Table 1–3. (Cont.)

Double ius soli Co-naturalization with parent

For minors, co-naturalization with both parents or by application if one parent naturalizes

Access to Citizenship for Minor Children of Foreigners who are Born in the Territory

Other requirements Oath Availability of legal sources of support in the territory of Lithuania Notes Citizenship may be granted for special services to Lithuania

Other Requirements/Notes

Other requirements Integration in good repute Luxembourg proved absence of criminal convictions through knowledge of one of the 3 official languages  (German, French and Luxembur­geois) and basic knowl­edge of Luxembour­-geois Attendance of at least 3 citizenship courses Language and citizenship course requirements do

Knowledge of Lithuanian language Knowledge of Lithuanian Constitution (both assessed by test)

Integration Requirements

74 chapter one

1 year before application plus 4 years aggregate within previous 6

Netherlands 5 years uninterrupted and no objection has been raised against grant of permanent residence permit in the Netherlands

Malta

At majority if resided since birth (option procedure); or born of parent resident in the Netherlands, who was himself/ herself born of parent resident in the Netherlands at time of parent’s birth Co-naturalization with parent, if child is a minor and resident in the Netherlands at time of parent’s naturalization (depending on circumstances, 3-year residence requirement applies)

Competent Minister may grant citizenship to any minor

Knowledge of Dutch language Integration into Dutch society (to be proven by civic integration examination or civic integration course)

Adequate knowledge of English or Maltese language Suitability for Maltese citizenship

not apply to people who have completed at least seven years of schooling in Luxembourg.

(Continued)

Other requirements Renunciation of previous nationality (subject to exceptions) Participation in compulsory naturalization ceremony Name change may be required if name is hard to pronounce/write in Dutch No threat to public order, public safety, or public decency Notes An alternative procedure to obtain Dutch citizenship, optional procedure, is available to people who have resided for longer periods

Notes Governmental decision in respect of naturalization bears no motivation and there is no review possibility against it

the quest of distinctiveness and inclusion75

6 years

Portugal

Proof of loss or dispensation from foreign citizenship may be required Stable and regular source of income in Poland Legal title to a dwelling

Other Requirements/Notes

At birth if one parent born in Knowledge of Portuguese Other requirements Portugal and resident at time of Effective link to national no criminal record birth or if one parent has resided community for at least 5 years or if minor child has completed first cycle of basic education in Portugal; NB: also children are subject to Portuguese test adapted to their age Co-naturalization with parent

3 years on qualifying Only by co-naturalization with Certificate of language residence permit parent if under parental authority skill (including a EU long term at that time residence permit, settlement permit or permanent residence permit) or 10 years of legal residence and having a permit of settlement, EU long term residence permit and/or permanent residence permit at the time of application

Integration Requirements

Poland

Access to Citizenship for Minor Children of Foreigners who are Born in the Territory

Residence Requirement for Naturalization

State

Table 1–3. (Cont.)

76 chapter one

8 years

8 continuous years on a permanent residence permit Or 10 continuous years and have obtained a permanent residence permit at the time of application

10 years (continuously for the last 5 before application) and with settled status

Romania

Slovakia

Slovenia

Knowledge of Slovak language (not necessary for applicants after 10 years of residence)

Knowledge of Romanian language to extent sufficient to integrate in society Behavior and attitude proving attachment to Romanian state and people Sufficient knowledge of Romanian Constitution and national anthem

At majority if lived in Slovenia Command of Slovenian since birth (and complies with language some naturalization conditions)decision is in discretion of competent authority and

Co-naturalization with parents or Have been permanent residents for 3 years at the time of application, even before reaching the age of 18

By co-naturalization with one or both parents Or According to normal naturalization procedure but without residence requirement

(Continued)

Other requirements Release of previous nationality

Notes Citizenship may be granted for special merits towards Slovakia Citizenship may be granted without complying with residence requirement, among others, to people who are permanent residents of Slovakia and bring special credit in terms of sport, culture, economics, art etc.

Other Requirements Availability of means of subsistence Oath Residence period for naturalization is halved for (i) internationally famous personalities, (ii) citizens of EU member states, (iii) persons who have invested at least EUR 1,000,000 in Romania

the quest of distinctiveness and inclusion77

Spain

State

10 years

Declaration of respect for the free democratic constitutional order of Slovenia Oath

should take into account ties to Slovenia Or By co-naturalization with parent if lived in Slovenia with parent at least 1 year or is under 1 year of age

immediately before application

Other Requirements/Notes

Availability of guaranteed permanent source of income Settlement of all tax obligations Declaration of agreement with the legal system of Slovenia Notes Naturalization is in discretion of competent authority and must be in public interest Possibility of grant of citizenship after one year of residence to a person that offers scientific, economic, cultural or national benefits to Slovenia After 1 year of residence in Spain For residence based Other Requirements (whether as minor or after naturalization need to Renunciation of previous nationality majority) prove good civic conduct required (exception for Latin Double ius soli and sufficient integration American countries) into Spanish society. Oath of loyalty to King and to Constitution

Integration Requirements

Access to Citizenship for Minor Children of Foreigners who are Born in the Territory

Residence Requirement for Naturalization

Table 1–3. (Cont.)

78 chapter one

5 years and holding a permanent residence permit (reduced to 2 years for Finnish, Icelandic, Norwegian or Danish citizens; limited residence permit of at least 5 years is enough for EEA citizens)

5 years

Sweden

United Kingdom

At birth if one parent is legally settled (i.e. has permit to stay indefinitely in the UK) Later, by registration, if one parent becomes legally settled or citizen while child is minor After turning 10 if he has resided continuously in UK for first 10 years of his life

If permanent resident and domiciled in Sweden for at least 5 years (with simplified notification procedure) And possibility of co-naturalization with parents

Knowledge of English (or Scottish Gaelic or Welsh) Sufficient knowledge of life in the UK Intention to have principal home in UK or continue residence in UK Oath of allegiance

Other Requirements Good character Notes EU citizens exercising Community Treaty rights may be deemed legally settled

Other Requirements Proof of identity Having led respectable life

the quest of distinctiveness and inclusion79

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a perspective on membership as a source of rights. Bringing about distinct rights for members and non-members is an additional way in which notions of membership create divisions between insiders and outsiders, by differentiating their status. The right to move unconstrained is by no means the only nor is it the most important right that membership in a community entails. Citizenship and membership usually bring about political, economic and social rights, which go well beyond free movement. On the other hand, free movement is not only a right connected to logics of membership, but it can also be seen as a response to many different rationales, such as for instance the functioning of an integrated economic market. As both the US and the EU stories suggest, in the case of multi-tiered polities, the right to move, or to travel, or to cross unconstrained the internal frontiers of the polity, tends to be qualified as an entitlement descending from notions of membership.218 Belonging to the community finds expression, through the right of free movement, in the opportunity to plan one’s own life as a citizen in any corner of the wider polity. A citizen is free at any time to resettle in another part of the common territory, without having to ask any authority for permissions and without experiencing any disadvantage in one’s own rights based solely on having moved around. In this sense, the right to free movement is a particularly powerful descriptor of the depth and focus of logics of membership in a multi-tiered polity. It stands for the fact that a person, due to his membership, is not considered a foreigner in any subpart of the polity. Membership rationales, in other words, can potentially transform opportunities otherwise subject to the limits and conditions of immigration frames into entitlements. The strength of the membership rationales is reflected in turn in the extent to which conditions and constraints still limit the possibility to resettle in a polity. Whether the passage of persons among the internal subdivisions of a multi-tiered polity, and their resettlement in other internal subdivisions, is free or conditional, depends in good part on the consistency of internal borders. The more lenient the internal checks, the more convergent the regulations of social and economic benefits in the different subdivisions are, the weaker the borders, and the easier movement will be. In line with the attachment of free movement rights to ideas of membership, 218 For an investigation of the connection between notions of citizenship and rights of free movement in 19th century Germany see Christoph Schönberger, Unionsbürger: Europas föderales Bürgerrecht in vergleichender Sicht (2006) at 98–105.



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conditions and levels of freedom may differ for different categories of people, and particularly for members and for non-members. Thus, what is a right for a citizen, may be only a possibility for an alien. This is not always the case, however, because even if free movement is conceived of as a right of citizenship, this does not necessarily mean that it is viewed only as a right of citizenship. In this respect, inclusion/exclusion logics might be waived. At this point the work explores the evolution of internal borders with respect to mobility options in the United States and the European Union. It focuses first on the physical consistency of internal borders in the two entities, and examines how permeable these borders are, how they are patrolled if at all, and what kind of checks or controls are associated with passing through them. Next, the work turns to the regulatory notion of borders, and here it looks at the evolution of the doctrine of the right to travel in the US, and right to free movement of persons in the EU. It explores how they have addressed the regulatory choices of the subpolities­that either because of their content or because of the divergence between the various sub-polities were to the detriment of re-settlers. Also considered is whether the pressures these doctrines have exercised against the regulatory value of internal borders have been felt with the same intensity by members and non-members. 1.3.3.1. Regime of Free Movement in the United States 1.3.3.1.1. Physical Borders and Free Movement The experience of a Texan driving into Oklahoma or of an Italian flying from Boston to Chicago is instructive in terms of the physical relevance of borders in the US. The crossing of internal borders on the part of a person does not, per se, elicit controls or checks. In principle everybody can cross internal borders, whether with the intent of paying a quick visit to the other side, or to take up residence there. The same is true for both citizens and aliens. These borders do not represent relevant physical barriers. The current state of things is the result of a continuous evolution, which has determined the weakening, almost to the point of quasidisappearance, of internal physical borders. From a historical perspective,  internal borders have had a significant role to play. For most of the 19th century, state laws provided for controls and limitations in terms of the categories of persons who could cross the perimeter of their borders. Convicts, paupers, contagious people, free blacks and slaves faced

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potential­limitations in their ability to freely pass among the several states.219 Enforcement of these laws gave concrete consistency to the US’s internal borders and made the right to travel among the several states an ambiguous mix of immigration and free movement logic. After the Civil War, however the exclusivity of federal power in the immigration field was established and consequently state regulation of immigration was overruled.220 Federal occupation of this field went hand in hand with the thinning of physical internal borders, which in the present day are marked by little more than a sign on the highway. 1.3.3.1.2. The Right to Travel If internal borders do not represent a physical obstacle to interstate movement, yet their role in marking separate spaces of regulation may have the effect of discouraging travelers. The doctrine surrounding the right to travel, not textually mentioned in the US Constitution, but the subject of a long legal tradition, represents a threat to state regulations, which have the effect of unduly burdening the possibility of movement and resettlement of US citizens.221 The first textual mention of a right to free movement for independent persons in the US can be found in article IV of the Articles of Confederation, the so called Comity Clause.222 While the Constitution omits any textual mention of a right to travel, case law shows no hesitation in its acknowledgement and consistent 219 Gerald L. Neuman, The Lost Century of American Immigration Law (1776–1875), supra at note 99 at 1841. 220 See Henderson v. Mayor of New York 92 US 259 (1876) ; Chy Lung v. Freeman 92 US 275 (1876); also see Gerald L. Neuman, The Lost Century of American Immigration, supra at note 99. 221 See Attorney General of New York v. Soto-Lopez 476 US 898 (1986), at 903, introducing a classification of the types of state regulations, which offend the right to travel: regulations which deter travel, regulations, which have as their first object the impediment of travel, regulations which use a classification which penalizes the enjoyment of this right. Also see Francesca Strumia, Citizenship and Free Movement: European and American Features of a Judicial Formula for Increased Comity, 12/3 Columbia Journal of European Law 713, 731–732 (2006). 222 “The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant;” Articles of Confederation, art. IV sect 1.



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adjudication.223 No one provision of the Constitution offers a constant reference point for the protection of the right to travel, but several have been called in question, from time to time, to support different faces of this right. Even if not directly evidenced as the primary concern in the holding, at times it was highlighted as an important part of the decision in concurring and/or dissenting opinions.224 In particular, two strands of right to travel cases may be distinguished. The first one targets regulations, which impose a direct burden, such as a transportation tax, on those willing to pass from one state to the other. The second one focuses on regulations, which create unfavorable conditions for people who have changed their state of residence.225 Examples of the first strand are found more frequently in the case law of the 19th century and that of first half of the 20th. For instance, in the 1849 Passengers Cases,226 Laws in Massachusetts and New York imposing a tax on alien passengers departing from foreign ports and entering the state were struck down as impermissible state regulations of foreign commerce. Justice Taney, dissenting, pointed out the right to travel rationale of the cases, by mentioning the “right to pass and repass through every part” of the United States as members of the same community.227 Some years later, a tax imposed by Nevada on every passenger leaving the state was invalidated by the Supreme Court as a violation of the constitutional power of the Federal Government to call citizens to its seat of power and 223 The constitutional silence with respect to the right to travel has generated much debate on the origin of this right. See Francesca Strumia, Citizenship and Free Movement: European and American Features of a Judicial Formula for Increased Comity, supra at note 221. Also see Jide Nzelibe, Free Movement: a Federalist Reinterpretation, 49 Am. Univ. L.R. 433, 441 (1999). 224 See for instance Justice Taney in the The Passenger Cases, 48 US (7 How.) 283, (1849), at 492 (Justice Taney dissenting), infra note 227. Also see Justice Douglas concurring in Edwards v. California, 314 US 160, 180–181 (1941), infra note 229. The right to travel has been reconnected for instance to the commerce clause, to the privileges and immunities clause of art. IV and to the equal protection clause. See Gregory B. Hartch, Wrong Turns: a Critique of the Supreme Court’s Right to Travel Cases, 21 Wm. Mitchell L. Rev. 457, 476–78 (1995), observing that the right to travel remains an “ill-defined right emanating loosely from various penumbras within the Constitution. 225 See Francesca Strumia, Citizenship and Free Movement: European and American Features of a Judicial Formula for Increased Comity, supra at note 221. 226 The Passenger Cases, 48 US (7 How.) 283, (1849). 227 The Passenger Cases, 48 US (7 How.) 283, (1849), at 492 (Justice Taney dissenting). He would have indeed distinguished more clearly among taxes imposed on alien passengers and taxes imposed on citizens’ passengers. In this second case, it was clear, in his view, that a tax imposed in order to enter a port in another state of the union was tantamount to an infringement of the right to “pass and repass through every part” of the United States as members of the same community.

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of the corresponding right of citizens to move freely through the territory of the Union in order to come to the seat of government.228 A commerce clause-based invalidation masked the right to travel reasoning in Edwards vs. California in 1941.229 This case dealt with the conviction of Edwards for bringing his indigent brother-in-law from Texas to California in violation of California laws. While the Supreme Court struck down the relevant California statute as imposing a burden on interstate commerce, the main judicial concern in the case seems to be solidarity for the poor. The opinions in the case are not forgetful of the importance of unconstrained travel, which the California regulation was making more burdensome. In concurring, Justice Douglas suggested that freedom of movement is fundamental in a federal system and is a critical component of freedom of opportunity.230 The second strand of right to travel doctrine relies on equal protection provisions as a way to ensure that interstate resettlement does not result in a disadvantage for the traveler in hi new state of residence.231 An example of this group of cases can be found in the 1982 case of Zobel vs.

228 Crandall v. Nevada, 73 US 35 (1867). 229 Edwards v. California, 314 US 160, 173–75 (1941); the court noted in particular that the habit to consider the poor as a local concern descended from British and American colonial history but had now come into conflict with the industrial status and the comity of the independent nation. For an account of mobility of indigents in the early United States see Gerald M Rosberg, Free Movement of Persons in the United States in Courts and Free Markets, (Terrance Sandalow, Eric Stein eds. 1982) at 288–289, observing that the Articles of Confederation made an exception from right to travel for paupers and vagabonds; this exception did not pass textually into the Constitution, but left a lingering doubt as to the unconstrained mobility of indigents. In Mayor of New York v. Miln (36 US 102 (1837), the Court talks about the moral pestilence of paupers and vagabonds, which is taken as image of an attitude typical of that period. There is no clear evidence anyway of how this translated into exclusionary policies on the part of the states and of whether right to travel for indigents had indeed fixed limitations. 230 Edwards v. California, 314 US 160, 180–181 (1941) (Justice Douglas concurring). 231 The privileges and immunities clause of article IV of the US Constitution also lends support to the strand of right to travel doctrine, which focuses on the condition of resettlers.­The privileges and immunities clause of article IV states that “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states”. In the constitutional era, the privileges and immunities clause of article IV has had a judicial story in part independent but never completely emancipated from the one of the right to travel. A judicial list of privileges and immunities, drafted in the 1823 Corfield v. Coryell case, (6 F. Cas. 546 (C.C.E.D. Pa. 1823), includes indeed “The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise”. In her concurring opinion in Zobel v. Williams, Justice O’Connor underlines that the Alaska scheme imposes a disability on “citizens of state A, who venture into state B” and this seems to be an offence of both the right to travel and the very core of the privileges and immunities provision. Zobel v. Williams, 457 US 55, (1982), at 74–75.



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Williams;232 in this case the Supreme Court struck down as a violation of the equal protection clause an Alaska scheme that purported to distribute revenue from instate oil resources on the basis of length of residence in the state. A footnote in the majority opinion elucidates the centrality of the right to travel reasoning on the holding of the case. This is done by underlining that “right to travel analysis is little more than a particular application of equal protection analysis”.233 Also, US courts have often found requirements for obtaining benefits in the new state of residence offensive to the freedom to decide on resettlement. In the 1969 case of Shapiro vs. Thompson,234 for instance, the Supreme Court invalidated as a violation of the equal protection clause or of the due process clause of article V235 some state provisions, which imposed a one-year residency requirement on the part of new-comers for access to welfare benefits in the respective state.236 Whether the impetus is unimpeded movement or equal treatment, in most right to travel opinions, there is also a lingering discourse on citizenship. This discourse is accidental or marginal in character in some judicial opinions on the right to travel, but it tends to establish an enduring connection between travel, equal treatment and citizenship, so that the former two rights have come to depend on the latter status.237 232 Zobel v. Williams, 457 US 55, (1982). 233 Zobel v. Williams, 457 US 55, (1982), footnote 6. 234 Shapiro v. Thompson, 394 US 618 (1969). 235 This was the case with regard to a District of Columbia statute that had been brought to the court’s attention. 236 Shapiro v. Thompson, 394 US 618 (1969), footnote 21. The inappropriateness of residence as an element of discrimination is linked in the court reasoning to the fact that this would represent imposition of an impermissible penalty on the right to travel. For other cases where length of residence was not considered an admissible criterion of distinction, see also Memorial Hospital v. Maricopa County, 415 US 250 (1974). 237 Justice Bradley dissenting in the Slaughter House cases in 1872 underlines that “A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein, and an equality of rights with every other citizen.” Slaughter House cases, 83 US 36, 112–13 (1872) (Bradley dissenting). The right to travel is an incident of national citizenship according to Justice Douglas in Edwards v. California, ( Justice Douglas concurring in Edwards v. California, 314 US 160, 178 (1941)) and it is a privilege of that same national citizenship according to Justice Jackson concurring in this same case (Justice Jackson concurring in Edwards v. California, 314 US 160, 182–83 (1941)). Concurring opinions in Zobel v. William also build on the link between right to travel, equal treatment and citizenship. See Justice Brennan concurring in Zobel v. Williams, 457 US 55, 70 (1982). Justice Brennan finds right to travel and equality of citizenship to be the “essence of the republic.” See also Francesca Strumia, Citizenship and Free Movement: European and American Features of a Judicial Formula for Increased Comity, supra at note 221.

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The 1999 case of Saenz v. Roe238 invests significantly on linking the right to travel and citizenship. In Saenz vs. Roe, the Supreme Court struck down as a violation of the citizenship clause of the XIV amendment a California statute that capped the level of welfare benefits available to new residents during their first year in California to the level of benefits that they would have received in the previous state of residence. The court distinguished three components of the right to travel: the right to move freely among the states, whether entering or leaving any one of them; the right to be treated as a “welcome visitor” in any state that the citizen is led to visit in the course of fruition of his right to travel;239 and the right “for those travellers who elect to become permanent residents, to be treated like other citizens of that State.” The Court found that the second component was protected by the privileges and immunities clause of article IV while the third component was protected by the privileges and immunities clause of the XIV Amendment.240 While Saenz vs. Roe might potentially remain an isolated case, the connection it fosters between citizenship and right to travel bears witness to a well-founded constitutional tradition, according to which the constitutional right to travel has been consistently conceived of as a right of citizens. Weak internal borders in the US generate an area of free movement. The rights to be exercised in this area under the Constitution are first and foremost the rights of citizens. However, these are not available only to citizens. The Supreme Court has underscored that notwithstanding the precise scope of the constitutional right to travel, aliens lawfully present “have the right to enter and abide in any state in the Union on equality of privileges with all citizens under non-discriminatory laws”.241 This is a result of the application of the 238 Saenz v. Roe, 526 US 489 (1999). 239 Saenz v. Roe, 526 US 489, 501 (1999). 240 Saenz v. Roe, 526 US 489, 503 (1999); also see Constitution of the United States of America, Amendment XIV, sect. 1 “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This clause had had little fortune in judicial applications after the Court in the Slaughter House Cases (83 US 36 (1872)), had considered it to only protect privileges and immunities of federal citizenship and to be extraneous instead to relations created by state law and to privileges and immunities of state citizenship, where the federal government would have no say. 241 Graham v. Richardson, 403 US 365 (1971), at 377–78. The Court here recalls the previous case of Takahashi v. Fish and Game Commission, 334 US 410 (1948), where the Court



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XIV amendment.242 While the privileges and immunities clause of Article IV refers explicitly only to citizens, all persons within the borders of the United States are guaranteed equal protection. The term “persons” in the XIV amendment has indeed been clearly interpreted as referring to citizens and aliens alike.243 State classifications based on alienage are considered inherently suspect244 and they have been seen as potentially harming an alien’s right to reside in any state. In the 1915 case of Truax v. Raich, the Supreme Court held that a state statute prohibiting any employer of more than five workers from employing less than 80% native born citizens or qualified electors violated the equal protection clause.245 Here the court underlined that if a state were allowed to deny to a class of people the means of earning their livelihood because of their nationality, this would have amounted to a denial of entrance and abode to aliens, who had been lawfully admitted by the federal government.246 As a result, aliens would have been confined to states that offered them hospitality and this did not seem to be an acceptable outcome.247 Even if in principle internal regulatory borders do not discourage the mobility of aliens, more than they discourage the mobility of citizens, additional constraints on an alien’s freedom of movement throughout the states may be found in immigration law. For certain categories of entrants, visa rules may represent at least a temporary obstacle in this respect. Categories of aliens in the United States are admitted, for instance, on had indicated that the fact that aliens lawfully present have the right to enter and abide in any state in the Union on equality of privileges with all citizens under non discriminatory laws is the general policy of the 14th amendment and of the laws adopted under its authority. For a more detailed treatment of Graham v. Richardson see section 1.3.1.1.2. 242 Takahashi v. Fish and Game Commission, 334 US 410 (1948). 243 See Graham v. Richardson, 403 US 365 (1971) at 371. 244 Id. 245 Truex v. Raich, 239 US 33 (1915). 246 Id. at 42. 247 Graham v. Richardson, 403 US 365 (1971), at 380. It should be noted however that states are permitted to reserve certain benefits and privileges exclusively for their citizens. The privileges and immunities clause doctrine marks the limits of what states can do to the benefit of their own citizens while excluding citizens of other states. A state may for instance reserve the use of its common property to its own citizens, without infringing the privileges and immunities clause of article IV; see McCready v. Virginia, 94 US 391 (1876). Also, case law of the late 19th and early 20th century suggested that states could exclude aliens specifically from obtaining real property by inheritance or descent and non declarant aliens from acquiring land. See Hauenstein v. Lynham 100 US 483 (1879); Terrace v. Thompson 263 US 197 (1923). Graham v. Richardson casts doubts however on the extent to which states, based on some alleged public interest, may pass legislation of this kind and sets a rule of strict scrutiny for any state classification based on alienage. .

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student visas sponsored by a specific institution, located in a specific state or on employment visas sponsored by a certain employer. In this sense, the relationship to the visa sponsor may work as a limitation on the capacity to cross internal borders with permanent intents. Other than with regard to visa-related limitations, however, aliens in the United States are free to choose the state they wish to settle in, and they are also free to change their area of settlement during the residence period required to qualify for naturalization. The residence requirement for obtaining American citizenship is tied to the entire territory of the United States. Constitutional doctrines thus make for weak regulatory borders with respect to the right to travel of both members and non-members in the US. Those states that interfere with this right or make its exercise less appealing are looked upon with suspicion in courts, and several constitutional provisions, from the commerce clause, to the equal protection clause to the privileges and immunities clause can be engaged to overrule them in the name of the right to travel. In the end free movement rights are only slightly constrained by either physical internal borders, which at present have a shadow-like consistency, or regulatory borders, which tend to be thin with respect to both members and non-members. 1.3.3.2. Regime of Free Movement in the European Union 1.3.3.2.1. Physical Borders and Free Movement Integrated Europe was born out of the coming together of national states, each with their separate borders, for which they set the perimeters, with independent systems of custom control and border checks, and with their own immigration policies. One of the fundamental doctrines that was the basis of integration was that of free movement. The adoption of the Treaty of Rome, in 1957, was envisioned to create an internal market based on four fundamental freedoms: free movement of persons, free movement of goods, free movement of services and free movement of capital.248 The free movement philosophy posed a direct challenge to the persistence of and solidity to the internal borders among the member states. Even among the founding members of the Community however, positions did not coincide with respect to what a system of free movement entailed, and how much border control was desirable throughout the Community. The 1985 Schengen agreement came in part as an answer to the long felt need of a group of member states to agree on a framework of accelerated 248 EC Treaty art. 39, 43, 49 and 56. Now respectively, TFEU art. 45, 49, 56 and 63.



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advancement with regard to the realization of an effective system for the free movement of persons and goods. The thinning of physical internal borders throughout the European Union began in this way. As described earlier in this chapter, the Schengen acquis was later incorporated into the framework of the Treaties. Since then, the thinning of physical internal borders has happened as a combined result of the Schengen acquis and of measures adopted on the legal basis of Title IV of the EC Treaty (now Title V of the TFEU). Controls at internal frontiers have gradually been abolished and the perimeter of the Schengen area has gradually enlarged. The physical relevance (or irrelevance) of internal borders is not in any case homogeneous throughout the Community. The perimeter of the Schengen area does not perfectly coincide with the perimeter of the EU. On the one hand, Ireland and the United Kingdom have opted out of it, and Romania, Bulgaria and Cyprus are still outside the relevant area. While on the other one, Iceland, Norway, and Switzerland, which are not part of the EU, make up a part of the Schengen area. The perimeter of the Area of Freedom, Security and Justice (AFSJ), in the terms of Title V of the TFEU (and formerly Title IV of the EC Treaty), is also not coincident with that of the Schengen area nor with that of the European Union: Ireland and the United Kingdom are external to both the Schengen area and the area of freedom, as they have opted out of Title V specifically and are not bound by any of the measures adopted on its basis.249 Denmark, instead, is within the Schengen area but outside the area of freedom, as similarly to the UK and Ireland, it has opted out of the AFSJ.250 Rings of overlapping borders arise out of this system of exceptions. As a result, the claim that internal physical borders have disappeared in the EU is one subject to qualifications and restrictions. Most member states have 249 But they retain the ability to opt in with respect to specific instruments adopted under Title V. See Protocol on the Position of the United Kingdom and Ireland, annexed to the Treaty of Amsterdam, http://eur-lex.europa.eu/en/treaties/dat/11997D/htm/11997D .html#0099010007 (last visited August 2012). Also see Thomas Risse, European Institutions and Identity Change: What have We Learned? In Transnational Identities-Becoming European in the EU (Richard K. Herrmann, Thomas Risse, Marilynn B. Brewer eds 2004) at 258: “if you travel by car from Germany via France and Spain to Portugal, you never have to show your passport and you retain one single currency: the euro. However if you travel by car and by boat from Germany via Denmark to Norway, you leave the euro-zone at the German-Danish border, and the EU at the Danish-Norwegian border, but you never have to show your passport because of Schengenland. These are unclear boundaries par excellence”. 250 See Protocol on the Position of Denmark, annexed to the Treaty of Amsterdam, http://eur-lex.europa.eu/en/treaties/dat/11997D/htm/11997D.html#0101010008 (last visited

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combined their efforts to make their internal borders more and more permeable and to transform the territory of the EU, or relevant portions of it, into an area of free movement. It is in the nature of the European integration project to accommodate the peculiar positions of some of the member states by allowing for the continuing existence of some pockets of resistance. The double-track, or variable geometry mechanisms, as they are called in EU jargon, are a typical feature of the EU and one of the major distinctions from federal entities.251 Beyond those peculiarities, the EU has certainly become a zone, where physical internal borders are under threat of extinction. 1.3.3.2.2. Free Movement of Persons Freedom of movement for Union citizens must be interpreted as the right to leave any member state, in particular the member state whose nationality the Union citizen possesses, in order to become established under the same conditions in any member state other than the Member State, whose nationality the Union Citizen possesses.252

These words taken from a judgment of the European Court of Justice clearly express the logic of membership that is attached to the right to free movement in the EU. They also bear witness to the results of the process of transformation, through legislation and adjudication, of an original right to free movement for distinct categories of economic actors into a right of citizenship. Free movement of persons, in its original form, depends on a bundle of provisions in the European Community Treaty, which singled out specific categories of economically active persons. The entitlement of unconstrained mobility across the European Community for these categories August 2012). Both the United Kingdom and Ireland on the one hand, and Denmark on the other one are allowed to opt in for individual measures adopted under Title IV. 251 On the concept of enhanced cooperation, see Advocate General Trstenjak, opinion in case C-77/05 United Kingdom of Great Britain and Northern Ireland v. Council of the European Union, 2007 E.C.R. I-11459, delivered on 10 july 2007; “The traditional concept of European integration flows from the notion of unity of integration, that is to say the creation of uniform rules that are valid in all the Member States. Following the amendments to the founding Treaties, which extended the competences of the European Community and the European Union, and following later enlargements of the Union, which involve greater heterogeneity of structures and interests, the concept of unitary integration can no longer be applied in the same way as in the period in which the European Economic Community comprised six or nine members. Enhanced cooperation is a legal expression of the balancing exercise between making the Union wider and making it deeper”. 252 Case C-127/08, Metock and others v. Minister for Justice, Equality and Law Reform, supra at note 173 at par. 68.



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was functional for the deepening and completion of a proper working internal market. A right to free movement could be exercised by workers who wished to pursue employment in other member states,253 by selfemployed persons who aimed to establish their business or branches thereof in other parts of the Union254 and by people who intended to provide or receive services on a temporary basis elsewhere in the Union.255 At first, regulatory borders were not consistently thinning, as a result of the free movement doctrine. Rather this doctrine promoted the opening of gaps in different parts of their perimeter, to allow for the passage and resettlement of certain categories of intra-Community migrants. The original categories of people entitled to free movement have not lasted long without being subject to pressures to open up and expand, to which they eventually succumbed. The requirement of engagement in economic activity in order to benefit from a right to free movement has been progressively relaxed over the years in both legislation and case law. As a result, a more potent impetus has been given to the thinning of the relevant regulatory internal borders.256 The ability for self-support of a prospective intra-Community migrant however, remains a condition for the exercise of free movement.257 This fundamental turn in the European concept of free movement of persons has gone hand in hand with the introduction of provisions on European citizenship, starting with the 1992 Maastricht Treaty.258

253 See EC Treaty, article 39 (now art. 45 TFEU). 254 See EC Treaty, article 43 (now art. 49 TFEU). 255 See EC Treaty, article 49 (now art. 53 TFEU); free movement for purposes of freedom to provide services has been interpreted by the European Court of Justice as including freedom to move for purposes of consuming services provided elsewhere in the Community in the joint cases 286/82 and 26/83 Graziana Luisi and Giuseppe Carbone v. Ministero del Tesoro, 1984 E.C.R. 377. 256 In the course of the 1990s the adoption of three directives providing for residence rights for groups of people whose ties to the employment market were altogether fairly loose has contributed to mitigate the economic character of the original free movement; See Council Directive 90/364 of 28 June 1990,1990 O.J. L180, Council Directive 90/365, of 28 June 1990, 1990 O.J. L180, Council Directive 93/96, of 29 October 1993, 1993 O.J. L317; residence rights are granted under these provisions to employees and self-employed persons who have ceased their occupational activity, students and residually to all other nationals of a member state, who do not otherwise qualify for a similar right. A requirement of availability of financial resources and sickness insurance was in place in any case for all these categories of people. For a general discussion of this transformation see Francesca Strumia, Citizenship and Free Movement: European and American Features of a Judicial Formula for Increased Comity, supra at note 221, at 716–20. 257 See Directive 2004/38 supra at note 149, art. 7. 258 See TFEU, articles 20–24.

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European citizenship entails a modest set of rights, providing for some measure of political involvement at the European level and avenues of access to European institutions.259 More than everything else, European citizenship entails the right to move freely throughout the common territory of the EU and the right to establish one’s own residence in any member state.260 This option for resettlement does not entail a change in the status of the citizenship of the migrant. He remains a European citizen and a national of the state of origin, and in the host member state he is merely a resident. The European Court of Justice has subsequently found in the status of European citizenship, a useful legal tool to stretch the concept of free movement, emancipate it from the categorical approach, and gradually turn it into a general right of European citizens.261 It has done so, in a series of judgments rendered between 1998 and 2005, by using European citizenship to deal with the externalities produced by the category-based free movement regime. These externalities include claims for access to the social security systems, permanent residence and family reunification in the host state. Where the relevant free movement provisions have not been sufficient, European citizenship was referred to as the source of the entitlement being claimed.262 Two judgments in particular exemplify the strategy of the Court, for challenging regulatory burdens on intraEuropean­resettlement: the 2000 Baumbast case263 and the 2004 Trojani case.264 These two decisions provide a valuable illustration of the concrete legal tools that the CJEU is using in order to remedy the externalities of free movement through the notion of citizenship. On the one hand, there 259 See TFEU, articles 22–24. 260 See EC Treaty, article 18. 261 See Theodora Kostakopoulou, Ideas, Norms and European Citizenship: Explaining Institutional Change 68 Modern Law Review 233 (2005), who identifies three phases in the CJEU citizenship jurisprudence and identifies the third as the one in which the European Court of Justice passes from the language of free movement and market citizenship to the language of citizenship as fundamental status; also see Francesca Strumia, Citizenship and Free Movement: European and American Features of a Judicial Formula for Increased Comity, supra at note 221, at 718–23. 262 See e.g. Case C-85/96, Martínez Sala v. Freistaat Bayern, 1998 E.C.R. I-2691; Case C-413/99, Baumbast and R v. Secretary of State for the Home Department, 2002 E.C.R. I-7091; case C-456/02, Michel Trojani v. Centre public d’aide sociale de Bruxelles (CPAS), 2004 E.C.R. I-07573; Case C-224/98, Marie-Nathalie D’Hoop v. Office national de l’emploi, 2002 E.C.R. I-6191; Case C-184/99, Rudy Grzelczyk v. Centre Public d’Aide Sociale d’Ottignies-Louvain-LaNeuve, 2001 E.C.R. I-6193; Case C-209/03, The Queen (on the application of Dany Bidar) v. London Borough of Ealing, Secretary of State for Education and Skills, 2005 E.C.R. I-2119. 263 Case C-413/99, supra at note 262. 264 Case C-456/02, supra at note 262.



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is the directly effective right to residence that European citizenship entails, while on the other stands the right to non-discrimination on the basis of nationality. In Baumbast the Court was called upon to consider the situation of two partially-European, intra-Community migrant families (for both of the families in question the husband was a European citizen while the wife was a TCN) and the status of their familial right to reside in the territory of a member state.265 The issue for the first family was that the husband, a European citizen, no longer worked in the territory of the host state, while in the case of the second family, husband and wife were divorced. This brought before the Court, a question of the residence rights of children and spouses of a European citizen migrant worker, once the originally entitled migrant worker has ceased his occupational activity in the host state or has divorced his spouse.266 European citizenship did not lend much credence to these particular sections of the holding. Instead the central question for the Court was: does a European citizen, who has originally moved to another member state to be employed, preserve a right to reside in the host member state, once he has ceased from his occupational activity there? The Court focused on the right of residence and affirmed it to be directly effective.267 The original migrant worker, once he no longer belonged to the category of those who are economically active in a host member state, could still reside there, relying exclusively on his status as European citizen. The Trojani case regarded a French citizen, who lived in Belgium on a reintegration program run by the Salvation Army: he performed some services for the Salvation Army and received board and some pocket money in return. Trojani claimed to have lived in Belgium as a migrant worker in 265 The first family was composed of one parent European citizen, one parent nonEuropean citizen and two children, one of whom was not a European citizen, while the second one was a dual national. The parent European citizen had moved from Germany, his state of nationality, to the United Kingdom as an employed intra-Community migrant, but had subsequently ceased to be occupied in the United Kingdom. The second family was composed of a parent European citizen, a parent non-European citizen and two children both European citizens; also in this case the parent European citizen had exercised his right to move to another member state as an employed person, but the couple had subsequently obtained a divorce. 266 Case C-413/99, supra at note 262 at 63 and 75; the Court held that the children have a continuing right to residence in both cases, even if they are not European citizens themselves, based on the scheme of the regulation 1612/68. Similarly the spouse and parent care-taker has a co-terminus right to residence with the children, so that they can effectively benefit of their right to remain and pursue their education in the host state. 267 Id. at 94.

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the past and held a valid domestic law based residence permit there. His case was brought before the European Court of Justice when he applied for a minimum subsistence allowance (minimex) in Belgium and Belgian authorities denied him such benefit on the basis that he was not a Belgian national.268 The Court was asked to consider whether a person in Trojani’s situation could qualify as a worker under one of the relevant Treaties provisions and whether his right of residence in Belgium as a European citizen was directly effective. The Court left the factual decision of whether Trojani could be considered a worker under European provisions to the national judges,269 and underlined that while Trojani’s right to residence as a European citizen would certainly be directly effective, he did not meet the sufficient resources requirement for residence, which is set forth in secondary legislation.270 European citizenship was however relevant to somebody in Trojani’s situation. As a European citizen who was lawfully resident in Belgium according to domestic law, he was entitled to the same treatment as Belgian nationals under article 12 of the EC Treaty (now art. 18 TFEU), and could not be denied the minimex if a Belgian national in a comparable situation would have been granted this allowance.271 Neither the Baumbast case nor the Trojani case overrules the ability of the member states to administer the rights of residence and welfare benefits. However, both open up a breach in the autonomous system of domestic regulation, in order to create space for European citizens to exercise their rights of free movement more readily. In doing this, they are contributing to the progressive detachment of free movement from the market logic and are inducing a gradual thinning in internal regulatory borders. While the CJEU has been at the forefront of the experiment combining the operation of citizenship and free movement, its suggestions have not gone unnoticed. A new conception of free movement as a general right tied to European citizenship, rather than reserved to specific categories has progressively found room in relevant European legislation and in the reform discourse. In 2004, the Council and Parliament adopted a directive, which delineated the conditions for the exercise of rights to free movement and residence by European citizens.272 The directive maintained the conditions, 268 Case C-456/02, supra at note 262, at 10–11. 269 Id. at 29. 270 Id. at 36. 271 Id. at 40–44. 272 Directive 2004/38 supra at note 149.



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which dictated that European citizens could move freely provided they possessed sufficient available financial resources and health insurance.273 Under the directive, European citizens are however entitled to an unconditional period of residence of up to three months in another member state, without regard for the availability of financial resources. During the course of these three months, benefiting EU citizens cannot claim social protection in the host state.274 Also, under the 2004 regime, any European citizen who has lawfully resided in another member state for five years is entitled to the status of permanent resident there. Permanent residents are not required to comply with the resources requirements and are entitled to full and equal treatment on par with that accorded to nationals, even with regard to social protection.275 The breach in the regulatory autonomy of the individual member states has widened. The widening is an indirect result of these provisions, because regulations, which interfere with the described residence rights of European citizens, are unlikely to stand. Slowly, but effectively, the game in which the judiciary stretches the boundaries of the law and the legislative responds has led a metamorphosis in the right to free movement, from market right, conducive to the smooth operation of the internal market to full-blown right of citizenship, entailing not only economic but also social consequences.276 As a result, at least for members, European internal borders in their regulatory capacity have thinned and what was previously an area of interstate migration for workers has become an area of free movement. 273 European citizens can move and reside freely in member states other than the one of which they are national only if they have sufficient resources and comprehensive sickness insurance; id., art. 7. 274 Id., art. 6 and 24. 275 Id., art. 16. 276 The 2004 regulation on harmonization of social security systems throughout the European Union confirms the trend towards giving also a social connotation to the free movement right of citizens. Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, 2004 O.J. L 166, at 1. The regulation replaces a 1971 instrument (Council Regulation 1408/71, 1971 O.J. L 249, at 2), which provided for the coordination of systems of social security in different states for the benefit of migrant workers. The personal scope of that regulation had been subsequently extended by other instruments but only with the 2004 regulation, what had been previously a system of coordination for purposes of integrating the labor market, becomes a coordinated system of citizenship. Four basic principles, inherited from the labor market regulation, contribute to the effectiveness of free movement as a right of European citizenship: the applicability of the lex loci laboris (the law of the place of employment), the possibility to aggregate periods of insurance matured in different states, the exportability of benefits and the entitlement to equal treatment with nationals for purposes of social security, for all those covered by the regulation.

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What about non-members though? All the measures adopted on the free movement of people in the Community, both in the first phase of free movement, for economically active people, and in the second phase for European citizens, refer to the rights of members, i.e. European citizens.277 European law has long been silent on the possibility of third country nationals, the European non-members, to move freely among the member states. The absence of controls at physical internal borders in the Schengen area makes free movement quite easy even for non-members, but some distinctions should be drawn. First, there is a distinction between the Schengen area and the AFSJ, whose perimeters, as seen earlier do not coincide. Second, there is a distinction between the right to visit other member states and sojourn there temporarily, and the right to relocate to another member state and obtain all the ensuing benefits there. Provisions on the free movement of third country nationals for purposes of a short-term stay were first adopted in the frame of the Schengen system.278 Chapter 4 of the Schengen Implementing Convention279 is specifically devoted to the free movement rights of third country nationals. The Convention provided for the introduction of a uniform visa for third country nationals valid for the entire Schengen area for a period of up to three months;280 holders of this kind of visa are free to move in the various Schengen states during the period their visas are valid.281 The same is true for third country nationals who are exempt from visa requirements for purposes of entering a Schengen state. Their right to free movement is similarly limited to three months.282 In addition, third country nationals, who hold a residence permit in one of the Schengen states, may move freely within the territory of other Schengen states for periods of up to three months.283 All of these persons must however comply with certain 277 See Kay Hailbronner, Immigration and Asylum Law and Policy of the European Union (2000) at 107: Title IV of the EC Treaty is read to indicate that third country nationals cannot derive a right of free movement throughout the Community from the internal market concept. The discourse of free movement for European citizens is in re ipsa referred only to members. 278 See Convention Implementing the Schengen Agreement of 14 June 1985 supra at note 141; also see Kay Hailbronner, Immigration and Asylum Law supra at note 277 at 154–56. 279 Convention Implementing the Schengen Agreement of 14 June 1985 supra at note 156 at 1. 280 Id. at 10. 281 Id. at 19 (1). 282 Id. at 20. 283 Id. at 21.



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entry requirements in order to be able to enjoy their free movement rights.284 Schengen states also maintain the ability to issue Schengen visas subject to territorial restrictions, in which case the holder will not benefit from any free movement rights.285 Finally, under the Convention, visas for stays longer than three months remain national visas, and they only entitle the holder to pass through other Schengen states for the purposes of transit to reach the Schengen state, which has issued the visa.286 Internal regulatory borders still have a consistency thus for third country nationals throughout the Schengen area. With respect to all of these categories of potential third country visitors, restrictions and limitations for short term free movement face significant enforcement limits because of the practical consequences of the absence of internal borders controls.287 There are however ways around this, such as reporting requirements, that are imposed under the Convention on third country nationals entering one of the Schengen states, either from outside the Schengen area or from another Schengen state, in which they have residence.288 These short term rights of free movement apply in any case only within the Schengen area. Controls remain in place at the internal borders with the United Kingdom and Ireland. These two member states, as seen earlier, are within the AFSJ, but outside the Schengen area. Thus, they are free to determine the conditions for entry, even for short-term stays, of third country nationals, even if they are coming from within the Schengen area.289 Inconsistency between the Schengen area and the AFSJ accounts thus for additional differences between the free movement rights of members and non-members in Europe.290 284 Id. at 5. 285 Id. at 10 (3) and 19 (3). 286 Id. at 18. 287 Indeed reports show that illegal immigrants move throughout Europe using many of the Schengen thresholds; for instance North African immigrants who have entered Europe through the Strait of Gibraltar then move to Italy through the French-Italian border; and the border between Italy and Slovenia represents an easy route for immigration from SouthEastern Europe; see Illegally Resident Third Country Nationals in Italy: State Approaches Towards Them and their Profile and Social Situation, Country Study of the European Migration Network, February 2007, available at emn.intrasoft-intl.com/Downloads/ download.do?fileID=555 , (last visited August 2012) at 17. 288 Id. at 22. 289 See Kay Hailbronner, Immigration and Asylum Law supra at note 277 at 104–106. 290 Between 1996 and 1997 the Commission adopted a proposal for a directive, which would have abolished controls on persons crossing internal frontiers even beyond the Schengen area; the directive has never been approved however. See Proposal for a Council Directive on the elimination of controls on persons crossing internal frontiers COM(95)347 final. Also see Kay Hailbronner, Immigration and Asylum Law supra at note 277 at 292.

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Turning now to the second kind of free movement rights, those exercised for purposes of relocation in another member state of the EU, as regards these rights the silence of European law has become remarkable. Free movement rights for third country nationals do not flow directly from the creation of a European internal market, even if some of the provisions related to free movement within the internal market may end up indirectly benefiting third country nationals also.291 Certain categories of third country nationals have benefited from rights derived from those of European citizens292 but no independent rights have been established in this respect for a long time. The silence of European law with respect to intra-Community relocation of non-members has been partially broken with the directive on the right of long term residence for third country nationals, adopted in 2003.293 According to the provisions of this instrument, third country nationals who have attained the status of long-term residents in a member state enjoy a right to move to a second member state for purposes of study, vocational training or employment.294 Financial conditions apply to the exercise of this right and the second host member state may also impose integration requirements on the third country nationals entering their territory.295 Equal treatment requirements protect third country nationals, who benefit from this right of free movement.296 With respect to the free movement rights of European citizens, the free movement right of long term resident TCNs is certainly more limited in scope, as it is still tied to a specific purpose. Also according to the 2003 directive, permanent residence can be granted to third country nationals only after five years of legal residence in a member state.297 This means 291 See id. at 106–107. 292 See Directive 2004/38 supra at note 149 art. 3(2) a, repealing previous sectoral instruments. 293 Directive 2003/109 supra at note 158. This directive has been adopted on the basis of Title IV of the EC Treaty, and as a result it does not apply to the United Kingdom, Ireland and Denmark. A proposal for a directive on the right to travel of third country nationals within the Community had been previously adopted by the Commission but never made it into law. See Proposal for a Council Directive on the right of third-country nationals to travel in the Community COM(95)346 final. Also see Kay Hailbronner, Immigration and Asylum Law supra at 277 at 293. 294 See Directive 2003/109 supra at note 158, art. 14; the blue card directive details more favorable movement rights for third country nationals within the scope of the directive. See Directive 2009/50, supra at note 154, art. 18–19. 295 Id. at art. 15. 296 Id. at art. 21. 297 Id. at articles 4 and 14.



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that for the first five years of residence within the European Union, the status of a third country national is quite immobile under European law, with only the possibility of short trips within the Schengen area.298 In addition for a third country national, who is not a member of any of the member states of the EU, the exercise of free movement rights within the 2003 framework is not without consequences. First of all, according to the directive, absence from the member state that granted the permanent residence right for more than six years entails the loss of the right of permanent residence. Secondly, acquisition of permanent residence in a second member state also leads to loss of the corresponding right in the first one.299 Even with these statutory rights to free movement TCNs still face thus some important limits. Ultimately, outside the scope of the relevant Schengen and directive provisions, the doctrine of free movement does not extend to nonmembers­and member state regulations imposing burdens on resettlement stand unchallenged. The regulatory borders that the CJEU and European legislation have contributed to making permeables, or thin, for members remain generally impermeable, or thick, for non-members. Table 1–4. The Map of Internal Borders. Immigration

Nationality and Inclusion

Free Movement

Admission

Treatment while Outsiders

Physical Inclusion Inclusion (regulatory (definitional Borders borders) borders)

Regulatory Regulatory Borders Borders (Members) (NonMembers)

US Thin

Thin with thick spots

Thin

Thin

EU Thinning Thinning by Thick by category option

Thin

Thin

Thick

Thin (with Thinning some thick segments)

Thin (except immigration law restrictions) Thick (thinned to some extent for long term resident TCNs)

298 See Francesca Strumia, European Citizenship: Mobile Nationals, Immobile Aliens and Random Europeans in Citizenship in America and Europe-Beyond the Nation-State? (Michael S. Greve, Michael Zoller eds. 2009), at 45–70. 299 Directive 2003/109, supra at note 158, at art. 9.

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The analysis in the previous sections has helped in the drawing of a map showing the consistency of physical, regulatory and definitional borders in the US and the EU with respect to the rules of immigration, nationality and free movement. The US map and the EU map show some similarities, sporadic at best, and remarkable differences in the consistency, structure and disposition of internal frontiers. In part this reflects the different distribution of competences between the federal and state, and the union and member state, levels within the two entities respectively. Immigration has long been an exclusive competence of the federal government in the US, while in the EU a common power for immigration policy has been gradually and incrementally constructed over the course of the last 20 years. The common immigration policy still competes with and complements domestic immigration regimes. On the other hand, federal citizenship is now the primary status in the US, while member state citizenship is the dominant form in the EU. These discrepancies allow for the predicting of differences in the character of membership and belonging rationales in the two polities. However, the web of internal borders provides a more refined insight into how rules of admission, treatment of aliens, inclusion and free movement play out with respect to membership and on divides. The internal perimeters of borders are similar in the US and the EU with regard to immigration regimes. These borders are thin in the US both with respect to admission rules and with respect to rules on the treatment of outsiders. As regards the latter, they also show thick spots here and there to account for local regimes, such as family law, which interfere with central provisions on the status of aliens. Similarly, internal borders for admission and for the treatment of third country nationals are progressively thinning in the EU. The expansion of EU level immigration policy and shared concerns for the status of immigrants prompted this continuous transformation and located European immigration regimes in a trajectory similar to that of the United States. The status of outsiders is uniform throughout the United States, with little room for single states and localities to introduce specific provisions for the treatment of aliens. The status of outsiders is increasingly becoming uniform in the EU, where EU instruments and policy plans have intervened on the status of TCNs, making it to some extent a province of EU intervention. In the EU however the EU status of outsiders still competes with several pockets of divergent regulations at the member state and



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local levels. Under the surface of harmonized EU rule, there are still several under-statuses of alienage in the various corners of the Union. The main contrasts between American and European webs of borders are found within the nationality and free movement rules. For the former, the difference is sharp. The regime of nationality confronts an almost inexistent perimeter of internal borders in the US, while it is 27 (soon 28) times fragmented in the EU. This is due to the persistence of thick, tangible internal frontiers in this respect. Now, turning to the latter (the right of free movement, or right to travel, as it is called in the US), in this instance, overall internal borders are thin on the western side of the Atlantic, where both members and non-members circulate unrestrained throughout the federal territory. However, on the Eastern side of the Atlantic, the internal borders for free movement are adjustable: thin, or thinning, for members, a bit thicker for long term resident TCNs, thicker still for other non-members. What does the appearance of internal borders say about notions of membership and belonging in the US and the EU? The overwhelmingly thin character of US internal borders with respect to immigration, nationality and right to travel suggests that the underground logic of shared membership here is unbroken. One belongs to the federal polity, while other forms of legal or emotional attachment to nested communities within the federal one, such as the states, either derive from or take place in the shadow of federal belonging. In the European Union, the patchy character of the internal borders signals the coexistence within the Union of multiple and fragmented membership rationales. For example: belonging to a member state as a national, belonging of a member state to the Union as a participant conferring a portion of its sovereignty, belonging of an individual to the Union as an economic actor, belonging of an individual to a member state other than the one of his nationality through his belonging to the European Union as Union citizen. The single principal legal filter of diversity in the United States is contrasted with several, differently sized filters in the European Union. As a result competing diversity interests, those of immigrants asking for admission and inclusion, and those of sub-polities or states asking for distinctiveness tend to be balanced differently.300 They weigh in favor of the 300 For an analysis of these competing interests see Francesca Strumia, Tensions at the Borders in the US and the EU: the Quest for State Distinctiveness and Immigrant Inclusion, supra at note 1, at 971–72.

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equal status and fair inclusion of immigrants in the US. In the EU, there is a commitment that oscillates between one or both. Despite these differences in the webs of borders and in the logics of shared membership, one thing the United States and the European Union have in common is that the main insider/outsider divide is at the national level, and national membership performs the main sorting job, with respect to immigrants and natives, and insiders and outsiders. Only, the national level occupies a distinct positions in workings of the two entities. It is central in the US and local in the EU. As a result, central membership in the US and central membership in the EU, despite often being the focal point of comparative outlooks, express two fundamentally different conceptions of belonging. Central membership in the US represents the belonging to a cultural and civic community, whereas central membership in the EU represents participation as economic actors in a community of law. This central regime of membership in the EU, European citizenship, born as a off shoot of nationality, coincides with a regime of free movement of national citizens.301 In its operation, it advances indirect pretenses for immigration rules (approximation to citizenship, family reunification of outsiders as a corollary right of free movement). In this way, it reshuffles the relative role of regimes of nationality, immigration and free movement in Europe, bringing the free movement regime into a prominent position in the arrangement of membership interests. As illustrated in this chapter, a close link between the right to travel or free movement and citizenship exists in both the US and the EU, but that similarity may be misleading. In the US when right to travel is tied to a discourse on citizenship, the notion of citizenship is deprived of its inclusion/exclusion potential. Rather, citizenship is used at a higher level of generalization to refer to a condition of presence, participation, and subjection to government, in which both legal citizens and aliens may share 301 European citizenship is actually dormant in respect of people who reside in the member state of their nationality: it is the exercise of this free movement right on the part of a European national, which triggers the protection of European citizenship. This in turn might even generate situations in which migrant European citizens receive in some respects in a member state a more favorable treatment than European citizens who are nationals of that state. On the “wholly internal situation” and the principle of reverse discrimination see Catherine Barnard, Substantive Law of the EU-The 4 Freedoms (2007) at 257–58; also see See Lisa Conant, Contested Boundaries: Citizens, States and Supranational Belonging in the European Union in Boundaries and Belonging, States and Societies in the Struggle to Shape Identities and Local Practices (Joel S. Migdal ed. 2004) at 293–94.



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alike.302 This is in contrast with the case of European citizenship, where the whole substance of supranational citizenship is premised on free movement, and free movement rights become the main vehicle of insider/ outsider divides grounded in European citizenship. The hidden interaction between nationality rules and European citizenship-dependent free movement rules ends up altering and complementing European insider/outsider divides. While these issues will be taken up in greater detail in Chapter 3, some brief suggestions on how this might tangibly happen are anticipated in the following. *** The contrast between thick internal borders for inclusion through nationality and thin internal borders for the exercise of free movement rights on the part of members is crucial in understanding the tangible operation of insider/outsider divides within the EU. One consequence of this situation is that a tiered system of mobility rights, based on membership status, is beginning to take shape.303 Ranking these tiers in descending order, finds European citizens are at the top of the mobility ladder. They enjoy the most freedom with respect to moving, and resettling around Europe, even if the exercise of their right is conditioned on the availability of sufficient resources and comprehensive insurance. At the opposite extreme of the spectrum of mobility, one finds recently arrived TCNs, i.e. foreigners who have lived in any single member state for less than five years (even if perhaps the time they have spent in the EU is cumulatively longer than that). Recently arrived TCNs, if legally present in the EU, have the right to visit other member states within the Schengen area, but they have no right to resettle in another member state. The intermediate category between these two extremes, European citizens on the one hand, recently arrived TCNs on the other one, consists of long term resident TCNs. For them the contrast between thick borders for inclusion and thinning borders for movement is crucial. As described earlier, TCNs who have been residing in a member state for at least five years do indeed enjoy some statutory free movement rights. While still heavily constrained, this right of movement for long term residents tends to 302 See e.g. Crandall v. Nevada, where a one dollar tax imposed on every passenger leaving the State was struck down as a restraint on the right of citizens to move freely throughout the country and to “come to the seat of the federal government” Crandall v. Nevada, 73 US 35 (1867). 303 See Francesca Strumia, European Citizenship: Mobile Nationals, Immobile Aliens and Random Europeans, supra note 298, at 48.

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approach the moderately constrained mobility of European citizens rather than the country specific immigration of more recent entrants in the EU.304 In this sense, long term resident TCNs perhaps best represent the intents expressed by the Heads of State and Government of EU countries in Tampere in 1999, when they stated in the Conclusions of the European Council held there, that the EU should aim at approximating the condition of TCNs to that of European citizens.305 Ironically though, while the grant of mobility rights makes indeed the condition of TCNs closer to the one of European citizens, the tangible exercise of those rights on their part may lead them further away from achieving European citizenship, as the internal borders for inclusion are thick. Naturalization requirements include everywhere in the EU residence requirements, most of which are based on continuous residence in the state. Thus, the ability to absent themselves from the national territory can lead to the cancellation of any earned period of qualifying residence. For a TCN, passing through internal borders to exercise the statutory right to resettle somewhere else resets the hourglass for inclusion through the achievement of national citizenship.306 The exercise of free movement rights entails consequences of this kind not only for first generation immigrant TCNs, but also for their second generation children born in the territory of a host European member state. Many nationality laws in the EU require the continuous residence of a child born in their territory to foreign parents in order to grant him citizenship, or they provide for co-naturalization only at the time one of his parents is naturalized.307 Thus, in many cases, intra-community migration in order to follow their family resets the hourglass of inclusion for EU-born children as well.308 304 Once they have entered a second member state, third country nationals are also covered by an equal treatment guarantee with respect to nationals for purposes of access to the labor market, education and related grants and social security. See Directive 2003/109 supra at note 158 at art. 21. 305 “A more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens”. (Conclusions of the Presidency of the European Council, October 1999 at 18); “The legal status of third country nationals should be approximated to that of Member State nationals”, id. at 21. 306 See Rainer Bauböck and Bernhard Perchinig, Evaluation and Recommendations in Acquisition and Loss of Nationality-Policies and Trends in 15 European States (Rainer Bauböck, Eva Ersboll, Kees Groenendijk, Harald Waldrauch eds. 2006) at 444–445, underlining how the exercise of free movement rights may be harmful for purposes of inclusion both for Union citizens and for third country nationals. 307 See Table 1–3. 308 This is a relevant problem, considering that for instance in Italy under age people, and thus largely second generation immigrants represent one fourth of the immigrant



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Forsaking the benefits of full inclusion through nationality by deciding to exercise statutory free movement options will probably pose a dilemma to at least a portion of the immigrant community in the EU. The interaction of nationality and free movement rules makes this choice a trade-off, with the result that despite having been described as “thinned” in the table above, internal borders for the free movement of long term resident TCNs acquire a novel thickness. Nobody, whether they are an alien or an American citizen, who relocates from Florida to Oregon, or from Maine to California, faces a legal trade-off of this proportion. Regardless of the fact that the geographical, social, and occupational weight of this kind of move may be even greater than in the case of the short journey across the Alps, which one would undertake, in Europe, to resettle from, say, Italy to Austria, or from Germany to Belgium. As a result of the hidden interaction between rules of nationality and rules of free movement, a new insider/outsider divide emerges thus in the EU: one between mobile nationals and immobile aliens.309 A distinction of this kind may appear to be legitimate and to be a mere extension of logics of inclusion/exclusion through nationality. However, it has important consequences in terms of diversity, integration and membership, which will be addressed in the section on divides. *** The distinction between mobile nationals and immobile aliens sheds light in part on how European citizenship alters the divides from the point of view of immigrants. The contrast between thick borders in nationality regimes and thin borders for the exercise of citizens’ free movement rights also has consequences from the point of view of the member states whose ability to autonomously set and implement insider/outsider divides loses in effectiveness. Through the free movement regime the member states’ role as gatekeepers of their own communities has become quite fictitious. Each member state’s decision to exclude by selecting certain demanding criteria in order to grant nationality may be counteracted by individual immigrants who will naturalize in other more permissive member states. Once they have obtained the nationality of a member state, these immigrants turn population. See Primo Rapporto sugli Immigrati in Italia, Italian Ministry of Interior, December 2007, http://www.interno.it/mininterno/export/sites/default/it/assets/files/15/ 0673_Rapporto_immigrazione_BARBAGLI.pdf (last visited August 2012) at 77. 309 See Francesca Strumia, European Citizenship: Mobile Nationals, Immobile Aliens and Random Europeans, supra note 298, at 51–52.

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into European citizens, as such they can move back to the member state, which originally did not recognize them as qualifying for its own nationality. Once there, they can claim residence rights, they can also claim nondiscriminatory treatment on par with nationals and can vote in municipal and European elections. In some cases, after a few years they can also claim local nationality under eased conditions applying to European citizens. European citizenship does not grant them the same level of inclusion that nationality would have. However, it still entails a meaningful level of inclusion, and correspondingly the power of the member state to independently exclude is partially neutralized. It might be said that through the operational mechanisms of free movement and European citizenship, each member state delegates part of its power of inclusion to any other member state and while still free to set its own criteria, remains constantly exposed to the whim of its neighbors’ naturalization policies. As Chapter 3 will demonstrate, this is another way in which interactions hidden at first sight between nationality and free movement rules contribute in altering the European insider/outsider divides.

CHAPTER TWO

CITIZENS AND OTHERS IN THE EU: LEGAL SAMENESS, SOCIETAL DIFFERENCE 2.1. Introduction Chapter 1 of this work explored the impact of European citizenship on insider/outsider divides from the point of view of immigrants and member states. It considered how European citizenship fails to mediate between the competing interests of immigrants desiring inclusion and of member states looking to control selection. The internal coherence of any possible rationale of belonging to Europe that Union citizenship might bring about gets tangled up in a web of internal physical, regulatory and definitional borders. This chapter turns to consider how European citizenship might affect the perception of insider/outsider divides on the part of the citizens themselves. It questions whether the notion of citizenship, and the discourses and rights articulated around it, contribute in eliciting perceptions of ‘groupness’ and of belonging in civic terms; and whether it mitigates the sense of otherness that cultural, linguistic, religious and ethnic diversities potentially bring about. This chapter relies on a conception of citizenship distinct from the one employed in Chapter 1. Whereas, Chapter 1 considered citizenship as a status of membership, and as a bundle of rights, this chapter rather relies on the role of citizenship as the marker of a bounded community.1 The capacity to identify and constitute sameness is what denotes the legal norm of citizenship as a marker of community. A legal norm of citizenship identifies a set of criteria that must be met in order for a person to belong to a group, and in this way it draws the boundaries of that group. From this perspective, citizenship might have an effect in terms of the dynamics of coexistence, and of the handling of diversity. This effect is achieved 1 See Klaus Eder, Bernard Giesen, European Citizenship: an Avenue for the Social Integration of Europe in European Citizenship between National Legacies and Postnational Projects, supra Introduction at note 9 at 2, suggesting that “European citizenship fulfills-like any other citizenship-two functions: to provide a social basis for transnational institutions and to define what is shared by those included in the social space covered by European institutions”.

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through not only the regulatory effects of the laws articulated around it, but also through the constitutive power of the rules in which it finds expression.2 In other words, it might affect perceived divides, if the notion of group that is drawn through legal criteria comes to resonate in societal perceptions also. To explore this possibility, this chapter considers legal norms and their potential socializing effect. Issues and questions similar to the ones this chapter proposes to investigate are often considered in the literature on European identity. Part of this literature reconnects the desirability of a solid, cohesive European identity to the goals of tolerance and peaceful coexistence in Europe. This chapter takes a different approach, in part with the intent to fill in some gaps in the literature on identity. Identity may not be necessary to coexist harmoniously. What Europeans need is a sense of sharing and of being legitimate participants in a common enterprise, which does not interfere with the separate and competing collective identities of the EU citizens, yet fuels a sense of sameness in civic terms. This sense might be conducive in mitigating the discomfort towards “others” identified in nationalist, cultural-ethnic, religious or linguistic terms. While supranational citizenship alone cannot create identity, it might lead to a sense of “groupness” of this kind. For purposes of the norm of citizenship, citizens are a group of legally similarly situated people. What affects the interaction and actual behavior of these people is whether they also perceive themselves as members of a group at the societal level. That is to say, if there is a resonance between their legal sameness and their societal sameness. Legal sameness depends on the ius sanguinis, ius soli and other belonging rights, which govern the conferral of the status of citizen. Societal sameness depends on factors such as cultural, religious, linguistic affiliations and the competing collective identities of the citizens. The effectiveness of a norm of citizenship in creating a sense of “groupness” depends in part on whether the legal norm addresses insider/outsider divides, which are, at least in part, consistent with those perceived at the societal level. To analyze the obstacles that the supranational norm of citizenship faces in exercising a similar pull within the European Union, and the 2 See e.g. Antje Wiener, Assessing the Constructive Potential of Union Citizenship-a SocioHistorical Perspective, 1 European Integration online Papers 17 (1997) available at http:// eiop.or.at/eiop/texte/1997-017a.htm; also see Dora Kostakopolou, Ideas, Norms and European Citizenship, supra Introduction at note 11, looking at European citizenship in the optic of institutional constructivism, i.e. in terms of the legal arrangements, routines, procedures, conventions, norms and organizational forms that shape and inform human interaction.



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possible ways around these obstacles, this work borrows from some of the international law and international relations literature on compliance with international norms. Two considerations inform the turn to this literature. First, supranational citizenship is an international legal norm trying to produce an effect at the domestic level, by constituting citizens belonging to different domestic groups into a single group for purposes of the EU. The debate on compliance with international norms often focuses on state actors. EU citizens are not state actors. The modes of participation, which characterize the interaction of European citizens among themselves and with the member states, resemble however in part those that are typical of the interaction among states. The choice of looking at the compliance literature does not imply any project of social engineering and is not forgetful of the limits of law. Feelings of belonging and attachment evolve on their own, according to a myriad of factors, many of which are unique to the personal experience of each individual. The compliance approach, however, provides a set of convenient intellectual tools when exploring along which lines the resonance between what a norm describes as a group and what is perceived as a group in society at large might develop. From the compliance literature, this work borrows, in particular, the concepts of cultural or identity match, legitimacy and acculturation. In the EU there is a mismatch between legal and societal sameness. The boundaries of a group of legally similarly situated people expand in connection with the naturalization of immigrants and with the enlargement of the European Union to include new countries. These are two mechanisms which extend the group of people, who share in European citizenship. These very same mechanisms however dilute the societal factors of sameness, by bringing in more difference at the individual and collective identity level. As a result, a gap in perception may open up between legal and societal sameness. While in the context of the nation, gaps similar to the one occurring with respect to EU citizenship have been narrowed through discourses of ethno-cultural, or even civic-national homogeneity, supranational citizenship must rely on different rationales in order to elicit bonding. Legitimacy is an important connector among the EU citizens. Similarly in the case of states in the international legal order, legal sameness places EU citizens into a group of legitimate participants. They do not share the same language, religion, history, origins, and habits; but they share in voice, rights, standing, and in a set of common values on which their experiences as European citizens is premised.

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The interest in preserving that status of legitimacy triggers cognitive and social pressures to internalize the script of coexistence as citizens in the European order. Business, educational and leisure interaction on a cross-border basis may lead citizens to look beyond ethnic, cultural and linguistic fences. Thus, developing a sense of sameness in civic terms, which might then inform their actions and perceptions in other contexts as well. In other words, a process of acculturation might occur, which could contribute in narrowing the perceptive gap between legal and societal sameness, and thereby aiding the coexistence of diversity. This acculturation hypothesis begs the need for further, more rigorous testing, and it is advanced with the aim of suggesting possible avenues for further research rather than for predicting results. Acculturation into a notion of civic sameness remains in any case a possibility distinct from the ripening of a full-fledged identity, an outcome that remains highly unlikely in the EU. The same mechanisms, which may foster a sense of sameness are probably not sufficient to also encourage the socio-psychological and political components, which are key to the notion of a collective identity. In the end the lack of a real European identity may not be bad news. Promoting the peaceful coexistence of diversity, while preserving intact the varied and rich identities of the Europeans is perhaps a more important goal for supranational citizenship than inducing an authentic European identity. For the purposes of coexistence, the added value of European citizenship may have to do with softening perceived insider/ outsider divides rather than creating novel, strongly marked ones. Section 2.2 offers a brief review of the findings and approaches in the literature on European identity, and then specifies the notions of legal and societal sameness as components of the norm of citizenship, considering the peculiarities of their interaction within and outside of the nation. Section 2.2 then turns to the compliance literature, and considers the elements, which support the analogy between the effectiveness of the norm of citizenship and the effectiveness of international norms. It introduces Jeffrey Checkel’s concept of cultural match and considers how it might help in predicting the effects of a supranational norm of citizenship in the context of lack of resonance between legal and societal sameness. It also explores the main tenets of the Goodman-Jinks theory of acculturation to international human rights norms, distinguishing mechanisms, which might also be relevant to the movement towards the “groupness” of European citizenship. Sections 2.3 considers the concrete evolution of legal and societal sameness in the EU. It describes the dynamics of expansion of a group of legally



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same European citizens, through the naturalization of immigrants and the process of the enlargement. It argues that these dynamics are denoted by the lack of individual moments of belonging and randomness denote these dynamics. It highlights how a group of citizens considered legally same is vastly heterogeneous at the societal level and how the same dynamics which lead to the expansion of legal sameness also determine dilution in societal factors of sameness. Features of the EU population at large, features of the collective identities of EU member states and some demographic and social features of European national societies are used as indicators of societal diversity. Section 2.4 provides examples of episodes of reviving nationalism, resistance to Europe and discomfort with the ‘other’, as witness to the fact that civic sameness among European citizens is at most feeble: this in turn sheds light on the prediction that a mismatch between legal and societal sameness reduces the pull towards the ‘groupness’ of supranational citizenship. Section 2.5 proposes a hypothesis of acculturation to European citizenship. Considering that legitimacy may be the trigger for mechanisms of acculturation to the script of coexistence as citizens in the EU order, this part examines elements of institutional design, which might be conducive to making citizenship, and the status of legitimacy that comes with it more visible to the citizens themselves. It highlights moments of belonging in the language of citizenship, and emphasizes, through persuasion, the minimum shared identity of the Europeans. It then considers how self-enforcing acculturation mechanisms might operate once the legitimacy connected to citizenship becomes salient for the Europeans. Eventually, the sense of civic sameness that acculturation might induce is distinguished from identity. Section 2.6 suggests that from a Hirschmanian perspective, European citizens face many easy options for exit on the socio-psychological level, while their options for a voice at the political level are limited. The combination of these two conditions might represent an obstacle to the evolution of a full-fledged European identity. 2.2. Citizenship and Sameness in the Compliance Perspective 2.2.1. The Literature on European Identity European integration has gone hand in hand with increasing aspirations for the creation of a European identity. Some thought this identity was to be engineered and fashioned, while other views felt it would spring from the common past and heritage of Europe and needed only to be dusted

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off. An official declaration on European identity was adopted by the ­institutions of the Community in 19733 and the Adonnino report on a People’s Europe4 followed only a few years later. Why so much clamour for European identity? Many feel it to be the missing keystone for a united Europe, and a desirable goal, which could be a salve for many of the faults of the European Union, from its democratic deficit, to its weak social side, to its reduced popular appeal, and its openness to the rest of the world. More specifically, many accounts advocate a European identity to increase the legitimacy of the European project and firmly anchor it to the will of the people of Europe.5 Other voices associate with identity a deeper sense of reciprocal responsibility, which allegedly would foster support for Europe-wide redistributive policies.6 Finally, yet other views, which are closest to the concerns addressed in this work, identify the subtle but important link between the issue of identity and the issue of coexistence of a plurality. Identity could itself be thought of as recognition of multiple levels of allegiance and belonging, or could follow the delicate task of “differentiating the Europeans and yet being assimilative”.7 For all of these reasons, European identity is a hot topic, which has attracted the attention of students in several fields, from politics, to law, to psychology, to sociology, to anthropology and history. Joseph Weiler has set the terms of this debate, several years ago, by contrasting the civic consciousness of Europe with the cultural-ethnic ethos of 3 See Declaration on European Identity signed at Copenhagen on 14 December 1973 available at http://www.cvce.eu/obj/declaration_on_european_identity_copenhagen_14 _december_1973-en-02798dc9-9c69-4b7d-b2c9-f03a8db7da32.html, (last visited August 2012). 4 See Pietro Adonnino, A People’s Europe. Reports from the ad hoc Committee, 1985 available at http://aei.pitt.edu/992/ (last visited August 2012). 5 See Chris Shore, The Cultural Politics of European Integration (2000) at 18–20; Neil Fligstein, Euroclash, the EU, European Identity and the Future of Europe (2008) at 4, according to whom it is the citizens own sense of being Europeans which leads them to support or not Europe-wide decision making on certain political issues. 6 Ireneusz Pawel Karolewski, Viktoria Kaina, European Identity-Why another book on this topic in European Identity-Theoretical Perspectives and Empirical Insights (Ireneusz Pawel Karolewski, Viktoria Kaina eds. 2006) at 12; also see Craig Calhoun, The Democratic Integration of Europe-Interests, Identity and the Public Sphere in Europe Without Borders-Remapping Territory, Citizenship and Identity in a Transnational Age (Mabel Berezin and Martin Schain eds. 2004) at 249, in the sense that a new conception of the public sphere is needed in Europe in order to build a “European social imaginary”. 7 Anthony Smith, National Identity and the Idea of European Unity, 68 International Affairs 55 (1992) at 76; also see Craig Calhoun, The Virtues of Inconsistency in Constructing Europe’s Identity-the External Dimension (Lars Erik Cederman ed. 2000) at 50–52, according to whom the goal for European identity should not be homogeneity but rather the recognition of multiple levels of connectedness.



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nationhood. He advocates a “community vision”, which should rest on the decoupling of citizenship and nationality, of belonging to the nation and belonging to Europe. In his view, it is in the sharing of political and civil values, that the common identity of the European demos should be based.8 The divide between ethnic and civic conceptions of European identity has provided an important background reference for subsequent studies, contributing in part to mapping the boundaries of the investigation into issues of European identity. Within these boundaries, interdisciplinary works have mainly focused either on classifying the kind of European identity that one could hope for, or on measuring how much identity the integration of Europe has produced so far. There are many different ways of thinking about an identity of Europe. Some distinguish geographical and qualitative categories.9 The main divide in the literature however, is between those who emphasize the civic character of European identity10 and those who hope for a European identity grounded in a common culture.11 A further issue is whether 8 See Joseph Weiler, Does Europe Need a Constitution? Reflections on Demos, Telos and the German Maastricht Decision, supra Chapter 1, at note 90; also see Joseph Weiler, The Transformation of Europe, supra Introduction, at note 1 at 2481. Also see Joseph Weiler, To be a European Citizen, supra Introduction at note 1, at 509–511, describing Europe as a community of others, who “in a range of areas of public life one will accept the legitimacy and authority of decisions adopted by fellow European citizens in the realization that in these areas preference is given to choices made by the outreaching, non-organic demos, rather than by the inreaching one”; he interprets citizenship in this sense as commitment to a set of shared values in civic terms beyond ethno-national diversity. This model of citizenship encourages virtues of toleration and humanity, without ever resulting into a European demos in the organic national-cultural sense of the term. 9 Entangled Identities-Nations and Europe (Atsuko Ichijo, Willfried Spohn eds. 2005) at 5; at the geographical level there are in Europe local, national, European civilizational and an EU identity; from a qualitative point of view, the distinction is among ethnicterritorial, religious-cultural, socio-economic, political-legal, political-military. 10 See Jürgen Habermas, The Inclusion of the Other-Studies in Political Theory (Ciaran Cronin, Pablo de Greiff eds. 1998); Jiri Priban, Legal Symbolism, On Law, Time and European Identity (2007) at 97, in the sense that European Union has been thought as a “civil alternative to the ethnically bounded nation state”; Rethinking Europe-Social Theory and the Implications of Europeanization supra Chapter 1 at note 18, at 76–86 arguing in favor of a cosmopolitan European identity. 11 See Bernhard Giesen, The Collective Identity of Europe-Constitutional Practice or Community of Memory in Europeanization, National Identities and MigrationChanges in Boundaries Construction between Western and Eastern Europe supra Chapter 1 at note 15 at 31–34, arguing in favour of an identity based on common culture and in particular on common traumatic memories. Also see Michael Bruter, Civic and Cultural Components of a European Identity: A Pilot Model of Measurement of Citizens’ Levels of European Identity in Transnational Identities-Becoming European in the EU supra Chapter 1 at note 249 at 190, in the sense that civic and cultural components of identity co-exist in the mind of the citizens.

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European identity is independent from or entangled with national identities. The prevailing sense seems to be that some form of connection, coexistence or inter-twining between the national and the European is unavoidable:12 European identity in other words is unlikely to supersede and overcome national ones. A persistent observation that is denounced in the relevant literature targets the elitist character of European identity. This identity is thick, and potentially evolving, but quite unknown to the general mass of the European people.13 A second strand of literature on European identity focuses on establishing how much identity has taken shape in the context of integrated Europe. In this optic, several studies have relied on the Eurobarometer surveys, and in particular on sets of question within the Eurobarometers, which closely relate to issues of identity. Questions such as: whether people feel national only or national and European, and if so in what order; whether people think that the integration of Europe is a good thing; and whether people travel and master foreign European languages.14 Other studies have proceeded on the basis of interviews aimed at detecting the paths and extents of attachment to Europe the respondents exhibit.15 One study has found that European identity goes together with the “reification” of Europe and its becoming increasingly tangible in the daily life of the Europeans.16

12 See Marco Cinnirella, A Social Identity Perspective on European Integration in Changing European Identities-Social Psychological Analyses of Social Change (Glynis M. Breakwell, Evanthia Lyons eds. 1996) at 258; Entangled Identities-Nations and Europe supra at note 9 at 3; Collective Memory and European Identity-The Effects of Integration and Enlargement (Klaus Eder, Willfried Spohn eds. 2005) at 2. 13 Glynis M. Breakwell, Identity Processes and Social Changes in Changing European Identities-Social Psychological Analyses of Social Change supra at note 12, at 26; Richard Herrmann and Marilynn B. Brewer, Identities and Institutions: Becoming European in the EU, in Transnational Identities-Becoming European in the EU supra Chapter 1 at note 249; Thomas Risse, European Institutions and Identity Change: What Have we Learned? Ibid. at 260; Viktoria Kaina, European identity, legitimacy and trust: conceptual considerations and perspectives on empirical research in European Identity-Theoretical Perspectives and Empirical Insights supra at note 6 at 113–114. 14 See Jack Citrin and John Sides, More than Nationals: How Identity Choice Matters in the New Europe in Transnational Identities-Becoming European in the EU supra Chapter 1 at note 249; Franziska Deutsch, Legitimacy and Identity in the European Union: empirical findings from the old member states in European Identity-Theoretical Perspectives and Empirical Insights supra at note 13; Glynis M. Breakwell, Identity Processes and Social Changes supra at note 13; Peter Kraus, A Union of DiversityLanguage, Identity and Polity-Building in Europe (2008). 15 Michael Bruter, Civic and Cultural Components of a European Identity supra at note 11 at 192–96. 16 Emanuele Castano, European Identity: A Social-Psychological Perspective in Transnational Identities-Becoming European in the EU supra Chapter 1 at note 249.



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The literature on European identity is certainly extensive, varied and rife with important findings. It does not get to conclusive determinations however, and it fails to cover some important facets of the issue. The empirical emphasis in this literature results at times into conflicting findings. For instance, some studies have shown that an increase in European identity is positively related to an increase in tolerance in the European population.17 This can be contrasted with others, which have shown that more identification with Europe leads to more xenophobia.18 Yet other studies have concluded that identification with Europe is a right wing issue, while others argue that it is a left-wing matter, and still others that it is something for the political center rather than for the extreme wings, which are opposed to Europe and to Europeaness.19 Thus the findings can be contradictory, and in some areas of study they are merely suggestive. This is the case with regard to mechanisms for the formation of identities, which are suggested occasionally, but rarely built upon, turned into solid hypothesis and tested on the ground.20 Avenues to European identity, which have been tentatively explored in the literature, include interaction with the common market and individual experience with European institutions;21 socialization and social learning;22 and 17 See Jack Citrin and John Sides, More than Nationals: How Identity Choice Matters in the New Europe, supra at note 14 at 179–84; also see Thomas Risse, European Institutions and Identity Change: What Have we Learned? supra at note 13 at 256–57. 18 Amelie Mummendey and Swen Waldzus, National Differences and European Plurality: Discrimination or Tolerance between European Countries, in Transnational IdentitiesBecoming European in the EU supra Chapter 1 at note 249, at 63–65. 19 For the idea that the right wing more easily identifies with Europe see Deflem, Pampel, The Myth of Postnational Identity, 75(1) Social Forces 119 (1996); also see Michael Bruter, Civic and Cultural Components of a European Identity supra at note 11; for the idea that the left wing more easily identifies with Europe, see Jack Citrin and John Sides, More than Nationals: How Identity Choice Matters in the New Europe, supra at note 14; for the idea that European identity rests in the central part of the political spectrum see Neil Fligstein, Euroclash, the EU, European Identity and the Future of Europe, supra at note 5. 20 The gap is identified by Thomas Risse, European Institutions and Identity Change: What Have we Learned? supra at note 13 at 270–71; also see Viktoria Kaina, European identity, legitimacy and trust, supra at note 13 at 130–33 signaling the underdevelopment of the study of processes in the field of European identity. 21 See Klaus Eder, Remembering National Memories Together: The Formation of a Transnational Identity in Europe in Collective Memory and European Identity-The Effects of Integration and Enlargement supra at note 12, at 218–219, underscoring that this interaction creates a common past; also see Transnational Identities – Becoming European in the EU, supra Chapter 1 at note 249, at 14 in the sense that “identification should be a function of the breath and depth of the experienced effects”. 22 See Thomas Risse, European Institutions and Identity Change: What Have we Learned? supra at note 13 at 266–67, underscoring that socialization mechanisms seem to be the best candidates for explaining processes of identity formation in Europe; on social learning see Jeffrey T Checkel, Social Construction and European integration in The Social Construction of Europe (Thomas Christiansen, Knud Erik Jorgensen and Antje Wiener eds 2001) at 53–54.

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communicative processes.23 While all these mechanisms hold promise in terms of explaining how we might end up one day with a tangible European identity, the steps that are required, and timeline for achieving this European identity remain quite foggy. Dispelling this fog is one of the central objectives of this work, which responds to some of the appeals launched by the students of European identity24 and shares in one of their concerns. Namely, how the other, in Europe, can become the same in the perception of the Europeans. From the perspective of trying to trace possible ways out of this puzzle, this work focuses on the dynamics of legal citizenship in Europe, highlights its pockets of ineffectiveness, and proposes an alternative, multi-step model according to which the citizens of Europe might develop a pre-identitarian sense of sameness. 2.2.2. The Peculiarity of the Citizenship Norm 2.2.2.1. Describing Citizenship as Marker of Community: Legal and Societal Sameness Citizenship is a multi-faceted notion, and a complex concept, whose meaning and reach can only be appreciated in their entirety by looking in several different directions. At the very minimum, citizenship corresponds to a bundle of rights, it brings about a legal status of membership and a meta-legal status of belonging. It may correspond to a set of civic duties, it emphasizes the stake that its holders share in a community, thereby triggering the entitlement and the interest for active political participation, and finally it may be related to an idea of emotional, sociopsychological and political identity.25 23 Gerd Harrie, European Identity, Implications from the social theory of Norbert Elias in European Identity-Theoretical Perspectives and Empirical Insights supra at note 6 at 85–87, referring to processes of “talking about”, “communication” and “social behavior”; “the more a European identity is verbalized and lived, the more the ethnic, cultural of national identities lose relevance as a spheres of activity for their own affective valences of EU-citizens. Negotiation of areas of everyday life at the European level rather than at the national and regional level may induce EU citizens, according to the author, to construct a European identity. 24 See Thomas Risse, European Institutions and Identity Change: What Have we Learned? supra at note 13 at 267–70 suggesting that their findings are speculative and underspecified and that persuasion and socialization mechanisms are the most promising for further investigation. 25 For this classification of the different sides of citizenship, see Linda Bosniak, Citizenship Denationalized, 7 Ind. J. Global Leg. Studies 447 (2000).



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The analysis in this chapter focuses on one specific facet of the notion of citizenship, which is arguably not exhaustive, but certainly influential, that of legal citizenship as the marker of a bounded community. The capacity to identify and construct sameness, by setting the criteria according to which a person belongs to a group of citizenship, is what denotes the role of legal norms of citizenship as markers of community. The legal norm of citizenship contains the legal definition of a group of subjects, who due to their belonging to the group that the norm identifies, have, in line with what has been suggested above about the complexity of citizenship, a status, certain rights descending from that status, an interest in actively participating in a certain polity and the seeds of a shared identity. Thus far, the legal notion of citizenship does not seem to differ so widely from other legal norms. Many legal norms define a class, or rely on exogenous definitions of a class, for purposes of conferring rights upon its members or imposing obligations on them.26 Legal norms, in other words, identify a class of subjects, and because of that identity confer rights and obligations upon them. The distinguishing character of the legal norm of citizenship, however, is in that it not only confers rights or obligations on subjects having a certain identity, but it also confers that identity on them. By calling a group of people citizens, the norm identifies the relevant requirements or characteristics that make them such, and because of their possession of these characteristics it defines them as the same and as part of a community. Other norms also define their targeted subjects by highlighting their qualifying characteristics. This characterization, however, is functional to their exercising the rights or complying with the obligations that the norm entails, it is in other words a means to the proposed ends of the norm. A norm may for instance say that creditors owed the payment of a sum of money have certain tools available to exact the payment of their debts. Or a norm can say that parents are liable for the actions of their children below a certain age, or that every person has a right to speak freely. All these norms capture only a tiny fraction of the identity of a person and rely on mere personhood without appealing to any additional identity 26 One could think for instance to the civil law norm according to which creditors have the right under certain conditions to act on behalf of their debtors to obtain the payment of certain debts due to the debtors; or to the norm according to which parents are liable for the actions of their children under a certain age.

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than that of being creditors, parents, or people.27 They emphasize that identity as a function of what comes next: the right to exact a debt, the duty to answer for their children actions, the right to speak. Other than for purposes of its task, the norm leaves them free to possess and exercise any other identity they might have and to even divest themselves of any of those identities. The norm of citizenship instead has an innate constructive character. It says that those born on a certain territory, those born from certain kinds of parents, and those naturalized in a certain place can vote, have welfare rights, and must pledge allegiance to a certain place, etc. The legal norm of citizenship impliedly treats them as if they are the same, and views them as members of the same community. Because of this their destiny is somehow inextricably entwined with that of the community. Their rights, their duties, their options for economic activities, the future of their children, their being welcomed or rejected in other parts of the world and many other issues will depend on their being identified as citizens by that norm.28 Because the status it confers on a group of subjects is not a means to an end but an end in and of itself, and because of the complexity of that status, the norm of citizenship stands apart from many other legal norms, in terms of its capacity to mark a well bounded community of subjects.29 In this chapter, the focus on the notion of citizenship as marker of ­community is related to the intent to study citizenship as a potential

27 In this latter case, the norm captures not a fraction but the most general container of identities, personality, yet in doing this it does not set itself out to identify any specific identity of the targeted subject. 28 See Michael Walzer, Spheres of Justice-A Defense of Pluralism and Equality (1983) at 31, in the sense that “the primary good that we distribute to one another is membership in some human community. And what we do with regard to membership structures all our other distributive choices. 29 To be sure, other legal norms have an identitarian character comparable to the one of the norm of citizenship; one could think for instance of the norm establishing rights and opportunities for minorities within a national state; a legal norm might say that all those born in a certain area of the national territory are entitled to bi-lingual public education; or that all those belonging to a certain religious group are entitled to religious instruction in school in the history of their faith; these norms do single out a group by specifying an identity, linguistic or religious for that group; in establishing special rights for that group they also consolidate a potential community of belonging. Their role remains however distinct from the one of the legal norm of citizenship. First those norms rely on pre-­existing identity components, such as language or religion. Second, the status they contribute to  create is in no way as comprehensive and encompassing as the one entailed by citizenship.



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s­ ocializing institution. According to one effective definition, a norm is an expectation of appropriate behavior held by an actor having a certain identity.30 The legal norm of citizenship in this sense may be seen as entailing a corresponding meta-legal norm of sameness. The legal norm of citizenship sets forth the criteria (birth, residence, parentage, special merits etc.) according to which a person belongs to a group. This group is bounded according to the same criteria that identify its members. The corresponding meta-legal norm of sameness is an expectation of an appropriate sense of sameness on the part of the components of that civic group. In other words, the legal norm of citizenship may be considered as calling for a certain perception of ‘groupness’ on the part of the citizens themselves, constituted as a group by the legal norm. In this work, the norm of sameness tied to the legal norm of citizenship shall be referred to as “legal sameness” in order to distinguish it from the different notion of “societal sameness”, which is about to be introduced. If the legal norm of citizenship entails the expectation of an attitude and perception of “groupness” among the members of the group of citizens, the actual sense of groupness those citizens possess may be influenced by other, non-legal factors, which might well address their sense of sameness in a different fashion. Legal criteria for membership do not coincide with societal factors of membership, which point to groups of membership that are more narrowly, more broadly or consistently bounded with respect to the group of citizens. There are two main types of societal factors that are referred to here. On the one hand, individual features of the population, such as language, ethnic features, religious beliefs. While on the other there are the competing collective identities of the population. If some of the people belonging to a group seen as having legal sameness also possess alternative, marked collective identities, such as national ones, this might pose a barrier against the ripening of a sense of sameness with respect to those, whom a legal norm describes as being the same, but yet do not share in that pre-existing collective identity. Societal factors of similarity or diversity contribute thus to the actual perceptions of sameness and groupness that people hold. This work refers to these actual perceptions as ‘societal perceptions of sameness’ or more 30 The Power of Human Rights-International Norms and Domestic Change (Thomas Risse, Stephen Ropp, Kathryn Sikkink eds. 1999): collective expectations of a behaviour seen as appropriate for a certain identity; also see Martha Finnemore & Kathryn Sikkink, International Norm Dynamics and Political Change, 52 int’l org 887 (1998): “beliefs about appropriate behaviour shared by a group having the same identity”.

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simply ‘societal sameness’. Societal sameness depends ultimately on whom the citizens themselves, on the basis of societal and other factors of diversity or similarity, perceive as being the same for the purposes of fruition of rights, of participation opportunities and for the feeling of a shared identity. It depends on where the citizens themselves draw the bound­ aries of the group in which they consider themselves members, notwithstanding legal norms.31 The use of the term societal here can be contrasted with legal. Societal is what de facto happens at the level of interaction among the citizens, on the basis of societal factors and possibly notwithstanding legal rules, which may or may not affect those interactions. This is not to say that the societal domain is outside the law, but that it is a domain which may be affected by law (part of the goal of this chapter is to explore how) but is not necessarily so. Societal perceptions of sameness are held individually but they might have reflexive qualities. These reflexive qualities are that a perception of sameness on one part of a relationship may exercise a pull for similar perceptions from the other side. This is why, later in this work, when considering possible expressions of societal sameness, data on governmental attitudes or on political and legislative decisions in a certain country are used. Upon usage of such data this work will elaborate in more specific Legal norm of citizenship (legal criteria for the grant of citizenship)

Societal factors of sameness

Legal sameness (expectation of sense of “groupness” consistent with the boundaries of group of citizens as drawn by criteria above)

Societal sameness (actual sense of “groupness” held by people)

Figure 1. Legal and Societal Factors of Sameness. 31 The discourse here focuses on subjective perceptions rather than objective conditions of sameness, because individuals are capable of imagining themselves as same even if there are concrete differences among them, and on the other hand differences may be imagined even in the presence of concrete conditions of sameness. The community sticks together in good part because it imagines itself same.



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terms the rationales according to which it has sometimes found it necessary to use government or political belonging as a proxy for societal. The general theory behind that choice has to do with the fact that the societal, political and governmental spheres are not isolated but inter-communicant. Societal perceptions, even if originally held individually, tend to spread and may be communicated to the political sphere and from there to the intergovernmental one.32 The perception of groupness to which this work refers as societal sameness does not coincide with collective identity.33 It comes before identity, and it can lay the ground for an identity to form, but it lacks some of the elements, which are inherent in the notion of collective identity.34 Collective identity includes a commonality and a distinctiveness component.35 Namely, something that makes people feel part of the same group, and something that makes them feel distinct from other groups. Societal sameness rests on the first part of this construct. It takes shape when people start feeling that they have something in common, so that when they confront each other, they see at least in part a self rather than the other. But they do not necessarily have a common other yet. Collective identities 32 Statistical data and cumulative data are also used as potential descriptors of societal sameness: these data are taken to express the aggregation of individual perceptions and preferences. 33 In this sense the notion of societal sameness applied in this work brings about echoes of both the notion of collective identity (the self-understanding of a certain group-see Rethinking Europe-Social Theory and the Implications of Europeanization supra Chapter 1 at note 18 at 52) and the notion of societal identity (societal or civilizational identities are based on broad cultural categories, which allow to encompass an entire society why making space for different collective identities within it, see id. at 53); it is not exhausted in either of them however; on the one hand societal sameness comes before the self-understanding of the group (for the idea that collective identity is not simply the sum of individual identities see id. at 52), as it is an individual perception with reflexive qualities; reflexive qualities are in that perception of sameness on one part of a relationship may exercise a pull for similar perceptions on the other side; on the other hand it differs from a societal identity, because it is not a descriptive device, but rather the outcome of a process of self-assessment on the part of the individuals within a community. 34 See Rethinking Europe-Social Theory and the Implications of Europeaniza­ tion supra Chapter 1 at note 18, at 51–52 suggesting that identities are constructed, they have a narrative dimension and emerge in connection with social action, and they regard a relation of the self and of the other. 35 Thomas Risse, Daniela Engelmann-Martin, Identity Politics and European Integration: the Case of Germany, in The Idea of Europe-From Antiquity to the European Union (Anthony Pagden ed. 2002) at 291 suggesting that social identities contain two elements: a perception of commonality among the members of a group which leads them to form an imagined community, and an element of distincton from other communities, which emphasizes that commonality.

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are complex statuses, which evolve as the result of a myriad of intertwined processes.36 Societal sameness may be seen as a first step in the starting out of these processes. It is the result of the maturation of basic conditions, according to which people’ sense of alienation to each other starts fading. In identity terms, societal sameness is primordial. While it is related to a sense of legitimate sharing, societal sameness does not go as far as to conceive the “cognitive, affective and evaluative components” of collective or social identity.37 Collective identity goes one step further. It has both a socio-psychological and a political part. On the one hand it is tied together by those links of reciprocal cognition and affection, which have been described above, so that the community develops a common self and a common distinction from other groups. On the other one community finds expression in participation, exchange, and decision-making on matters of common interests. Thus, the collective ­identity of the community is not only emotional and psychological but also political. The notion of societal sameness this work espouses stops short of all of this. Yet it is a notion that may be important to the grip of notions of citizenship have in a certain community. Societal sameness entails a minimum level of sharing that may allow harmonious coexistence in the community. In this sense it realizes a promise akin to the one that citizenship can be seen as bringing about. Legal sameness and societal sameness may in fact coincide or diverge. They are likely to coincide if the group of people that the criteria in the norm of citizenship single out as same overlaps with the group of people that societal factors describe as same. The convergence between legal sameness and societal sameness, when it occurs, may be interpreted as a situation of the effectiveness of the norm of legal citizenship, considered as marker of community. Citizenship is effective in this case, because the sense of groupness that it entails has a societal counterpart. The legal 36 See Evanthia Lyons, Coping with Social Change: Processes of Social Memory in the Reconstruction of Identities, in Changing European Identities-Social Psychological Analyses of Social Change supra at note 12 at 34, “in the case of group identity, identity would be the outcome of the interaction between the capabilities, limitations and identities of its individual members, the structure of the group including the network of social and power relationships it entails, and its position in relation to other groups.” 37 See Transnational Identities: Becoming European in the EU supra Chapter 1 at note 249 at 6. Also see John C Turner, Rediscovering the Social Group: A SelfCategorization Theory (1987) at 29 defining social identities as “those aspects of an individual’s self concept based upon their social group or category memberships together with their emotional, evaluative and other psychological correlates”.



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members of the group feel themselves to be part of the group with respect to the societal reality. If the group having legal sameness according to the norm of citizenship has either larger or narrower boundaries than those suggested by societal factors and echoed in societal perceptions, a rift opens up between legal and societal sameness. The potential ways to narrow that rift and to reconcile legal and societal sameness through discourses of citizenship differ in a national, and in a post-national context such as that in which the norm of European citizenship operates. 2.2.2.2. Legal and Societal Sameness in the National Context Discourses articulated around national citizenship have traditionally provided strong incentives for legal and societal sameness to stick together, even if they have had varied success. While many nation states are and have historically been organized around communities, which hosted ­people different for ethnicity, language, roots and culture, the national idea has provided the cement needed to keep legal and societal sameness together. It weaves indeed an imaginary narrative of commonality that is  justificatory of the political community’s existence and of its self-­ determination.38 The nation is a community defined in cultural terms; a “named human population sharing a historical territory, common memories and myths of origin, a mass, standardized public culture, a common economy and territorial mobility, and common legal rights and duties for all members of the collectivity”.39 Smith’s definition of a nation sheds light on the kind of glue that in the context of national citizenship keeps together legal and societal sameness in lockstep with one another. A common culture, made up of history, myths, and culturally constructed boundaries tends to incorporate sub-national peculiarities and to promote a national consciousness, “which leads members to feel responsible for one another”.40 In this way the legal sameness entailed by the norm of national citizenship comes to find support in an image of cultural sameness with its roots in the idea of the nation. Societal differences, whether 38 See Jurgen Habermas, The Inclusion of the Other-Studies in Political Theory supra at note 10, at 106–107. 39 Anthony Smith, National Identity and the Idea of European Unity supra at note 7 at 60. 40 Jurgen Habermas, The Inclusion of the Other-Studies in Political Theory supra at note 10 at 113.

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ethnic, religious or purely social tend to pale in front of this,41 as the momentum filled force of the national idea performs the spells, which can make homogeneity also out of de facto heterogeneity.42 According to Benedict Anderson, it is language and communication technologies, which have provided the fundamental vehicle for imagining national communities, by building a narrative around them.43 New technologies of communication, beginning with the invention of the printing press accompany a change in temporal conceptions. A sense of simultaneous existence matures when reading about other people and their enterprises, and the link of common language and shared tales bridges physical and temporal distances. This is the first step towards imagining the national community.44 Communication is central also to Gellner’s theory of nationalism, according to which a key element in the development of the national idea is the communication of a high culture through the system of mass education of which the state becomes monopolist.45 Gellner locates the origin of nationalism in the industrial age, when society gets to be organized around the aspiration for continuous economic growth, and a division of labor based on a highly standardized form of education becomes central to the economic organization of the community.46 Public education in the hands of the state represents a powerful channel through which to spread a high culture, the national one, to all the segments of society. More 41 See Benedict Anderson, Imagined Communities (1991), at 22. Also see Thomas Risse, A European Identity? Europeanization and the Evolution of Nation State Identities, in Transforming Europe, Europeanization and Domestic Change (Maria Green Cowles, James Caporaso, Thomas Risse eds., 2001). What is a collective identity pertaining to the nation-state? It is a consensual perception of an individual belonging to a group, including “emotional, affective and evaluative components”. On the basis of the something they have in common groups of individuals form imagined communities. Imag­ined communities, in this case national ones, are reinforced by their common perception of the other. National identities are context bound, and they have many different components. 42 In this way, national culture becomes the strong link, which guarantees the coincidence of ethnical and political boundaries. See Ernest Gellner, Nations and Nationalism (1983) at 81. 43 Benedict Anderson, Imagined Communities supra at note 41, at 113–140 and at 22; according to his theory, the spread of new communication technologies, like the press, induces the maturation of a simultaneous conception of time, where it is conceivable that several people exist and are engaged in different enterprises at the same time. The image of the national community finds origin in this idea of simultaneous existence and engagement. 44 Capitalism, according to Anderson helps this phenomenon and accelerates it, by increasing the circulation of the printed media. Id at 140. 45 Ernest Gellner, Nations and Nationalism, supra at note 42 at 8–18. 46 Id. at 24–27.



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specialized groups, which in a more fragmented community had found their niche and their avenues for expression, remain overwhelmed by the national idea, and their group identities eventually surrender to the allencompassing national one.47 The carefully built image of the national cultural community has thus had a historical role in concealing differences, namely societal differences.48 Through the narrative of common language, common culture, common history, nationalism has helped citizens indeed in their societal experience to imagine themselves as the people identified by the legal norm of citizenship.49 This might appear to be too rosy of an account of nationalism. Indeed, divergence between the legal and societal remains possible in the national context also. This sometimes leads to vocal manifestations, as the long history of national minorities, secessionist movements and civil wars illustrates.50 Nationalism promotes cohesiveness, but not necessarily fulfillment, happiness, even treatment or justice. While it conceals them, it  does not necessarily eliminate these frictions. Since the nation is an imagined community, the internal consistency of this community finds a limit in the same limits of the power of imagination. Certain differences, whether cultural, historical, linguistic or otherwise are simply too strong

47 Id. at 34–35. 48 This has been the case in the 19th century, when the national tale was a powerful tool in the hands of dynasts to legitimate their authority by hiding deep differences in the roots, cultures, languages of the people they ruled. Id. at 84–85, 97 and 110. European dynasts started promoting a certain version of nationalism as official practice; processes of this kind can be accounted for in the Hapsburg empire, in the English empire, and in the Japanese one. This tool has then been recycled in the colonial era, when the national tale has been a way to introduce the colonies to the identity of the colonial power. Id. at 113– 140. Even in the post World War II and decolonized world, nationalism has survived as a strategy for the synthesis of societal differences, providing a constant incentive to narrow the gap between legal and societal sameness, or at least the veil to mask this gap. 49 But see Reinhard Bendix, Nation-Building and Citizenship-Studies of Our Changing Social Order (1996) at 165–69; arguing that in the context of nation building in western societies, and through the consolidation of a model of public authority based on neutral burocrats, national allegiance is split from social cohesion. It relies on a more neutral sentiment of belonging to a shared community of government, of representation, of shared resources, regardless of social and cultural affinity “In Western societies organized interests have formed in great numbers on the impersonal basis of common interests. [...] Accordingly attention is focused at the governmental and national level, while group feeling or fraternity are on the wane despite the growth of organized interests”. Id. at 171–72. 50 See The Idea of Europe-From Antiquity to the European Union supra at note 35, suggesting that for some national minorities within European nation states it is actually easier to identify with Europe, than to identify with the nation.

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to be imagined as same.51 As a result, history teaches of episodes such as the bloody dissolution of the Yugoslavian federation, the secessionist vocation of minorities with strong identities such as the Basques in Spain and the long series of the civil wars around the globe. Nationalism thus is not immune to the danger of disintegration.52 The silent nature of many potential cultures around the world corroborates the idea that nationalism has no ontological feature,53 but is rather a matter of expression and of historical chance.54 Despite its failures, and despite its inventive component, nationalism represents perhaps the most important exogenous element in the struggle to close the gap between legal and societal sameness. While it certainly has not obliterated relevant differences of fact in the composition of national societies, and it has allowed for the subsistence of strongly marked sub-national identities, it has provided the discursive material to mask those differences with cultural homogeneity.55 51 Thoughts go to national, religious, linguistic minorities living within the boundaries of established national communities and formally belonging to those communities, yet perceiving and affirming themselves as different: Basques in Spain, Valdesi in Italy, etc. For an analysis of the tension between the organizational model of the nation state in Europe and the “sociological phenomenon of ethnicity” see Christoph Pan, Beate Sibylle Pfeil, National minorities in Europe: handbook (2003), at 3–8. 52 While it evokes ideas of force and power, it has been described indeed as weak: in the large family of potential nations around the world, the silent, underground ones are significantly more than those which have found expression in a nation-state; see Ernest Gellner, Nations and Nationalism supra at note 42 at 43–45; there are a lot of dogs who did not bark. 8,000 languages are spoken throughout the world (considering nation as expression of culture, and language as a proxy for culture) but only about 200 states. This means that some cultures do not bother to struggle; this indicates that nationalism itself is not strong. Also see Lars-Erik Cederman, Nationalism and Ethnicity in Handbook of International Relations (Walter Carlsnaes, Thomas Risse, Beth Simmons eds. 2002), at  411 on the idea that nationalist activity can bring both to political integration and ­territorial fragmentation. 53 See Ernest Gellner, Nations and Nationalism supra at note 42 at 46 “nationalism is not the awakening of an old, latent, dormant force, though that is how it does indeed present itself. It is in reality the consequence of a new form of social organization, based on deeply internalized, education-dependent high cultures, each protected by its own state.” 54 See id. at 126 in the sense that what matters for the affirmation of nationalism is “whether the conditions of life are such as to make the idea seem compelling, rather than, as it is in most other situations, absurd.” 55 But see Rethinking Europe-Social Theory and the Implications of Europe­ aniza­tion supra Chapter 1 at note 18 at 53 suggesting that globalization has changed the role of culture in promoting social integration, and as a result national identity has lost part of its integrative role. “…the nation no longer fits into the sphere of the state, providing the latter with an identity and cultural legitimation. Globalization has unleashed numerous processes of differentiation, as well as of de-differentiation, and these cannot easily be resisted by recourse to nation-building or to nationalism”.



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Once citizenship, as is the case in the EU, is pushed beyond the boundaries of the nation, legal and societal sameness navigate in troubled waters, where other avenues for their coexistence need to be explored and spelled out. 2.2.2.3. Legal and Societal Sameness Beyond the Nation Beyond the boundaries of the nation, the exogenous tool of nationalism, exogenous with respect to the norm of citizenship, used to keep legal and societal sameness together is lost. Notions of citizenship beyond the nation and within a regional framework may still be helpful in tackling the issues of coexistence and of diversity, but only if they provide rationales alternative to cultural homogeneity that reconcile legal and societal sameness. While citizenship is becoming post-national, the world is becoming a global one. Globalization alters the dynamics of interchange and communication among nationally bounded societies, and among smaller groups within those societies. Many accounts of nationalism underline that the national idea is constructed based on imagined narratives, on the dominance­of one culture over others and on communication. Globaliza­ tion is about the availability of communication options even at a distance, about the porousness of borders and the reconnection between p ­ reviously isolated groups. Globalization makes all cultures inter-communicant. In  this way, it challenges nationalism from two sides. First, from below, because it creates spaces of expression for under-affirmed cultures. Second, from above because it expands the possibility of creating imagined narratives about some subtle, cosmopolitan global culture. United Europe is stuck in-between these two dimensions.56 The double edged arrows of post-nationalism challenge the societal sameness of Europe, working as dispersive rather than aggregating agents. European citizenship, which brings about a novel norm of civic sameness, may be seen in its face as marker of a new bounded community of members. However, legal criteria for membership and societal factors of sameness tend to go in opposite directions with respect to European citizenship. The very expansion of the group of people seen as legally the same through the extension of European citizenship goes hand in hand with the dilution of those societal factors, such as language, religion, ethnicity, competing national identities, which contribute in defining groupness at the societal level. 56 Anthony Smith, National Identity and the Idea of European Unity supra at note 7 at 67.

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This diametrically opposed tendency of legal factors of membership and societal factors of groupness represents one novelty of the mechanisms of extension of European citizenship in comparison with other regimes of citizenship. It also sheds light on the novelty of post-national citizenship with respect to national citizenship. Criteria for national membership usually express an intent to preserve and continue certain cultural characters of the national community,57 so that extension of membership to new people through those criteria does not necessarily dilute the societal characters of the community, or does so only to a limited extent.58 This is not the case with respect to post-national citizenship. In light of this peculiar relationship between the expansion of legal groups and the dilution of societal groups in the case of the EU, two questions begin to take shape and call for particular attention, with respect to the dynamics of societal perceptions of sameness in an integrated Europe. The first question has to do with whether increasing divergence between legal criteria of membership and societal factors of sameness affects the allure of the legal notion of citizenship on the corresponding perception of sameness. In other words, the question is whether the mismatch between the two elements in the upper row, somehow reduces the strength of the vertical relationship on the left hand side of Figure 1. The second question is whether despite the mismatch between the legal criteria and the societal factors, the legal norm of sameness can still exercise an influence on societal perceptions of sameness and if so, according to what mechanisms. This would have to happen through a strengthening of the horizontal relationship at the bottom of Figure 1, and a contextual weakening of the vertical relationship on the right hand side 57 With respect to birth-right citizenship requirements of descent may be seen as performing a function of this kind; with respect to naturalization, requirements of language knowledge, of familiarity with the laws, history and constitutional traditions of the country, or requirements of assimilation may be read in this optic. 58 There are of course exceptions to this. In the US setting for instance, an exception might be found in the extension of national citizenship to residents of the overseas territories at some point in the course of the 20th century: extension of citizenship to Puerto Ricans for instance might have diluted to some extent societal factors of sameness by extending the circle of membership to a population that speaks primarily Spanish. Also with the joining of Texas in 1845, a substantial population with Spanish and Mexican cultural roots has come to share in American citizenship all of a sudden. In these episodes however it is not criteria of legal membership per se that determine dilution of societal factors of sameness, but rather the way they played out in specific historical episodes. In the case of European citizenship, instead, it is the way in which the criteria for the grant of legal membership operate which is prone to promote more discontinuity than continuity in societal factors of sameness.



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of the same figure. In other words, in a situation like the European one, the potential influence of legal sameness on societal sameness rests in its capacity to play down the role of societal factors of difference. These interrogatives are framed by considering citizenship as a socializing institution. That is to say that in the absence of exogenous elements to promote a reconciliation of normative hints and societal perceptions, the capacity of European citizenship to solicit a sense of sameness may pass through the constructive power of law.59 With respect to the studies of European identity, the path chosen is both alternative and complementary. In part it seeks similar answers by asking different questions. In doing so, it recuperates some facets of the issue, which are overshadowed in those studies, thereby adding to their capacity for explanation. Citizenship may be seen as effective in constituting the community it marks by selecting its members, if it socializes those members to the legal norm of sameness it entails. This process of socialization would have to pass through the promotion of a sense of civic sameness among the citizens as members of a community of law. This sense may be conducive to playing down the grouping effect of ethnic, cultural and religious boundaries. Promotion of this sense of civic sameness can be interpreted as the pressure towards compliance that the legal norm of citizenship exerts with respect to its implied norm of sameness. Compliance in this sense is the situation in which the boundaries of the group of people that the legal norm of citizenship describes as being the same and the boundaries of the group of people who perceive each other as being the same coincide at the societal level; in other words, in this instance legal and societal sameness as defined above coincide. This is the ideal situation, in which the legal notion of citizenship effectively performs the constitutive part of its role as a marker of community, muting or minimizing the grouping effects of societal factors of sameness competing with legal criteria of membership. Having framed the issue in these terms, finding answers for the two questions posed above requires exploring the conditions, which may strengthen or weaken the tendency toward compliance exerted by the norm of citizenship, and the mechanisms according to which it might promote perceptions of civic sameness. Part of this effort entails a more thorough understanding of the way in which the norm of European citizenship might cause diffusion at both the domestic and at the societal level. 59 For another reference to the power of European citizenship in respect of constructing community, see Dora Kostakopolou, Ideas, Norms and European Citizenship, supra Introduction, at note 11.

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In the European case, the legal norm of common citizenship to which citizens may eventually be socialized is both post- and supra-national, and it is a norm adopted within the frame of an international organization. Thus, it is akin to an international norm. One place to look when searching for ideas on its capacity for socialization and on its pull towards compliance is in International Law (IL) and International Relations (IR) literature on the effectiveness of international norms. In particular, this work relies on the literature on compliance with international norms,60 and on the literature on regime design for human rights norms.61 The following paragraph briefly introduces this literature and then elaborates on the analogies and the theoretical premises, which might make it helpful for this quest. 2.2.3. The Compliance Approach Having framed the relationship of legal and societal sameness as the expression of the pull towards compliance exerted by the norm of citizenship, the quest at hand becomes, in part, an investigation of the effectiveness of an international norm (of citizenship) in a domestic and societal context. It is an investigation of how the legal norm of citizenship may socialize the citizens themselves to the legal norm of sameness it entails. There is a rich literature at the intersection of international law and international relations, which explores the mechanisms for effectiveness of international norms and proposes models to tackle the issue of compliance.62 It is in this very intersection that this work proposes to search for clues that will help explore the dynamic of the norm of European citizenship. 60 See e.g. Martha Finnemore, Norms, Culture, and World Politics: Insights from Sociology’s Institutionalism, 50 int’l org. 325 (1996); Martha Finnemore & Kathryn Sikkink, International Norm Dynamics and Political Change, supra at note 30; Martha Finnemore, The purpose of intervention: Changing Beliefs About the Use of Force (2003); J.T.  Checkel, Norms, Institutions and National Identity in Contemporary Europe, 43 Int’l Stud. Q. 83 (1999); J.T. Checkel, The Europeanization of Citizenship? in Transforming Europe: Europeanization and Domestic Change supra at note 41; J.T. Checkel, Why Comply? Social Learning and European Identity Change, 55 int’l org 553 (2003). 61 See e.g. The Power of Human Rights-International Norms and Domestic Change supra at note 30; Ryan Goodman, Derek Jinks, How to Influence States: Socialization and International Human Rights Law, 54 Duke L.J. 621 (2005); Ryan Goodman, Derek Jinks, Toward an Institutional Theory of Sovereignty, 55 Stanford L.Rev. 1749 (2003). 62 Kal Raustiala, Anne-Marie Slaughter, International Law, IR and Compliance in Handbook of International Relations, supra at note 52. Compliance defined as “a state of conformity or identity between an actor’s behaviour and a specified rule”.



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In the debate between international lawyers and students of international relations two main currents of thought63 and myriads of mid-range64 approaches tackle the issue of compliance with competing answers and methodologies, emphasizing different mechanisms as the key to explaining how a norm diffuses and produces effects on actors’ perceptions and behavior. On the one hand, rational choice theorists postulate the individual as the basic unit in social inquiry. These individual agents then act in a consequential way, according to cost/benefit functions, in order to maximize their utility, in the form of their interests and preferences.65 Norms thus shape actors’ behaviors by appealing to those preferences. On the other hand, constructivists view actors’ preferences and beliefs as undergoing processes of continuous shaping, by means of a dynamic of reciprocal constitution between agents and the social environments, in which they operate.66 Norms thus exact compliance by contributing in the reshaping of actors’ preferences. While relying on this literature, this work does not aim at either supporting or challenging any one of these currents. It sympathizes to some extent with the constructivist accounts and it borrows some of their intellectual tools, importing them, with the necessary measure of abstraction into the field of citizenship transformation. In particular, Jeffrey Checkel’s account of norm diffusions provides a helpful frame.67 Checkel studies the mechanisms according to which international norms produce effects in domestic environments. While he acknowledges the value in the insights of constructivism,68 his approach to norm 63 See Joseph Jupille, James Caporaso, Jeffrey Checkel, Integrating Institutions, Rationalism, Constructivism and the Study of the European Union in 36 Comparative Political Studies 7 (2003) at 14, where rational choice theory and constructivism are referred to as two approaches to social inquiry. 64 See id. for an attempt to devise methodological lines to build a dialogue between constructivism and rationalism. For an example of an approach mediating between the two, see Alexander Wendt, Social Theory of International Politics (1999). 65 For a brief review of the main tenets of rational choice theory, see James Fearon and Alexander Wendt, Rationalism v. Constructivism: A Skeptical View in Handbook of International Relations supra at note 52, at 54–56. Also see Raymond Boudon, Beyond Rational Choice Theory, 29 Annual Review of Sociology 1, 3–4 (2003). 66 See Joseph Jupille, James Caporaso, Jeffrey Checkel, Integrating Institutions, Rationalism, Constructivism and the Study of the European Union, supra at note 63 at 14. 67 J.T. Checkel, Norms, Institutions and National Identity in Contemporary Europe, supra at note 60; also see J.T. Checkel, Why Comply? Social Learning and European Identity Change, supra at note 60; the definition of norms diffusion that Checkel refers to is “transfer or transmission of objects, processes, ideas and information from one population or region to another”. J.T. Checkel, Norms, Institutions and National Identity in Contemporary Europe, supra at note 60 at 85. 68 The value added of constructivism can be found in its focus on social learning; J.T. Checkel, Why Comply? Social Learning and European Identity Change, supra at note 60, at 560.

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diffusion is one aimed at remedying some of the shortfalls of constructivist studies. He claims that constructivists, while correctly emphasizing social learning as an important base of influence on actors’ behavior, pay too little attention to the domestic context in which the norm is received69 and lack a proper theory of social learning. Such theory, in his view, finds its roots in a study of the features and qualities of domestic actors, the normtakers in other words. International norms produce constitutive effects in a domestic environment only when they are empowered by their grip on the interests and preferences of domestic actors.70 The appeal that international norms exercise on these actors depends in turn on the structure of the receiving society and on the orientation of relevant domestic norms.71 The focus on the social and cultural substrate into which an international norm has to be received makes Checkel’s approach particularly helpful in addressing the issue of the interaction of legal criteria and societal factors, which is taking place here.72 Another focus of the literature on effectiveness of international norms is on designing optimal regimes for the effectiveness of human rights norms. This branch of the literature provides important insights on the range of available mechanisms, according to which norms that face the prospect of application in places where opportunities for coercive enforcement are feeble may still produce an effect. The lack of an apparatus for direct enforcement is a feature common to both human rights norms and the supranational norm of citizenship, considered in its constitutive role as a marker of community.73 69 See J.T. Checkel, Norms, Institutions and National Identity in Contemporary Europe, supra at note 60 at 87. 70 Empowerment of a norm occurs when “prescriptions embodied in a norm become, through changes in discourse or behavior, a focus of domestic political attention or debate” Id. at 87–88. 71 Id. at 91: “both domestic structures and domestic norms are variables that intervene between systemic norms and national level outcomes”. 72 Other constructivist accounts by providing insight on the dynamic of formation and change of agents’ preferences and beliefs might have been enlightening as to the way in which societal perceptions are born and change over time, and on the ways in which legal notions of sameness can affect these perceptions. As the specific process of diffusion that this work looks at however is one that goes from the legal level to the level of society, Checkel’s attention for the features and characters of a society, which drive its way of absorbing norms, significantly enriches the conceptual box that other strands of constructivist theory might have offered. 73 Rights of European citizens are promptly enforced thanks to the European Court of Justice doctrines of supremacy and direct effect. When this work refers to the lack of an apparatus for direct enforcement, it refers primarily to the “enforcement” of the norm of sameness, which according to this work’s interpretation European citizenship entails. As a



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The relevant literature in international law and international relations has hypothesized and tested diverse models for their effect without direct enforcement. Some have described a complex model of socialization, according to which governmental actors are gradually socialized to the international norm as a result of the combination of different mechanisms over time, such as social pressures and shaming, argumentation and ­persuasion, and eventually habitualization.74 Others have insisted on the fundamental role of domestic actors in pressing for the adoption of international norms.75 Other accounts still underline the role of “strategic socialization”, a process where norm entrepreneurs promote certain norms by persuasion, and these norms are then internalized by state actors as a result of a “norm cascade” mechanism, where peer pressure, professional training, habit and other factors all play a role.76 All these accounts elucidate sophisticated multi-phase explanations of how international norms end up having an influence on international politics and on the behavior of state actors. They all emphasize to some extent the role of persuasion, on the part of some relevant norm promoters, be they social movements, interested domestic actors or norm entrepreneurs. Goodman and Jinks proposed theory of how states are socialized to international norms emphasizes the role of mechanisms alternative to persuasion instead.77 They argue that organizations are structured by the environments in which they operate according to criteria of legitimacy; in particular, state actors are affected by the world context, conceived as an institution, whose scripts they internalize according to a range of mechanisms including orthodoxy and mimicry.78 Acculturation, which they define as the “general process of adopting the beliefs and behavioural patterns of the surrounding cultures”79 is given a central role in their theory of how international institutions affect state behaviour. Acculturation constitutive norm, European citizenship cannot rely on any enforcement apparatus. Indeed there is no sanction for European citizens acting towards each other as outsider; on the other hand the kind of sense of civic sameness, which this work focuses on is not one that could be obtained through sanctioning behavior. 74 The Power of Human Rights supra at note 30. 75 A. Gurowitz, Mobilizing International Norms: Domestic Actors, Immigrants, and the Japanese State 51 World Polit. 413 (1999). 76 Martha Finnemore & Kathryn Sikkink, International Norm Dynamics and Political Change, supra at note 30. 77 See Ryan Goodman, Derek Jinks, How to Influence States supra at note 61; also see Ryan Goodman, Derek Jinks, Toward an Institutional Theory of Sovereignty supra at note 61. 78 Ryan Goodman, Derek Jinks, Toward an Institutional Theory of Sovereignty supra at note 61 at 1752–53 and 1757–58. 79 Ryan Goodman, Derek Jinks, How to Influence States supra at note 61 at 626.

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competes with persuasion and coercion in explaining the adapting of states to the behavior suggested in international norms. Coercion affects a state’s cost-benefit evaluation. Persuasion leads actors to accept a certain norm as valid through cuing and framing. Acculturation rather induces actors to conform to a norm, without necessarily internalizing it as valid and acting under logics of mimicry and fear of social sanctions, to preserve their social status.80 Their model entails fertile insights and reflection on how the norm of citizenship, when pushed beyond the boundaries of the nation can still produce an effect of conformance with its legal definition of sameness at the societal level. Beyond the nation, the persuasive force of national propaganda and that of the supporters of the national idea is lost. Thus, it is the context surrounding the norm of citizenship, which can rather lend it support in promoting a certain perception of sameness. The central commitment of the international law v. international relations debate, described here, is to spell out answers to the problems posed by the thorny issue of compliance. It looks to resolve questions such as how to induce state and non-state actors to commit to and respect international obligations in the absence of an apparatus of direct enforcement. As suggested above, the issue of how a norm of citizenship can solicit a perception of sameness at the societal level corresponding to the one that its implied norm of sameness calls for poses questions comparable to those dealt with in the debate of compliance. There are of course distinctions: international norms, including human rights norms, entail specific and explicit obligations targeted at certain sets of actors. A norm of supranational citizenship does not bring about any explicit obligation in terms of perceptions of sameness. It does not put a badge of dishonour or contempt on citizens who relate to other citizens as outsiders. In its function as marker of a concrete community, it can however be interpreted to imply the expectation that the members of the group it creates will think and act, in certain respects, as members of a group. Only in this way would European citizenship realize the promise of facilitating coexistence with diversity, by aiding each citizen in seeing in a fellow European citizen ‘oneself’ rather than the ‘other’.81 If that promise is not realized, there is no 80 Id. 630–39. 81 See Joseph Weiler, Europe’s Constitutional Sonderweg in European Constitutional­ ism beyond the State (Joseph Weiler, Marlene Wind eds. 2003) at 19 suggesting as a novel strategy to deal with aliens, which might become possible in the context of integrated Europe, the one of reaching out to him and learn to consider the alien as part of one’s own ingroup, without depriving him of the distinct identity that makes him an alien. “On the



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sanction placed upon the citizens, but the suspicion of at least partial ineffectiveness comes to accompany European citizenship. In this paradigm, international norms and the supranational norm of citizenship come to share in one task, that of producing effects by shaping the interests, beliefs and behaviour of a certain set of actors, in the absence of external resources for enforcement. In this respect, the choice of relying on IL/IR literature faces at least two possible objections. The first objection has to do with the fact that much of the international law/international relations literature focuses on the effectiveness of international norms on states’ behaviour. In contrast this work looks into options for the effectiveness of legal sameness notions at the individual level (even if individual perceptions may then transmit and influence also governmental behaviour). However, it relies in part on the fact that while European citizens are individual actors, under the terms of the EU treaties they are treated as subjects of the Union in a way that runs parallel with and is akin to the one of the member states. For instance, the new article 10 TEU,82 which makes explicit the principle of representative democracy, specifies that citizens are represented in the European Parliament, and member states are represented in the Council and in the European Council. In similar terms, new article 13 TEU clarifies that the institutional structure of the Union serves the interests of the citizens as well as those of the member states.83 These provisions point towards an idea of double subjecthood: states and individuals are placed on an even plane, in terms of their interest in the functioning of the Union and in terms of the recognition they can expect from it. This reinforces the appropriateness of referring to mechanisms that have been primarily studied with respect to states, in interpreting European norms. In addition, this work considers individuals in their interaction as citizens. As will be described in more detail later in this chapter,84 modes of participation as citizens on the European scene differ from the traditional options for participation of citizens in the national contexts. While there other hand, despite the boundaries which are maintained, and constitute the I and the Alien, one is commanded to reach over the boundary and accept him, in his alienship, as oneself”; also see Joseph Weiler, To be a European Citizen, supra Introduction at note 1, at 511, in the sense that European citizenship so intended encourages virtues of toleration and humanity. 82 See TEU, art. 10. 83 Id. at art. 13 “The Union shall have an institutional framework which shall […] serve its interests, those of its citizens and those of the member states”. 84 See infra par. 2.5.

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is little room for deliberation in a proper European public sphere, and while voting rights are not that influential, European citizens can confront each other, and the member states with whom they share European subjectivity, as economic actors, plaintiffs in courts, and as members of ­lobbies and pressure groups on the political scene. Negotiation and bargaining, typical of the interaction among states in an intergovernmental setting, has come to characterize the European people’s behaviour as citizens, and their relationship with the states. While this situation has no direct bearing on the way citizenship norms are diffused at the societal level, it makes it more likely that dynamics that IL/IR evidence as taking place in the international sphere, will also have a meaning in the European sphere, and in the interrelation of citizens and of citizens with states.85 Beyond the specific case of the EU, the literature has repeatedly held state actors and individual actors to be comparable categories, and to some extent interchangeable ones, for purposes of studying behaviour. Goodman-Jinks, for instance, themselves refer to the mechanisms they are looking at as mechanisms that can operate both at the collective and at the individual level. They commit to the effort of showing that the mechanisms and theories first elaborated with respect to individuals can also be extended to the study of state behavior.86 In addition, there is theorizing in international relations about the fact that states can be analogized to individuals in international politics, which makes it possible to refer a number of operational processes both to the individual and to the state.87 At this point, the second objection to this choice could be related to the fact that some of the studies already quoted in this work, and some that will be referred to in the ensuing pages, particularly the Goodman&Jinks one, rely on mechanisms and theories, which have been elaborated in the fields of sociology and psychology. Now, it is possible that the critique would be in questioning the reliance of this analysis on theories that borrow some tools from studies in psychology and sociology rather than relying directly on psychological and sociological models. Neither psychology nor sociology however fully examines the set of concepts that this work is looking for. Sociology and psychology are helpful in tackling how norms may diffuse from the legal or institutional to the 85 Par. 2.5 and following detail how this might happen in respect of the notion of legitimacy. 86 Ryan Goodman, Derek Jinks, How to Influence States supra at note 61 at 646–51. 87 A. Wendt, The State as a Person in International Theory, 30 Rev.Int’l Studies 289 (2004).



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societal domain and from there to the self. Indeed, this work relies directly on those studies later in this chapter when it considers the micromechanisms­according to which citizens may be acculturated into a norm of sameness. The process of reconciling legal and societal sameness in the EU entails however multiple channels of diffusion. Indeed it does not merely entail diffusion from the social order to the self, but it entails the diffusion of a normative perception of sameness from the supranational to the domestic level. In this respect it also entails strong analogies with the processes studied in IL and IR, which focus on the path along which international norms come to influence domestic actors. Second, this process follows the transmission of concepts of sameness from one legal order to another legal order. Indeed, the European supranational legal norm of sameness may affect, through the societal level and beyond it, legal normative processes at the domestic level. This poses issues of consonance and dissonance between domestic and supranational legal norms akin to those faced in IL/IR debates. Consonance or dissonance among those norms, and particularly among norms of citizenship and membership, which contribute to inform the feelings of political and emotional belonging are likely ultimately, to affect also the transmission of perceptions of sameness from the legal and social order to the self. Three channels of diffusion are examined here; from supranational to domestic, from legal to legal, and from legal to societal and self. These are largely the same channels that the literature on diffusion of international norms focuses on. This literature, which incorporate sociological and psychological concerns, but cannot be reduced to those concerns alone, provides a very specific prism through which to approach the complexity of this three-channeled process of diffusion. 2.2.3.1. Legal and Societal Sameness from the Compliance Perspective 2.2.3.1.1. Consequences of the Divergence of Legal and Societal Sameness The following brings some relevant parts of the IL/IR literature on compliance and effectiveness of international norms to bear on the two questions introduced above, concerning the relationship between legal and societal sameness beyond the national context. The first question focused on the effects of increasing divergence between legal criteria of membership and societal factors of sameness on the pull a norm of citizenship exerts towards a sense of sameness.

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The issue is one of lack of resonance between the legal scenario depicted by the norm of citizenship and the socio-cultural environment in which the norm should pull towards compliance. The boundaries of the group suggested by societal factors do not coincide with those drawn in the legal norm. For a situation of this kind, compliance studies in international relations suggest that the pull of the legal norm will lose some of its effectiveness. Relevant clues can be found in accounts, which focus on the role of norm-takers, domestic actors in other words, on which the international norm has to act. Checkel predicts that the more the norm resonates with the values and beliefs of those actors, the easier its reception and internalization will be.88 He details a two-step mechanism.89 The first step in his model focuses on classifying the receiving society into one of four categories: liberal, corporatist, statist, or state-above-society. Thus, the structure of the receiving society specifies the mechanism that will drive the diffusion of the international norm into the national arena.90 The second step focuses on the culture of the receiving society, described by the focus of relevant domestic norms.91 Checkel’s prediction in this respect is that the “cultural match” will contribute in determining the degree of domestic resonance of an international norm.92 Hence, the more distant the international norm will be from the domestic one, the slower and harder the diffusion process will be.93 88 See J.T. Checkel, Norms, Institutions and National Identity in Contemporary Europe, supra at note 60 at 87. 89 He then proceeds to apply this framework to the Council of Europe norm on double nationality and its reception in Germany. See id. at 91. 90 See id. at 88–91; in particular, each one of these categories helps in predicting the relative role of societal pressure and elites-learning in the reception of an international norm. In liberal states, only societal pressure animates diffusion; in corporatist states, diffusion happens primarily through societal pressure, and in second order through elites learning; in statist states, diffusion happens primarily through elites learning and in second order through societal pressure; finally in state above society, only elites learning occurs. 91 Checkel takes domestic norms as proxies for culture: he explores the degree of cultural match by assessing resonance of international norms with domestic ones. The latter ones are spelled out by interviewing people to see what their beliefs about those norms are, by considering public debate on the norms at issue as represented in the media, by looking at legal instruments, which codify them, and by considering institutions in which they are embedded. Id. at 92. 92 Id. at. 87 Cultural match is defined as the “situation where the prescriptions embodied in an international norm are convergent with domestic norms as reflected in discourse, the legal system (constitutions, judicial codes, laws) and bureaucratic agencies (organizational ethos and administrative procedure)”. 93 Id. at 87.



citizens and others in the eu139 Checkel defines a cultural match as a situation where the prescriptions embodied in an international norm are convergent with domestic norms as reflected in the discourse, the legal system (constitutions, judicial codes, laws) and bureaucratic agencies (organizational ethos and administrative procedure).94

His cultural match is a variable, which can be organized on a spectrum, ranging from complete congruence between domestic and international norms to absence of any congruence. The prediction is that the level of constitutive effect that an international norm will have on domestic actors’ preferences is directly related to the level of congruence between the domestic and international norm.95 Checkel’s mismatch is one thought of in terms of values and beliefs. The international norm resonates, if it is a vehicle of values and ideas congruent­ with those expressed in relevant domestic norms. The mismatch between legal criteria of membership and societal factors of sameness can be thought of in identitarian terms: it is what the legal norm says it is appropriate to perceive as the same, and what societal scripts suggest to perceive as the same, which diverge. The dynamics of effectiveness are in any case similar. The international norms in Checkel’s account will only achieve their end result by leading to a change in the corresponding domestic norms. This could happen through a variety of intermediate mechanisms, which might involve the elites and the society at large to different extents, depending, in Checkel’s view on the kind of society at hand. In the case of legal and societal sameness, the norm of citizenship will only achieve its end result, if the legal norm of sameness it entails succeeds in functioning as a vehicle for societal perceptions, reducing the perceptive impact of societal factors of difference and increasing the impact of legal and civic notions of sameness. The intermediate mechanisms are different from the ones detailed by Checkel, and they are at the center of the second question initially introduced. The theoretical premise however is the same: the more distant the two extremes are, diffusing international norm and recipient domestic one, diffusing supranational notion of sameness and domestic recipient range of perceptions, the harder will be the task. This is the case if that distance finds expression in terms of values and beliefs, as in Checkel’s account, and if it finds expression in terms of identitarian components, as assumed in this work. Other studies have 94 Id. at 87. 95 Id. at 87.

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documented how the resonance between a norm and its recipients in identity terms is also key to its effectiveness. For instance it has been found in a study on the Europeanization of political elites in the member states of the European Union that new visions of political order are likely to be actively adopted by the elites if they resonated with pre-existing collec­ tive  identities as represented by institutions, political discourse and cultures.96 The hypothesis can be constructed that the effects Checkel refers to the lack of cultural match in the context of diffusion of norms, will appear also in the context of the legal norm of sameness diffusing to the societal level. In the absence of resonance, diffusion will tend to slow down and will face obstacles. It is predictable that indifference or outright hostility will meet the definition of sameness that the legal norm brings about. The more rights and opportunities are reconnected to the legal definition of sameness, the more it will meet with hostile or diffident reactions in the general public. The people of Europe will not be amenable to the idea that they share rights, benefits, duties, and voice with a group of people they see as the other, which a Treaty provision declares are the same as them, but Legal norm of citizenship as marker of community

Societal factors of sameness

(legal criteria for the grant of citizenship)

Legal sameness (expectation of sense of “groupness” consistent with the boundaries of group of citizens as drawn by criteria above)

Societal sameness (de facto sense of groupness)

Figure 2. Concrete Dynamics of Legal and Societal Sameness in the EU.

96 See Martin Marcussen, Thomas Risse, Daniela Engelmann-Martin, Hans Joachim Knopf, Klaus Roscher, Constructing Europe? The Evolution of Nation-State Identities, in The Social Construction of Europe (Thomas Christiansen, Knud Erik Jorgensen and Antje Wiener eds. 2001) at 101–102, predicting that during critical junctures political elites select according to an instrumental logic from the available visions of political order which resonate; the new collective identities, once they become consensual are internalized and institutionalized and as a result they become resistant to change.



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Table 2–1. Cultural Match.

Checkel’s model

Issue

Concept of Cultural Match

Diffusion of international norms into domestic settings

Congruence between the international norm and relevant domestic norms

Indicators of Congruence/ Lack of Congruence

Domestic norms as in legal texts, institutions, beliefs of relevant actors, media Derivative Diffusion of legal Congruence Individual model notion of between group factors of sameness to of people similarity, societal level identified competing as same by legal collective norm identities of citizenship and group of people who perceive themselves as same at societal level

Consequences of Cultural Mismatch Slower internalization of international norm

Ineffectiveness of legal notion of sameness at the societal level and resistance to it

that in their societal eyes are largely seen as the other, speaking different languages, attached to foreign nations, and belonging to different groups. The mismatch that is visible in the horizontal relationship in Figure 2 tends to weaken the vertical relationship on the left hand side of Figure 2, reducing the pull of the norm of citizenship towards a corresponding sense of sameness that does echo at the level of societal facts. Contextually it leaves the vertical relationship on the right hand side of Figure 2 less exposed to the effects of the relationship on the left hand side. The lack of resonance between legal criteria and societal factors increases the distance between the two vertical relationships.

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2.2.3.1.2. Imagining the Pull of Legal Sameness at the Societal Level The compliance literature helps thus to answer the first question that was posed in that the divergence between the legal criteria of membership and the societal factors of sameness can indeed be read in terms of reduced effectiveness of the norm of supranational citizenship as marker of community. Should one then conclude that European citizenship is an empty legal construct, with no possible connection to European society? The question reacts to this claim, by looking for alternative ways along which, in the absence of the exogenous force of nationalism, the legal norm of sameness­ entailed by citizenship might come to resonate more forcefully at the societal level. In this respect, this work searches for ways to re-emphasize the societal pull of a legal norm of citizenship, by strengthening the vertical relationship on the left hand side of Figure 1, and the horizontal relationship at the bottom of Figure 1, while weakening the vertical relationship on the right hand side of the same Figure 1. This requires a deeper investigation into the mechanisms of identity formation. Societal sameness is indeed distinct from identity but it is also a component of it, so that it can be considered that the mechanisms which have been shown to influence the shaping of identities, also affect societal sameness. While persuasion, through education for instance, may be an important element in the post-national context, there is an increased need to look for mechanisms that are alternative to persuasion as norms of citizenship cannot count on the power of the state or of comparably influential institutions to actively spread their message of sameness. The acculturation of the European citizens to the surrounding institutionalized environment of the European Union represents an important avenue to explore in considering possible paths to the evolution of European societal sameness. As mentioned above, in Goodman & Jinks definition acculturation is “the process by which actors adopt the beliefs and behavioral patterns of the surrounding culture”.97 Another definition of acculturation is provided by Berry, who refers to “the process by which individuals change, both by being influenced by contact with another culture and by being participants in the general acculturative changes under way in their own culture”.98 What these two versions of acculturation, the 97 Ryan Goodman, Derek Jinks, How to Influence States supra at note 61 at 626. 98 J.W. Berry, The Psychology of Acculturation in The Culture and Psychology Reader (Nancy Rule Goldberger, Jody Bennett Veroff eds. 1995) at 460.



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sociologically oriented former, and the psychologically oriented latter, have in common, is the idea that the environment in which an actor, whether individual or institutional, is embedded, generates pressures which orient that actor’s perceptions and social behavior. The mechanism of acculturation has received extensive attention in sociological studies on organizations.99 Students in this field have underscored the connection between the institutionalization of the environment surrounding an organization and the form and functioning of the organization itself; Meyer&Rowan have argued that the structures of many post-industrial organizations “reflect the myths of their institutional environments rather than the demands of their work activities”.100 Zucker has spelled out the relationship between environmental institutionalization and cultural persistence;101 Meyer, Boli&Ramirez have found that a world culture, institutionalized in part through international non-governmental organizations, which act as vehicles of its scripts, affects the behavior of national states;102 Goodman&Jinks have considered how institutionalization in the field of international human rights norms represents an important resource for the acculturation of states to human rights-compliant behavior.103 All these accounts underline the positive relationship between sets of actors and their surrounding environments. This represents the exportable core of the theory of acculturation, which may help to shed light on the dynamics of European societal sameness. European citizens act and interact in a surrounding, institutionalized environment, which sets out important prescriptions. Reciprocal pressures between the actors and the European environment, in which they are embedded, may over time, mould citizens’ perceptions of the ‘other’ in Europe. Extending the theory of acculturation to the institution of citizen­ ship poses two initial challenges. The first challenge is identifying the conditions under which acculturation may occur, and second challenge is 99 Ryan Goodman, Derek Jinks, How to Influence States supra at note 61 at 626. 100 John Meyer, Bryan Rowan, Institutionalized Organizations: Formal Structure as Myth and Ceremony, 83 Am. J. Soc. 340 (1977) at 341. 101 Lynne Zucker, The Role of Institutionalization in Cultural Persistence, 42 Am. Soc. Rev. 726 (1977) at 742, suggesting that when an environment is highly institutionalized, cultural understandings tend to remain uniform intergenerationally, they persist even without social control and they are resistant to change through personal action. 102 See John Meyer, John Boli, George Thomas, Francisco Ramirez, World Society and the Nation State, 103 Am. J. Soc. 144 (1997); John Boli, George Thomas, World Culture in the World Polity: a Century of International Non-Governmental Organization in 62 Am. Soc. Rev 171 (1997) at 172. 103 Ryan Goodman, Derek Jinks, How to Influence States supra at note 61.

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specifying the socio-psychological mechanisms, which operate in this respect, and imagining how concretely they might play out in the European Union. Under what conditions could acculturation take place? A shared element in the studies mentioned above suggests an answer to this question. Acculturation to the surrounding environment may occur if the relevant actors feel that they are legitimate parts of, and legitimate agents in, that environment. The micro-mechanisms on which acculturation relies are a variety of sourced pressures on the relevant actors to achieve or maintain a status of legitimate participation in the institutionalized order of which they are to absorb the scripts.104 Goodman&Jinks underline how nation states are the legitimate actors in the international environment for which they are to internalize the scripts.105 Meyer&Rowan point at the isomorphism of organizations and suggest that this is due to their incorporating externally legitimated elements, which in turn maximize the legitimacy of the organization, thereby increasing its capability for survival.106 In a similar direction, one way to read the difference that European citizenship makes is in the sense that it makes those who hold nationality in one of the member states legitimate participants in the supranational scenario of the EU. It gives them the capacity and entitles them to engage in cross-border economic relations, to claim rights of membership in front of authorities of other member states and to exercise some political rights beyond national borders. Even if they do not share in their languages, cultures, nationalities and religions, European citizens share in legitimacy as actors in Europe. Making this legitimacy, which is tied to the status of citizenship salient for Europeans may be an important way to ease the path for acculturation mechanisms to operate. The increased individualization of moments of belonging as European citizens may represent one way to 104 See John Meyer, Bryan Rowan, Institutionalized Organizations: Formal Structure as Myth and Ceremony, supra at note 100 at 352, underscoring the relationship between maximization of legitimacy and survival capabilities of an organization. 105 States are the legitimate actors in the international order, and the ones which thus are subject to pressures to maintain their legitimate social status. Ryan Goodman, Derek Jinks, How to Influence States supra at note 61 at 647. Also see John Boli, George Thomas, World Culture in the World Polity, supra at note 102 at 173 in the sense that dominant actors in the world culture are states. 106 John Meyer, Bryan Rowan, Institutionalized Organizations: Formal Structure as Myth and Ceremony, supra at note 100, at 349 and at 352. They argue that institutional isomorphism promotes the success of organizations. As a result of isomorphism, “a) they incorporate elements which are legitimated externally, rather than in terms of efficiency; b) they employ external or ceremonial assessment criteria to define the value of structural elements and c) dependence on externally fixed institutions reduces turbulence and maintains stability”.



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make citizenship more visible and the legitimacy of that status more relevant to the citizens themselves.107 In a second sense, acculturation presupposes at least a minimum sense of groupness.108 A threshold level of reciprocal perceived commonality is most likely a pre-requisite in empowering the legal norm of sameness and allowing its subsequent operation according to self-referential mechanisms.109 To achieve this threshold level, a persuasion component might be necessary in order to exogenously orient European citizens towards the legal norm of sameness. Accounts of norm diffusion in an international setting have referred to the persuasive efforts, in an initial phase of the process of norm diffusion as having sort of a preparatory role. In the context of state actors and international norms, persuasion through norm entrepreneurs leads to a critical mass of states accepting the international script, after which the internalization of the international norm becomes a matter driven by habit and interaction.110 To some extent, the achievement of a critical mass of adherence to the norm has the effect of empowering the norm, which then begins to exercise an influence of its own. Thus there might be a need for persuading the legitimate actors on the European scene that there is something to their legal sameness and to their legitimacy. The critical mass, which then leads to a norm cascade, should be thought of in the European context not in terms of the number of actors, who are persuaded to follow the script, but in terms of the critical level of shared identity, which combined with the actors’ perception of reciprocal legitimacy might eventually trigger a process of acculturation. In this sense, while widely criticized111 the European institutional effort to 107 The belonging moment might include a ceremonial component. See id. at 349, underlying the legitimacy inducing role of ceremonial criteria of worth assessment such as the Nobel prize. 108 See Xenia Chryssochoou, How Group Membership is Formed: Self Categorisation or Group Beliefs? The Construction of a European Identity in France and Greece in the Reconstruction of Identities, in Changing European Identities-Social Psychological Analyses of Social Change supra at note 12 at 301 suggesting that group formation is based on the emergence of certain group beliefs, which in turn ground groupness. 109 See John C Turner, Rediscovering the Social Group supra at note 37 at 59 in the sense that perceived similarity between the self and the other grounds attraction; “group cohesion or mutual attraction between ingroup members is a function of mutually perceived similarity (identity) between self and others in terms of the defining characteristics of the ingroup self-category”; also, according to the author “perceived similarity of others to self in terms of attitudes, values, goals, experiences and explicit group membership is probably the most powerful single determinant of attraction yet identified”. 110 See Martha Finnemore & Kathryn Sikkink, International Norm Dynamics and Political Change, supra at note 30. 111 See e.g. Chris Shore, The Cultural Politics of European Integration supra note 5 at 18–20 describing the cultural policy of the European Union as a dirigiste project.

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dust off a common European cultural identity is important. It may represent the way to achieve a critical mass of shared identity, which even if ineffectual for purposes of providing all those beneficial effects that are typically associated to the idea of a European identity,112 is powerful enough to open the doors to further acculturation. Thus, grounding legitimacy and exalting sharedness can be seen as the preliminary requirements for any process of acculturation to occur. Once the premises are met and a critical mass of identity is reached, then it remains to be considered which mechanisms hypothetically can drive acculturation. Here, even if acculturation is a process compromised with sociological premises, some psychological insight is needed. Acculturation occurs at the delicate intersection between individual and group processes.113 Students of acculturation from a socio-psychological perspective have underlined the importance of contact and interaction for purposes of this process.114 According to the theory of social impact,115 the force of social impact on a person is a function of the immediacy of contact with other people, of strength, meaning relevance or salience, of those other people and of the number of people with whom one is in contact.116 It is possible to hypothesize that once their status of legitimate participants as citizens of Europe becomes salient for European citizens, they may come to exercise their ability to impact each other depending on the immediacy of their reciprocal contacts. In other words Europeans need to interact. The increasing institutionalization of the European Union, where legislation is more and more adopted at the European level, leads undoubtedly to more frequent encounters among the European citizens at several 112 See par. 2.2.1 above. 113 Looking at the mechanisms through the mediation of the Goodman-Jinks approach is of peculiar help: while the acculturation mechanisms they identify have their basis in social psychology, their application of these mechanisms in the field of international norms effectiveness has already operated some of the conceptual metamorphosis and combinations, which the investigation of these multi-face processes requires. Importing their take on the issue helps in overcoming one of the denounced weaknesses of social psychology, which has been accused of having a hard time accounting for large scale phenomena of social and political change. Glynis M. Breakwell, Identity Processes and Social Changes supra at note 13 at 18. 114 See e.g. J.W. Berry, The Psychology of Acculturation supra at note 98 at 461. 115 Bibb Latanè, A Psychology of Social Impact 36 American Psychologist 343 (1981) at 343 defines social impact as “any of the great variety of changes in physiological states and subjective feelings, motives and emotions, cognitions and beliefs, values and behavior, that occur in an individual, human or animal, as a result of the real, implied or imagined presence or actions of other individuals”. 116 Id. at 344.



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different levels. This is based on many factors such as people facing increasing opportunities for cross-border movement, the discourse of Europe ­taking hold in the media, and even education being gradually Europeanized. In Neil Fligstein’s work on the gradual formation of several European social fields he predicted that it is the people, who interact with each other more regularly, who will come to represent themselves as Europeans.117 Also empirical studies have documented how exposure to Europe can be considered one of the leading elements of traction in the formation of a European identity.118 Encounters provide thus the breeding ground for mechanisms of acculturation, as they emphasize the embedding of the relevant actors into the surrounding European environment.119 But which micro-mechanisms drive then the process of acculturation? According to Goodman&Jinks, these are essentially of two types: cognitive and social pressures. These micro-mechanisms exert an influence on the relevant actors impelling them to conform to the scripts of the surrounding environment. Cognitive pressures are internal pressures to keep one’s behavior consistent with one’s self-concept and one’s beliefs in order to avoid a feeling of discomfort.120 The lack of fitness between different elements of cognition has been proven to cause unease and thus to motivate the individual to change his behavior, or to reshape his perceptions to avoid cognitive dissonance.121 The elements of cognition largely “map or reflect” social reality,122 so that one of the ways to eliminate dissonance is to modify the surrounding environment, when one has the necessary degree of control to do so.123 In the European case, the obverse might rather occur. The new norm of legal sameness modifies the social reality of what is considered the ‘other’. This creates dissonance with the 117 Neil Fligstein, Euroclash, the EU, European Identity and the Future of Europe supra at note 5 at 126 and at 165–207. 118 See Michael Bruter, Civic and Cultural Components of a European Identity supra at note 11 at 208; also see Thomas Risse, European Institutions and Identity Change: What Have we Learned?, supra at note 13 at 261–62 referring to the “entitativity” of Europe for people who are doing business throughout Europe. 119 See Rupert Brown, Group Processes-Dynamics within and between Groups (2000), at 35 on the importance of the interdependence of fate for the birth of a group: “a group exists when the people in it realize that their fate depends on the fate of the group as a whole”; in this sense, interaction and increasing encounters among the people of Europe potentially create a perception of shared fate, in part by grounding a common collective memory. 120 Ryan Goodman, Derek Jinks, How to Influence States supra at note 61 at 640. 121 Leon Festinger, A Theory of Cognitive Dissonance (1957) at 2–4. 122 Id. at 9–10. 123 Id. at 21.

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societal perception of what is de facto the ‘other’. The citizen, who experiences such cognitive dissonance, undergoes a pressure according to the theory, to reshape his perceptions around the new social reality, so that consonance can be newly achieved.124 Social pressures on the other hand, originate in one’s own desire to maintain social approval.125 The motivation in this instance has to do with preserving a level of in-group inclusion. The weakness of social pressures is in that they may lead to an appearance of compliance while the relevant norm is not effectively internalized at the private level.126 Acculturation acts beneath the surface pulling some levers of the self, which operate even beyond the boundaries of rationality. In this way it may contribute to taming the active resistances, which develop in the domain of rational argumentation about insiders and outsiders. The added value of acculturation is to be found in the fact that it does not require active assessment of or agreement with the merits of a belief in order to internalize it. Rather, acculturation depends more on the relationship between actors and the surrounding social structure than on the content of the norm.127 In a supposedly “xenophobic” Europe128 this opens up options for the development, through the pressures of an increasingly Europe-tied social structure, of more welcoming perceptions by Europeans towards the “other”. This holds true even if the content of the norm that designates them all as Europeans is premised on labeling those who are ordinarily perceived as foreign as the same.129 A perception of sameness can ripen overtime as the result of diverse cognitive processes, where 124 See E. Tory Higgins and John A. Bargh, Social Cognition and Social Perception, 38 Ann. Rev. Psychol. 369 (1987) in the sense that that once actors have formed certain beliefs, it has been shown that they will tend to discount information inconsistent with those beliefs, and will also tend to re-elaborate memories in a way consistent with the beliefs; also see Ryan Goodman, Derek Jinks, How to Influence States supra at note 61 at 641. 125 Ryan Goodman, Derek Jinks, How to Influence States supra at note 61 at 641–42. Also see John C Turner, Rediscovering the Social Group supra at note 37 at 68–69. 126 See Elliot Aronson, Timothy D. Wilson, Robin M. Akert, Social Psychology (6th ed.) at 268; but see Michael A. Hogg, Social Identity in Handbook of Self and Identity (Mark R. Leary, June Price Tangney eds. 2003) at 470 in the sense that groups pressures towards uniformity “represent true cognitive change rather than mere behavioural compliance”. 127 Ryan Goodman, Derek Jinks, How to Influence States supra at note 61 at 643. 128 For an account of the discomfort with difference in Europe, see Noah Feldman, The New Pariahs?, in the New York Times Magazine, June 22, 2008. Also see Rethinking Europe-Social Theory and the Implications of Europeanization supra Chapter 1 at note 18 at 29 suggesting that there is skepticism about the formation of a European identity and that “xenophobia has replaced euphoria”. 129 See id. at 654 “we submit that embedding target actors in societal settings organized around highly institutionalized broadly shared principles could foster the basic elements necessary for acculturation”.



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what is now perceived as foreign and distant gradually comes to be internalized as common and orthodox. Turning to the compliance literature in search of mechanisms for socialization to supranational citizenship allows for the possibility of two predictions. The first is that a mismatch between legal criteria of membership and societal factors of sameness weakens the pull towards sameness of the legal norm of citizenship and makes it partially ineffective. At least initially, the norm cannot overcome resistances articulated around cultural, ethnic and religious lines of otherness. The second prediction is that the legal norm of citizenship might still exercise a pull at the societal level if some preconditions are met. European citizens are unable to bond around solid elements of cultural sharing. However, if their status as legitimate participants who also share in a minimum set of values and beliefs becomes salient to them, they might experience pressures to bond despite their differences. Increasing political, legal, discursive and societal encounters among them may trigger social and cognitive pressures to perceive each other as the same beyond cultural and ethnic boundaries, thereby becoming gradually acculturated to the legal norm of sameness imposed by European citizenship. *** This represents a potential way in which European citizenship, in its constructive capacity, may come to affect insider/outsider divides from the point of view of the natives (the citizens in other words). A process of acculturation could indeed contribute to a shift in insider/outsider divides that in the perception of the citizens are based on national, linguistic, and ethnic distinctions, by reshaping them around supranational civic notions of sameness. If a transformation of this kind were ever to occur, European citizenship would have made good on an important part of its promise with respect to diversity. Reconfiguring the role of ethnic, linguistic, religious and other boundaries within the EU would indeed represent one important step in favor of the coexistence of diversity. The potential broader sense of insider/outsider divides inspired by notions of supranational civic sameness would affect in primis European citizens. However, because the only way perceived divides can change in this direction is through a process of down-playing perceptions based on ethnic, religious, linguistic and cultural differences (i.e. the vertical relationship on the right hand side of Figure 1), acculturation into a norm of sameness, tied to European citizenship, may also have repercussions on the perception and attitude towards third country nationals. By weakening­ the perception of relevant differences, it may help to reduce the perceived “otherness” of third country nationals.

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How is citizenship concretely changing in Europe from a compliance perspective? This part documents the actual evolutionary trends of legal criteria of membership and societal factors of sameness in the EU. It shows how dynamics of expansion of legal sameness through the extension of EU citizenship also account for the dilution of societal factors of sameness. It then addresses, in the European context, the first question posed in part I. Namely, “does increasing divergence between legal criteria of membership and societal factors of sameness somehow affect the pull of the legal notion of citizenship towards a corresponding perception of sameness?” Instances of resistance to integration and to immigrants are considered, as a potential lens to address this question.130 While these episodes may be connected to several different roots and of course cannot be explained solely in terms of citizenship, they show that national, linguistic and ethnic boundaries play an important role in the European Union. According to what was suggested in the previous section, the pull of European citizenship for a corresponding sense of sameness would have to pass through mitigation of the effect of those same national, linguistic and ethnic boundaries. Instances, which confirm their existence and their effect on societal perceptions may be taken as witnesses of weak socialization to the norm of sameness implied in European citizenship, and may indicate that the societal pull of that norm encounters important obstacles. 2.3.1. Dynamics of European Citizenship and the Evolution of Legal Sameness European citizenship depends on nationality in one of the member states. Every person who is national of an EU member state is also a European citizen. In light of this link of derivation, the concrete ways in which European citizenship is conferred exhibit two features, which may be relevant for the analysis of the pull towards “groupness” of European 130 As suggested above, while the citizenship norm entails a norm of sameness with respect to European citizens, and not with respect to immigrants from third countries, societal differences which drive perceptions of outsiderness and which potentially counter that notion of sameness are of the same nature both in the case of immigrants from other EU countries and in the case of immigrants from third countries. The softening in perceptions of ethnic, linguistic and national boundaries, which socialization to a norm of sameness tied to European citizenship entails thus is likely to affect both attitudes towards nationals of other member states and attitudes towards immigrants.



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citizenship. First, conferral of European citizenship is fairly arbitrary. Second, it tends to occur in the same way as an oil-stain. Just as an oil stain spreads uniformly on a surface notwithstanding the possible irregularities and features of that surface, so European citizenship spreads in conjunction with political instances of enlargement of the Union, notwithstanding the characteristics of the society to which it extends its veil of legal sameness.131 The extension of European citizenship may be seen as arbitrary, if one considers the access immigrants have to European citizenship. From an immigration perspective, a European citizen is any person that a member state of the Union decides to naturalize, by picking from its own pool of resident foreigners, and according to its own cultural and civic criteria. Chapter 1 illuminated how different and unique to the member state these criteria are. In addition the pools of immigrants from which each member state can potentially pick some new European citizens by turning them into nationals varies widely. Table 2–2 lists the six most populous groups of resident foreigners, by citizenship, in each member state of the European Union. Taken together, Table 2–2. The Pool of Candidates for European Citizenship.132 Resident Foreigners-6 largest groups of non-EU nationals resident foreigners in each EU member state (EU 27) by citizenship (Source Eurostat data for 2007)133 Belgium Bulgaria

no specific data available no specific data available (Continued)

131 It should be noted in a comparative perspective that also in the system of conferral of US citizenship there is a measure of automation, as according to the words of the XIV amendment, the people born or naturalized on the territory of the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. State citizenship thus follows automatically from federal citizenship. The measure of legal sameness that this automation generates finds however concrete support in the status of residence which is at its basis and which makes sameness immediately tangible. 132 The use of the term “pool of candidates” here is suggestive rather than rigorous. Of course whether these people are indeed potential EU citizens depends on whether it is in their wishes to naturalize at some point and on whether they are going to meet the requirements for naturalization in the relevant state. 133 Data on the largest groups of non-EU nationals resident foreigners in each EU member state by citizenship are not available for years more recent than 2007, as the latest dataset elaborated by Eurostat mostly refer to number of foreign-born resident in the various member States, rather than to non-nationals.

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Table 2–2. (Cont.) Czech Republic

Denmark

Germany

Estonia Ireland Greece Spain

France Italy

6 largest groups: Ukraine 86,739 Vietnam 38,454 Russian Federation 17,216 Republic of Moldova 4,658 China (incl. Hong Kong) 3,703 Serbia and Montenegro 3,616 6 largest groups: Turkey 28,752 Iraq 18,133 Norway 14,170 Bosnia and Herzegovina 12,229 Afghanistan 9,432 Somalia 9,012 6 largest groups: Turkey 1,856,892 Croatia 242,123 Russian Federation 202,350 Bosnia and Herzegovina 167,884 Ukraine, 141,014 United States 109,447 no specific data available Only available data: US 9,672 no specific data available 6 largest groups: Morocco 592,274 Ecuador 433,032 Colombia 265,878 Bolivia, 204,264 Argentina, 143,573 China (incl. Hong Kong) 107,899 no specific data available 6 largest groups: Albania 375,947 Morocco 343,228 China 144,885 Ukraine, 120,070 Philippines 101,337 Ecuador 68,880

Table 2–2. (Cont.) Cyprus Latvia

Lithuania

Luxembourg Hungary

Malta Netherlands

Austria

citizens and others in the eu153 no specific data available 6 largest groups: Russian Federation 27,008 Ukraine 2,546 Belarus 1,755 United States 515 Israel 300 Armenia 243 6 largest groups: Russian Federation 12,507 Belarus 3,409 Ukraine 2,219 United States 350 Israel 336 Armenia 277 no specific data available 6 largest groups: Ukraine 15,866 Serbia and Montenegro 12,706 China 8,988 Vietnam 3,095 United States 1,931 Israel 1,063 no specific data available 6 largest groups: Turkey 96,779 Morocco 80,168 China 15,266 United States 14,641 Indonesia 11,389 Suriname 7,561 6 largest groups: Serbia and Montenegro 137,527 Turkey 108,808 Bosnia and Herzegovina 86,427 Croatia 57,103 Russian Federation 18,897 Republic of Macedonia 16,322 (Continued)

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Table 2–2. (Cont.) Poland

Portugal

Romania

Slovenia

Slovakia

Finland

6 largest groups: Ukraine 5182 Russian Federation 3,291 Vietnam 1,906 Belarus 1,535 United States 1,025 Armenia 755 6 largest groups: Brazil 73,393 Cape Verde 68,143 Ukraine 41,872 Angola 33,703 Guinea Bissau 24,805 Republic of Moldova 15,524 6 largest groups: Republic of Moldova 5,466 Turkey 2,194 China, 1,898 Syrian Arab Republic 1,231 Ukraine 780 Iraq 768 6 largest groups: Bosnia and Herzegovina 24,441 Croatia 6,829 Former Yugoslav Republic of Macedonia 5,936 Ukraine 880 China (incl. Hong Kong) 443 Russian Federation 382 6 largest groups: Ukraine 3,925 Russian Federation 1,311 Vietnam 1,060 Republic of Macedonia 580 China (incl. Hong Kong) 887 South Korea 836 6 largest groups: Russian Federation 25,326



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Table 2–2. (Cont.)

Sweden

United Kingdom

Somalia 4,623 Serbia and Montenegro 3,340 Iraq 3,045 Thailand 2,994 Turkey 2,886 6 largest groups: Norway 35,498 Iraq 30,257 Thailand 12,495 Somalia 11,595 Iran 10,526 Turkey 10,221 no more specific data available

all those groups of foreign nationals represent the largest part of the Europe-wide pool of candidates for European citizenship. The data reveal that the population of foreign residents in the EU differs by citizenship quite extensively within the internal borders of each member state.134 There are several different explanations for the presence of different groups of foreign nationals in each member state hailing from diverse corners of the globe. Some of it has to do with the colonial history of EU member states. For instance, this might explain the presence of large numbers of Brazilians in Portugal and of Ecuadoreans and Colombians in Spain. Just as some countries have a history of being colonizers others have a history of belonging to or being under the control of another country. So of course, one could expect to find large numbers of Russians, Ukrainians and Belarussians in the former Soviet republics of Latvia and Lithuania, or to find abundance of Bosnians, Croatians and Macedonians in Slovenia. Geographical closeness, coupled with historical links in some cases, is also an explanation for the presence of Moroccans in Spain and Italy, Albanians in Italy, Norwegians in Sweden and Serbians in Austria. Unexpected 134 These data of course disregard the numbers of illegal immigrants, present in EU countries. For purposes of the immigrant stock by nationality in each EU country it is likely that the largest groups of illegal immigrants will be from the same countries as the regularly resident ones; this is in part because these data find explanations in geographical and historical links with sending countries; in part because some of these groups of resident foreigners have achieved themselves legal status through so called amnesty decisions throughout the years.

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presences may also be accounted for by examining the foreign policy of a certain country as well as its asylum policy (Iraqis in Sweden) and in still other countries by older immigration histories (Turks in Germany). From the point of view of national societies, these numbers and groupings confirm once again individual national histories and the determinant role played by their past political links and their geographical location. From the point of view of a hypothetical European society, this data tell quite a different story, which tends to highlight the randomness exhibited by the grouping effect of European citizenship. When working under the assumption that nationality is an indicator of diversity, one can conclude that the immigration-dependent pool of candidates for European citizenship differs widely throughout Europe in terms of their origin, language, cultures, religions and alternative collective identities. In other words there is no identikit of the potential European citizen. Furthermore, those different groups of national candidates will not assume a common European profile in the course of becoming citizens. As has been extensively illustrated above, they will become national, and thus European citizens, only by going through a variety of widely diverging procedures, all of which are tinged with nationalism. 68,000 Cape Verdeans for instance might become European citizens by speaking their own language, which happens to be the national language of Portugal. 12,000 Thai people might become European citizens by having led a respectable life in Sweden. 5,000 Moldovans might become European citizens by proving attachment to the Romanian state and people, and knowledge of the Romanian constitution. But, other than complying with the naturalization requirements of a particular member state what is it that makes their experiences communal? If there is a EU Europeanness, what is it that establishes them as Europeans of this sort in their own eyes and in the eyes of the other Europeans? The answer is hardly anything at all. Chapter 1 argued that this fragmentation inherent in the experience of legal access to Europeaness results in nationalization before Europe­ anization of immigrants, and in their remoteness from Europe. This suggests that the process by which immigrants become Europeans through citizenship has little psychological pull on the sense of sameness of the natives. While, the naturalization of immigrants as citizens might make a difference in how they are perceived at the national level, it is unlikely to make any difference in their perception beyond the borders of the single nation, at the European level. The fact that they become European citizens by taking up the nationality of another member state will most likely not make them any less ‘the other’ in the eyes of the European natives.



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Table 2–3. Enlargements. Enlargement

New Members

1973 1981 1986 1995 2004

Denmark, Ireland, UK Greece Portugal, Spain Austria, Finland, Sweden Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia Croatia Bulgaria Romania Croatia

2013 2007 2013

The second peculiarity with respect to the extension of European citizenship is that it is tied to intergovernmental logic of expansion and to political events of enlargement. European citizenship expands as if it were an oil spill each time that a new member state is admitted into the European club. Geographically, the European Union has grown quite a bit since the original signing of the Treaty of Rome by the six founding members in 1957. A general set of criteria for accession into the European Union can be found in the provisions of the Treaty on European Union. Any geographically European State can apply for accession if it respects liberty, democracy, human rights and fundamental freedoms, the rule of law, and national identities.135 In Copenhagen in 1993, the European Council specified what it really takes to become a member of the European club, by making explicit the conditions that have become commonly known as Copenhagen criteria. These consist of: the stability of institutions, a functioning market economy, and the ability to assume the obligations of membership and to adopt the acquis communautaire. European countries, which meet these requirements can thus apply for membership, and if their application is accepted a tortuous, multi-phase process of negotiation opens up. The institutions of the European Union interact closely with the governments of the prospective members in the course of this process to build a roadmap for membership, to negotiate the conditions of 135 See TEU, articles 6 and 49.

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accession and to verify that all the requirements are met.136 The long negotiation, if successful, eventually leads to the signing of accession treaties, which have to be ratified by all member states according to their constitutional requirements. Every time this process comes to fruition and a new member state enters the Union, the nationals of the new entrant automatically become European citizens with little ceremony. It has already taken place this way for the 1995 enlargement and for the 2004 and 2007 enlargements.137 At the time of writing, the process is about to repeat once again with the accession of Croatia to the EU on 1 July 2013. The extension of citizenship as if it were an oil spill personalizes the process of acquisition of legal sameness. In a sense, this hearkens back to the way citizenship was extended in the Roman Empire to new groups of colonized people, or to the way the extension of citizenship may be tied to fundamental political transformations in an entity, such as federation or secession. Conferral of citizenship has, in all these instances, the same collective character. However, in the case of imperial citizenship, of federation or of secession, the extension of citizenship is closely tied to some unique political episode in the story of a people, which makes the incipit of legal belonging clearly marked in both collective and individual memories. Ingress into the European Union is primarily an intergovernmental 136 Once a country’s application for accession has been accepted, the Commission has to prepare an opinion regarding the suitability of the proposed applicant, and will do so by inquiring with national governments and with international organizations. This phase will often include the preparation of a Stabilization and Association agreement, which represents a roadmap for membership. Then the Commission submits an opinion to the European Council. If the opinion is favorable, the European Council may decide unanimously that the applicant should be considered a candidate for accession. Recognition of candidate status means acknowledgement of a closer relationship between the country and the EU and also it activates supportive measures such as financial instruments to help preparation for accession. Also, once an applicant has become a candidate the negotiations for accession begin: the Council of Ministers adopts a negotiating framework, which represents the opening step for the formal intergovernmental conference, within which negotiations for accession will be conducted. Negotiations are then conducted between ministers or members of COREPER for the EU and a chief negotiator and an expert team for the applicant country. Once the negotiations are concluded, what has been established passes in the Accession Treaty. See Ian Barnes and Pamela Barnes, Enlargement in Michelle Cini, European Union Politics (2007) at 422–440. 137 The formal concept of European citizenship has been introduced by the 1992 Treaty of Maastricht, so no formal expansion of legal sameness occurred in the course of the enlargements in the ‘70s and ‘80s; at that time, on the other hand, Europe was primarily an economic community, while its political meaning has found concrete and formalized expression only beginning in the 90s: this has revolutionized the prospects of a European citizenship.



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affair, of which the people at large here mostly the echoes and around which these people form some vague expectation about the impact this might have on their economic future.138 The entity they are entering, while arguably important to their individual lives does not have the immediacy and charisma, in its relationship with the citizens that an imperial or national political entity has. Thus, with each subsequent enlargement of the European Union, European citizenship slips unnoticed into its place as a marginal accident of a more complex phenomenon of integration, and with a reduced impact on the collective psyche of its citizens. Thus, the expansion of European citizenship and of the corres­ponding norm of legal sameness exhibit a measure of arbitrariness and the characteristics of an oil-stain. The arbitrariness can be seen if one looks at the immigration-sourced pool of candidates for EU citizenship. While, the characteristics of an oil-stain are visible if one looks at Europeanization by enlargement of the Union itself. When the two hypotheses for the expansion of legal sameness are combined, the disillusioning effect on the natives is at its apex. This effect can be observed by considering the plight of those pockets of nationals from a state, which is newly entering the EU, who already reside, as foreigners, in a long standing member country of the European Union. Becoming European citizens, in conjunction with the accession of their country of nationality into Europe, while residing abroad means that these groups of emigrants, who are also EU residents, are becoming, from one day to the next, legally speaking a bit less ‘the other’ in their host country. As newly made European citizens, they can now vote in local and European elections in their host state and they gain a number of non-discriminatory protections with respect to local nationals, such as for purposes of access to the labor market and social benefits. Focusing on the local community of the host nation state, this alters existing balances both in the immigrant community and in the national one. In the immigrant community, the oil-stain characteristics of European legal sameness cuts across immigration histories, shortening and easing the path to integration for some favored components of the immigrant pool. Suddenly, the new European citizens surpass in status other parts of the immigrant community, regardless of how long they have been residing in the host state and regardless of their employment and family ­history. 138 It should be noted however that direct popular consultations were held in all of the 2004 entrant states, with the exception of Cyprus; the “yes” votes represented a solid majority in all of these referenda, with the exception of Malta, where there was a majority of “yes” voters but a quite narrow one (53.6%).

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In  this case, a collective transformation displaces and alters individual histories. In this instance considering the natives’ position highlights the idea of arbitrariness, which has been introduced above. Natives are likely to have contacts with, and a conscious perception of the immigrant community in their own country. They know their habits and their occupations, and they have formed stereotypes and fears, or perhaps affections towards them. The vagaries of European evolution single out from one day to the next a part of that community and make them same in European terms. Yet, for purposes of their own perceptions of sameness that selection is at most casual and possibly cuts across the lines of emotional and professional attachment, which had developed in the normal course of societal life. The Albanian and Romanian communities in Italy provide a telling example of this phenomenon. These two national groups represent two of the most populous immigrant communities in Italy.139 The two communities are similar in their collective perceptions and they have been present in Italy for roughly the same amount of time.140 Their members tend to take up similar occupations and sadly they are among the most assiduous occupants of Italian jails.141 Yet, in January 2007 Romanians suddenly became European citizens, with the result being that they could now vote 139 For an earlier analysis of the issue, see Francesca Strumia, European Social Citizenship: Solidarity in the Realm of Faltering Identity, 2 European Journal of Social Law 122 (2011), at 134–136. As at 1 January 2007, so before Romania became a EU member State, there were 375, 947 Albanians and 342,200 Romanians resident in Italy. See Primo Rapporto sugli Immigrati in Italia, Italian Ministry of Interior, December 2007available at http://www .interno.it/mininterno/export/sites/default/it/assets/files/15/0673_Rapporto_immigrazione_BARBAGLI.pdf (last visited June 2013), at 70. At 1 January 2011, after four years of Romania’s membership in the EU, there were 482,627 Albanians and 968,576 Romanians in Italy (ISTAT data 2011). Italy had implemented, in line with the provisions of relevant accession treaties (see infra at note 146, a regime of transitional restrictions for accession of Romanian and Bulgarian citizens to the Italian labor market, which has been lifted as of 1 January 2012. See Ministero dell’Interno e Ministero della Solidarietà Sociale, Circolare congiunta n. 3 of 3 January 2007, available at http://www.interno.gov.it/mininterno/export/ sites/default/it/assets/files/1/200714113033.pdf (last visited June 2013); Ministero dell’Interno, Ministero del Lavoro e delle Politiche Sociali, Circolare congiunta n. 728 of 3 February 2012, available at http://www.asgi.it/public/parser_download/save/circolare.congiunta.del.ministero.dell.interno.e.del.lavoro.e.delle.politiche.sociali.del.3.febbraio.pdf. 140 The flux of Albanian immigration into Italy became consistent in the first half of the 90s, while Romanians began to represent a dominant component of the immigration flux in the second half of the 90s. See Primo Rapporto sugli Immigrati in Italia, supra at note 139, at 69. 141 Romanians and Albanians figured among the first two nationalities for denounces and arrests for a number of crimes in Italy, including voluntary murders (5.3% of the denounces and arrests for murders in Italy between 2004 and 2006 regarded Romanians, 3.7% regarded Albanians), house burglaries (10.5% Albanians between 2004 and 2006, 6.3% Romanians); skilled thefts (Romanians accounted for 24.8% of the total), robberies



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in Italian municipal elections, they acquired a range of rights connected to the labor market, a number of non-discrimination guarantees, and a shortened path to national citizenship. Albanians on the other hand remain extraneous to all of this, and in legal terms, are now alien to a greater extent than Romanians. In these cases European legal sameness formally alters the status of similarly situated residents and creates hierarchies of opportunities, without strong justifying criteria. While the political history of the country of origin explains and in part justifies differences of this kind, in the everyday life of specific satellite communities, this can cause resentment and sense of discrimination, while the societal perceptions of the natives remain unchanged. Subsequent enlargements of the EU have thus largely changed the geography of European citizenship within and among European member states. Nor is the oil-spill like expansion of legal sameness likely to stop here. As of 1 July 2013, Croatia is becoming the 28th member State of the European Union, thereby leading to a further expansion of legal sameness. Other candidates for membership include Iceland, Montenegro, Serbia, the Republic of Macedonia and the controversial Turkey, whose potential entrance would fundamentally alter political and cultural balances within the Union.142 This represents an important challenge for the growth of Europe in the years to come, and one that if handled successfully may deliver important benefits for the future of the continent. At the same time, it poses the issue of identity and sameness in even more urgent (Romanians accounted for 10.4% of those in private residences, Albanians for 7.2%; Romanians accounted for 8.7% of robberies in stores and for 7.9% of those on the street, Albanians for respectively 1.4% and 2.9%). More in general the percentage of foreigners in Italy among people denounced for crimes has increased from 6% in 1988 to about 30% in 2006, while the percentage of foreigners as a component of the population has increased from 0.8% to 5%. Many of the denounced foreigners are however illegal immigrants, which alters the proportion between foreigners as percentage of population and foreigners denounced for crimes. See Rapporto sulla Criminalita’, Ministero dell’Interno Italiano, June 20, 2007 available at http://www.interno.it/mininterno/export/sites/default/it/assets/ files/14/0900_rapporto_criminalita.pdf, (last visited June 2013). 142 With 71 million inhabitants Turkey would be the second most populous country in the EU after Germany; under the rules on qualified majority voting in the Council, this would give Turkey a prominent weight in European decisionmaking and in the adoption of European legislation. Also, Turkey would be the first EU where muslims represent an overwhelming majority (99.8%). Negotiations for accession have been under way for several years, but the opening of negotiations on several chapters has been suspended, and no chapter will be closed, until Turkey agrees to apply the Additional Protocol of the Ankara Association Agreement to Cyprus. Outcome of the accession process is thus uncertain at the time of writing. Added uncertainty comes from the turmoils and unsteady political situation in the country as of spring 2013.

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terms than in the past and calls for a more careful evaluation of the oilstain approach to the expansion of sameness. European legal sameness gets super-imposed on an increasingly diverse range of individual and collective identities. This is likely to change the experience of natives, intra-European immigrants and immigrants from third countries, but not to effectively ground renewed perceptions of sameness.143 This is not meant to suggest that European legal sameness should be for a narrower group of more culturally homogeneous individuals. On the contrary, diversity is a societal and organizational quality that cannot be renounced if integrated Europe is to avoid slipping back into the pitfalls of nationalism. This evaluation of the dynamics of expansion of European citizenship and legal sameness at the European level is aimed at emphasizing a particularity of the regime of supranational citizenship that the EU has introduced. While as an institution European citizenship calls for a sense of European “groupness”, in practice it groups together an increasing amount of diversity without providing, at present, any evident filter to distinguish, within that widespread diversity, some authentic sameness. 2.3.2. The Dilution of Societal Sameness in the EU Legal sameness, as a normative expectation connected to European citizenship, expands in the European Union as would an oil-spill, and it reaches different people according to a logic that may, in part, be seen as arbitrary. This section of the work explores how the expansion of citizenship and of legal sameness in this way corresponds to the continuous phases of dilution of the European societal factors of sameness. Increasing 143 By referring to the experience of natives of the European Union this work mainly refers, in respect to each potential enlargement, to nationals of the member states which are already in. It can be argued that also the nationals of the entrant member states at each enlargement are natives of the European Union as also for them, the experience of becoming Europeans is not a result of migration, but simply of changing political environments around them. However in respect of the dilution of societal sameness, the position of those who are already Europeans and have been such for a while has greater insight power. The oil stain expansion of legal sameness and the contextual dilution of sameness in the surrounding society contrasts with the fixity of their status. For nationals of the entrant states, even if Europeanization is distinct from any individual experience of migration, access into the European Union triggers at least a migration of the selves, so that their position in respect of European citizenship is at least loosely comparable to the one of immigrants. For the concept of migration of the selves, see Gabriel Horenczyk, Migrant Identities in Conflict: Acculturation Attitudes and Perceived Acculturation Ideologies in Changing European Identities-Social Psychological Analyses of Social Change supra at note 12, at 241–242.



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the intake of diversity dilutes social factors of sameness. This depends in part on the diversity found in the cultures and collective identities of the pool of candidates for European citizenship, through naturalization in each member state, as underlined above. In part, it has to do with the range of identities, collective and individual, which are gathered together under the umbrella of legal sameness at each subsequent enlargement of the EU. The 2004 enlargement is unique in the history of the European Union on several fronts. First, its remarkable East-West character repaired a continental fracture, by returning to the same political stage European actors, which after bloody rivalries and a historical bifurcation in the 20th century, had shared common historical threads in a more remote past. Secondly, the 2004 enlargement is the largest, in size, in the history of Europe, and changes the demographic and geographical appearance of the Union. It brings in ten new member states, a 19% increase in population, and it redesigns the external frontiers of the Union. Finally, from linguistic, political and economic points of views, the 2004 enlargement increases exponentially the levels of diversity within the EU.144 The 2007 enlargement mirrors many of these features on a much smaller scale, and increasingly accentuates the economic divide among the member states of the Union. As a result, while the Eastern enlargement has in part meant the reunification of political domains that in the past had been communal, in terms of their European belonging, it has brought about a wave of insecurity. If since the 1950’s, the brief history of integration had generated some minimum degree of shared identity, this was likely to thin and become more conflictual in the wake of the Eastern enlargement.145 In spite of all of this, by May 2004, legal sameness had reached with the silent, slippery virtue of 144 Looking at levels of economic development for instance, the 10 entrant countries of 2004 and 2007 are significantly poorer than the older member states; this aspect has also posed the redistributive issue of redirecting Community sources of aid from poorer regions in Western Europe to particularly disadvantaged regions in the new member countries See  Frank Schimmelfennig, Liberal Identity and Postnationalist Inclusion: the Eastern Enlargement of the European Union, in Constructing Europe’s Identity-the External Dimension, supra at note 7, at 166–182 for the idea that the enlargement does not find justification in a club conception of Europe as its costs exceeded its resulting benefits. He argues that it is a community perspective to drive European enlargement: from the community point of view organizations want to join all those with the same collective identity; in the European case, this is a thin collective identity based on liberal values. 145 See Collective Memory and European Identity-The Effects of Integration and Enlargement supra at note 12, at 12–13 suggesting that, as European identity evolves out of the continuous confrontation and coexistence of national and European identities, in the aftermath of the enlargement the evolution of a European identity will be a lot more conflictual and marked by back and forths.

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an oil-spill, over 70 millions new citizens of Europe.146 Since the 2004 and 2007 enlargements, circa 476 million people out of a total of 500 million people populating the politically integrated portion of the European continent, have legally become a common citizenry.147 In July 2013, legal sameness is to expand once again to cover citizens of Croatia. The central question then becomes, how societally diverse are these 500 million people?148 Two sets of criteria are relevant to this assessment. First, there are the individual features of this population, the languages 146 To be sure, free movement, which is the fundamental right connected to European citizenship has been subjected for workers coming from the new member states to transitional limitations. The Accession Treaties of the 2004 entrants provide for transitional measures in respect of free movement of workers for the 7 years following accession; member states may retain the restrictions they have in place for purposes of access to the labor market. But once a person from a new member country has entered the labor market he/ she is entitled to equal treatment with workers, who are already there. The 7 years framework is divided into 3 parts: for the first 2 years after accession, member states can keep restrictions; after the 2 years, they can extend these restrictions for 3 further years; after that they can apply for additional 2 years of restrictions, but only if they show that there are serious disturbances in their labor markets. The same system applies to the 10 2004 entrants and to Bulgaria and Romania, which entered in 2007. The 3 periods are in the first case 30 april 2006, 30 april 2009 and 30 april 2011. For Bulgaria and Romania the three periods expire respectively on 31 Dec 2008, 31 Dec 2011 and 31 Dec 2013. New entrants may introduce corresponding restrictions on a reciprocity basis. In respect of the 2004 entrants, Ireland, UK and Sweden immediately liberalized their labor markets, the other member states kept working permits systems in place. In the second phase, beginning in 2006, Spain, Finland, Greece, Portugal, Netherlands, Italy and Luxembourg have also liberalized access to their labor markets. 147 Their legal sameness status is imperfect however even beyond transitional restrictions; relevant differences remain in particular in the field of the external validity of European citizenship. Some countries which benefit of visa free travel to the EU for instance have recognized visa free access by reciprocity only to the nationals of some of the member states of the EU, even if the Commission is negotiating with third countries for the extension of the reciprocity regime to all the nationals of the EU. In particular, citizens of Bulgaria, Cyprus, Romania and Poland still need a visa to travel to the United States. Similarly, Canada requires a visa to citizens of Romania and Bulgaria. The Commission has succeeded instead in obtaining that Brazil apply a visa-waiver system for short stays to all EU passport holders. See Report from the Commission to the European Parliament and Council of 26 November 2012, Seventh report on certain third countries’ maintenance of visa requirements in breach of the principle of reciprocity, COM (2012) 618 final, http://ec.europa .eu/dgs/home-affairs/e-library/documents/policies/borders-and-visas/visa-policy/docs/ com_2012_681_final_en.pdf (last visited June 2013). 148 Of course societal diversity is a phenomenon of relevance to the entire population, which shares the territory of the European Union, notwithstanding their legal status. The contrast between legal sameness and societal diversity properly regards only about 501 million (505 from 1 July 2013) of those people. However considering also the pool of immigrants-candidates for European citizenship allows including in this discussion also the additional diversity of the immigrant population in Europe. Their diversity as explained above is relevant because even if they are not yet legally same de jure, they are potential legally same people in the making.



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spoken, age groups, religious affiliations, and ethnicities. Secondly, their competing collective identities and the demographic features of the different national societies to which they belong. The European citizenry represents a trans-national group made up of several different nationalities. Each one of the nations represented in the population at large brings about a separate collective identity, competing with, or at least flanking, the all-inclusive European one. National identities sum up a number of collective characteristics,149 such as: shared myths, political experiences, collective memories, and collective prides. All of these characteristics contribute in drawing the invisible but tangible, self-other divides within the European people.150 National societies vary with respect to life habits, social customs, notions and the role of the family. All of these factors contribute in drawing a picture of high societal diversity within the European Union. The following analysis of the cultural, historical and demographic data of the European Union’s people and countries aims at corroborating that picture. 2.3.2.1. Features of the EU Population at Large Table 2-4 provides a snapshot of the population of the EU at large after the  last two enlargements. Several levels of diversity are accounted for. The people of Europe speak 23 different official languages, and at least 15  more non-official languages. They profess several different religions, mostly grouped under the umbrella of the three major Christian Churches, Catholic, Protestant and Orthodox. However, within those three main branches people are split into a myriad of different denominations.

149 This is not to suggest that there are no other collective identities, religious, cultural, professional or else which compete with the European one. National identities are however the more clearly marked and officially recognized, so they represent the most evident item of comparison. 150 The diversity of the immigrant pool will be considered when looking at individual features of the European population which account for societal diversity. In looking at collective identities, this work considers instead only the national identities of the 27 (28 as of 1 July 2013) member states. This finds justification in part in the fact that all the immigrants are “filtered” into European citizenship through a nationality, and also in the fact that the national identities of the member states are the most likely to find concrete and tangible societal expression in Europe, thus potentially interfering with the sense of sameness dictated in legal terms: for immigrants who become European citizens by naturalizing into the nationality of a member state, the pre-existing extra-EU national identity is something that at least in theory they are giving up or at least leaving in second place. For native European citizens instead, their nationality is the source itself of European citizenship and remains the dominant one.

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Table 2–4. Features of the EU Population at Large. Languages

Official: Bulgarian, Croatian, Czech, Danish, German, Estonian, Greek, English, Spanish, French, Irish, Italian, Latvian, Lithuanian, Hungarian, Maltese, Dutch, Polish, Portuguese, Romanian, Slovak, Slovene, Finnish, Swedish Non official: Faroeese, Greenlandic (Denmark), Russian (Estonia), Sami (Finland and Sweden), Gaelic (Ireland), Frisian (Netherlands), Mirandese (Portugal), Ukrainian (Latvia, Lithuania, Estonia), Catalan, Galician and Basque (Spain), Turkish (Bulgaria), Serbo-Croatian (Slovenia), Flemish (Belgium, Netherlands), Luxembourgish (Luxembourg), Macedonian (Greece, Bulgaria), Moldovan (Romania), Norwegian (Denmark, Sweden), Scottish Gaelic (UK), Welsh (UK);151 Languages of the immigrant population: Albanian, Vietnamese, Chinese, Serbian, Arabic, Thai, Somali, Norwegian Religions152 Roman Catholic (Majoritarian in Austria, Belgium, France, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, Poland, Portugal, Slovakia, Slovenia, Spain and variedly practiced in other EU countries) Protestant (Majoritarian in Denmark, Finland, Sweden,  UK and variedly practiced in other EU countries)  Anglican (UK)  Calvinist (Hungary, Netherlands) Lutheran (Germany, Finland, Hungary, Latvia,  Lithuania, Sweden)  Presbyterian (UK)  Evangelical Lutheran (Estonia, Denmark)  Methodist (Estonia)  Seventh Day Adventist (Estonia)  Pentecostal (Estonia)  Church of Ireland (Ireland)  Evangelical Christian Baptists (Lithuania)  Dutch Reformed (Netherlands) 151 Source: http://www.bbc.co.uk/languages/european_languages/languages/index.shtml (last visited August 2012). 152 Source: Central Intelligence Agency, World Factbook, available at https://www.cia .gov/library/publications/the-world-factbook/fields/2122.html (last visited June 2013).



citizens and others in the eu167

Table 2–4. (Cont.)

Orthodox (In the various denominations majoritarian in Bulgaria, Cyprus, Greece, Romania) Greek Orthodox (Greece) Bulgarian Orthodox (Bulgaria) Russian Orthodox (Lithuania) Jewish Muslim (strongest presence in France [5–6 million], Germany [3 million], Spain [1 million], UK [1.6 million], Netherlands [945,000], Italy [825,000])153 Other Maronites (Cyprus) Armenian Apostolic (Cyprus) Hindu (French overseas departments) Buddhist (French overseas departments, Sweden) Pagan (French overseas departments) Thaoist (Chinese immigrants) EthnoLinguistic Groups

Age Groups154

Slavic (Poles, Croat, Czechs, Bulgarians, Slovaks, Slovenes), Latin (French, Italian, Spanish, Portuguese, Romanian, Walloons), Germanic (Germany, Austria, Luxembourgers, Swedes, Danish, Dutch, Flemish, Frisian), Celtic (Irish, Scots, Welsh), Greek, Indo-Aryan (Roma), Baltic (Lithuanian, Latvian), Ugric (Hungarians), Finn (Finn, Estonian), Basque, Semitic (Maltese as Semitic-Arabic) Ethno-Linguistic Groups of the Immigrants: Albanian, Turkic, Arab, Arab-Berber, Somali, Chinese (mostly Han), Thai, Mestizo (Ecuadorians and Colombians in Spain), 0–14 year olds 15.6% 15–24 year olds 12.3% 25–49 year olds 36% 50–64 year olds 18.8% 65–79 year olds 12.7% 80 years and more 4.5%

153 2005 data from BBC country guide, available at http://news.bbc.co.uk/2/hi/ europe/4385768.stm, (last visited June 2013). 154 Eurostat data 2009; age groups do not seem to significantly differ among the several nations of Europe.

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In addition, there are a significant number of Muslims and Jewish people as well as a number of scattered religious minorities, which may be encountered in different corners of the EU. The European Babel can be linked to little more than ten major ethnolinguistic families, variedly represented in continental Europe and in the surrounding islands. However, most of these ethno-linguistic families are subparts of two larger groups, the Indo-European and the Finno-Ugric. Europeans also widely differ in age, with several different age groups being represented. The largest group of people in the EU is between 25 and 49 in age, followed in number by the slightly older (50 to 64) and by the very youngest (0–14). The smallest group is the one, which consists of those over-80. This group, however, still represents a solid 4.5% of the EU people, or roughly 22.5 million people. Some of these levels of diversity are the result of recent and historic migratory fluxes into Europe. This is the case with regards to the presence of increasing contingents of Muslim populations and of Turkish-speaking populations. Many of these levels of diversity are inherent in European society, and have confronted and coexisted with each other on the same continental territory for centuries and millennia. The novelty is in their coming to coexist under a common label of legal sameness as a result of the integration of Europe. In this respect, the last two enlargements of the European Union have sizably increased the size of those levels of diversity. Since 2004 and 2007, the Orthodox component in the religious makeup of the EU has strongly increased with the advent of the population of Cyprus, Lithuania, Bulgaria, and Romania becoming European citizens. At the same time, the entrance of Cyprus has also expanded the religious spectrum to include new minorities, such as the Maronite and the Armenian Apostolic denominations. New Protestant subgroups, such as the Seventh Day Adventists, the Pentecostals, the Methodists, and the Evangelical Baptists have also come to represent a share of the EU population with the accession of Estonia and Lithuania. From a linguistic perspective, eleven of the new official languages are a result of the last two enlargements. The post-2004 and 2007 Europe speaks in addition to its previous idioms, Bulgarian, Czech, Estonian, Latvian, Lithuanian, Hungarian, Maltese, Polish, Romanian, Slovak and Slovene, thereby almost doubling the polyglot nature of its character. On the unofficial side, in the last 3 or 4 years, Ukrainian, Russian, Turkish, Moldovan and Serbo-Croatian have also become languages of the people of the EU. Croatian will become an official language as of 1 July 2013. Finally, in ethnic terms, three new groups, previously unrepresented in the Europe



citizens and others in the eu169

created by the Treaties, have become a substantial part of the European people: the Baltic, the Slavic and the Ugric groups.155 The portrait of the society at large that comprises the European Union is one, which evidences several layers of diversity, despite the fact that the overwhelming majority of these people (about 476 million) are same in legal terms due to the sharing of a common citizenship. Many of these levels of diversity are the result of the same expansive impetus that has brought legal sameness to bear on a much larger number of people. As a consequence of the changes brought about by immigration and enlargement, legal sameness has indeed come to call for perceptions of commonality among people, who express themselves in different languages, profess their faith to differently named Gods and belong to different ethno-linguistic families. The different features of the European citizens at large already suggest that the echos of the legal norm of supranational citizenship at the societal level may indeed be rather feeble. 2.3.2.2. Features of the Collective Identities of European Union Member States The European people differ not only individually but also in terms of the kinds of political and state entities with which they identify. Table 2–5 points out some historical and political features of the European Union’s member states, which provide important indicators in terms of the divergence present in the collective and national identities of their populations. Most historians would balk at such a bird’s eye view of member state history, but it would be beyond the scope of this work to survey the history of European member states with analytical rigor. The purpose of the historical overview is not to classify the member countries of the European Union nor is to encapsulate the complex, multi-faceted history of Europe in a nutshell. The cursoriness of the historical effort will perhaps be forgiven as the goal in this work is simply to use these historical and political hints as a surface highlighter of the deep differences in both the affective and rational components of national identities throughout Europe. Collective and national identities are phenomena of extreme complexity. In order to capture their many roots and nuances, only a joint venture comprised, at least, of history, law, psychology, sociology, and political science would hold promise of reliable results. However, relevant national 155 The Semitic one now represented in Malta is not completely new in that populations of Semitic origin represent a cross-national ethnic component in several parts of Europe.

Belgium 1957

From 13th century to Market 1918, at the center of economy the Habsburg Empire 50 years ago: independent republic (since 1918) 100 years ago: Austro-Hungarian Empire Market economy October 4, 1830: 50 years ago: Independence from independent Netherlands 100 years ago: July 21, 1831: ascension independent

1920: adoption of federal constitution 26 October 1955 (national holiday in commemoration of establishment of permanent neutrality)

Economic model in the 20th century

Austria 1995

Relevant political affiliations, 50 and 100 years ago. Other prominent belongings throughout history

Officially celebrated collective memories/ Landmark and foundational episodes/ Independence

State Year of EC/EU accession

Table 2–5. Collective Identities of the European Union Member States156

German occupation during World War II

Fleming 58% Walloon 31%

Constitutional Monarchy Federal State

Experience of authoritarian government in the 20th century

1938–1945 annexion to Germany

Presence of ethnic, linguistic, religious or ethnic minorities exceeding 1% of the general population

Federal republic Former Yugoslavs 4%, Turks 1.6%, Roma, Sinti

Form of state

170 chapter two

(Continued)

156 Source: Intelligence Agency, World Factbook available at https://www.cia.gov/library/publications/the-world-factbook/fields/2075.html (last visited June 2013). In addition, for Austria, Embassy of Austria in Washington D.C. http://www.austria.org/going/facts-a-figures (last visited August 2012); for Cyprus, Cyprus Government Web Portal, http://www.cyprus.gov.cy/portal/portal.nsf/All/9E78C19E842F1DD9C2256ED60038B3BA?Open Document (last visited August 2012); for the Czech Republic, Official Website of the Czech Republic, http://www.czech.cz/en/Discover-CZ/Facts-about -the-Czech-Republic/History (last visited August 2012); for Denmark, Official Website of Denmark, http://denmark.dk/en/society/history/ (last visited August 2012); for Germany, Das Deutschland Portal, https://www.deutschland.de/de (last visited August 2012); for Ireland, Ireland in Brief, Document of the Irish Department of Foreign Affairs, available at http://www.dfa.ie/uploads/documents/ireland%20in%20brief.pdf (last visited August 2012); for France, French Ministry of Foreign Affairs, http://www.diplomatie.gouv.fr/en/france/history-6813/ (last visited August 2012); for Estonia, Estonian Embassy in Washington D.C., http://www.estemb.org/estonia/history (last visited August 2012); for Italy, Italian Ministry of Foreign Affairs, http://www .esteri.it/MAE/IT/Ministero/Servizi/Benvenuti_in_Italia/ (last visited August 2012); for Finland, Embassy of Finland in Washington D.C., http://www .finland.org/en/ (last visited August 2012); for Germany, German Missions in the United States, http://www.germany.info/Vertretung/usa/en/Startseite .html (last visited August 2012); for Portugal, Ministery of Economy and Innovation, Country Profile, http://www.portugalglobal.pt/EN/Source FromPortugal/Pages/AboutPortugalCP.aspx (last visited August 2012); for Lithuania, Embassy of the Republic of Lithuania in the United States, http:// www.ltembassyus.org/index.php?530863704 (last visited August 2012); for Luxembourg, Embassy of Luxembourg in the USA, http://washington .mae.lu/en/About-Luxembourg/History (last visited August 2012); for Hungary, Ministry of Foreign Affairs of Hungary, http://www.mfa.gov.hu/kum/ en/bal/Ministry/about_hungary/ (last visited August 2012); for Latvia, Ministry of Foreign Affairs of the Republic of Latvia, http://www.mfa.gov.lv/en/ eu/history/ (last visited August 2012); for the Netherlands, Dutch Ministry of Foreign Affairs, http://www.minbuza.nl/en/you-and-netherlands/about -the-netherlands/highlights-of-dutch-history/highlights-of-dutch-history.html (last visited August 2012); for Poland, Polish Ministry of Foreign Affairs, http://www.poland.gov.pl/History,319.html (last visited August 2012); for Slovenia, Republic of Slovenia, Official gateway to information on Slovenia, http://www.slovenija.si/history, (last visited August 2012); for Sweden, Official gateway to Sweden, administered by the Swedish Institute, http://www .sweden.se/eng/Home/Quick-facts/Fact-sheets-about-Sweden/ (last visited August 2012).

to the throne of King Leopold I-national holiday 7 February 1831 Constitution

citizens and others in the eu171

Relevant political affiliations, 50 and 100 years ago. Other prominent belongings throughout history

50 years ago: People’s Republic, within the Soviet Bloc 100 years ago: achievement of complete independence from the Ottoman Empire 50 years ago: part of Federal People’s Republic of Yugoslavia 100 years ago: part of Austro-Hungarian Empire

Officially celebrated collective memories/ Landmark and foundational episodes/ Independence

3 March 1878: Independence from the Ottoman Empire (and constitution as an autonomous principality) (national holiday) 22 September 1908: full independence

25 June 1991 (statehood day): Parliament votes independence from Yugoslavia. 8 October 1991 (independence day): Parliament passes resolution severing the relations to Yugoslavia.

State Year of EC/EU accession

Bulgaria 2007

Croatia 2013

Form of state

Planned economy Parliamentary in the second half Democracy of the 20th century

Planned economy Parliamentary 1946–1990 Democracy

Economic model in the 20th century

Regime of Tito from second World War until 1980

Communist regime-second half of 20th century

Turks 9.3% Roma 4.7%

Serb 4.5%

Experience of authoritarian government in the 20th century

Presence of ethnic, linguistic, religious or ethnic minorities exceeding 1% of the general population

172 chapter two

Denmark 1995

Czech Republic 2004

Cyprus 2007

16 August 1960: independence from UK 1 October 1960: independence day (national holiday) Turkish Republic of Northern Cyprus declared independence in 1983, recognized only by Turkey; acquis communautaire does not extend there 1 January 1993: independence with the split from Slovakia 28 October 1918: Czech Founding Day (national holiday) Unified state since 10th century 1849: proclamation of constitutional monarchy Moravian 3.7% Slovak 1.9%

–

Parliamentary Republic

Constitutional monarchy

50 years ago: part of Planned economy until 1989 independent Czechoslovakia 100 years ago: part of the AustroHungarian Empire 50 years ago: Market economy Independent 100 years ago: Independent

Greek 77% Turkish 18%

Republic

until 1878 part of the Market economy Ottoman Empire 50 years ago: under British rule 100 years ago: under British rule

(Continued)

German occupation during World War II

Communist regime 1948–1989 Member of Warsaw pact

–

citizens and others in the eu173

Officially celebrated collective memories/ Landmark and foundational episodes/ Independence

24 February 1918: independence from Russia (national holiday)-actual independence obtained through 1918–1920 War of Liberation 21 August 1991: independence from the USSR-after Singing Revolution begun 1988

State Year of EC/EU accession

Estonia 2004

Planned economy Parliamentary until 1991 Republic

50 years ago: part of the USSR 100 years ago: under Russian rule (but independent between 1920 and 1940)

Form of state

Economic model in the 20th century

Relevant political affiliations, 50 and 100 years ago. Other prominent belongings throughout history

Experience of authoritarian government in the 20th century

Russian 25.6%, USSR Ukrainian 2.1%, domination Belarusan 1.3% 1940–1991 (German occupation 1941–44)

Presence of ethnic, linguistic, religious or ethnic minorities exceeding 1% of the general population

174 chapter two

6 December 1917: independence from Russia-national holiday

496 ad: conversion to Christianity of King Clovis 987 ad: coronation of Hugh Capet 1789: French revolution 14 July 1790: national holiday, commemorating the celebration of the first anniversary of the taking of the Bastille on 14 July 1789

Finland 1995

France 1957

50 years ago: independent 100 years ago: Grand Duchy of Russia, under Russian rule (since 1809, before under Swedish rule) 50 years ago: independent 100 years ago: independent (1958 new Constitution and beginning of the 5th republic)

Republic

Republic

Market economy

Market economy

–

Swedes 5.6%

(Continued)

German occupation during World War II and Vichy government

–

citizens and others in the eu175

Officially celebrated collective memories/ Landmark and foundational episodes/ Independence

18 January 1871: unification of the German Empire 23 May 1949: proclamation of the Federal Republic of Germany (BRD) 7 October 1949: proclamation of the German Democratic Republic (DDR) 3 October 1990: reunification of West and East Germany (Unity Day, national holiday)

State Year of EC/EU accession

Germany 1957

Market economy Federal Republic in BRD; Planned economy in DDR until 1990

50 years ago: split into two, Federal Republic of Germany, including the UK, US and French zones of occupation; German Democratic Republic including former USSR zone and under Soviet influence 100 years ago: German Reich

Form of state

Economic model in the 20th century

Relevant political affiliations, 50 and 100 years ago. Other prominent belongings throughout history

Turkish 2.4%

Presence of ethnic, linguistic, religious or ethnic minorities exceeding 1% of the general population Nazi period

Experience of authoritarian government in the 20th century

176 chapter two

Greece 1981

25 March 1821: Independence Day (national holiday)recalling beginning of the rebellion against the Turks1829: independence from the Ottoman Empire 1974: from constitutional monarchy to republic

Independent from the first two millennia before Christ until 146 b.c. Then under the Roman Empire and then Byzantine Empire From XV to XIX century under the Ottoman Empire 50 years ago: independent constitutional monarchy 100 years ago: independent constitutional monarchy

Market economy

Parliamentary republic

–

(Continued)

1967–1974: Regime of the Colonels German occupation during World War II

citizens and others in the eu177

Officially celebrated collective memories/ Landmark and foundational episodes/ Independence

25 December 1000: founding with the crowning of King Stephen I 20 August: Saint Stephen’s day (national holiday)

State Year of EC/EU accession

Hungary 2004

Economic model in the 20th century

Form of state

Planned economy Parliamentary 50 years ago: until 1990 democracy independent, People’s Republic of Hungary 100 years ago: part of the AustroHungarian Empire (during the 16th and 17th century greater part of the country is under the Turks, minor part under the Habsburg)

Relevant political affiliations, 50 and 100 years ago. Other prominent belongings throughout history

Roma 1.9%

Presence of ethnic, linguistic, religious or ethnic minorities exceeding 1% of the general population Communist rule 1949–1990

Experience of authoritarian government in the 20th century

178 chapter two

Italy 1957

Ireland 1973

6 December 1921: independence from the United Kingdom 17 March: St. Patrick’s Day (national holiday)-St. Patrick is considered to have introduced Christianity in Ireland 17 March 1861: unification of Italy into Kingdom of Italy (unification process continues until 1870) 25 April 1945: Liberation Day (final fall of Fascism and liberation from German occupation) (national holiday) 2 June 1946: Republic day-(national holiday)

Market economy

Market economy Before unification, history of fragmentation into several local entities, republics and kingdoms, and partial subjection to different foreign dominations 50 years ago: independent republic 100 years ago: independent kingdom

Celtic tribes invasions from the 6th cent. b.c.-have left mark in culture 50 years ago: independence 100 years ago: under British rule Parliamentary democracy

Republic

–

(Continued)

Fascist government 1922–1943

–

citizens and others in the eu179

Officially celebrated collective memories/ Landmark and foundational episodes/ Independence

18 November 1918: independence from soviet Russia 4 May 1990: declaration of renewal of independence 21 August 1991: de facto independence from the Soviet Union

State Year of EC/EU accession

Latvia 2004

Planned economy Parliamentary until 1990 democracy

50 years ago: under URSS rule 100 years ago: under Russian rule (independent between 1918 and 1940)

Form of state

Economic model in the 20th century

Relevant political affiliations, 50 and 100 years ago. Other prominent belongings throughout history

Russian 29.6%, Belarusian 4.1%, Ukrainian 2.7%, Polish 2.5%

Presence of ethnic, linguistic, religious or ethnic minorities exceeding 1% of the general population

URSS domination 1940–1990 Occupation by Nazi Germany during World War II

Experience of authoritarian government in the 20th century

180 chapter two

Luxem­ bourg 1957

Lithuania 2004

6 July 1253: Coronation of Mindaugas King of Lithuania-foundation of Lithuanian state (national holiday) 16 February 1918: independence from Soviet Russia (national holiday) 16 February 1918: independence from Soviet Russia (national holiday) 963: considered year of foundation 1839: independence from Netherlands 23 June 1896: national day remembering the birthday of Duchess Charlotte

Depending from the Netherlands since 15th century Periods of French occupation in the 17th and 18th century 50 years ago: independent 100 years ago: independent

1569–1795: PolishLithuanian Commonwealth 50 years ago: under URSS rule 100 years ago: under Russian rule (independent 1918–1940)

Market economy

Constitutional monarchy

Planned economy Parliamentary until 1990 democracy

Portuguese 13.3%, French 4.5%, Italian 4.3%, Other EU 7.3%

Polish 6.7%, Russian 6.3%

(Continued)

–

URSS domination 1940–1990 Occupation by Nazi Germany during World War II

citizens and others in the eu181

Officially celebrated collective memories/ Landmark and foundational episodes/ Independence

21 September 1964: independence from the UK (national holiday)

State Year of EC/EU accession

Malta 2004

Economic model in the 20th century

Historically under Market economy Arab control (IX-XI cent.), Norman control, then Spanish control. Since 1530 under control of the military-monastic order of the Knights of Malta. Briefly under Napoleonic control, then part of the British Empire since 1814 50 years ago: under British rule 100 years ago: under British rule

Relevant political affiliations, 50 and 100 years ago. Other prominent belongings throughout history

Republic

Form of state

–

Presence of ethnic, linguistic, religious or ethnic minorities exceeding 1% of the general population –

Experience of authoritarian government in the 20th century

182 chapter two

Poland 2004

Nether­ lands 1957

23 January 1579: independence from Spain (only recognized by Spain in 1648) 30 April: Queen’s Day (national holiday) recalling birthday of Queen Mother Juliana in 1909 and accession to the throne of her daughter Beatrix in 1980 11 November 1918: independence, republic proclaimed 3 May 1791: Constitution day (national holiday) Planned economy Republic until 1990

1569–1795: PolishLithuanian Commonwealth 50 years ago: independent, Soviet satellite 100 years ago: split between Russia, Prussia, AustroHungarian empire (the final split occurred after repeated military operations in 1795)

Constitutional monarchy

Market economy

50 years ago: independent 100 years ago: independent

–

Non Western origins including Turks, Surinamese, Moroccans, Antilleans, Indonesians 10.8%

(Continued)

Communist regime satellite of URSS

Nazi occupation during Second World War

citizens and others in the eu183

Relevant political affiliations, 50 and 100 years ago. Other prominent belongings throughout history

50 years ago: independent 100 years ago: independent

Officially celebrated collective memories/ Landmark and foundational episodes/ Independence

1143: recognition of the Kingdom of Portugal as independent with the signing of the Treaty of Zamora with the King of Castille XV–XVI cent.: era of the discoveries 10 June 1580: Portugal Day-also recalling the death of poet Luis de Camoes 5 October 1910: declaration of the republic 1974: return of a democratic regime with a coup of the Armed Forces Movement

State Year of EC/EU accession

Portugal 1986 Market economy

Economic model in the 20th century

Republic

Form of state

–

Presence of ethnic, linguistic, religious or ethnic minorities exceeding 1% of the general population

1926–1974: dictatorial regime after a 1926 military coup

Experience of authoritarian government in the 20th century

184 chapter two

Slovakia 2004

Romania 2007

9 May 1877: proclamation of independence from Ottoman Empire 26 March 1881: proclamation of the kingdom 1 December 1918: unification day of Romania and provinces that had been under Habsburg domination (e.g. Transylvania) (national holiday) 30 December 1947: proclamation of the republic 1 January 1993: independence with the split from Czech Republic 1 September 1992: Constitution Day (national holiday)

Planned economy Republic until 1989

50 years ago: part of Planned economy Parliamentary until 1989 democracy independent Czechoslovakia 100 years ago: part of the AustroHungarian Empire

50 years ago: independent under influence of Soviet bloc 100 years ago: independent

Hungarian 9.7%, Roma 1.7%

Hungarian 6.6%, Roma 2.5%

(Continued)

Communist regime 1948–1989

Communist regime since after World War II 1965–1989: Ceausescu dictatorship

citizens and others in the eu185

Officially celebrated collective memories/ Landmark and foundational episodes/ Independence

1 December 1918: joins the Kingdom of Serbs, Croats and Slovenes (renamed Kingdom of Yugoslavia 1929) After WWII: becomes Federal People’s Republic of Yugoslavia, then in 1963 Socialist Federal Republic of Yugoslavia 25 June 1991: Independence from Yugoslavia (national holiday)

State Year of EC/EU accession

Slovenia 2004

Presence of ethnic, linguistic, religious or ethnic minorities exceeding 1% of the general population Serb 2%, Croats 1.8%, Bosnian 1.1%

Form of state

Economic model in the 20th century

Planned economy Parliamentary in the second half republic of the 20th century

Relevant political affiliations, 50 and 100 years ago. Other prominent belongings throughout history

50 years ago: part of Federal People’s Republic of Yugoslavia 100 years ago: part of Austro-Hungarian Empire

Regime of Tito from second World War until 1980

Experience of authoritarian government in the 20th century

186 chapter two

Sweden 1995

Spain 1986

1492: year of the reconquest of Granada from the Arabs, considered akin to independence and foundation; 12 October 1492: National Day (national holiday) also recalling the day Columbus discovered the Americas 1936–39: Civil War 1978: approval of the Constitution 6 June 1523: independence (from Denmark) with the election of Gustav VASA as king 6 June: Swedish Flag Day and National Day (national holiday since 2005)

Parliamentary monarchy

Constitutional Monarchy

Market economy

Market economy

Mostly under Arab occupation between 8th and 15th century a.d. Imperial power in 16th and 17th century 50 years ago: independent under dictatorial regime 100 years ago: independent under constitutional monarchy

50 years ago: independent 100 years ago: independent

Finnish and Sami minorities

–

(Continued)

–

1939–1978 Franco regime

citizens and others in the eu187

Officially celebrated collective memories/ Landmark and foundational episodes/ Independence

1688–89: Glorious Revolution and beginning of modern parliamentary democracy 1 May 1707: creation of the United Kingdom from union of Kingdom of England and Kingdom of Scotland

State Year of EC/EU accession

United Kingdom 1973

Form of state

Constitutional monarchy

Economic model in the 20th century

Market economy

Relevant political affiliations, 50 and 100 years ago. Other prominent belongings throughout history

Head of the largest colonial empire in the world gradually declining in the 20th century 50 years ago: independent 100 years ago: independent

Scottish 8.6%, Welsh 4.9%, Northern Irish 2.9%, Black 2%, Indian 1.8%, Pakistani 1.3%

Presence of ethnic, linguistic, religious or ethnic minorities exceeding 1% of the general population –

Experience of authoritarian government in the 20th century

188 chapter two



citizens and others in the eu189

celebrations, past political belongings, independence moments and the political experiences of European states point to three sets of elements, which may contribute to map out the range of European national and collective identities.157 This range includes collective memories, the political selves of the citizens, and habits of societal diversity. 2.3.2.2.1 Collective Memories Collective memories differ among the member states, and episodes which are recalled as source of pride in some countries are remembered as a source of shameful collective regrets in others. Several scholars of collective identity have underscored the importance of collective recollections of the past in the shaping and orienting of these identities.158 National collective memories are often focused around foundational events and the moment a country achieved independence. National Day holidays in several member states commemorate events of this kind. However, these events differ in character. Some of the member states celebrate the independence of their nation (as is the case in Lithuania, which celebrates independence from Soviet Russia; Greece, which celebrates independence from the Ottoman Empire; Slovenia, which celebrates independence from Yugoslavia). Other member states celebrate events and persons, which represent the roots of their political being and culture (for instance Hungary recalls the coronation of a heroic king, under whose reign the tribal Magyars gradually settled down and laid the basis for the Hungarian state; the Irish people celebrate St.Patrick, who is considered to have introduced Christianity to the country, thus creating the foundation for Irish religious culture). Yet other member states celebrate the end of a troubled period in their nation’s history (Austrians for instance recall

157 While Table 2–5 also lists for each member state of the EU the year of entry into the EU, a state length of membership in the EU is not taken into account as a possible variable affecting collective identities; this is in part because the analysis focuses on capturing and describing collective identities of the European people pre-existing the potential European one and competing with the European one. How membership in the European Union might have affected in one sense or the other those collective identities is less relevant for these purposes; existing studies of Eurobarometer data suggest in any case that older member states have not developed a stronger European identity than newer ones. See Franziska Deutsch, Legitimacy and Identity in the European Union, supra at note 14 at 159–165. These findings may be taken to corroborate the idea that European citizenship so far has at most a low socialization power. 158 See e.g. Rethinking Europe-Social Theory and the Implications of Europeanizat­ ion supra Chapter 1 at note 18 at 95–102, discussing what memory means to collective identity and group membership; also see Bernhard Giesen, The Collective Identity of EuropeConstitutional Practice or Community of Memory, supra at note 11 at 31–34.

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the law which established Austria as a neutral country ending a period of tormented political incarnations and violent conflicts; Italians recall the definite fall of the fascist regime and their liberation from the German occupation). The epicenters of national memories differ not only in the time periods in which they happened and in the type of event they mark, but sometimes the memories that represent the victory of one member nation, also represent the defeat of another. For instance, when the people of Luxembourg commemorate their independence from the Netherlands in 1839, they refer to an event that in the historical consciousness of the Dutch people represents a loss. The same principle applies to the history of Malta and Cyprus and their respective independences from the UK. Thus, what is seen as a national achievement by one state, is a colonial loss for the other. 2.3.2.2.2 Political Selves of the Citizens Beyond divergence in collective memories, the political selves of citizens of different European nations also differ. Historical experiences are likely to have shaped the different political sensibilities and perceptions of the role of public authorities in the citizens of different member states. Of the nations participating in the European Union, some have ruled over large empires in the past (U.K, Austria, Spain), others have been territories subject to an empire or colonies (Malta, Cyprus, Bulgaria, Italy, Lithuania, Estonia, Latvia). Some of the EU countries have been an incubator for democracy (UK), some have long been independent (UK) and never subject to totalitarian regimes (UK, Ireland), others have endured and sometimes exported harsh totalitarian regimes (Germany, Italy, Latvia, Lithuania, Estonia, Spain, Greece). As a result of the 2004 and 2007 enlargements, united Europe now comprises nations, which stood on opposite sides of the iron curtain in the 20th century. This means that their populations have had a different way of shaping perceptions and differing expectations about the role of central and public authorities. All these different experiences stir and shape the political aspect of citizenship, by setting different terms for confrontation among opposing political factions, for participation, and for sensibilities in foreign policy. 2.3.2.2.3 Habit for Societal Diversity Finally, different subgroups of the European population are likely to have adapted in different degrees to living in a societally diverse surrounding environment. Studies have shown that the propensity to accept otherness and to shape heterogeneous loyalties changes with exposure to diversity



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and with the habit of having split identities.159 In part, as an inheritance of past imperial experiences, some of the member states of the European Union tend to be multi-ethnic or at the very least they play host to consistent religious, cultural and linguistic minorities. Such is the case in Belgium, Latvia, Lithuania, Slovakia, and the United Kingdom. The population of these states has a long-established custom of hearing different languages, encountering different lifestyles and sharing public institutions with people who have different cultural roots. In other, more homogeneous member states, such as Italy and France, these encounters are the result of recent immigration waves, and of the participation in the common market of the EU. The custom of allowing identities that have softer boundaries also relates to the unitary or federal character of the entity one belongs to. For example, Germany, Belgium, Austria are federal states while Slovenia has been part of a federation of states for most of the 20th century. Other EU members like France, Italy and Spain are in contrast unitary, even though variously centralized, entities. Federalism, which is about sharing power and loyalties among territorially organized communities, is already about the co-existence of diversity and the splitting of allegiances. In this sense those European citizens, who were already federal citizens, may be said to have been more prepared for the cultural and political experiences that European integration brought about.160 2.3.2.2.4 East-West Trends in Collective Identities Even if these three sets of features, memories, political selves, diversities do not exhaust the discourse of competing collective identities in the EU, they represent three important sides of the rift among national identities that pre-date the European post-national one. Also, in terms of national differences some important East-West trends may be identified. Most of the 12 countries which have entered the Union between 2004 and 2007 have a history of being dominated by foreign powers or subject to imperial control. The nations, which have a long-standing tradition of independence, and military and political expansion are all found among the preenlargement members of the EU. In addition, 10 of the 12 members entered 159 See Jack Citrin and John Sides, More than Nationals: How Identity Choice Matters in the New Europe, supra at note 14, at 178–181. 160 See Liesbet Hooghe, Several Roads Lead to International Norms, But Few Via International Socialization: A Case Study of the European Commission, 59 (4) int’l org 861 (2005) at 879–80; her study focuses on a different context but provides valuable insights. While considering prevailing mechanisms in the process of socialization of Commission officers, she finds that officers coming from federal states, and thus having a habit to multiple allegiances, are more prone to supranationalism.

F 83.2 M 77.8

F 77.8 M 70.7

F 80.4 M 73.9

Bulgaria

Croatia

F 18.5 M 15.0

F 17.3 M 14

F 21.5 M 17.8

4.6

2.9

4.1

1.3

1.4

2.9

2.1

Belgium

4.3

F 83.9 M 78.3

Austria

F 21.7 M 18.1

Life Life Marriages Divorces per expectancy expectancy per 1000 1000 persons at 65 inhabitants

State

1.40

1.51

1.81

1.40

Fertility

Table 2–6. Demographic and Social Features of European National Societies.161

1) 54% 2) 34% 3) 8% 1) 43% 2) 29% 3) 27% 1) 40% 2) 40% 3) 13% Not available

1) 94.8 2) 2.4

1) 85.8 2) 1.2%

1) 82.8 2) 7.1%

1) 86.6 2) 13.4%

Religiosity Education levels 1) % of people who 1) % of youth declare to believe in education a God attainment 2) % of people who level declare to believe in 2) % of life-long learners spirit or life force 3) % of people declaring they do not believe in either of the above

192 chapter two

F 81.3 M 71.2

F 83.8 M 77.3

F 85.7 M 78.0

F 83.2 M 78.4

Estonia

Finland

France

Germany

F 21.2 M 18.2

F 23.8 M 19.3

F 21.7 M 17.7

F 20 M 14.7

F 20.1 M 17.3

F 20.3 M 18.2 F 19.2 M 15.6

4.6

3.6

5.3

4.1

2.3

2.2

2.5

2.3

2.6

2.7

4.3 4.9

2.3

7.3

1.34

2.01

1.83

1.52

1.75

1.43

1.40

1) 90% 2) 7% 1) 19% 2) 50% 3) 30% 1) 31% 2) 49% 3) 19% 1) 16% 2) 54% 3) 26% 1) 41% 2) 41% 3) 16% 1) 34% 2) 27% 3) 33% 1) 47% 2) 25% 3) 25% 1) 76.2 2) 7.8%

1) 84.4 2) 5.5%

1) 86.3 2) 23.8%

1) 81.3 2) 12%

1) 72 2) 32.3%

1) 87.8 2) 7.5% 1) 90.9 2) 11.4%

(Continued)

161 Source for Life Expectancy, Marriage, Divorce and Fertility data: Eurostat 2011. Source for Religiosity data: Eurobarometer on Social Values, Science and Technology, June 2005 available at http://ec.europa.eu/public_opinion/archives/ebs/ebs_225_report_en.pdf (last visited August 2012). Source for youth education attainment level: Eurostat data 2012; indicator defined as the percentage of population aged 20–24 who have achieved at least upper secondary education. Source for percentage of life-long learners: Eurostat data 2011.

F 81.9 M 77.8

F 83.1 M 79.3 F 81.1 M 74.8

Denmark

Czech Republic

Cyprus

citizens and others in the eu193

F 78.7 M 70.3

F 82.8 M 78.3

F 85.3 M 80.1

Ireland

Italy

F 22.6 M 18.8

F 20.7 M 17.9

F 18.3 M 13.3

3.4

4.3

3.6

2.05

1.23

1.42

Fertility

0.9 (2010 data) 1.40

0.7

2.3

1.3

Hungary

4.9

F 83.1 M 78.5

Greece

F 20.6 M 18.5

Life Life Marriages Divorces per expectancy expectancy per 1000 1000 persons at 65 inhabitants

State

Table 2–6. (Cont.)

1) 81% 2) 16% 3) 3% 1) 44% 2) 31% 3) 19% 1) 73% 2) 22% 3) 4% 1) 74% 2) 16% 3) 6%

1) 77.6 2) 5.7%

1) 87.2 2) 6.8%

1) 83.5 2) 2.7%

1) 85.4 2) 2.4%

Religiosity Education levels 1) % of people who 1) % of youth declare to believe in education a God attainment 2) % of people who level declare to believe in 2) % of life-long learners spirit or life force 3) % of people declaring they do not believe in either of the above

194 chapter two

F 19.9 M 15.4 F 21.8 M 18.1

F 82.9 M 78.6 Netherlands F 83.1 M 79.4

Poland

Slovakia

Romania

F 78.2 M 71 F 79.8 M 72.3

F 17.5 M 14.3 F 18.4 M 14.5

F 20.9 M 17.6 F 21.2 M 18.1

Malta

Portugal

F 21.6 M 17.8

Luxembourg F 83.6 M 78.5

F 81.1 M 72.6 F 84.0 M 77.6

F 19.2 M 14

F 79.3 M 68.1

Lithuania

F 18.7 M 13.4

F 78.8 M 68.6

Latvia

2

4.3

4.7

4.9

3.4

2.1

1.7

2.5

1.7

0.1

5.4

1.76

1.34

1.45

1.25

1.35

1.30

1.76

1.49

2.1 (2010 data) 1.52

3.4

4

6.1

3.3

6.3

5.2

1) 37% 2) 49% 3) 10% 1) 49% 2) 36% 3) 12% 1) 44% 2) 28% 3) 22% 1) 95% 2) 3% 1) 34% 2) 37% 3) 27% 1) 80% 2) 15% 1) 81% 2) 12% 3) 6% 1) 90% 2) 8% 1) 61% 2) 26% 3) 11% (Continued)

1) 79.6 2) 1.6% 1) 92.7 2) 3.9%

1) 89.8 2) 4.5% 1) 67.5 2) 11%

1) 73.6 2) 6.6% 1) 78.9 2) 16.7%

1) 71.5 2) 13.6%

1) 89.3 2) 5.9%

1) 84.3 2) 5.0% citizens and others in the eu195

F 21.2

M 18.6

F 85.4 M 79.4

F 83.8 M 79.9

F 83.1

M 79.1

Sweden

United Kingdom

F 21.3 M 18.5

F 22.8 M 18.7

4.5 (2010 data)

5.0

3.4

1.90

1.36

1.26

Fertility

2.1 (2010 data) 1.96

2.5

1.7 (2005)

1.2

Spain

3.2

F 83.3 M 76.8

Slovenia

F 21.1 M 16.9

Life Life Marriages Divorces per expectancy expectancy per 1000 1000 persons at 65 inhabitants

State

Table 2–6. (Cont.)

1) 37% 2) 46% 3) 16% 1) 59% 2) 21% 3) 18% 1) 23% 2) 53% 3) 23% 1) 38% 2) 40% 3) 20%

1) 81.8 2) 15.8%

1) 86.4 2) 25%

1) 62.8 2) 10.8%

1) 90.1 2) 15.9%

Religiosity Education levels 1) % of people who 1) % of youth declare to believe in education a God attainment 2) % of people who level declare to believe in 2) % of life-long learners spirit or life force 3) % of people declaring they do not believe in either of the above

196 chapter two



citizens and others in the eu197

in 2004 and 2007 were situated on the opposite side of the Iron Curtain from older member states during the Cold War era. This is not to say that all European diversities, at the level of collective identities, depend on the enlargement. Pre-Enlargement European national identities already differed widely among the older member states. However, the recent enlargements have only increased those diversities. These observations confirm the argument that the expansion of legal sameness through the extension of EU citizenship to an enlarged integrated Europe goes hand in hand with the diluting of societal sameness. 2.3.2.3. Selected Demographic and Social Features of European National Societies A third and final perspective on the dilution of societal factors of sameness in the member states of the European Union can be gleaned by looking at a selection of demographic, cultural and social data, which contribute in drawing an approximate sketch of diverging lifestyles. These data: life expectancy, marriage and divorce rate, fertility, religiosity, and education levels are all considered in this work as indicative descriptors of the several layers of diversity that exist on a nation-to-nation basis. At first glance these divergences point to the choices and destinies of the European people, in part they are relevant because each one of these indicators hides several potential explanatory factors of diversity. It should be noted that the presentation of these data is not intended as a rigorous introduction to the demographic and cultural features of European national societies, and that no speculation is made as to the reasons for and the possible correlations among these data. Their usage in this work is merely suggestive in tone. They provide a snapshot of a culturally, societally and demographically fragmented European society, where national boundaries are still important vessels of differences. Many of these data differ significantly among different regions of the same country162 and they are thus not a per se indicator of inconsistency 162 In the United States, for instance, life expectancy, regardless of gender differs state by state, ranging from a minimum of 74.81 years in Missisippi to a maximum of 81.48 years in Hawaii. For a ranking of the various states in this respect see http://www .worldlifeexpectancy.com/usa/life-expectancy (last visited June 2013). Marriages per 1000 inhabitants also vary widely among the states, ranging from lows of 4.8 in New Jersey and 4.9 in Missisippi to highs of 10.4 in Arkansas, and 9.0 in Tennessee, even without counting the two outlier states, Nevada at 36.9 and Hawaii at 17.6. The minimum number of divorces for 1000 inhabitants, 2.4, is registered in Illinois; the highest ones, respectively 5.2 and 5.6 are registered in Oklahoma, West Virginia, and Nevada. 2011 data of the Centers for Disease Control and Prevention, www.cdc.gov (last accessed June 2013).

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between the scope of legal sameness and the scope of societal sameness. In the EU, some of them present a marked east-west character and thus add to the data on national identities and contribute in shedding light on the diluting nature of the recent European enlargements. The range of demographic and social indicators discussed in this work is in no way exhaustive. However, it provides a useful bird’s eye view on some interesting aspects of the way in which people live their own lives. Life expectancy estimates are related to a number of environmental factors such as nutritional lifestyle, work environment, access to healthcare, and control of diseases. Marriages and divorce data are related to visions of the family, economic opportunities, religious influence in one’s own personal life, and preferences for long term commitments or on the contrary hesitation in this regard. Fertility rates may be based on similar ranges of preferences in work and family life. The sense of declared religiosity possessed by the people illustrates whether or not they think about the ultimate meaning of life, and where they look for answers when they do so. Finally education levels elucidate the cultural homogeneity or lack thereof in the national population, suggest different career models and show different ways of combining work and school life within a certain society. Examining in detail each one of the factors potentially hiding behind the selected demographic indicators would go beyond the scope of this chapter. This ensemble of potential factors, expressed through the lenses of these sets of data, is viewed in this work as a cumulative pointer to the existence of several different ways of life in European national societies. Some of these data show a remarkable east-west nature. This is the case with regards to life expectancies, which are constantly lower in Eastern European countries. Here life expectancy ranges between 68 and 76 years for men and between 77 and 81 for women. While, in the western, and older, member countries, the range is between 77.3 and 80.1 for men and between 81.9 and 85.7 for women. The gap is reduced if one looks at a life expectancy at 65 years, (relevant data being controlled for infant mortality rates) but a marked difference remains between eastern and western EU countries. Life expectancy at 65 years ranges between 13.3 and 17.3 years for men and between 16.9 and 21.1 years for women in the Eastern countries; it ranges between 17.3 and 19.3 years for men and between 20.1 and 23.8 years for women in the old countries. A less evident but still observable east-west trend can be found in the fertility rates. These rates tend to be low throughout the EU, compared to the US ones, but they are consistently lower in the member States which



citizens and others in the eu199

acceded in 2004 or after. Fertility rates in these country mostly range from 1.20–1.40, with the exception of Lithuania which shows a peak at 1.76. Whereas, older member states are well represented in the 1.80–2.00 range. Education levels also present an interesting trend in the countries of the Eastern enlargement. With the exception of Romania (where the level is higher than in many other EU countries), and of Malta, the level of educational attainment in all the new member states is well in excess of 80%, with highs close to 90% in Poland, Slovakia and the Czech Republic, and a peak at 94.8 in the newest member State, Croatia. In old member states, this level varies roughly between 62% and 87% and in none of these states does it exceed 90%. On the other hand, the percentage of life-long learners tends to be lower or equal to the European average in the new countries, with the exception of Slovenia, which has a 15.9% rate. If a trend is to be found for life-long learning, this would be a Nordic and Scandinavian one, as the highest percentage of life-long learners is concentrated in these countries. Marriages, divorces and religiosity vary quite widely throughout the European Union without detectable regional trends. With respect to religiosity, the lowest percentages of self-proclaimed atheists are found in the traditionally Catholic countries of Southern Europe, with the addition of Ireland and Romania. Otherwise, the number of believers, and the primary focus of people’s beliefs, whether it be God or a more vaguely defined conception of spirit or life force, vary from country to country. Similarly, marriage rates differ depending on the country, but with no regional trend. Both the highest and lowest marriages rates can be found in the new countries, with a low of 2.9 marriages per 1000 inhabitants in Bulgaria and a high of 6.3 in Lithuania. It is interesting to note that the number of divorces per 1000 inhabitants tends to vary independently of the number of marriages per the same amount of people. For countries which have a similar marriage rate of close to 5, divorces are respectively 2.5 every 1000 inhabitants in Sweden, 1.7 in Romania, 4 in Latvia and 1.3 in Greece. In other words different national subgroups of Europeans have a different propensity towards filing for divorce. All of these data lend themselves to several different interpretations, depending on the perspective of the observer and on the correlations with other factors that one can find. As general descriptors of European society, they provide a snapshot of relevant variations, potentially indicating how lifestyles, preferences, personal values vary depending on which national corner of the EU one focuses on. From a societal sameness perspective, the raw data may not mean much. As suggested above, the

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same indicators may vary quite extensively in nationally homogeneous societies, without for this reason alone, harming the population’s sense of sameness. Collective narratives are much more influential in this respect. However, these data have two important suggestions for societal sameness purposes. First, by bringing to light some significant east-west trends in the European Union, they confirm the image of the 2004 and 2007 enlargements of Europe as increasing the diversity of the European people. Second, if combined with diverging national collective identities, these elements point to additional societal, cultural and personal factors of difference, which might work as catalysts for the people’s sense of reciprocal otherness. 2.3.3. Towards the Mismatch The analysis conducted in this section, documents how European people differ in terms of individual cultural characteristics, competing collective identities and lifestyles. This survey yields two main results. First, the people of Europe, who in terms of European citizenship are legally considered the same, are a vastly heterogeneous group at the societal level. Second, the same dynamics that govern the expansion of European citizenship and the corresponding norm of sameness within the EU, also tend to dilute societal factors, which are relevant for societal sameness purposes. In conjunction with each subsequent enlargement of the European Union, and because of the naturalization choices of the member states, legal sameness, through the extension of European citizenship, expands in an arbitrary way, like an oil-spill. In turn, each time a group that is considered legally the same grows in this way, that group also becomes less societally the same, as more and more difference comes to co-exist under the same legal umbrella. Some of the elements of difference that have been evidenced in the previous pages have a clear east-west character, and are thus largely a result of the recent expansion of the European Union. Others are inherent in the nature of the European Union, which, as its institutional actors often remind us, prides itself on being a union of diversity. Many state and federal entities throughout the globe are comprised of culturally and ethnically diverse populations, and host within their borders political groups, which are divided by century-old rivalries and by contrasting historical memories.163 Unity in diversity, is certainly not an 163 Thoughts go for instance to the US melting pot, to multi-cultural Canada and to multi-ethnic, multi-lingual and multi-religious India, which comprises 28 states and



citizens and others in the eu201

exclusive character of the European Union. However, the way the European Union is bringing together societal diversity is special with respect to the model of other developed western countries. European societal diversities are, at the same time, wide-ranging and deep-seated. They find expression in different cultures and languages, long-held preexisting national identities, and varying ways of life. In many states of immigration and colonization, such as the United States, Canada, Australia or Brazil, the diversity of the population is mainly accounted for by subsequent arrivals, in the span of a few centuries, of different waves of colonizers and the violence or lack thereof inherent in their encounter with the indigenous populations.164 Constitutional settlements in those countries have to some degree successfully aimed at guaranteeing the coexistence of those different groups. These groups arrived driven by similar visions and escaping similar struggles, so that their shared personal goal could already provide the common ground for a shared political goal. In the case of Europe, immigration from other continents is only a small and recent part of the story. Many of the differences, which are coming to the surface now through integration, relate to the contiguous but different evolutionary paths of European societies ever since the founding of the Greek and Roman civilizations a couple of millennia ago. Even if these societies share distant roots and political and civil values, they have cultivated them in fundamentally different and at times violently opposed ways. The recent history of European integration has been, at the same time, about bringing together those diverse European societies and about building for them a common political goal. In the European project, national societies are not required to merge into a new supranational one, nor is European identity seeking to replace the separate national identities of the European people. Societal diversity stays,165 and as the current President of the European Commission often likes to quote, Europe is a “non-imperial empire”,166 so that there is no central

7 territories, recognizes in its constitution more than 20 languages and whose population practices several different religions. 164 See Patrick Weil, Access to Citizenship-A Comparison of 25 Nationality Laws supra Chapter 1, at note 5, at 21 for the distinction between countries of immigrants (where the core of the population.n is immigrants e.g. US) and countries of immigration, where the core of the population is not immigrants (e.g. France). 165 See TFEU, art. 167, providing in relevant part that “the Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity […]”. 166 President José Manuel Barroso, Spaak lecture, “A letter from Brussels to the next President of the United States”, September 2008, Harvard University.

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hegemonic political core of the Union, which is there to dictate the rule for its other components. In turning back to the compliance approach introduced in part one, this context poses particular obstacles for the pull of European citizenship at the societal level. European citizenship calls for a certain notion of sameness among the people of Europe. Societal factors however solicit differently oriented perceptions of sameness. Thus, legal and societal notions do not resonate with one another, and as the discourse of citizenship is now taking place beyond the nation, there is paucity of exogenous forces, which may induce a reconciliation of the societal and legal levels. While the observations in this chapter are not meant to suggest that legal sameness cannot exist without underlying societal homogeneity, the mismatch between the legal and the societal is one factor that might reduce the emotional and identitarian grip of citizenship in European terms. 2.4. The Mismatch Section 2.3 has shown that the scope of the norm of sameness as implied by the notion of European citizenship and the scope of perceptions of sameness suggested by societal factors in the EU tend towards increasing divergence. In other words, what the legal norm of citizenship suggests is appropriately perceived as the same and what societal factors lead people to perceive as the same do not resonate. This section considers what this lack of resonance might mean in terms of the pull of supranational citizenship at the societal level. As discussed in section 2.2, with respect to international norms diffusing into a domestic setting, Checkel proposed a notion of “cultural match”. In his work, cultural incongruence between the international norm to be received and relevant domestic norms has been found to slow down the process of domestic internalization of an international norm. Section 2.2 suggested that a mismatch between the norm of sameness implicit in a citizenship notion and norms of sameness for which societal factors are vehicles might similarly affect the process of diffusion of a citizenship-tied norm of legal sameness at the societal level. The resulting prediction with respect to European citizenship was that it would only exercise a feeble pull towards compliance in terms of perceptions of sameness. From this perspective, this chapter faces the question of whether European citizenship is indeed pulling towards compliance by soliciting a corresponding sense of “groupness” in European citizens.



citizens and others in the eu203

Seeking a response to this question, it explores three perspectives on the Europeans’ sense of sameness. First, re-emerging nationalist attitudes, which tend to re-orient notions of belonging and sameness towards the nation, or even towards sub-national cultural communities. Second, the perspective of resistance to the EU and integration, which reveals how Europeans are hesitant to take up their identity as members of a Europewide and EU-based group of sameness. Third, the discomfort with the ‘other’, whether European citizen or third-country national, which signals how Europeans might still feel uncomfortable with being part of a civic group, which is not mono-cultural, mono-ethnic, or mono-religious. As suggested earlier in this chapter, the norm of sameness that European citizenship brings about may be seen as extending only to European citizens. However, the way it might concretely socialize European citizens passes through the minimization of the perceptive effect of cultural, linguistic and ethnic boundaries, which also represent the main divide between nationals of a EU country and third country nationals. In this respect resistance to immigrants, whether from third countries or from other parts of the EU, may be considered as providing evidence of the weak socialization power of the norm of sameness attached to European citizenship. With respect to all these episodes, the logic of citizenship is only one part of the story. However, the argument here is not that it is the mismatch of legal and societal, and thus the ineffectiveness of citizenship which causes resistances in Europe. Rather it is that de facto existence and manifestation of such resistances, which may be traced back to a range of different political, historical and social reasons, corroborates the proposition that European citizenship is not, or if so only marginally, pulling for Europe-based perceptions of sameness. 2.4.1. Episodes of Resistance The following sections take into account a number of episodes, which to different extents, may be taken as proxies for societal attitudes in the European Union. For the purposes of this work, the term “societal” is used to refer to the actual individual perceptions of citizens and to their concrete reciprocal attitudes in their interactions as citizens. These attitudes which may be affected both by concrete factors of similarity and distance among the people, and by the socializing power of certain legal norms. The episodes considered in the following take place at several different levels of interaction: among the people themselves (e.g. this is the case in

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regard to surveys on discriminatory feelings and attitudes), among political parties as representatives of the people in the public sphere (e.g. the nationalism movements) and within governments (e.g. legislation on integration requirements). They also consider the political behavior of the citizen as a potential expression of their societal attitudes (voting behavior in European Parliament and in referendums). All these kinds of behaviors carry a different weight when expressing underlying societal attitudes, and they may also be the result of other reasons of interest and of opportunity, which have little to do with the citizens’ perceptions of belonging and ‘groupness’. They are presented on the theory that certain political behavior, political responses and governmental responses may interpret in part societal feelings of comfort or discomfort having to do with relevant issues. Poli­ tical and legal change occurs in part as a result of societal pressure.167 The link between the societal and the political or governmental level may appear exceedingly thin at times, as there are several other factors which form the basis of political and governmental behavior. This work considers this kind of behavior in a suggestive manner, to contribute to a broader portrait of society that certainly goes beyond the legal, political and governmental level and is not exhausted by either one of them. The goal of this section is not strictly analytical, and this perhaps provides a justification for using evidence that entails a large measure of approximation. An alternative approach to the issue of societal perceptions and attitudes would be to rely exclusively on surveys such as the Euro-barometer, where citizens are called to express directly their perceptions and positions on a certain question. While valuable, these surveys are not necessarily more reliable, as their result depends heavily on the way the questions are posed, on the size and nature of the surveyed sample and on the willingness or unwillingness of the respondents, consciously or unconsciously, to be completely sincere.168 2.4.1.1. Re-Emerging Nationalist Attitudes An initial signal of the ineffectiveness of European citizenship in inducing a Europe-wide sense of sameness can be found in the re-emerging forms 167 In the sense that societal pressures and elites work as vehicles for the diffusion of normative scripts in different kinds of societies see J.T. Checkel, Norms, Institutions and National Identity in Contemporary Europe, supra at note 60. 168 For a critique of the use of Eurobarometer questions to measure European identity Michael Bruter, Civic and Cultural Components of a European Identity, supra at note 11, at 187.



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of nationalism throughout the EU. The term “nationalism”, as it is used in this work, addresses the renewed tendency of European member states to give room to political movements, societal feelings and legislative choices, which tend to protect the national culture, national peculiarities and traditions against outside encroachment. Some of those cultureprotectionist trends are regional or local rather than purely national.169 Yet what they have in common is the inclination to preserve a localized, sub-European feeling of sameness. The current literature has explored the relationship between European integration and nationalism or regionalism without revealing any conclusive cause/effect link.170 On the one hand, the language of the Treaties declares the European Union’s favor towards the preservation of local and national identities, so that the integration project may be read to accommodate or even sponsor movements of this kind.171 On the other, the exaltation of national interest and identity translates into ambivalent positions in terms of European integration matters,172 and thus signals a certain distance from the domain of what is European. Nationalist trends find expression first of all in the relative electoral successes of nationalist political parties in various European member states. Many of these parties are not necessarily extremist, as they are sometimes depicted in the media, but they do make the Nation (a concept which does not necessarily coincide with the national state) a central part of their doctrine. An example of this phenomenon is the Lega Nord in Italy. Lega Nord is a party born out of the merging of some pre-existing regional political associations. More than protecting Italy as a nation, the Lega Nord is a strenuous supporter of decentralization and federal-style reforms for Italy, aimed at reducing the power of the central state. Thus, even though it is often described as nationalist, the Lega Nord is nationalist in improper terms. For example, with respect to Europe, its position is not one of outright rejection, but rather of diffident acceptance, with clear 169 See Ireneus Pawel Karolewski, Andrzej Marcin Suszycky, Relating Nationalism to European Integration in Nationalism and European Integration: the Need for New Theoretical and Empirical Insights (Ireneus Pawel Karolewski, Andrzej Marcin Suszycky eds. 2007) at 184. 170 Id. at 188. 171 See e.g. TFEU, art. 167. 172 For the idea that in some political settings, Europeanization has been seen as opportunity to bring out a specific national political plan, see Marcus Hoppe, The Europeanization of Nationalist Parties? Evidence from Scotland, Wales and Padania in Nationalism and European Integration: the Need for New Theoretical and Empirical Insights supra at note 169, at 82.

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opposition to some of the integration steps, such as the 2004 Eastern enlargement.173 On the Austrian political scene, nationalist claims have an even larger voice: the Freedom Party has a program marked by significant accents of anti-Europeanism. The Freedom Party stands in firm opposition to the adoption of a European constitution, and opposition to any increase in the Austrian contributions to the EU budget. The doctrine of the party is also quite restrictive in terms of offering Austrian nationality for immigrants, as it includes a proposal for elevating the residence term for naturalization and emphasizes the importance of additional integration requirements.174 Turning to the new member states, nationalism is prominent also in the Polish political spectrum: Law and Justice, the leading party in the governing coalition espouses a nation-centric position and great diffidence with respect to a united Europe.175 Political nationalism also has a parliamentarian representation at the European level. The Europe of Freedom and Democracy group expresses reluctance to further integration and a commitment to preserve national sovereignty, culture and tradition.176 Nationalist claims are not politically salient in every European member state. However, the protective attitude towards the nation and its values has emerged in other ways. Several EU member countries have, in recent years, amended their immigration and nationality laws to create space for integration, language, and assimilation requirements, which tend to ensure that applicant citizens are fit for life in the nation and do not threaten to dilute its cohesion. Germany and the UK are two good examples of these kind of choices. Germany amended its nationality law in 2000, and again in 2007. Thus, any applicant for German citizenship is now required to prove sufficient knowledge of the German language, and of the German society, way of life and laws. The test for such knowledge was first administered on 1 September 2008, through a specific nationwide exam.177 In addition, under the Immigration Act enacted in 2005 173 See the Lega Nord political program available at http://www.leganord.org/ (last visited August 2012). 174 See the Freedom’s Party of Austria program at http://www.fpoe.at/dafuer-stehen -wir/partei-programm (last visited August 2012). 175 See Nicola Bücker, Protecting Nationalism in Today’s Poland: Theoretical Considerations and Empirical Findings in Nationalism and European Integration: the Need for New Theoretical and Empirical Insights, supra at note 169, at 117. 176 See Europe of Freedom and Democracy program, at http://www.efdgroup.eu/ about-us/who-we-are/charter.html (last visited June 2013). 177 See Staatsangehörigkeitsgesetz (StAG), of 22 July 1913, last changed with art. 5 of Law of 19/8/2007 (BGbl I, S. 1970); available at http://bundesrecht.juris.de/rustag/BJNR005830913



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immigrants who are granted a residence permit in Germany are offered language and orientation courses in order to foster their integration in the host country.178 Similarly, the United Kingdom subjects people applying for permanent settlement in the UK to a test on “life in the UK” introduced with the Immigration and Nationality Act of 2002. Those applicants, who do not have sufficient knowledge of the English language, are directed to specific English classes, which also include a civic component.179 Finally, France has moved in the same direction. In France, applicants for naturalization have been required to prove their assimilation into the French community ever since 2003.180 For immigrants, an act adopted in July 2006 proposes an “integration contract”, which they must enter into in order to obtain a residence permit. Under the contract, the entering foreigner undertakes the task of engaging in French focused civic and linguistic formation.181 These phenomena differ in kind, and in purpose. Integration requirements in national laws serve the important goal of promoting acceptable terms of cultural coexistence for natives and newcomers. This is especially true in countries, where large waves of immigration are changing traditional demographic, religious and civic settlements. However, it is the absence of a reference to belonging and assimilation in European rather than national terms, which tells the long story of the attraction of European citizenship. Even before getting down at the societal level, in governmental environments, there already seems to be little sense that assimilation in European terms might be a valuable filter to be used as an alternative to the national one.

.html, at par. 10; also see Holger Hoffmann, The Reform of the Law on Citizenship in Germany: Political Aims, Legal Concepts and Provisional Results, 6 Eur. J. Migration & L. 195 (2004). 178 See Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet (Aufenthaltsgesetz - AufenthG), of 30 july 2004 (last modified 13 March 2008) at par. 43–45, http://bundesrecht.juris.de/aufenthg_2004/index.html (last visited June 2013). 179 See British Nationality Act 1981, as amended by the Immigration and Nationality Act 2002, art. 6 e Schedule 1, available at www.legislation.gov.uk (last visited June 2013). Details on the test can be found at http://www.lifeintheuktest.gov.uk/ (last visited June 2013). 180 For naturalization requirements see Loi n. 2003–1119 du 26 novembre 2003 relative à la maîtrise de l’immigration, au séjour des étrangers en France et à la nationalité, modifying art. 21–24 of the French Civil Code and available at http://www.legifrance .gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000795635&dateTexte (last visited June 2013). 181 See Loi n. 2006-911 du 24 juillet 2006 relative à l’immigration et à l’intégration available at http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000266495& dateTexte (last visited June 2013), at art. 5.

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Belgium can be seen as the strongest example of the contrast between integration and Europeanism on the one hand, and the lingering discourses of ethno-cultural nationalism. Belgium is a country divided among three linguistic factions, which in recent years have brought it to the verge of collapse. The case of Belgium is emblematic because this country is both at the core of integrated Europe and the host of ever-vital nationalist currents pushing for secession or at least increased autonomy.182 The three linguistic communities are different in size and status. The Flemish component is numerically the largest, yet French remains the language of the elites. This situation has generated a sense of frustration in the Flemish community, which occupies the wealthy and productive northern part of the country. The German component is actually only a small minority.183 The strongest nationalist and even secessionist tones find expression in the Flemish community. In the most extreme political terms, these positions are represented in the Belgian Parliament by the Flemish Interest party (Vlaams Belang), which obtained about 11% of the votes in the 2003 elections.184 After a major political crisis in 2007, four proponents of this party brought to Parliament a proposal asking the Federal government to immediately call for the country to split apart. In the relevant part, the proposal stated that Flanders and Wallonia, the two main Belgian linguistic regions, are two distinct communities, with their own values and interests, and that there is no general Belgian interest.185 While consideration of the proposal was rejected, the signs of this ferment are still visible, and reemergence of nationalism and secessionist feelings go hand in hand in Belgium with every episode of political weakness.186 It is true that European integration is committed to the interest of the regions, and in this respect the separatist feelings evidenced in Belgium may not necessarily stand in contrast to the project of European integration.187 It is also 182 See Marijke Breuning, Flemish Ethno-Political Parties in an Integrating Europe in Nationalism and European Integration: the Need for New Theoretical and Empirical Insights supra at note 169, at 101 for the idea that Bruxelles symbolized the fact that Belgium is caught between two forces, the European and the ethnic ones. 183 Id. at 104–105. 184 Id. at 109–113. 185 “La Flandre et la Wallonie étant deux communautés ayant leurs propres valeurs et intérêts, il n’existe pas d’ intérêts général belge”, see Proposal for Belgian separation, October 2007, at page 35. http://www.dekamer.be/FLWB/PDF/52/0292/52K0292001.pdf (last visited June 2013). 186 See http://news.bbc.co.uk/2/hi/europe/7507506.stm (last visited August 2012). 187 See Marijke Breuning, Flemish Ethno-Political Parties in an Integrating Europe supra at note 182, at 115 for the idea that Flemish identity in the program of the Vlaams Belang is not perceived as opposed to other European ethnic identities.



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true that the norm attached to European citizenship is one of partial and not complete sameness. Thus a certain measure of attachment to the nation and of exaltation of national identity and pride at the legislative and political level may be considered to be reconcilable with societal attitudes prone to a Europe-wide sense of civic sameness. However, in the absence of comparable indications of the ripening of perceptions of groupness at the European level, elements of nationalism suggest that perceptions of sameness stop at the national level. In the end, nationalist attitudes are grounded in the emphasis on linguistic and local distinctiveness as the relevant marker of ‘groupness’. 2.4.1.2. Resistance to Europe and to Integration An initial signal that European citizenship exercises a weak attraction can be found in expressions of the continuing attachment of the people and of the decision-makers to nationally-bound notions of community. While, the second signal stems from episodes of outright rejection of the European project and Europe related reforms. Anti-Europeanism in the EU is quite a hotly debated issue. In 2001, as an introduction to proposed governance reforms, it was the European Commission, which denounced the alienation of the European citizens.188 However, if one looks at the Eurobarometer surveys, it seems that Europe is not faring so badly in the eyes of the people. When asked whether membership in the European Union is a good thing for their respective countries, the majority of people polled, in most of the member states replied positively. Similarly, the majority of the people in most of the member states again replied in the affirmative when asked whether their country has benefited from EU membership. In considering the EU at large, the data from spring 2008 indicated that 52% of the Europeans thought that membership in the EU is a good thing and 54% thought that their country had benefited from membership.189 However, these numbers represent a decline in support for EU membership of four percentage points with respect to the fall of 2007, and a decline of four percentage points in the number of people who responded that they

188 See Commission White Paper on European Governance, COM(2001) 428 final, of 25 July 2001. 189 See Eurobarometer 69 of June 2008 available at http://ec.europa.eu/public _opinion/archives/eb/eb69/eb_69_first_en.pdf (last visited June 2013), at 23–29; it should be noted that these data include also data for candidate EU countries.

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consider their country to have benefited overall from EU membership.190 These changes, as suggested in the same Eurobarometer, reflected economic moods and a more generalized situation of the reduced confidence of the people in the overall economic and political outlook of the near future. However, what is more germane to the argument being made here is the fact that similar decreases in support for the EU and in the sense of having benefited from it, were registered in the Eurobarometer of spring 2004, at the time of the first Eastern enlargement. Between spring 2003 and spring 2004, there was a decline of 6 percentage points in the number of people who believed EU membership as a good thing.191 In the same time span a decline of between three and four percentage points was registered in those that declared that their country had benefited from EU membership.192 Fluctuations of this type have not been infrequent in the history of the EU polls which try to gauge support for Europe. Similar drops have accompanied periods of economic or political crisis, or major crisis on the world scene, such as the terrorist attacks of 2001.193 Thus, the loss of EU related confidence accompanying the 2004 enlargement is not an outlier. Generally, increased economic and political uncertainty seems to negatively affect the citizens’ trust in the EU, and of course the 2004 enlargement also represented added uncertainty on a number of levels. At the same time, it represented a polarizing moment in the divergence between legal notions of sameness and societal factors of sameness. The fact that resistance, in the form of reduced support for the EU, is concomitantly expressed by the citizens might also be read to indicate that if EU citizenship had ever exercised some influence, that influence reached a nadir in conjunction with the enlargement and the societal dilution of Europe. In the last years, furthermore, the sovereign debt crisis in Europe and relevant effects and reactions in the various member States, have provided an additional, and harsher trial, for public sentiments towards Europe and integration. While EU polls vary and are open to different interpretations in terms of the enthusiasm or disenchantment of the people with the European project, some indications of political participation have a more straightforward effect than others in denouncing the indifference of the European 190 See id. at 23 and at 27. 191 See id. at 23. 192 Id. at 27. 193 Id. at 23 and at 27.



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people, or their hostility to the concrete steps of integration. Two examples are the electoral turnouts for the European Parliament and the popular consultations with respect to some major EU treaties. Participation of the European people in elections for the European Parliament has tended to consistently diminish ever since the first general election held in 1979. That year the turnout was slightly over 60%. The turnout has then gone from about 60% in 1984, to 55% in 1994, to 50% in 1999, before eventually reaching a low of about 45% in the election held in 2004 and 43% in that of 2009.194 These diminishing participation rates seem to suggest that European citizens do not view the political stake they have in Europe as important or influential.195 Disillusionment with the integration process has many different roots and can ultimately only be weakly related to issues of citizenship and sameness. It contributes in showing that European citizens are not fully endorsing the notion of their belonging to a common group, and they similarly, at times, overlook the political demands, and opportunities, which come with that belonging. 2.4.1.3. Discomfort with the “Other” The relationship between perceptions of sameness tied to citizenship and comfort with diversity at the societal level is not an easy one to map out. The underlying theory seems to be that if norms of citizenship are pulling towards compliance, a sense of sameness in civic terms would ripen at the societal level. This ripening would contribute to a gradual mitigation of the sense of discomfort towards ‘the other’, identified as 194 See Roger Scully, The European Parliament, in Michelle Cini, European Union Politics supra at note 136 at 185. Also see http://www.europarl.europa.eu/aboutparliament/ en/000cdcd9d4/Turnout-(1979–2009).html (last accessed May 2013). 195 Political debacles have also often occurred when the people of Europe have been called to directly pronounce on one of the Treaties, which were entered into among the member states to reform or bring forward the European project: it has so happened in 1992, when the Danes rejected the Treaty of Maastricht with a 50.7% no vote, in 2001 when the Irish rejected the Nice Treaty with a 53.87% no vote, in 2005 when the EU Constitution was refused by both the French (54.68%) and by the Dutch (61.54%); and in June 2008, when the destiny of the Treaty of Lisbon has been threatened by the 53.4% no vote in Ireland (the Treaty has been subsequently approved in a second referendum held in October 2009). See Clive Church and David Phinnemore, The Rise and Fall of the Constitutional Treaty in Michelle Cini, European Union Politics supra at note 136 at 57. These “no” cannot be directly related to issues of European citizenship in any case; they rather relate to national political splits, to fear of national disempowerment with the strengthening of the Union and to lack of information regarding the real content of the Treaties being proposed.

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such in nationalist/culturo-ethnic/religious and linguistic terms. In this sense, discomfort would diminish both towards nationals of other EU member states and towards third country nationals. Of course, even in national societies, where notions of belonging as citizens exist, which are more straightforward than the European model, ethnic and religious boundaries persist. However, the presence of overarching conceptions of civic belonging, echoed in legislative choices and judicial decisions, helps to contain the potential fragmenting role that those boundaries have at the societal level. Whether or not Europeans feel comfortable with diversity is a matter open to question. Existing data yield ambivalent answers. On the one hand, the international media tend to suggest that anti-immigrants feelings, nationalism, even xenophobia are on the rise in the European Union.196 On the other hand, surveys conducted in the last eight years have produced conflicting results. A 2001 survey on the attitudes of the Europeans towards minorities did not show many signs of openness. When questioned, only 39% of the citizens of the EU’s then 15 member states responded that they would have accepted people from other EU countries settling in their own. Also only 20% of them answered that they would have accepted workers coming from Eastern Europe into their own countries without restrictions.197 In addition, an analysis of the data of the 2003 European Social Survey, commissioned by the European Monitoring Centre on Racism and Xenophobia, reveals that about one half of the European general public showed resistance towards immigrants and to diversity.198 However, a study on perceived discriminations conducted in 2008 offers a more promising scenario. It turns out that Europeans declare themselves to be comfortable with having a neighbor of a different ethnic origin or one holding different religious beliefs. Their average declared level of comfort on a scale from 1 to 10 is 8.5 with respect to people of different ethnic origin and 8.1 with respect to people of different religious 196 See e.g. Noah Feldman, The New Parias, in the New York Times Magazine, June 22, 2008. 197 See Attitudes towards Minorities in the European Union, a special analysis of the Eurobarometer 2000 survey on behalf of the European Monitoring Centre on Racism and Xenophobia, March 2001 available at http://ec.europa.eu/public_opinion/archives/ebs/ ebs_138_tech.pdf (last visited June 2013), at 31–34. 198 See Majorities’ attitudes towards minorities in Western and Eastern European Societies: Results from the European Social Survey 2002–2003, Report 4 for the European Monitoring Centre on Racism and Xenophobia available at http://fra.europa.eu/sites/default/files/ fra_uploads/151-Report-4.pdf (last visited June 2013), at 4. Resistance to diversity is defined in the report as the expressed preference for a monocultural society.



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beliefs.199 On the other hand, the comfort level goes down to 6.4 with respect to the possibility of having a person ethnically different from the majority of the population exercising the highest political office in the country.200 The Eurobarometer 2012 on the same subject reveals a very similar level of 6.5.201 The same survey reveals that 56% of Europeans think that discrimination on the basis of ethnic origin is widespread within the European Union.202 When one breaks this data down by member state, it turns out that the number of people who see discrimination as widespread differs quite widely. In the Netherlands, France, Sweden, Greece and Denmark, more than 70% of the population regards the discrimination as widespread. At the other end of the spectrum, only about 25% of the people reveal a similar perception in Lithuania, Latvia and Poland.203 In terms of societal sameness, one could think of interpreting these data on perceptions of discrimination in one of two ways. First, one could argue that the perceptions on discrimination held by rational actors are a good barometer of what happens in reality. From this perspective, the fact that in a number of older member states, many perceive discrimination as widespread seems to indicate that societal sameness in civic terms has not worked out, and that discriminatory behaviors continue to flourish. The fact that in some of the newer member states only a minority of the people perceive discrimination as widespread seems to indicate that factors, other than common citizenship and perceptions of sameness in civic terms across national boundaries, control the prevalence of discriminatory behavior. Second, one could argue that if a sense of sameness in civic terms has had some effect on the member states, then the people who begin to perceive themselves as part of a common civic group might become more sensitive to the discriminatory attitudes they see around them. In other words, they see existing episodes of discrimination as amplified. This could explain how such a large percentage of the citizens of older member states sees discrimination as widespread, while a much 199 See Discrimination in the European Union, Perceptions, Experiences and Attitudes, Special Eurobarometer 296, July 2008; available at http://ec.europa.eu/public_opinion/ archives/ebs/ebs_296_en.pdf (last visited June 2013), at 10. An earlier version of this analysis can be found in Francesca Strumia, European Social Citizenship, supra at note 139, at 131–132. 200 Id. at 11. 201 See Eurobarometer 393, Discrimination in the EU in 2012, at http://ec.europa.eu/ public_opinion/archives/ebs/ebs_393_en.pdf (last visited June 2013). 202 Id. at 28. 203 Id. at 28.

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smaller percentage of citizens of the newer member states exhibit similar perceptions. Citizens of the older member states have been exposed to the idea of being European for much longer and have thus had more time to develop a sense of civic sameness, which is tied to European belonging. This sense of civic sameness, if developed, may in turn soften their perceptions of differences in ethnic and nation-based terms. As a result, any episodes of differentiation they might have witnessed along these ethnic lines potentially leaves a much stronger mark on their consciousness than in the psyche of citizens of the newer member states, who, as yet, have had no long term exposure to notions of European belonging in civic terms.204 This second hypothesis actually contradicts the idea that European citizenship, or more generally belonging to Europe, is ineffective in societal terms, even if it still leaves room to argue that whatever sense of sameness that may have matured is diluted every time citizenship extends to new and more diverse people. These hypotheses are posed here in a tentative and speculative manner, of course, and at most they warrant further and more rigorous research on the correlation between societal variables. They are only offered here as a way to consider along what lines societal resistance may shed light on issues of the pull towards compliance exerted by citizenship. Generally speaking no claim is being made here that citizenship and the related notion of belonging in civic terms have a cause-effect relationship with the perceptions of comfort/discomfort with diversity registered in the surveys that have been analysed here. To know exactly what is the impact of citizenship both as a legal norm and as a societal experience, on comfort with diversity in a society, one would have to regress a number of factors on citizens perceptions, factors ranging from age, to occupational category, to political orientation, and religious affiliations.205 This would be an interesting analysis to conduct, but one that exceeds the scope of this chapter, which looks at societal variables from a more limited 204 The former soviet Republics of Estonia, Latvia and Lithuania have been in part exposed to notions of civic citizenry going beyond narrower ethno-cultural notions of the nation in the context of the Soviet Union. The values on which that project of civic belonging was based were however significantly different from those on which a Europe-wide project of civic belonging might be based. On the incorporation of nationality of the Baltic republics into Soviet citizenry, see Citizenship Policies in the New Europe (Rainer Bauböck, Bernhard Perchinig, Wiebke Sievers eds. 2007) at 43, 63 and 89. 205 See Majorities’ attitudes towards minorities in Western and Eastern European Societies: Results from the European Social Survey 2002–2003, supra at note 198 at V-VI, suggesting that these factors among others are found in their analysis to particularly affect the taking of exclusionist stances in the population.



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perspective. A conclusion that one can legitimately draw from this qualitative glance at the data, is that national, cultural and ethnic differences (exactly those differences that European citizenship is bringing under a common umbrella of sameness) still matter throughout the European Union, at least in terms of societal perceptions. 2.4.1.4. Resistances and European Transformations Resistance, to Europe, to diversity, and to the dilution of national culture and tradition has roots and justifications, which go way beyond the issues of citizenship. A traditionalist and defensive attitude in European societies, may be traced back to a number of fundamental transformations that have occurred in those societies in the last few decades, transformations that are related only in part to European integration. The first transformation has to do with immigration, which has changed in quality and quantity since the beginning of the 80’s.206 It has changed in quality, in part in connection with the political and economic crises in Eastern Europe and the Balkans, which have brought about new waves of immigrants seeking humanitarian refuge, and later settlement in western European countries. Also, new waves of immigrants have started arriving from Northern African countries, looking for employment opportunities in the promising labor markets found in EU countries.207 The model of the guest-workers, which had oriented immigration policies in European states ever since the 50’s has proved inadequate. Many immigrants have never gone home, and more and more have come to stay, and are looking for permanent absorption into their host societies.208 Immigration has also changed in quantity. EU countries, even the Southern European ones, which had traditionally been countries of exodus, have now become major recipients of immigration. Every year, between one and a half and two million new people enter the EU legally as immigrants and estimates

206 See Aristide R. Zolberg, The Changing Nature of Migration in the Twenty-First Century: Implications for Integration Strategies, in Citizenship and Immigrant Incorporation-Comparative Perspectives on North America and Western Europe (Gokce Yurdakul, Michal Bodemann eds. 2006) at 24. 207 See Adrian Favell, Immigration, Migration and Free Movement in the Making of Europe in European Identity (J. Checkel, P. Katzenstein eds. 2009) at 176–77; also see Peder J. Pedersen, Mariola Pytlikova, Nina Smith, Migration into OECD countries 1990–2000, in Immigration and the Transformation of Europe (Craig A. Parsons, Timothy M. Smeeding eds. 2006) at 49–58. 208 See Craig A. Parsons and Timothy M. Smeeding, What’s Unique About Immigration in Europe in Immigration and the Transformation of Europe supra at note 207 at 7.

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suggest that in addition about 500,000 persons enter illegally. The number of illegal entrants may in reality be significantly larger. This influx of new people is certainly needed in the EU, where all countries are dealing with declining birth rates and with an unavoidable shrinking of their national population. These factors in turn threaten their welfare systems, their long term decisional weight within the EU and generally their influence on the global scene.209 However, in the context of economic downturn and rising unemployment, immigration also results in competition for scarce employment opportunities often to the detriment of unskilled workers and those who make up the economically weaker and more exposed sectors in society. This competition in turn may result in the unwelcoming attitudes of the native population towards immigrants. On the other hand, for immigration to be beneficial, immigrants need to be integrated, to have options for upward social mobility, and to get along and mix with the local population. For European societies this poses the challenge of preserving their values and culture, yet accommodating within their boundaries new collective identities and cultural claims. In this paradigm, nationalist attitudes and the increasing adoption of integration requirements in immigration and naturalization laws throughout the EU express a form of protectionism on the part of national communities. In other ways, these national communities are extremely open and generous, as in most cases immigrants are granted social rights comparable to those of citizens, healthcare, education for their children and even options for political participation in some local enclaves throughout the various member states.210 It should not be forgotten in evaluating the choices for assimilation available in the various member states, that these are largely mono-cultural societies. Even if they are embedded in a surrounding constellation of different languages, religions, and cultures, which make European society multicultural and multilingual on a continental level, national societies have developed and grown accustomed to their particularities and are often in warm or cold conflict with their neighbors. From this perspective, the political protection of the nation 209 Paul Demeny, Europe’s Immigration Challenge in Demographic Perspective in Immigration and the Transformation of Europe supra at note 207 at 32–36. 210 For a descriptions of certain statuses which are half way between alien status and citizenship in European states see Kees Groenendijk, The Status of Quasi-citizenship in EU member states: Why some states have “almost-citizens”? in Acquisition and Loss of Nationality. Policies and Trends in 15 European Countries, supra Chapter 1 at note 306, at 411–413.



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and its values, coupled with social generosity, represents an important recipe for the initial phase of the opening up of these states to ethnic and cultural diversity within their own boundaries, and for experimenting with new formulas of coexistence. A security issue is increasingly felt around the European Union. Crime rates are on the rise in many European countries, which makes many European cities less safe and forces the local population to change their lifestyle.211 These trends are dependent on a number of factors, most of which vary from country to country. Immigration may be seen as one of them for certain countries, and here lack of security tends to cast a shadow over the perception of ‘the other’, and of newcomers.212 This calls, in more forceful terms, for the devising of integration strategies, which make sure that options for economic and societal inclusion are open to newcomers, protecting them from the lure of criminal networks. Part of the security issue is tied to the rise of illegal immigration throughout European countries. Nobody knows exactly how many illegal entrants come every year to the EU, or how many people are illegally present on the territory of the member states. The openness of internal borders makes it harder to track their presence, and this injects a sense of loss of control into European societies. On the other hand, media report with almost daily frequency tales of deaths in the waters of the Mediterranean sea for those, who have tried to cross the stretch of sea that separates the Northern African countries from southern European ones. These people make the journey on board of totally inapt boats, made available by organized criminals who have made of this sort of human trafficking a gainful source of profit. Finally security issues are connected to the radicalization, globally and particularly in the European Union of religious positions. This radicalization has led in some cases to terrorist attacks, and in others to 211 The number of total offences registered each year by the police has increased between 1993 and 2006 in Estonia (from 37,163 to 51,834), Greece (358,503 to 463,750), Spain (1,544,975 to 2,267,114), Italy (2,259,903 to 2,771,490), Latvia (39,141-data for 1995- to 62,328), Austria (493,786 to 589,495), Slovenia (44,278 to 90,354), Cyprus (4,300 to 7,923), Lithuania (60,378 to 75,474), Poland (852,507 to 1,287,918), Portugal (307,333 to 398,959). Not every kind of crime is on the rise, homicides seem to be declining in all member states, while robberies have increases substantially particularly in England and Wales (from 57,845 in 1993 to 101,370 in 2006), Portugal (from 11,918 in 1993 to 20,870 in 2006), Austria (from 1991 in 1997 to 5095 to 2006). Source: Eurostat data. 212 In some countries immigrants have come to represent an increasing percentage of the total of persons convicted for crimes in a given year. This is the case for instance in Italy. See Rapporto sulla Criminalita’, Ministero dell’Interno Italiano, supra at note 141.

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confrontational attitudes, which shake the liberal values of European democracies, some of which have been recently established and are themselves quite fragile. The 2004 terrorist attacks on Spanish trains, and the 2007 bombings in the London metro, with their human toll, are a sad reminder of that situation and have certainly let a clear mark in the consciousness of the Europeans. The angry and violent reactions in some sectors of the Muslim world to the publication in a Danish newspaper, in 2005, of a string of satirical cartoons depicting the Prophet Muhammad has brought to the forefront the issue of free speech in European societies. While belonging to different areas of societal life, these great challenges, immigration and integration of newcomers, security, radicalization and fundamentalist violence all, quite predictably, generate a reaction of defensiveness in the European population, and in the governments that represent that population. Even episodes of outright xenophobia are unfortunately not uncommon.213 It should not be forgotten that defensiveness is coupled with trends of social and cultural openness. Some of the defensiveness will go away only in conjunction with the successful handling of issues of admission, integration and coexistence. These transformations in the areas of immigration, security, and radicalism all serve as the backdrop for the resistance explored in this chapter. In light of all of this, nothing in this chapter should be construed to suggest that it is the divergence of legal and societal notions of sameness, which causes resistances in the EU. Nor is this chapter attempting to say that viable responses to the scenarios depicted above lie exclusively in notions of citizenship. Resistance exists because of these important underlying transformations, and these transformations in turn call for political and legislative responses in several fields, ranging from immigration policy, to welfare, to criminal law, to integration and to assimilation policies. At the same time, from a citizenship perspective, this survey of resistance highlights how European citizenship seems not to have socialized Europeans into its implied norm of sameness. Even before going into issues of identity, nationalism, anti-Europeanism and discomfort with diversity already show that even some primordial sense of sameness in European terms seems to be scarce in the EU. Returning to the 213 In one case, in Norway in the summer of 2011, the xenophobic instincts of a criminal mind have sadly found expression in the perpetration of a massacre. This is hopefully just a case of individual aberration and not representative of any real tendency in Europe.



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compliance paradigm, this means that European citizenship exercises, at most, a feeble pull towards societal perceptions consistent with its implied notion of sameness. However, providing a suitable terrain for exchange and mitigation with respect to the contrasts highlighted above remains one of the main tasks that the European notion of citizenship should take responsibility for. In other words, European citizenship would make a difference if it managed to convey acceptance of its implied norm of sameness at the societal level. For the legal scholar engaged with European citizenship this calls for an exploration of potential avenues that might strengthen the pull of citizenship towards a sense of sameness in civic terms. Imagining that societal transformations may be tied back to changing legal norms could be seen as a typical example of juristic hubris. Yet, while compliance studies cannot be expected to yield final responses to European issues, they may provide hints about where to focus in order to overcome the current impasse. 2.5. Legitimacy and Acculturation: Reconciling Legal and Societal Sameness The previous section provided evidence in support of the claim that widening gaps between legal and societal factors of sameness within the EU reflect negatively on the pull towards compliance of the norm of sameness attached to European citizenship. In this way, the previous section answered in the affirmative the first question posed in section 2.2 of this work. Does a mismatch between legal and societal sameness reduce the effectiveness of a legal norm of citizenship? This section addresses the second question posed in section 2.2. Despite the mismatch between the legal criteria and the societal factors, can the legal norm of sameness still exercise an influence on societal perceptions of sameness and if so according to which mechanisms? Section 2.2 has laid down the rough traits required for a hypothesis of acculturation into European citizenship, whereby pressures founded upon conceptions of legitimacy might push for the narrowing of the perceived gap between legal and societal sameness. The task here is to consider, and specify, how this process might occur practically speaking in Europe. First, this entails considering which mechanisms might be crucial in the process, and what shape they might take in the European context. Second, it entails considering in which ways and according to which preconditions

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European citizenship, as an institution, might contribute to the operation of those mechanisms. It is not the desire to socially engineer that supports a hypothesis of this kind, it is based simply on the curiosity to explore potential mechanisms that might operate through the supranational citizenship frame to ease coexistence of differences in the EU. No claim is made that European citizenship can ever alone close those societal gaps that have been evidenced before. Such a claim would be naïve and would ignore the multiplicity of factors and pressures, which govern societal interactions found way beyond the domain of legal relationships. This chapter’s modest ambition is to suggest a possible field of exploration for those who are directing their efforts towards issues of belonging and harmonious coexistence within the boundaries of the same civic community, and for those who are questioning if there is or there can be an added value to European citizenship in this sense. 2.5.1. European Interactions, Dissonance and Acculturation into European Sameness At the core of the theories of acculturation, as described above, lies in the idea that actors embedded in a certain environment face pressures to adopt the scripts of the surrounding environment.214 Despite the primarily intergovernmental nature of the original framework,215 the European Union has gradually become a thickly insti­ tutionalized environment, and the center of an autonomous normative order.216 Its touchstones not only concern economic rights, but have also been expanded to include discourses of fundamental rights,217 214 See Ryan Goodman, Derek Jinks, How to Influence States, supra at note 61, at 626. 215 For an intergovernmentalist reading of the process of integration, see Andrew Moravcsik, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht (1998). 216 See Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, supra Chapter 1 at note 80, where the Court in pronouncing the doctrine of direct effect of European law, suggested that the European Communities represent a new legal order of international law. Also see Gráinne de Búrca, Europe Judicial Resolution and the UN Security Council, paper presented at the Harvard Faculty Workshop, October 2008, commenting the Kadi decision (Case 405/05 and Case 415/05, Kadi and Al Barakaat, judgment of 3 September 2008) of the European Court of Justice, and underscoring how European judges sent a strong message through this judgment about the autonomy of the European legal order and the priority, which it gives to its internally determined values. 217 See e.g. Case C-405/05 Kadi and Al Barakaat, 2007 E.C.R. I-00010, and Case C-415/05, Al Barakaat International Foundation v Council and Commission (publication information not available).



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non-discrimination,218 citizens’ solidarity,219 and belonging.220 These discourses translate into a script for belonging as a citizen to the European Union. Citizens-actors embedded in the European institutional and normative environment, may be exposed, in the context of their interactions at the European level, to pressures to shape their beliefs in a way consistent with this script, thereby strengthening their sense of belonging to Europe. The idea that exposure to Europe generates ‘Europeaness’ is not new. Different studies have suggested that European identity positively correlated to the level of European experience a person possesses:221 Acting on the European scene makes Europe “real” in the perception of the actor.222 In particular Neil Fligstein has underlined how European integration has dramatically increased the level of interaction at the European level,223 thereby causing European social, cultural and political fields to emerge. He considers the patterns of European migration, Europe-wide civic associations, education programs and popular culture.224 People who act in these fields, who interact frequently on a European level and who travel and speak other languages are likely to come to see themselves as Europeans. Encounters help to highlight the commonly held meanings and values on which group identities are premised.225 The dynamics according to which interaction might generate identification in Europe may be worth further exploration. Each time citizens encounter each other as Europeans in the increasingly institutionalized context of Europe, they have an opportunity to 218 See e.g. Council Directive 2000/43, supra Chapter 1 at note 6. 219 See Case C-184/99, Rudy Grzelczyk v. Centre Public d’Aide Sociale d’OttigniesLouvain-La-Neuve, supra Chapter 1 at note 262, in the sense that there is a “minimum degree of financial solidarity”, binding European citizens. 220 According to the Court in Grzelczyk and in Baumbast (Case C-413/99, supra Chapter 1 at note 262, “European citizenship is destined to be the fundamental status of the nationals of the member states”. 221 See e.g. Michael Bruter, Civic and Cultural Components of a European Identity, supra at note 11, at 208, whose findings suggesting that support for integration, civic European identity and cultural European identity tend to be positively correlated to the level of European experience of their holders. 222 Thomas Risse, European Institutions and Identity Change: What Have we Learned?, supra at note 13 at 261. 223 Neil Fligstein, Euroclash, the EU, European Identity and the Future of Europe, supra at note 5. 224 Id. at 165–207. 225 Id. at 126: “group identities are based on commonly held meanings and values and they require face to face interaction with other members of the group in order to come into existence and persist”.

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perceive each other as same and as members of a coterminous group. An example of how this occurs can be seen by looking at free movement rights throughout Europe. Europeans travel across the borders of the 27 (soon 28) nations for business purposes, for education exchanges, for tourism, and to visit family and friends. Each time they do so they take advantage of these chances to enter in direct contact with other Europeans of different nationality. They find themselves partaking in a same context, despite their differences, at a business meeting, in a classroom or at a conference. Also, in getting to their destination, they do pass through borders, but they find, in most cases, no concrete barriers on their way to remind them that they are entering the territory of other nationals. All of this is likely to tickle their sense of sameness. Citizens also have the option to move permanently to another member state and take up residence there. Free movement for resettlement purposes makes up only a small portion of the movement within the European Union.226 However, it is of uttermost importance as a concept and as a signal for the consciousness of the Europeans. Moving across borders and planning their personal and professional life in European terms is no longer a dream that calls for several approvals from and verifications on the part of different national authorities, but a full-fledged entitlement for Europeans.227 Awareness of having that right, and of having it because of citizenship, also pushes the European citizen in the direction of sameness. A second example of how citizens encounter each other as Europeans can be found in the media’s discourse on Europe. There is as yet no proper European media, but there is an emerging common face of Europe with respect to global events, which the media is beginning to portray. The discourse found in the media works as a transformative mirror, which captures images of national difference and reflects back images of European sameness. Causing, even if only at a semantic level, Europeans 226 See Alain Lamassoure, Député européen, Le Citoyen et l’Application du Droit Communautaire, Rapport au Président de la République, 8 june 2008, available at http://lesrapports.ladocumentationfrancaise.fr/BRP/084000379/0000.pdf (last visited June 2013), at 9; also see Pioneers of European Integration from Below: Mobility and the Emergence of European Identity among National and Foreign Citizens in the EU (PIONEUR)5th Framework Program-European Commission, Executive Summary p. 2, available at http://www.obets.ua.es/pioneur/difusion/PioneurExecutiveSummary.pdf (last visited June 2013). 227 But see Alain Lamassoure, Député européen, Le Citoyen et l’Application du Droit Communautaire, supra at note 226 at 14–15 underlining how in practice European citizens still face many obstacles, administrative and legal, in concretely exercising their rights of movement.



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to read about themselves and hear their tales told in terms of European­ ness. Once again, this appeals to their sense of sameness. A third, important example of citizens’ encounters as Europeans has to do with the Euro, a common currency, now in use in a portion of the EU states.228 Despite the crisis and the attacks that it currently faces, the Euro has not only placed a heavy load of clinking coins in the pockets of the Europeans, but it has also provided a common measure for the value of goods, services, and ultimately of wealth and poverty. Germans used to price their houses, their professionals, and their standards in Marks, the Spanish in Pesetas, the French in Francs, and the Italians in Lire. Now not only do people cross national borders with coins resounding in their purses, but they also project their estimates of value across those borders without the need for conversions. Until the Euro resists the threats posed by the most recent public debt crisis, the value of the assets through which European citizens seek status and express their preferences, the measure of the profits they pride themselves on, the losses they lament and the cost inherent in the dreams of success that they dream is quantified, through the common currency, in a language of sameness. Encounters in these fields expose European citizens to their status of shared belonging and increases their perception that they are members of a same group despite their differences. In other words, their sense of sameness might ripen. However, as has been elucidated in previous sections, European citizens form a group of difference, and one whose internal cohesion tends to dilute when the group is expanded to include new members. Outside of the encounters described above, then, European citizens transition back to a mode of interaction based on difference. A mode, where the story is that Bulgarian workers want entrance into the United Kingdom and Romanians want entrance into Italy. One where each national group draws the boundaries of its sense of sameness along the same perimeter as the national boundaries, and one where the interests, stereotypes, prejudices and cultural frictions of different national groups are cast against 228 For other views on the role of the Euro in terms of European identity see Rethinking Europe-Social Theory and the Implications of Europeanization supra Chapter 1 at note 18, at 25–26 (the Euro as an agent of consciousness); Chris Shore, The Cultural Politics of European Integration supra at note 5 at 92, describing the value of currency as a repository of meaning; Emanuele Castano, European Identity: A SocialPsychological Perspective, supra at note 16, for the idea that Europe is reifying itself through the Euro; Thomas Risse, European Institutions and Identity Change: What Have we Learned?, supra at note 13 at 262 (the euro as one of the most salience creating elements in the EU).

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each other. This is the mode of interaction, where societal factors of difference become more vocal than legal factors of sameness. This time, Europeans nationals of other member states are once again seen as outsiders, who by entering the labour force of other member states, potentially steal the jobs of local unskilled workers. They are also viewed as outsiders who, by claiming social entitlements in other member states impose undesirable obligations of assistance on the local welfare institutions and who, when exercising political voice in another member state, do so as intruders.229 Two different modes of interaction characterize thus the environment in which European citizens interact. These are, interaction as national citizens in the context of each national group, and interaction as European citizens, across borders and in the context of an institutionalized Europe. Perceptions and beliefs with respect to other Europeans tend to be opposed in each type of interaction. They are based on difference in the former case, and they are based on sameness in the latter. Now, citizens, who interact on the European level and perceive other Europeans as members, to some extent, of a same group, may experience at some point something akin to cognitive dissonance. This can happen when they, while involved in other social and personal interactions, find themselves regarding those other Europeans as different from them and “the other”. The inconsistency between the two cognitive states may provide discomfort and thus motivation for them to gradually alter and adapt their beliefs.230 In the long run, citizens might begin to discount information that is inconsistent with one of their modes of interaction, and eventually they might abandon the perceptions that their social reality does not support.231 229 See Maurizio Ferrera, The Boundaries of Welfare (2005) at 42 for the claim that with European integration the territorial boundaries of citizenship are being altered and those rights are made available also to previous outsiders. As for the sense that intraCommunity migrants might represent cheap labor stealing the jobs of local workers in other member states, the story of the Polish plumber, born in the context of the French campaign against ratification of the European Constitution, has become a symbol of that fear; for a recount of that story see Elaine Sciolino, Unlikely Hero iin Europe’s Spat: the Polish Plumber, The New York Time, 22 June 2005, http://www.nytimes.com/2005/06/26/ international/europe/26poland.html?pagewanted=all (last visited June 2013). 230 See Leon Festinger, A Theory of Cognitive Dissonance supra at note 121, at 2–3; also see Ryan Goodman, Derek Jinks, How to Influence States supra at note 61, at 640–641. 231 See Leon Festinger, A Theory of Cognitive Dissonance supra at note 121, at 24; also see E. Tory Higgins and John A. Bargh, Social Cognition and Social Perception, 38 Ann. Rev. Psychol. 369 (1987) in the sense that it has been shown that once actors have formed



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Given the dualism between the national and supranational modes of interaction for the citizens of Europe, this alteration in beliefs may occur in one of two directions. The mode based on difference may have the strongest influence and thus lead to more and more resistance towards the European “other” on the part of the citizens. Or if the mode based on sameness were to prevail, and if this were the case citizens may be led to discount their sense of otherness, effectively internalizing the script of coexistence as citizens in the EU and gradually getting socialized to the norm of European sameness. This work does not attempt to predict, which one of these two hypotheses is more likely to be realized. However, it argues that in this contest between difference and sameness, elements of institutional design with respect to the institution of European citizenship may help to tilt the balance in one direction rather than the other, easing, rather than hampering the process of acculturation into norms of coexistence. In the following paragraphs, this work considers how notions of legitimacy and minimum shared identity may be key to the process of bonding among European citizens and how in turn these notions might inspire design elements with respect to European citizenship. 2.5.2. Triggering Acculturation through Legitimacy One of the elements that different accounts of acculturation and socialization have in common is the emphasis on the role of legitimacy as a source of pressure to conform. These mechanisms of acculturation work on actors, who are generally acknowledged as the legitimate participants in a certain environment. In turn, these actors are led towards the internalization of the norms of the environment around them, in order to maintain their status and bolster their legitimacy. In other words, the actors’ desire to preserve a legitimate status fuels the pressure to conform.232 Goodman&Jinks underline how states are highly legitimate actors in the world order to whose script they are expected to conform.233 Many of certain beliefs, they will tend to discount information inconsistent with those beliefs, and will also tend to re-elaborate memories in a way consistent with the beliefs. 232 Ryan Goodman, Derek Jinks, How to Influence States supra at note 61, at 641, in the sense that “actors hoard social legitimacy and social status, and they minimize social disapproval”. Also see John Meyer, Bryan Rowan, Institutionalized Organizations: Formal Structure as Myth and Ceremony, supra at note 100 at 349, for the claim that adhering to formal structures supported in the surrounding environment lends legitimacy to an organization and helps its survival. 233 See Ryan Goodman, Derek Jinks, How to Influence States, supra at note 61, at 647–648.

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the pressures that states face in their process of adopting or rejecting international norms are based upon their desire to receive social approval and thereby maintain their legitimate status among the members of the international community.234 Does the logic of legitimacy operate in comparable ways in the context of citizen actors in a polity? The analogy is a delicate one, but this work puts forth the argument that just as the European Union is a hybrid between an organization and a state entity, so too can European citizens be seen as actors in the European environment in a way comparable to states in the international world order. As suggested earlier, a relevant difference between the experience of citizenship within national boundaries and the experience of citizenship in the European context is found in modes of participation. National citizens participate in the common political life by voting for elected institutions and being elected to public offices. In the frame of the welfare state, they owe each other a measure of solidarity, they pay taxes to honor that commitment and in return they claim entitlements from governmental institutions. On the other hand, while participation is often represented as the Achilles’ heel of European citizenship,235 being citizens of the European Union also entails some important options for involvement. For European citizens, membership in the EU finds expression in the citizen role as economic actors in the market, providers of viewpoints in the context of political union, and holders of rights in the European legal community. As holders of these roles, European citizens challenge national decisions and legislative acts in front of the European courts, they constitute interest groups to lobby the Commission for legislative proposals, and they negotiate with each other as economic actors in an integrated, cross-border market.236 Negotiation and bargaining, typical of 234 Id. at 641. 235 See Dominique Schnapper, The European Debate on Citizenship, supra Introduction at note 8; also see Raymond Aron, Multinational Citizenship? in 41/4 Social Research 638 (1974) at 648–53. 236 European citizens have access to the European courts in at least two important ways; in front of national judges they can push for reference of an issue involving European law to the European Court of Justice (art. 267 TFEU); also every natural or legal person in the EU has standing to challenge the acts of European institutions or to challenge institutions in front of the CJEU for their failure to act (art. 263 and 264 TFEU); interest groups may solicit legislative proposals from the European Commission; in addition, in advance of submitting legislative proposals, the European Commission consults civil society in different phases (by adopting Green Papers for instance, the Commission puts the problems on the table and solicits submissions and comments from governmental and private actors). The partnership principle and the search for the involvement of private parties are also an



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the intergovernmental interaction among states, has become a material part of their behavior as citizens.237 In this way, the relationship between citizens and their national governments changes and loses some of its paternalism. Now, citizens do not simply turn to the government to claim protection and rights, to protest abuses of power and to exact accountability through Parliamentary dynamics. Instead they attempt to bully their national governments by bringing and threatening to bring suits against them in front of European institutions. They also hold them liable in front of national judges if they are slow or ineffective in delivering the rights given to them by the European Union treaties and laws.238 On European terrain, citizen-members confront state-members with tools resembling those that governments use when dealing with each other in the international order. It is the hybrid nature of the EU, which by important element in the context of the Lisbon agenda and of the open method of coordination, which is now the leading mode of action in some non traditional sectors of Community decision-making. The open method of coordination has been considered an example of “new governance” models; at the core of it there is indeed the intent to engage in “mutual problem solving among stakeholders from government and the private sector”. See J. Scott and D. Trubek, Mind the Gap: Law and New Approaches to Governance in the European Union, 8 ELJ 1, 5–6 (2002). Also see Stephen Weatherill, Cases and Materials on EU Law (8th edition 2007) at 651–658. In terms of confronting each other as economic actors on an integrated market, the Viking case (Case C-438/05, The International Transport Workers Federation and the Finnish Seamen’s Union v Viking Line ABP, 2007 E.C.R. 10779) provides a good example of how different sets of citizens’ economic rights are often cast against each other in the context of the European common market. The case was about a Finnish company operating a ferry service, which was trying to re-flag its vessel in Estonia, thereby exercising a right to establishment under European law, in order to avoid Finnish labor legislation; the unions to which the Finnish crew belonged reacted by planning a number of strikes and by seeking support of Estonian unions to halt the re-flagging plan; collective action on the part of the trade unions was ultimately considered an undue interference with the company’s right to establishment; the case illustrates effectively the modes of interaction among European citizens, as the rights it concerns, right to establishment and right to collective action are ultimately fundamental rights of the European economic citizen: those two rights confronted each other in this case and were the subject of a judicial balancing process. 237 For an account of bargaining democracy in the European Union, see A. Héritier, Elements of Democratic Legitimation in Europe: an Alternative Perspective, 6 Journal of European Public Policy 269 (1999), at 275. European citizenship certainly involves also more traditional modes of participation and expressing one’s own membership in the Community, such as for instance voting in the European Parliament. The argument is however here that those traditional forms are rather weak and do not represent the expression of a strong form of membership in the European Community. 238 The doctrines of state liability in the European Union was first introduced with the Francovich case, Cases C-6 and 9/90, Francovich and Bonifaci v. Italy, 1991 E.C.R. I-5537; under this doctrine, when certain requirements are met, national governments may be held liable in national courts for the damages that their non compliance with requirements of European law has caused to private parties.

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injecting seeds of statehood and federation into the genes of an international organization produces this metamorphosis in the DNA of the citizen. The citizen is no longer simply a subject, a represented member, and the final link in the chain of accountability. He is now an actor in the inter­ governmental sense of the term. Treaty language in the wake of the Lisbon treaty addresses both member states and European citizens as legiti­ mate  participants on an even playing field in the ongoing project of integration.239 In light of this transformation, pressures based upon the desire to maintain and bolster one’s own status of legitimacy as a citizen may become central for citizens to the process of bonding beyond the nation. National narratives have created ‘groupness’ by speaking the language of homogeneity and unity, in either ethnic or civic terms. In this way, they recast citizens’ differences by using tales of national unity, and they thereby propel, with varying success, their bonding. The bonds of legitimacy link citizens on the European scene. Through the language of the Treaties, the positions of European judges and the engagement of European politicians, citizens are acknowledged and courted as legitimate participants in the European Union, notwithstanding their cultural, linguistic, religious, ideo­ logical differences. The emphasis is on what they are entitled to do, in their role as European citizens, a role which does not supersede but enriches and complements their national citizenship.240 This role translates into a status of legitimate membership in the European community of law. The bonds of legitimate membership, despite societal differences, could turn out to be the key to reinforcing the citizens’ sense of common belonging beyond national boundaries, and in soliciting their internalization of the script they get exposed to when they interact as a group on the European scene. Awareness on the citizens’ part of their status as legitimate participants in the European theatre may trigger pressures to maintain that status of legitimacy, by rejecting behaviors and beliefs, which are inconsistent with 239 See TEU, art. 13, clarifying that the European institutional framework should be apt to serve the interests of its citizens and of its member states; the Treaty thereby evidences two categories of subjects to which European institutions are called to be responsive on an even plan. 240 As Advocate General Jacobs famously noted in his opinion in the Konstantinidis case, a Community national who goes to another member state for purposes of his work or trade is not only entitled to pursue his trade or profession there, but he is entitled to say ““civis europaeus sum” and to invoke that status in order to oppose any violation of his fundamental rights”. See Case C-168-91, Christos Konstantinidis v Stadt Altensteig, opinion of AG Jacobs delivered on 9 December 1992, 1993 E.C.R. I-01191 at 46.



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the scripts of belonging as citizens in the European institutionalized order. In other words the attraction towards preserving legitimacy may work as a socializing agent for the European citizens. The process of acculturation may be long, tortuous and inconstant. The dynamics of bonding through sameness and the dynamics of bonding through legitimacy are being grafted on to each other in the EU, and they will have to find a mutually respectful speed. It is likely that diversities, societal and cultural, which thwart the process of bonding through sameness, will initially exercise a strong pull towards inertia. There’s no certainty that the logic of legitimacy will ever be able to displace that inertia. The argument being put forth here is that if something will ever be able to overcome the disaggregating role of diversity on perceptions of ‘groupness’, this something may well be a bonding dynamic that passes through legitimacy, made salient through the notion of European citizenship. For this to happen, the sense of legitimacy of actual and prospective citizens needs to be bolstered. This work focuses in the following on two items of institutional design, which might be conducive to this result. First off the marking of moments of belonging in the language of citizenship, and second the reinforcing of persuasive efforts to affirm a minimum threshold of shared identity. 2.5.3. Citizenship and Belonging Moments Looking at the way legal sameness expands in the EU, through the extension of European citizenship, one major concern has arisen. This concern is that the moment of belonging to Europe will remain un-remarked in the process of obtaining European citizenship, either through birth, naturalization, or accession into the European Union of one’s own country of origin. European citizenship slips unnoticed into its place, in most cases it exists in the shade of a newly assumed nationality and provides no tangible sign of change for the individual, who becomes citizen of Europe. The reduced “entitativity” of European citizenship could have important consequences in terms of identity.241 However before getting to the issue of identity, it also results in a missed opportunity to ground the awareness that by taking up European citizenship one is also taking up a 241 See Emanuele Castano, European Identity: A Social-Psychological Perspective, supra at note 16 at 43–50, in the sense that the “entitativity” or psychological existence of an entity is conducive to identity.

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legitimate place in an ongoing social, political and economic debate. Scholars studying European identity have shown that for many people integrated Europe is simply a “matter of fact” and being European becomes an “unquestioned status identity.”242 The fact of belonging to Europe slides off of their skin as if it were a raindrop falling on waterproof fabric. It does not permeate to the core of their sense of identity. And, not only it does fail to make them feel as if they are a part of the group, it also does not elicit from them a sense that they are legitimate participants in this group. In order to make a difference, belonging to the EU as citizens may need to become salient for every single person who holds the status. In this way it may contribute in grounding the relevant “group beliefs”, the first one being, that as a European citizen, one is a legitimate participant in the European Union’s legal, political, social and economic spheres.243 One way of making the status of belonging more salient to the people is to mark accession of the citizen into the status with the language of citizenship. Achieving European citizenship, whether by birth, naturalization or accession into the EU could become a moment that signifies belonging. Immigrants in a country, like the United States, or the United Kingdom, probably remember the moment they were naturalized as citizens of those countries as an important watershed in their lives. This watershed moment changed the range of professional and personal opportunities available to them, altered pre-existing political and cultural links, and expanded or narrowed the range of rights they enjoyed.244 Those people who are born as nationals of a country are repeatedly reminded of their status of belonging. They are the target of political campaigns during the course of which, politicians fight to prove that they are in the best position to serve their interests as citizens. They have to show their passport every time they enter or leave the country. They are educated­to 242 Daniel Fuss and Marita A. Grosser, What Makes young Europeans feel European? Results from a cross-cultural research project in European Identity-Theoretical Perspectives and Empirical Insights supra at note 6 at 236. 243 See Xenia Chryssochoou, How Group Membership is Formed: Self Categorisation or Group Beliefs? supra at note 108, at 301–302 for the role of group beliefs in the formation of a sense of “groupness”; “group beliefs render salient the already existing aspect of de facto belonging, and they constitute the cognitive basis upon which individuals can choose to identify with one category or another”. 244 Some people remember the time of their entry into a country, or the person who aided them at that time as a fundamental watershed; see for one such story Irshad Manji, Home for Halloween, The New York Times, November 3, 2008, available at http:// www.nytimes.com/2008/10/31/opinion/31manji.html?scp=7&sq=halloween&st=cse (last visited June 2013); Also see Gaetano Salvemini, supra at Chapter 1, at note 205.



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the story of their citizen-ancestors and they are able to identify among those ancestors-fellow citizens, those who changed the story of their country. Marking belonging moments in analogous ways in the European Union is a challenging task, primarily because the discourse behind European belonging is supranational, not a national discourse, and thus is in competition with the national one. However, there may be ways to bring the weight of the discourse of citizenship to bear on events, which are crucial for the European belonging of immigrants, nationals of entering member states and native European citizens. Each one of these three categories is considered separately. 2.5.3.1. Immigrants To reiterate, immigrants only become European citizens by naturalizing as nationals of a member state. Their belonging moment is a national one, marked in many cases by the renunciation of previous citizenships or by the taking of an oath of allegiance to the relevant European member state. At some point during that process, they are also invisibly and intangibly vested with European citizenship. Immigrants may be attracted to Europe, for what Europe as an entity has to offer: life style, prospects of job mobility, wealth, and political freedoms. In this sense, the fact that by obtaining a national citizenship they obtain a Europe-wide legal status of membership might be well present in their mind. The process through which they get that national citizenship however is not conducive to reminding them that at the same time they are becoming national citizens they are also becoming Europeans. Increasing the “entitativity” of the European component in the process that leads to citizenship and naturalization of an immigrant may reinforce the salience for immigrants of their Europe-wide status. This may be true even if they are already in part aware of that status. In particular, it might make that status salient in institutional terms, reminding immigrants that their achievement in terms of lifestyle and economic opportunities, is also an achievement in terms of legal and political status beyond the boundaries of a single European nation and at the level of the European Union. Increased awareness in this sense might in turn foster the process of bonding at the European level for the new citizens. Practically, this could be achieved by doing one or more of the following: including a reading of the rights of European citizenship in the naturalization process; asking the prospective citizen to commit, at the time of naturalization to the shared values of the European Union, as expressed in

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article 49 TEU;245 or by including in the “citizenship tests”, now administered in some member states, some questions which address European integration. It is true that reforms of this kind would not in and of themselves socialize new citizens with respect to the status of “sameness” or “groupness” in European terms. This work makes no claim that rendering a declaration at the time of naturalization or answering a few questions about integration could in and of themselves affect citizens’ perceptions. Perceptions of “groupness” and feelings of belonging are much more complex than that. The function of these types of reforms would be in terms of raising awareness and of making European citizenship salient. This might appear to be a marginal effort, but it could nonetheless represent one significant component, albeit a small one, in a more articulated and long term course towards the socialization of European citizenship. This path travels through the taking notice of one’s own status of legitimacy as a citizen as well as that of being acculturated into the beliefs that are appropriate to preserve that status. In this respect, awareness of the status appears to be a preliminary requirement. 2.5.3.2. Nationals of Entering Member States Nationals of acceding member states do not experience an individual moment of belonging to Europe. They transition from solely national citizenship to national-and-European-citizenship in a way that is accidental to the accession of their countries into the EU and unrelated to any individual occurrence in their lives. The various phases of the accession process, application, achievement of the status of candidate country, negotiations for concrete accession and the drafting of the accession treaty happen mostly in the context of governmental enclaves. Even if some of the issues these enclaves raise sometimes trickle down to public opinion,246 they have little to communicate to the individual and collective consciousness of the people. Thus creating moments of belonging for the nationals of prospective member states entails marking through the use of the language of citizenship, those events connected to accession, in which they are called to 245 Article 49 TEU refers to membership of the European Union and affirms that this is open to European states respecting liberty, democracy, fundamental freedoms, human rights, the rule of law and national identities. 246 Thoughts go to the intense debate that has erupted throughout the EU in connection to the issue of the accession of Turkey.



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express a view or to understand what is going on. One good example of this is the process of ratification of the Accession Treaties. Referendums have been held on the issue of accession in 14 countries since 1994.247 Through these consultations prospective European citizens have been called to either support or oppose their country’s accession into the European Union. Accession referendums are one ideal moment in which the language of European citizenship should be wisely applied. This is one of the few moments in the life of the European Union in which the people are directly consulted. It is a good moment to emphasize the change of status that accession into the EU entails for each individual citizen.248 This message could be conveyed to the voters in the least at two moments of the referendum process. First, during the political campaign that takes place during the preparation of the referendum. Second, through the formulation of the referendum question, which could ask not only whether a person supports the accession of his or her country into the EU, but whether that person is ready to take up the status and rights (as at present there are no obligations in the picture) of European citizenship.249 Focusing on the referendum moment may attract accusations of both excessive formalism and of an under-inclusive approach to belonging in the EU. In the former sense, it is true that the way questions are posed is largely a matter of form, especially if everybody knows the underlying substance. This is not the case however for the European Union, where 247 Referendums were held in connection with accession into the EU since 1994 in Austria, Croatia, Finland, Sweden, Norway, the Czech Republic, Poland, Estonia, Latvia, Lithuania, Slovenia, Slovakia, Malta and Hungary. Referendums yielded a “yes” majority in all of these countries, except Norway. See European Election Database, available at http://extweb3.nsd.uib.no/civicactivecms/opencms/civicactive/en/Data/election/ref (last visited June 2013); also see Ian Barnes and Pamela Barnes, Enlargement supra at note 136, at 430. 248 No suggestion is being made that the language of citizenship should be used in this context to push for either a “yes” or a “no” vote, but simply in the sense that it would be a useful and relevant way to frame the issues that the referendum involves. 249 The focus of the question in EU accession referendums tended to ignore citizenship instead; for instance, in Lithuania, voters were asked to vote yes or no to the statement “I am for Lithuania’s membership of the European Union”; see European Parties Elections and Referendums Network, Referendum Briefing N. 8, the Lithuanian EU Accession Referendum, available at http://www.sussex.ac.uk/sei/research/europeanpartieselections referendumsnetwork/epernreferendumbriefings (last visited June 2013); in Latvia, the question was “Do you support Latvian membership of the European Union?”; see European Parties Elections and Referendums Network, Referendum Briefing N. 10, the Latvian EU Accession Referendum, available at http://www.sussex.ac.uk/sei/research/european partieselectionsreferendumsnetwork/epernreferendumbriefings (last visited June 2013).

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accession entails a thick web of legal, economic and political effects, most of which are unknown to the regular citizen. This is where language becomes an important vehicle in putting the emphasis on the important elements of the change. In addition the argument is not that prospective European citizens may be constituted into an effective group simply by asking them directly whether they want to be citizens. Rather, the argument is that beginning early in the process to talk to them in the language of citizenship may be one important element in the process of making their change of status salient to them. Referendums are rare enough events in the political life of modern democracies, for a person to easily remember the questions that were asked of her in those circumstances, how she responded, and what kind of changes the referendum proposed to bring about. This kind of awareness, while much too shallow to etch a permanent imprint on the identity of a person, may resonate when issues of citizenship are once again on the table. In the long run, this contributes in consolidating the awareness of one’s own status. On the other hand, it is true that using the frame of accession referendums might be insufficient. First, the turnout in those referendums may be quite low, only a portion of the population votes.250 Second, not every country holds referendums in connection with the accession into the EU.251 With respect to the former, even if a person does not go to vote, she will likely still hear about the issue being debated and the question being asked, and his or her indifference will be at least partially shaken by the emergence of a burgeoning opinion. However, with respect to the latter, claims of insufficiency only re-confirm the argument that moments of belonging do not operate alone and are not the only way to achieve the goal. They also happen in different ways in different places, so that the Parliamentary ratification of an Accession Treaty may be portrayed in the media and in the public debate as a milestone of citizenship change. Either way, the mere fact of answering yes or no to a referendum question will certainly not make a stranger into a legitimate participant. However, it might inject a preliminary dose of the feeling of legitimacy into the people who are called to vote. The feeling of having legitimacy as citizens in the European

250 In the 2003 referendums, turnout was for instance 45.6% in Hungary, 52.1% in Slovakia, 55% in the Czech Republic, 58.9% in Poland, 60% in Slovenia, 63% in Estonia, 65% in Lithuania, 72% in Latvia and 91% in Malta. See Ian Barnes and Pamela Barnes, Enlargement, supra at note 136, at 430. 251 Among 2004 entrants, for instance, Cyprus, Bulgaria and Romania have not held referendums.



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Union is not a condition that one acquires through a una tantum application. It ripens over time, through the asking and answering of questions, through listening and speaking in several fora, through being reminded of one’s own rights and obligations, and through the exercise of those rights and obligations. Clearly marked moments of belonging at different points in that process (of which accession referendums represent only an example), may function as a helpful reference and as a catalyst for the citizen who is gradually building her own role in the EU. 2.5.3.3. Native European Citizens With respect to native European citizens, meaning people who were born nationals of a state that was already a member of the EU at the time of their birth, marking individual moments of belonging is a more complicated issue as European citizenship was given to them automatically together with birth and with national citizenship. Arguably, for native national citizens the moment of receiving citizenship does not play any relevant role in an individual’s consciousness. However, other moments in life contribute in making the status of national citizenship salient to the individual, even if birth as a citizen was from the point of view of a person’s own memory, a necessary event of which they have no memory.252 For European citizens, moments, which make belonging salient for the individual tend to be of a trivial character. Exhibiting a EU passport at the border and entering the EU citizens line at the airport, or possibly in the future bearing a specific EU identity card.253 There are two other sets of factors which may be helpful in articulating individual belonging moments for native European citizens: memory and the reflexive effects of the belonging moments of others. Memory can be fostered through education and through the media. It can contribute to make even past moments of belonging relevant in the consciousness of current citizens, especially if tales of these past moments are retold in the vocabulary of citizenship.254 These relevant past moments of belonging

252 Individual moments of belonging for national citizens might coincide for instance with the time they become of age or otherwise they reach the age when they first may exercise active political rights as citizens; or with the time when they might be called, as citizens, to serve on juries. 253 See Alain Lamassoure, Député européen, Le Citoyen et l’Application du Droit Communautaire, supra at note 226, at 84. 254 See Klaus Eder, Remembering National Memories Together: The Formation of a Transnational Identity in Europe, supra at note 21, at 212–213 for the idea that collective

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might include the entrance of one’s own country into the European Union, the increase in the citizens’ voting power with the advent of general elections for the European Parliament,255 their becoming European citizens with the introduction of the status through the Treaty of Maastricht. On the other hand, the moments of belonging that belong to others, both the naturalization of immigrants and the accession of new citizens through subsequent enlargements, may exercise a reflexive effect on current citizens if their relevance in terms of citizenship change is emphasized. They might also evoke the conspicuous nature of European citizenship also for mere spectators. These elements: reference to Europe in the process of naturalization, citizenship undertones in questions regarding Europe, which are directly asked to citizens, memory and observation of the citizenship experience of others, can all contribute to make European citizenship salient, and tangible for its holders. These factors alone will probably not increase the sense of belonging European citizens possess. However, what they could do is increase the visibility of citizenship for its holders, thereby making sure that being citizens ultimately matters to them and helps them to selflegitimize as European actors. 2.5.4. A Critical Mass of Sharing Awareness of a status is probably not enough to make that status legitimate and consequential in the mind of its holders. Holders need to realize that they have something to share with the people, who have been formed into a group by being vested with that same status. One of the suggestions made thus far, is that sameness in terms of cultural, social, ethnic, and political homogeneity may be less relevant to the ability of citizens to bond beyond the nation than legitimacy is. Despite this claim, a narrative of legitimate membership needs to rely on some minimum substrate of sameness. A group of legitimate participants can only stick together and be conscious of its own entity if it is aware of having some shared origin, feature or goal.256 memory is built on the one hand by common experiences, and by building a transnational space of communication where the common memories are reorganized. 255 The first general election for the European Parliament was held in 1979. Previously the Parliament had been composed of representatives from national Parliaments. Decision 76/787/EEC, 1976 O.J. L/278/1 introduced the current system. See Damian Chalmers et al., European Union Law (2006) at 111. 256 See Xenia Chryssochoou, How Group Membership is Formed: Self Categorisation or Group Beliefs? supra at note 108, at 299, in the sense that group identity entails knowledge



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While acculturation is about self-enforcing individual and social pressures to conform, it is at this phase in the complex evolution of sameness in terms of European citizenship, where persuasion will have an important role to play. Scholars of processes of socialization, in building models for compliance with international norms, have highlighted the importance of persuasion mechanisms in some phases of the diffusion process.257 At some critical times, when the acceptance or rejection of a norm are pitted against each other with each having similar chances of winning the contest, persuasion on one of the two sides becomes important.258 The argument is that in the case of compliance with European citizenship and its inherent norm of sameness, persuasion could be an important element in an initial phase, which grounds and supports a minimum sense of sharing on the part of the European citizens.259 The sharing threshold for legitimacy purposes is lower than the sharing threshold for conceiving of each other as a group in terms of sameness. Yet, there is the possibility of belonging to a group, knowledge of group beliefs and characteristics; some of the “unit forming factors” that are referred to include similarity, common fate, proximity, shared threat; also see John C Turner, Rediscovering the Social Group supra at note 37, at 49, suggesting that according to self-categorization theory, “any collection of individuals in a given setting is more likely to categorize themselves as a group (become a psychological group) to the degree that the subjectively perceived differences between them are less than the differences perceived between them and other people (psychologically) present in the setting”. 257 See e.g. The Power of Human Rights-International Norms and Domestic Change supra at note 30; their spiral process of how principled ideas held by individuals turn into norms relies on three kinds of mechanisms: instrumental adaptation and rational argumentation, argumentation and persuasion, habitualization. Also see Martha Finnemore & Kathryn Sikkink, International Norm Dynamics and Political Change, supra at note 30 at 29, describing persuasion, defined as “the process by which agents’ action becomes social structure, ideas become norms, and the subjective becomes the intersubjective” as a central mechanism for the effectiveness of norms. 258 Thomas Risse, European Institutions and Identity Change: What Have we Learned? supra at note 13, at 266–267, suggesting that persuasion is one of the set of mechanisms which might be playing a role in the process of Europeanization of identities; persuasion is not an alternative to but complements socialization, by looking at how institutions act as positive agents of identity construction. 259 See Martin Marcussen, Thomas Risse, Daniela Engelmann-Martin, Hans Joachim Knopf and Klaus Roscher, Constructing Europe? The Evolution of Nation-State Identities, supra at note 96 at 102 “social groups tend to define themselves on the basis of a set of ideas to which members can relate positively. These ideas can be expressed directly in the discourse of the members and in their ways of interacting and communicating, or indirectly through the application of common symbols, codes or signs. The function of these ideas is to define the social group as an entity which is distinct from other social groups. The members thereby perceive that they have something in common on the basis of which they form an “imagined community””. Persuasion can be an important mechanism in evidencing this set of ideas.

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that such a threshold can only be achieved with an initial persuasive effort. In this respect, the cultural policies of the European Union could be interpreted as an important effort in persuasion that looks to build an awareness of the minimum level of shared identity among the Europeans. European cultural policy is older than the Community competence in the field of culture, which was only introduced with the signing of the Maastricht Treaty in 1992. In 1973 European institutions were already venturing into the project which would shake the common cultural roots of Europe. In that year, the Heads of State and Governments of the then 9 European member countries signed a Declaration on European identity. This declaration was the first to emphasize the need to foster an identity for Europe by looking into the common cultural heritage of the continent.260 The Tindemans report on European Union, delivered to the European Council in 1976, built on this idea by calling for a common vision of Europe, in which common values and a shared sense of solidarity were to play a pivotal role. In particular, the report advocated for the active protection of the rights of Europeans, and for concrete manifestations of solidarity by means of external signs.261 In 1984, the low turnout in European Parliament elections was one of the factors which led the European Council in Fontainebleau to appoint an ad hoc Committee on People’s Europe, entrusted with the task of devising the means to increase awareness of European belonging on the people’s end.262 Persuasive efforts with respect to the existence of a common culture played a quite heavy role in the suggestions that the Committee delivered to the European Council in Milan in 1985, through the Adonnino report (so named after the Italian MEP who had chaired the Committee).263 The report called for a reinforcement of the European dimension in education and endorsed the celebration of a Europe Day on 9th May, a date 260 See Declaration on European Identity (Copenhagen, 14 December 1973), available at http://www.cvce.eu/content/publication/1999/1/1/02798dc9-9c69-4b7d-b2c9-f03a8db7 da32/publishable_en.pdf (last visited June 2013); also see Rethinking Europe-Social Theory and the Implications of Europeanization supra Chapter 1 at note 18, at 57–59. 261 See European Union, Report by Leo Tindemans, Prime Minister of Belgium to the European Council, Bulletin of the European Communities, Supplement 1/76, available at http://aei.pitt.edu/942/01/political_tindemans_report.pdf (last visited June 2013), at p. 26 referring to the disappearance of internal frontiers and the eased reimbursement of medical expenses borne on different sides of an internal border as a potential way to manifest the solidarity of the Europeans. 262 See Chris Shore, The Cultural Politics of European Integration supra at note 5, at 45. 263 See Pietro Adonnino, A People’s Europe. Reports from the ad hoc Committee, 1985 available at http://aei.pitt.edu/992/ (last visited June 2013).



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which marked the adoption of the Schuman plan in 1950.264 It also insisted on the importance of the symbols of Europe for the collective consciousness of the Europeans. Thus, a European flag was to be introduced, the Ode to Joy from Beethoven’s 9th symphony was to be confirmed as the European anthem and played on official occasions, stamps inspired by events and people in European culture were to be circulated in the European Community. Many of the Adonnino report’s proposals were adopted by the European Council and have been since implemented. The Commission followed up on these suggestions and on the steps needed in order to create a people’s Europe in a 1988 Communication to the European Parliament.265 In this document, the Commission stressed that “European identity is the result of centuries of shared history and common cultural and fundamental values”, and that “awareness of it can be strengthened by symbolic action.” The Commission also affirmed that a European cultural policy had been in place ever since 1977 with the deliberate goal to “boost people’s awareness of a European cultural identity”.266 These documents and the commitments of the involved institutions bear witness to the fact that efforts to persuade Europeans of their shared cultural identity were in full bloom in the 80’s. In the early 90s, these efforts were formalized by vesting the Community with competence in cultural issues. According to article 167 TFEU (former 151 EC Treaty), whose provisions find their origin in the Maastricht Treaty, the Union shall “contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore”. Within this framework the Community should encourage cooperation among the member states for “the improvement of the knowledge and dissemination of the culture and history of the European peoples” and for the “conservation and safeguarding of cultural heritage of European significance.” If any doubts were left as to the link between the commitment of the Union to culture and the goal to foster identity and promote a sense of 264 The plan adopted on 9 May 1950 had proposed the pooling of the steel and coal production by the building of a common market in this sector. The plan was implemented with the creation in 1951 of the European Coal and Steel Community. The first Europe’s day was celebrated on 9th May 1986. See Pietro Adonnino, A People’s Europe. Reports from the ad hoc Committee, supra at note 263. 265 See Commission of the European Communities, A People’s Europe, Communication from the Commission to the European Parliament, COM 88 (331), July 1988. 266 Id. at 11.

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belonging among the citizens, they were rapidly dispelled by the explicit stance taken by the Commission. European cultural action is aimed at promoting European common values, highlighting for purposes of citizens’ awareness their shared cultural heritage. In keeping with these goals, the European cultural action finds expression in a number of projects, with a markedly persuasive intent. A budget of 400 million Euro has been set aside for the Culture program for the period between 2007–2013. This money is targeted at supporting cultural actions, European level culture bodies and dissemination activities with an eye towards three broad ends: promoting cross-border mobility of cultural operators, helping the transnational circulation of artistic and cultural products, and the easing of intercultural dialogue.267 In addition 2009 was designated as the “European Year of Creativity and Innovation”, with the goal of promoting initiatives to raise public awareness, research and policy debates and the encouragement of creativity through life-long learning.268 While all these initiatives may be broadly linked to an institutional desire to bring the citizens on board, the DG Education and Culture of the European Commission has also created a specific “Europe for Citizens” program, running from 2007 to 2013. The stated priorities of the program included: “encouraging citizens to become actually involved in the process of European integration, empowering them to develop a sense of European identity, and enhancing mutual understanding” and “fostering a sense of ownership of the EU among its citizens”.269 Several kinds of initiatives are supported within the framework of this program. These range from town twinning initiatives, to the activity of NGOs, think tanks, and other non-governmental associations, as well as conferences and prizes to help people realize the values they share across borders. Particular emphasis is placed on keeping alive the common memories of the European people, particularly those whose tragic marks the European integration project was originally meant to counter-react: Nazism and Stalinism. In this sense, the identity persuasion efforts at 267 See European Commission, Culture and Education DG, Culture Program 2007– 2013 available at http://ec.europa.eu/culture/our-programmes-and-actions/doc411_en.htm (last visited June 2013). 268 See Press Release on the European Council, Meeting on Culture, Youth and Education, May 2008, available at http://www.consilium.europa.eu/ueDocs/cms_Data/ docs/pressData/en/educ/100577.pdf, (last visited June 2013). 269 See European Commission, DG Culture and Youth, Citizenship at http://ec.europa .eu/citizenship/index_en.htm (last visited June 2013).



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the European institution level go in a direction that is in harmony with an important branch of the European identity literature, which underlines the role of common memories, and common amnesias, in building shared identities.270 The persuasive efforts of the EU and particularly of the Commission aimed at getting citizens to identify with a common European culture have met with much diffidence. Explicit objections, accusations of naiveté, dirigisme and even Leninism have been addressed at these efforts.271 The notion of European identity envisioned in these programs has been dismissed as a poor and hardly realizable copy of national identities.272 This underlines the fact that the borders of a potential European culture are much broader than the borders of the EU, so that the European cultural endeavor ends up being under-inclusive.273 European culture has been

270 See e.g. Rethinking Europe-Social Theory and the Implications of Europeanization supra Chapter 1 at note 18, at 98–101 on the importance of traumatic and “amnesiac” memory for the collective identity of a people; also see Bernhard Giesen, The Collective Identity of Europe-Constitutional Practice or Community of Memory supra at note 11 at 31–34 on the role of traumatic memories; Klaus Eder, Remembering National Memories Together: The Formation of a Transnational Identity in Europe, supra at note 21, at 212–213, in the sense that collective memory is built on the one hand by common experiences, and by building a transnational space of communication where the common memories are reorganized; Evanthia Lyons, Coping with Social Change: Processes of Social Memory in the Reconstruction of Identities, in Changing European Identities-Social Psychological Analyses of Social Change, supra at note 12, at 36 arguing that 4 principles orient the way in which groups form their collective memories; self-esteem in claiming famous people as members of the group, continuity in privileging consistent constructions of their past, distinctiveness in exalting memories that make them special, self-efficacy for instance in remembering sport victories. 271 See e.g. Chris Shore, The Cultural Politics of European Integration supra at note 5 at 207–222, suggesting that what is going on is a project of European engineering led by European elites, which he criticizes because it relies on a flawed idea of the moral superiority of supranationalism; also see Chris Shore, Transcending the Nation-State? The European Commission and the (Re)-Discovery of Europe, 9 Journal of Historical Sociology473 (1996), for the suggestion that the Commission cultural project resembles leninism; also see Joseph Weiler, Human Rights, Constitutionalism and IntegrationIconography and Fetishism in Developing a Constitution for Europe (Erik Oddvar Eriksen, John Erik Fossum and Augustín José Menéndez eds. 2004) at 61, dismissing the Beethoven Ninth and the European Flag as “good stuff for politicians to drone on about”. 272 See Chris Shore, The Cultural Politics of European Integration supra at note 5 at 50, in the sense that “the new Europe is being constructed on much the same symbolic terrain as the old nation-states of the last two centuries”. 273 See Michael Bruter, Civic and Cultural Components of a European Identity, supra at note 11, at 190: “conceiving of Europe as a cultural identity would imply a reference to Europe as a civilization that stretches from the Atlantic to the Ural”.

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found to be an elusive concept, which as yet has been unable to overcome conflicting national legacies.274 All these criticisms seem to bear witness to a widespread sense that a common European cultural identity, if at all feasible, is at most very weak. This, in turn, marks the cultural policy of the EU with a badge of shallowness and ineffectiveness. Indeed, if national identities were to be the benchmark used to measure the effectiveness of European cultural policy, the Commission’s efforts would probably look rather vain. While there is undoubtedly a European cultural legacy, this legacy has to confront, in contemporary reality, a number of divisive elements. Europeans speak a myriad of different languages, there is no militaristic common experience to bind the people together, there is no proper EU welfare state and no related obligation to express solidarity by paying taxes for a European group of people. If the paradigm being considered is one of collective identity, based on a common culture and tradition,275 in other words based on a canon of homogeneity, the discourse of shared identity is lacking. In addition the Commission’s cultural policy remains exposed to the accusation of being a manipulative project aimed at engineering the people’s attachments. Bringing to the forefront the common European heritage and reinforcing awareness around it is certainly not manipulative. What may appear manipulative would be the use of that heritage as a mask to gloss over actual differences in the collective identities of the European population in order to put forward a supposed shared European identity as alternative to or superseding with respect to underlying identities. From the perspective of reinforcing the sense of legitimacy of European citizens as actors on the European scene as well as their minimum sense of sharing, the goal of cultural policy is not to invent ex novo an identity for the European citizens. The goal is simply to highlight the common substrate of shared values, common experiences, and common cultural achievements by increasing the visibility of elements of European belonging, which national belonging had obscured during the last few decades. Cultural policy highlights a thin level of sharedness, which, while not 274 Jiri Priban, Legal Symbolism, On Law, Time and European Identity, supra at note 10 at 137. 275 Klaus Eder, Bernard Giesen, European Citizenship: an Avenue for the Social Integration of Europe, supra at note 1, at 7 for the presentation of three paradigms of citizenship: individualist, political and collective identity.



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sufficient to obliterate differences, might be enough to ground a sense of “groupness” in terms of legitimacy. In being reminded that their national boundaries are partially artificial and have been redrawn many times, Europeans, while certainly not giving up their national attachments, could react to these “agents of consciousness”276 employed by European institutions by accepting each other’s role as legitimate participants in a shared political and social scene. Chris Shore, in criticizing the European cultural policy, poses a crucial question. “At what point does experience of Europe spill over into European consciousness?”.277 The answer might be “when a critical mass of shared identity is reached.” The mildly “despotic”278 efforts of the EU in the cultural sphere may lead to achieving that critical mass, which does not come about when Europeans regard each other as the same but when they come to perceive that they are legitimate participants in Europe. At that point, the necessary room might have been made, for other self-enforcing mechanisms to start operating and push with their own force for acculturation to the idea of being European. It is important for Europe to continue and reinforce its cultural policy, as a way to raise awareness with respect to citizenship beyond the nation, shared values, shared memories and the common cultural heritage of the European people. In particular, schools are an important place to build awareness, beginning with primary and secondary schools. Dictating a European curriculum would go beyond the competence of the European Union and might be perceived as a form of undue influence on the member states.279 Education is also an important tool in preserving the diversity of cultures to which the European Union is strongly committed. There is room however to encourage the member states to emphasize the history of European integration in their national curricula, as well as the cultural links that this history relies on and the historical facts it reacts to. All of this provides a fundamental background for current and future generations of school 276 Chris Shore, The Cultural Politics of European Integration supra at note 5, at 26, defining as “agents of European consciousness” those “forces and objects through which knowledge of the European Union is embodied and communicated as a sociocultural phenomenon: in other words, all those actors, actions, artefacts, bodies, institutions, policies and representations, which, singularly or collectively, help to engender awareness and promote acceptance of the “European idea”. 277 Id. at 229. 278 Id. at 223, recalling Delors’ expression “benign despotism” to describe the way elites conceive of the project of constructing a European identity. 279 See article 165 TFEU which determines the boundaries of the Community competence with respect to education.

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pupils to learn important points of reference for their status and experience as European citizens. *** A bolstered sense of reciprocal legitimacy among the citizens of Europe might be an important element for their socialization into belonging as members of a supranational group. An institutional design conducive to consolidating this sense of legitimacy could include reinforced moments of belonging as citizens and a continued effort to foster a minimum level of sharing among Europeans by actively recalling the shared elements of their cultural heritage. This way, citizens may gradually grow in the awareness that even if they are not a group in terms of societal sameness, their legal sameness makes them a group of legitimate participants. They may not share in the same language, religion, history, origins, habits. However they share the same voice, rights, standing, and in a set of common values on which their experiences as European citizens is premised. Moments of belonging, and cultural policy may contribute to the consolidation of a sense of legitimacy in a latent way. Interaction in the densely institutionalized European environment could turn that latent notion of legitimacy from passive into active. European citizens, once this status of legitimacy becomes relevant to them, might feel a desire to act and interact in a way that is conducive to confirming and preserving this status. This in turn may lead them to resolve their feelings of dissonance by discounting the sense of difference that they still feel in their interactions at the domestic level and by gradually internalizing the scripts of coexistence as supranational citizens. One of the fundamental scripts found in the European institutionalized order is that nationals of the member states, through the bond of legitimacy, which European citizenship brings about, have become active members in a group of sameness. Once the perceptions of a number of citizens begins to reshape around a more conscious sense of Europeanness and find expression in the changing discourses, social pressures to conform might also be set in motion on top of pressures generated by feelings of cognitive dissonance. Resilient people want to preserve in their legitimate status, and be approved of, and this might constitute a pressure to adapt their beliefs to the European script.280 280 Ryan Goodman, Derek Jinks, How to Influence States, supra at note 61, at 641–642 in the sense that also social pressures have a role to play in processes of acculturation; also see John C Turner, Rediscovering the Social Group supra at note 37 at 68–69,



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While the timelines, bends, and detours of a process of this kind are up for continuous debate and may take different directions, there is a chance that a process of acculturation might contribute this way in reconciling the boundaries of a citizen’s legal sameness and those of her societal sense of sameness, thereby aiding the coexistence of differences in the EU. 2.5.5. The Weaknesses of the Sameness Approach One possible critique of the ‘sameness’ approach would be to underline that by reinforcing their sense of ‘groupness’, European citizens may also reinforce their exclusivist attitudes towards third country nationals residing in Europe. The claim that Europe, by closing around its own sense of sameness, might turn into a fortress has been advanced by many proponents.281 The idea of Fortress Europe expresses the dualism entailed in the notion of boundaries. Boundaries collect the members of a community and foster their cohesion, but at the same time close the community and exclude others. One of the arguments put forth earlier is that socialization to a norm of sameness tied to European citizenship would have to pass through a reduction in the perceived effect of linguistic, ethnic, and religious boundaries in Europe. Indeed the civic sameness of Europeans could only take off in the face of boundaries of this kind, which represent a societal fact in integrated Europe. Even if the norm of sameness to which European suggesting that conformity to others’ views to gain social approval and avoid rejection is a major process of social influence; so that a prediction can be made that more interdependence or attraction to others will lead to increased conformity; also see Michael A. Hogg, Social Identity, supra at note 126, in the sense that groups exercise pressures towards uniformity. 281 See Klaus Eder, Bernard Giesen, European Citizenship: an Avenue for the Social Integration of Europe, supra at note 1, at 11 suggesting that the danger connected to the enactment of a model of European citizenship decoupled from nationality is in that it might lead to an autonomous European line of exclusion as “it would foster the idea of a Fortress Europe defending the interests of its citizens against the rest of the world”; Chris Shore, The Cultural Politics of European Integration supra at note 5, at 78–85 suggesting that one of the criticism addresses at the project of European citizenship is in that it tends to create a second class condition for third country nationals; Klaus von Beyme, Citizenship and the European Union in European Citizenship between National Legacies and Postnational Projects, supra Introduction at note 9 at 74 in the sense that the Union rather than promoting multiculturalism and ethnic tolerance might promote at best selective tolerance for those belonging to the club; Adrian Favell, Immigration, Migration and Free Movement in the Making of Europe supra at note 207 in the sense that East-West movers in Europe tend to tend to fill those labor gaps in western societies for which previously extra European ethnic migration was needed and this might contribute to turning Europe into a Fortress that then rejects immigration from the south.

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citizens might grow acculturated directly regards only nationals of a EU member states, the way the process of acculturation would take place is likely to affect attitudes towards third country nationals. If European civic sameness has to be based on discounting cultural and ethnic differences, it might result in a heightened comfort with diversity in Europe and with the discounting of similar cultural and ethnic boundaries, which provide a contrast between EU nationals and third country nationals. This does not mean that a Europe of socialized European citizens would be cosmopolitan. In fact such a Europe would still be a bounded community. It would however, be a community accustomed to diversity within its own boundaries and thus potentially available to accommodate additional intake of diversity.282 The boundaries of the community, on the other hand, would not be based on national or culturo-ethnic rooted paradigms but rather on shared legal entitlements and political stakes. As a result of this they are able to remain more permeable and retain the ability to gradually shift when needed. From a different perspective, the problem that many attempts at the self-Europeanization of European citizens have to cope with relates to the disparate situation of the elites and the masses with respect to Europe. European integration and its related project, which seeks to ingrain a European identity are often described as “the plan of the European elites”, in which the population at large now has and has had only a limited role.283 Not everybody in Europe is directly touched by free movement rights or even entertains the idea of ever moving around. Business and educational encounters at the European level concern only some sectors of the population, mainly students, and professionals, managers, and white-collar workers.284 Generally, the process of European integration

282 See Martin Kohli, The Battlegrounds of European Identity, 2 European Societies 113 (2000) at 129, in the sense that on the one hand, immigrants from third countries “take the role of them” thereby making easier the self-identification of the Europeans; on the other hand they force the Europeans to get used to the idea of multiple identities. 283 See Neil Fligstein, Euroclash, the EU, European Identity and the Future of Europe, supra at note 5 at 156–157 and at 205; Thomas Risse, European Institutions and Identity Change: What Have we Learned? supra at note 13, at 262; Viktoria Kaina, European identity, legitimacy and trust, supra at note 13; Chris Shore, The Cultural Politics of European Integration supra at note 5, at 207. 284 See Neil Fligstein, Euroclash, the EU, European Identity and the Future of Europe, supra at note 5 at 156–157 and at 126.



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has been propelled not by the will of the people but rather pushed forward by the vision of leaders, judges and politicians.285 It is possible to note that this represents an important obstacle standing in the way of the acculturation processes. This obstacle cannot be disregarded and calls for responses from several factions. There are three ways in which one might argue that the distinction between the elites and the masses is not an insurmountable problem but rather one for which over time a natural solution may be found. First, opportunities for diverse encounters are destined to increase in the EU. Not only will they in quantity but also in scope. New generations of school pupils, across both the social and class spectrums, will be educated on the history of integrated Europe and will grow up in a more diverse learning environment, where other European and third country nationals will be represented. The discourse of Europe will probably take up more and more space in the media, especially if Europe nurtures the habit of speaking politically and economically with a single voice. And as opportunities for travel, for learning languages, for doing business across borders begin to interest more and more people. Second, in a democracy, elites can also serve as vehicles of perceptions and beliefs for the general public. This mechanism is certainly at work in the case of Europe, and has similarly worked in the consolidation of European nationalisms.286 Third, the process of integration makes for fluid elites. Where the rationale of many privileged viewpoints in the national political, cultural and social spheres is put up for discussion and many elitist statuses are shaken to their very core.287 This might contribute to inducing a measure of openness in the ruling classes throughout European countries, increasing options for upward mobility in a traditionally immobile European society.288 In turn this may then make the divide 285 For one theory of European integration, where the elites and their visions are seen as having a central function in pushing for the progress of integration see Craig Parsons, A certain Idea of Europe, supra Chapter 1, at note 51. 286 See J.T. Checkel, Norms, Institutions and National Identity in Contemporary Europe, supra at note 60 for an account of the relative role of elites learning and societal pressures in the process of diffusion of norms; also see Jurgen Habermas, The Inclusion of the Other-Studies in Political Theory supra at note 10 at 105 for the idea that Germany and Italy were “belated nations”, which formed after the formation of their respective states. 287 Thoughts go for instance to union leaders, which often mask corporative interests behind the asserted purpose of defending workers, politicians who are put to the test of European political scenarios, cultural competition that the common market opens up among schools and universities. 288 On the issue of social fluidity in the society of selected European countries see Social Mobility in Europe (Richard Breen ed. 2004).

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between the elites and masses a bit more permeable and lend credit to the elitist origins of the European discourse. 2.6. From Societal Sameness to Identity: the Problem of Voice and Exit Now that the hypothesis has been made that a sense of societal sameness might evolve in the European Union through acculturation mechanisms, the next question seems to be whether this sense of sameness might ripen in due course into a full-fledged collective European identity. The focus of the compliance approach to citizenship falls not on identity, but on a sense of sharing sufficient to ensure peaceful coexistence. However, at the beginning of this work, it was suggested that societal sameness might be preliminary with respect to collective identity. Societal sameness finds expression in the sense of legitimate sharing that binds citizens together but lacks the cognitive and affective elements, as well as the sense of common distinction from other communities, which complete the socio-psychological side of the notion of collective identity. In addition, collective identities are also political, in the sense that belonging is expressed through active collective participation in decisions for which the community feels a shared responsibility. This political side is also foreign to the notion of societal sameness. As regards the EU, there might be important obstacles to the development of an identity that fully involves both the socio-psychological and the political sphere.289 To take an Hirschmanian approach to the issue, and importing once again from the context of organizations and economic actors into the context of citizenship,290 the situation of European identity is one, where on the socio-psychological level, citizens face many easy options for exit, while on the political level, options for voice are 289 Jiri Priban, Legal Symbolism, On Law, Time and European Identity, supra at note 10, at 135, making a similar argument with respect to the hypothesis of a European constitutional patriotism, “constitutional patriotism […] can inspire a “we-Europeans” feeling but cannot replicate the solid collective identity and abstract solidarity typical of the modern nationals of Europe”. 290 See Albert O. Hirschman, Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations and States (1970); Hirschman himself in any case applies his proposed frame outside the strict field of firms, indicating that the voice and exit paradigm might inform the reasoning about for instance family, tribes, nations, political parties; see id. at 121. For an earlier analysis of the problem of voice and exit in connection with solidarity feelings in the European Union, see Francesca Strumia, European Social Citizenship, supra at note 139, at 136–140.



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considerably limited. Considering that the political sphere might represent an important forum to reinforce the premises for identification, which are also present in the socio-psychological sphere, this situation might compromise the prospects of European identity. To look at the issue in more detail, the dynamics of both integration and globalization have laid the foundation for a competition of identities in Europe.291 The competing identities consist of: thin cosmopolitan identities, national identities, European identity, regional, sub-national, cultural and religious identities. The strength of nationalism has been said to lie in the fact that by joining forces with the state, it deprived other social sub-units of their capacity for self-expression.292 However, at the opposite end of the spectrum, the European Union is engaged in a mission to both preserve and exalt the particular characters of each of its composing nations, and to give voice beyond the nation to other pockets of identity that reside within its territory.293 The gifts of globalization amplify the European effort, granting a virtual license to any community in the world to broadcast its own identity. New technologies and new avenues for communication create forums and opportunities for concrete expression and nurturing of many identities at the same time.294 This is certainly a symptom of enrichment, and of expanded possibilities, for a number of communities at the global and regional level whose voice has long been silenced by the bordered nature of the world and by the all-inclusive character of nationalism. At the same time the fact that people identify with multiple communities at the global, regional and local levels is not expected to have a fragmenting effect on any of their multiple identities. It has been widely argued that these identities are complementary, that people live a life of split and multiple allegiances, and that there is no zero sum game involved with respect to identity.295 291 See Anthony Smith, National Identity and the Idea of European Unity supra at note 7 at 67 for the idea that the European project must be located between “national revival and global cultural aspirations”. 292 Ernest Gellner, Nations and Nationalism, supra at note 45 at 34–35. 293 See art. 167 TFEU. 294 Internet and the related forms of communication and social connection have created numerous possibilities in this sense. Also see Krystyna Romaniszyn, Migration, Cultural Diversification and Europeanization, supra Chapter 1 at note 15, at 106, describing the status of “semi-presence” of modern immigrants, who have contacts with communities in the rest of the world and not only with their immediate neighbours. 295 See e.g. Michael Bruter, Civic and Cultural Components of a European Identity, supra at note 11, at 202 finding support for the hypothesis that identities are complementary and stronger national and local identities also translate into stronger European identities; also see Thomas Risse, European Institutions and Identity Change: What Have we Learned?

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At first glance, the situation poses no threat to the solidity and cohesiveness of European identity. While it is true that multiple, overlapping identities make up our present and our future, this condition has two particular consequences for the evolution of a potential European identity. First, with respect to the distinctiveness component of socio-psychological identity,296 it makes the concept of ‘the other’, against which Europeans identify themselves, even fuzzier, because through the mechanisms of multiple identities, this ‘other’ remains for Europeans a part of the self. While through acculturation, it is possible that European citizens might come to perceive each other as part of a common group, they have no common ‘other’ to distinguish themselves from. Nationals of other countries, third country nationals, speakers of other languages, believers in other Gods, and residents in other parts of the world can all to some extent be considered the same as them, because a portion of their group of citizens also belongs to one or many of those other groups.297 Second, the existence of multiple levels of identification, both globally and in the EU, provides European citizens with an immediate, powerful option for exit from the insufficiencies of European identity. If that identity is cold, weak, divisive,298 it does not pose a serious problem to bring up in the public debate, because a myriad of alternative communities may provide psychological, if not material refuge for the citizen. Affective and emotional elements related to identification may indeed rest with the nation to which a EU citizen belongs, with his language community (e.g. Flemish in Belgium), with his religious supra at note 13, at 249 in the sense that there is little evidence of the fact that the relationship between European identities and other identities is zero sum. 296 In this sense, see Thomas Risse and Daniela Engelmann-Martin, Identity Politics and European Integration: the Case of Germany, supra at note 35 at 291. 297 This situation depends in part on the fact that nationality laws, the only gateway to European citizenship, are widely different from member state to member state, so that some of them allow people to retain at the same time a third country nationality and a EU nationality, together with European citizenship; other laws demand renunciation or release of any other nationality before granting their own, and so they make for sets of European citizens that can be one-national only. Also some nationality laws provide for ius sanguinis citizenship for people of national descent, even if born and resident in other parts of the world. As a result, in becoming European citizens, different sets of persons in the EU leave behind different sets of others. 298 See Elisabeth S. Sousa, Components of Social Identity or the Achilles Heel of the Field in the Case of European Integration in Changing European Identities-Social Psychological Analyses of Social Change supra at note 12, at 318, distinguishing a cognitive and an affective component of identification, which may either coincide, in which case they generate high or hot identification, or diverge, in which case you have cold or low identification.



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community (e.g. the Valdesi in Italy) or with any other cultural/affective groups to which a European citizen to some extent belongs. What has changed in the era of European integration, with respect to the past, is that all those alternative emotional affiliations may now be cultivated easily, through leisurely travel, through fast and cheap communications, and through the World Wide Web and the social utilities it offers. They are no longer dormant identities, but they can be active and influential ones. All of this makes the notion of Europe, as an ideal venue for identification and a repository of emotional meaning for the citizens superfluous. In other words, the exit doors of European identity are wide open. Identification with Europe, the need for Europe, and allegiance to Europe may all be strengthened through a vigorous public and political debate on the issues that concern all European citizens, triggering dialectic processes of agreement and disagreement, and for common positions on their part. This kind of debate could make exit less desirable and overshadow the rescuing role of alternative socio-psychological identi­ ties.  Political encounters and conflicts may generate reactions of both attachment and rejection. In turn the friction of opposing viewpoints about Europe might warm up the European identity of the Europeans, and make it more hospitable to feelings of self-identification and emotional attachment, which may make that identity salient also from a socio-psychological point of view.299 However, the European public and political debate is feeble at best, and is faced with few options for improvement. As stated earlier in this work, European citizens negotiate and bargain with each other as well as with state actors on the European scene to enforce their economic rights and their entitlement to pursue certain goals in the common market. This sort of interaction, while conducive to bonding through legitimacy, is much less effective in fostering a proper functioning European public sphere, where different sets of interests may become the substance for political discussion articulated in the language of competing values. The under-development of the European public sphere can be observed from several vantage points. One cause of this under-development is due to Europe being primarily a legal community of integration. While another 299 See Deirdre M. Curtin, Postnational Democracy: the European Union in Search of a Political Philosophy (1997) suggesting that a European public space is needed to show that a politically unitary identity can exist together with a culturally fragmented identity.

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is connected to the widely discussed democratic deficit of the EU And a third reason is expressed by the lack of a proper political life at the European level. First, integrated Europe has evolved mainly as a community of law, despite the creation of a political union in the early 90s. While the language of politics has marked moments of crisis in the Union,300 the language of law has sealed the most important transformations and steps forward in the Union’s evolution.301 Advancement in the process of integration occurs when issues are subtracted from the arena of debate and compromise among the member states and brought within the competence of the Union, where the legal mechanisms of supremacy and direct effect operate, and where the European Court of Justice exercises its review function. In this sense, the EU might be seen as a “legalistic community”, which has substituted “legal procedures for political struggles.”302 This leaves the EU wanting in terms of political subjectivity.303 The sense of communality that this kind of integration generates is not one that fosters a generalized commitment to the public interest. As a result, the European public sphere tends to remain vacant.304 The often-lamented democratic deficit of the EU is in part connected to the political weaknesses of the Union. The lack of mechanisms of 300 Examples of this can be found in the 1965–66 “empty chair crisis” when France deserted Council meetings to signal its opposition to expanding the powers of the Assembly and changing the funding methods for the Community; in the 2005 rejection of the Constitutional Treaty in popular consultations in the Netherlands and France; in the 2008 rejection of the Lisbon Treaty in a popular consultation in Ireland. 301 Two judgments of the European Court of Justice indeed introduced the principles of direct effect and supremacy, which have fundamentally altered the relationship between EU law and domestic law, giving to the former an exceptional capacity of penetration into domestic legal systems (Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, supra Chapter 1 at note 80; Case 6/64, Flaminio Costa vs. Enel, supra Chapter 1 at note 82; also see Joseph Weiler, The Community System: the Dual Character of Supranationalism, Y.B.Eur.L. (1982), suggesting that in the context of European integration decisional supranationalism of political actors and normative supranationalism of legal actors have been in a relationship of reverse proportionality, so that the progress of the latter historically coincided with the shrinking of the former. 302 Jiri Priban, Legal Symbolism, On Law, Time and European Identity, supra at note 10 at 118, suggesting that EU law moves between ethics and economics, while it is leaving out the political domain. 303 Id. at 131, in the sense that the legalistic community lacks of charisma, which can only be achieved by creating it as a political subject. 304 Ireneusz Pawel Karolewski, Citizenship and Collective Identity in Europe in European Identity-Theoretical Perspectives and Empirical Insights supra at note 6, at 25, defining collective identity as “sense of commonness between individuals that fosters a general commitment to the public interest”.



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authorization, representation and accountability comparable to those found in a healthy democracy contribute in reinforcing this deficit.305 The failures of democracy in Europe are multi-faceted: one face has to do with the secondary role of the European Parliament in the process of legislation (even if this role has been reinforced by the Treaty of Lisbon). A second facet is related to the increasing distance between the individual citizens and the venue where real decisions are made. The third facet depends on the unchecked power of the executive, which at the European level becomes the master of decision-making. The final facet of the deficit can be traced back to the alteration of the mechanisms by which majorities are formed, so that what is a majority at the national level might well become a minority during the process of adopting EU legislation.306 Solutions to the democratic deficit proposed in the literature look in different directions. Some of these solutions underline the need to create a demos in civic terms, some emphasize the need for institutional reforms, while others argue for more deliberative democracy.307 The ultimate problem is that European citizens are not amenable to endorsing the institutions of Europe as their legitimate, autonomous agents and democratic representatives,308 and they refuse to populate the empty public sphere, which surrounds them. Political life in the European Union remains embryonic, a fact which completes the picture of the democratic deficit309 and of the ineffectiveness of the public sphere in the EU Proper European political parties do not, as yet, exist. There are political groups within the European Parliament but these tend to be projections, on the European scene, of national political splits, and no autonomous political spectrum has formed with respect to European issues. In some of its cases regarding the European Parliament, 305 See Jiri Priban, Legal Symbolism, On Law, Time and European Identity, supra at note 10, at 104–105. 306 For an analysis of the several sides of the European democratic deficit see Joseph Weiler, Does Europe Need a Constitution? Reflections on Demos, Telos and the German Maastricht Decision, supra Chapter 1, at note 90. 307 See Lars-Erik Cederman, Nationalism and Bounded Integration: What it Would Take to Construct a European Demos in 7 European Journal of IR 139 (2001) at 153–57. 308 See Peter. L. Lindseth, Democratic Legitimacy and the Administrative Character of Supranationalism: The example of the European Community, supra Chapter 1, at note 96, for the argument that integrated Europe is the ultimate result of the post-war constitutional settlement, and that the Union is not a self-legitimating entity, but follows a well-tested pattern of governance through delegation, which has also characterized the re-organization of European nation states after the second world war. 309 See Joseph H.H. Weiler, Does Europe Need a Constitution? Reflections on Demos, Telos and the German Maastricht Decision, supra Chapter 1, at note 90.

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the European Court of Justice has articulated its qualms in connection with this situation.310 In particular, the Court has insisted on the importance of political affiliation for groups within the European Parliament, suggesting that such affiliation is fundamental in overcoming the cultural and national divergences among members of the European Parliament. Politically affiliated groups in the Parliament serve a function of European awareness building and helping to express the will of the people of the Union.311 For now however, the channels available for European expression of this will are quite narrow. These symptoms of malaise in the public sphere of EU citizens function as a signal that Europeans do not possess a real voice with which to express their European self. If such a voice was available to them then, by deliberating on issues of common interest, forming majorities and minorities, and feeling represented in EU institutions, Europeans could breathe life into the socio-psychological side of their common self. This voice could contribute in mending the wounds of that self, which have been generated by a process of fierce competition with alternative identities. In the absence of this voice, the European self is likely to remain in a corner, so that it is easier for the citizen to slide out of it and exit, than to fully take up all the emotional, cognitive and affective consequences of being European. The difference between the European Union and a nation in Hirschmanian terms consists on the fact that on the identity level, within the concept of the nation there are options for political voice, but few options for socio-psychological exit. In the European Union, on the contrary, there are plenty of options for socio-psychological exit, while the options for political voice are few. Hirschman also refers to loyalty as a category in his theory. This loyalty is meant to increase the costs of exit, thereby increasing the chances for the voice to prevail in the exit-voice dynamic.312 Going back to the EU setting, in order to complete the Hirschman analogy on the loyalty side, 310 In Parti Ecologiste Les Verts, (Case 294/83, 1986 E.C.R. 01339), for instance the Court underscored the importance of giving standing to political parties to challenge acts of the European Parliament, considering that political parties represent an important link in the EU between individual parties and institutional applicants who also have standing to challenge the acts of Parliament. 311 See Case T-222/99 joined with 327/99 and 329/99, Jean-Claude Martinez, Charles de Gaulle, Front national and Emma Bonino and Others v European Parliament, 2001 E.C.R. II-02823, at 146–148. 312 See Albert O. Hirschman, Exit, Voice and Loyalty supra at note 290 at 77.



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the European sphere is a vicious circle. To create loyalty on the part of European citizens, one needs identification with the Union and European identity. However, to create European identity, one would need a measure of loyalty, in order to raise the cost, and reduce the appeal, of a sociopsychological exit.313 Putting the case of European identity to the test of voice and exit offers a view on why even if acculturation brings a level of positive feeling among European citizens, it is still hard to predict that a solid collective European identity will spring from it. It is true however that the nature of collective identities is itself likely to change together with notions of belonging and membership. It is also possible that in the long run the feeling of belonging in different corners that European citizenship is likely to bring about might itself translate into some novel form of collective identity for the Europeans. *** This chapter has advanced a hypothesis of how European citizenship could foster perceptions of civic sameness, which might ease coexistence within the framework of the European legal, political and economic community. It has also examined some obstacles that stand in the way of the ripening of a full-fledged European identity, comparable in depth and breadth to national identities. Integrated Europe does not necessarily need an identity comparable to national ones. A sense of ‘groupness’ growing around notions of European citizenship may be sufficient to warrant the goal of harmonious coexistence despite the multiple and diverging collective identities that compete with one another in Europe. A heightened sense of civic sameness may or may not develop along the described acculturation pathway. Interactions at the European level may also generate resistances and hamper, rather than sustain acculturation. Several other variables that the scenario presented here has not taken into account may need to be considered (e.g. competing national interests, variation in the extent and nature of a person’s exposure to Europe, the changing roles of the European Union, etc.). The acculturation hypothesis oversimplifies the scenario on the ground. Its goal is not to predict a result, but to shed light on a plausible path that the evolution of 313 Id. at 80: Loyalty then helps to redress the balance by raising the cost of exit. It thereby pushes men into the alternative, creativity-requiring course of action from which they would normally recoil and performs a function similar to the underestimate of the prospective task’s difficulties.

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supranational citizenship in the EU might follow, as well as to consider what institutional designs might be conducive to a course of this kind. In this respect, empirical studies may ask more focused questions and yield more reliable results. Thus, the value of this work’s hypothesis is to offer a platform for these studies. Possible eventual outcomes vary on a wide scale, and it is also possible that obstacles not considered in this work might truncate a process of acculturation. If a heightened sense of civic sameness ensued in conjunction with dynamics of European citizenship, the promise that Joseph Weiler saw in the decoupling of citizenship and nationality may be realized.314 The result could be a European society where the citizen gets accustomed to seeing in the ‘other’ that is before him, despite several levels of difference, a member of his same group. This group is originally bounded only by a legal norm, but it can slowly come to assume more profound social and political connotations, changing the nature of coexistence in Europe. On the other hand, what would happen, if none of this took place and any potential acculturation to the script of coexistence as citizens failed, in spite of the potential reforms of the norms and institutions surrounding European citizenship? Indicia in recent years, beginning with the demonstrations against foreign EU workers in the UK in the wake of a global economic and financial crisis, and the reluctance of German taxpayers to bear the burden of the fiscal disorder of other member states, seem to suggest that an outcome of this kind is not as remote as once thought. The lack of acculturation would not necessarily mean the failure of the process of integration, even if it does represent a defeat for European citizenship. European citizenship, and most likely the process of integration will have to be reconsidered in light of this. The European Union can only be united in diversity. If citizenship fails as a possible filter for diversity, this does not mean that union will collapse, but it may mean that this union will have to revise and possibly resize its goals. Projects of increased political cohesion, of institutional reinforcement and of enlargement have to take into account the challenges of diversity, and if civic sameness cannot grow in the EU those challenges will only become more urgent.

314 See Joseph Weiler, To be a European Citizen: Eros and Civilization supra Introduction, at note 1; also see Joseph Weiler, Europe’s Constitutional Sonderweg supra at note 81; also see Joseph Weiler, Does Europe Need a Constitution? supra Chapter 1 at note 90, at 252.



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The ultimate question that would remain open is whether a community of law, committed to the rule of law, engaged in shared law-making, and in shared enforcement, and possessing common political goals and common values can survive without a measure of sharing at its most basic level? Sharing at the level of the people and citizens, who live on its territory, who are affected by these laws and by these goals, and to whom ultimately the shared institutions are accountable. This question does not necessarily need to be answered through the paradigm of citizenship, but citizenship seems to offer an important framework for addressing it, and part of the goal of this chapter was to tackle some of its aspects. Returning to the initial issue of divides, this chapter has looked at the impact of European citizenship on European insider/outsider divides from a different perspective. Not with respect to changing criteria, established through regulation, to decide who is an insider and who is an outsider, but with respect to the constitutive power of law. The question has been whether law, apart from other criteria for change, can contribute in shifting perceived divides. The analysis of membership dynamics, factors of societal diversity and potential prospects for acculturation to a norm of civic sameness, suggests that from the point of view of the natives (European citizens by birth), perceived insider/outsider divides tend to be resilient. Changing legal norms compete with influential societal factors in affecting those divides. The dynamics of acculturation suggest possible ways according to which these perceived divides might shift in the long run and reform around novel notions of groupness.

CHAPTER THREE

INSIDER/OUTSIDER DIVIDES IN THE EU This chapter discusses, on the basis of the analysis conducted in the previous two chapters, how European citizenship contributes in changing insider/outsider divides in the EU from the point of view of each one of the three relevant groups of subjects considered at the beginning of this work: immigrants, member states, natives. It looks at options for immigrants to become integrated and included into national communities and into the Europe-wide community. It looks at the capacity of member states to protect their cultural distinctiveness and at the effect of relevant legal tools. Lastly it looks at the sense of otherness of natives, and at the likely impact of changing legal rules on their perceptions of what boundaries define the community of members. Some of the considerations which follow have been anticipated in the previous chapters. These considerations are expanded and looked at more carefully here, in order to provide a systematic picture of changing notions of membership in the EU, of shifting divides and ultimately, of the likely impact of all of this on the challenge of coexistence with internal and external diversity. 3.1. Immigrants The contrast between rules of nationality and rules of free movement through European citizenship has been found to generate in the European Union a divide between mobile nationals and immobile aliens. TCNs, even if enjoying some statutory free movement rights after a certain number of years of legal residence in a member state, pay a high price in terms of inclusion for exercising those rights. As described at the end of chapter 1, for TCNs, the choice of resettling in a new member state in most cases results in the loss of the periods of residence that they may have earned in different member states towards the achievement of nationality. Mobility, defined as the ability to relocate and take up residence in a different member state, is reserved to citizens, and foreclosed to TCNs (who remain in this respect outsiders). This can be seen as the result of a legitimate distinction, based on the reliable role of nationality as a proxy



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for belonging. Labor markets throughout Europe are already opening their doors to nationals of 27 (soon 28) different countries and member states are struggling to contain the temporary imbalances, social unrest and resistance reactions that increased competition for jobs can generate. Why add TCNs to the pool of those that are already challenging the stability of the unprepared national schemes of employment? All of this suggests some lucid rationales for screening off TCNs from free movement until the time of their full inclusion. From the perspective of balance in labor markets, it could also be argued that the immobility of immigrants poses a significant obstacle to a smooth interrelation between demand and offer for employment throughout the various member states. Immigrants, particularly labor immigrants, are by definition more prone to movement than local residents, and as a result they are more readily available to respond to local employment crises by enlarging their jobs searches to include neighboring states and to EU zones where labor market conditions are contextually more promising. This kind of movement helps to absorb the unsettling effects of large waves of immigration focused in a specific area, which may already be saturated in employment terms. In direct reference to the issues that this work is mainly concerned with, the contrast between the two Europes, the mobile one in which the nationals live and the immobile one to which TCNs belong entails some important consequences in terms of European-level responses to issues of immigration and diversity. Firstly, the mobile nationals/immobile aliens divide means that immigrants only achieve integration and inclusion through a process of nationalization, which focuses on the culture, values, habits and legal schemes of just one nation state in the EU. Thus, they become European citizens without becoming European. As a result, inclusion of immigrants in the EU entails a reverse relation between external diversity and internal diversity. The external diversity, that of immigrants, is only absorbed through an exaltation of internal diversity, that among nations. Second, as a result of the wide difference in the quality and quantity of requirements for naturalization in different member states, inclusion through nationality cuts across immigration histories. Achievement of inclusion through nationality is not related to, and sometimes it is in open contrast with, belonging in the EU expressed by time of legal presence and residence within the Union-wide territory. This in turn poses a problem of fairness for European citizenship. What follows explores these arguments in more detail. European immigrants are strongly bound to a single host

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nation-state, even if they have all entered the EU zone by passing through a stretch of common external borders, whether air, land or sea. Immigrants are tied to a specific nation state by the reduced mobility options they face. They have no rights to resettle in the EU during their first five years of residence in a member state, and even after that period they face strong disincentives in exercising options to resettle.1 By the time they become nationals and European citizens, if ever, they will have had little direct experience with integrated Europe, and their European self will likely be underdeveloped. It is true that many immigrants may actually be attracted to the European Union by the prospect of a better lifestyle and by the economic opportunities that Europe as an entity, even beyond the boundaries of a single nation, offers. Thus, their level of European awareness might be high and they might actually aspire, when they gain admission into a EU state, to the status of European membership rather than to the status of national membership. This aspiration could support them in the process of access to nationality through naturalization, and may preserve their awareness of Europe even if the largest part of their European life takes place within the boundaries of a specific European nation state. The process of achieving naturalization in a member state reinforces the link between an immigrant and a specific European nation. This happens not only as an effect of continuous residence in the territory of that nation, but also as a result of integration requirements in nationality laws. These requirements are aimed at testing the level of integration of a prospective citizen in the national community. This is done through his knowledge of the language, the Constitution, the laws, through his understanding of the local societal habits, and through his overall assimilation in the group of prospective fellow nationals.2 1 Some member states have a five-year residence requirement for granting their own nationality, so in this sense, it might be objected that in those states, immigrants become fully mobile after the first five years of residence because they also qualify for nationality at the same time. The requirement is made more complicate however, by the fact that in many member states the five-year requirement for nationality is tied to possession of a permanent residence permit. That is the kind of permit that an immigrant is entitled to have under European law after 5 years of otherwise legal residence in a member state. Typically under European immigration legislation, immigrants are first admitted on temporary, renewable permits. The time to get a permanent residence permit plus the time to qualify for naturalization thus double the first sight requirement, and their sum adds to the period of immobility imposed on a TCN. 2 Dora Kostakopolou, Why Naturalization?, 4 Perspectives on European Politics and Society (2003) at 89, suggesting that naturalization works as an assimilative device, through which states preserve their character and ensure their cultural survival. Settlers are expected to assimilate the dominant culture and to think and act like nationals.



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Some of these requirements have a role that is more symbolic than substantive. Some also express values or habits shared at the European level rather than reflecting the specific characters of a single nation. Often though, they exalt the national distinctiveness of a certain member state vis-à-vis the rest of the world, including other European nations. Indeed, as examined extensively in Chapter 2, history, including constitutional history, differs broadly among the member states. Each member state speaks one of 25 different languages. National myths and cultural landmarks are different for each member state as are legal traditions, including those that inform the requirements for nationality. Some privilege family ties, while some privilege presence. While endeavoring to become closer to the model of citizen that the ensemble of these requirements describes, the citizen to be gets gradually assimilated into the national community and absorbs its values. At the same time, he may also become a bit more detached from Europe. Assimilation as citizens in the EU thus happens on the periphery. There are certainly benefits to these assimilation choices. One ultimately lives his everyday life in the political and concrete community, where his domicile, personal and working life take place. Promoting the reinforcement of ties to this community serves to aid the amalgamation of diversities and frictions at the local level. Through continuous reaffirmation, national distinctiveness is also safely preserved. In addition, the resourceful individual is not hampered in his freedom to escape the leash of collective identity, and seek on his own further and potentially more profound venues of identification even beyond the nation state of naturalization. He can learn other languages, familiarize himself with additional cultures, and pursue opportunities in other member states. However, this remains an option few choose. For most EU immigrants the struggle for integration has the nation as its foremost counter-part. The national territory is the pocket of Europe in which they are stuck for at least five years, before obtaining free movement rights, and potentially for much longer, if they want legal inclusion. The nation is the cultural entity they need to get acquainted with and learn the language and way of life of. The national people are the new group, with which they have to mingle. And the national government is the one that ultimately decides on their request for citizenship. Thus, the organized system of incentives in the naturalization regimes of the EU is one that ensures that whoever aspires to become a European has to become a national first. In this sense, external and internal diversity work against one another. The former is only incorporated through exaltation of the latter. This might appear to be a problem, if one thinks that the EU

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continuously reclaims its political character and is longing for the affection, allegiance and trust of the European people at large. The divide between mobile nationals and immobile aliens questions the fairness of the notion of membership that European citizenship embodies. European citizenship, as extensively illustrated above, trails behind national citizenship like a shadow. It brings about mobility rights. Under different nationality laws, immigrants obtain national and European citizenship in different ways and under different time frames, and thus, become mobile in different ways and at different times. As a result, immigrants with the same histories of presence in the EU and residing in a same member state may find themselves at completely different levels of inclusion.3 The cases of three hypothetical immigrants variously linked to the EU may be helpful in illustrating this possibility.4 The first case involves an Albanian who has regularly resided in Italy for 8 years. The second case involves a Congolese who has regularly resided in Belgium for 4 years. And the third case involves an Argentinean who has never been to Europe but whose mother was born in Spain and was Spanish by origin, even if she later lost her Spanish citizenship by emigrating to Argentina. Considering each immigrant options for free movement and relocation throughout the EU, the situation would appear as follows: the Albanian would be 2 years away from qualifying for citizenship under Italian nationality law.5 Having resided in Italy for more than 5 years he would also be a long term resident TCN, and thus he would have the statutory right to

3 According to the terminology used by Rainer Bauböck, European citizenship indeed has the effect of transforming some immigrants earlier than others into “second country nationals”; a novel distinction into the immigrant community present in a certain member state is then introduced, because some of the components of that community, by naturalizing somewhere else in the Community will have become second country nationals and will now receive more favorable treatment than locally resident third country nationals. For the distinction between second country nationals and third country nationals see Rainer Bauböck, Why European citizenship, supra Introduction at note 12, at 474. 4 These hypotheticals oversimplify to some extent the conditions to obtain nationality in the different countries, as they focus mainly on the residence requirements. National laws impose additional burocratic or administrative requirements or peculiar procedures, renunciation of other nationalities or in some cases integration requirements. Residence requirements are the most important for the sake of the argument here; other possible requirements, such as knowledge of language, of constitutional traditions, or assimilation requirements pose slightly different issues and make the scenario of access to citizenship more complex, but they do not alter the substance of the argument about residence. 5 See Table 1-3 Naturalization Requirements in the EU.



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­relocate to another member state if he wished to.6 However, if he actually exercised his right, the hourglass for his inclusion through nationality would be reset, as by leaving Italy he would interrupt the 10-year continuous residence period necessary to obtain Italian nationality, and he would have to start from the beginning in another member state.7 Any children that he might have, born in Italy, who follow him to another member country would also lose the right to obtain Italian nationality upon reaching majority due to having resided in Italy uninterruptedly ever since being born.8 The Congolese immigrant could have obtained Belgian nationality one year earlier, provided he had been on a qualifying residence permit and had applied at the proper time. Belgian nationality law allows immigrants on qualifying residence titles to apply for citizenship after 3 years of residence in Belgium.9 At this point, having become a Belgian national and European citizen, he could do many things. He could move to Italy for instance, where he would have a directly effective right to residence as a EU citizen and would enjoy altogether better treatment than the Albanian person who had been there 8 years. He could vote in municipal and European elections in Italy, he could sponsor relatives to come from Congo under more favorable conditions, and he could even board a plane and travel to the US as a tourist through the visa waiver program. Finally, after 4 years of residence in Italy he would qualify for Italian nationality under the shortened requirements in place for European citizens.10 This means, among other things, that 8 years of legal residence in the European Union may be worth two national citizenships and the attached European citizenship for a certain immigrant (i.e. the Congolese immigrant who went to Belgium first) and no citizenship at all for another one (i.e. the Albanian immigrant who went to Italy first). As for the Argentinean person, under Spanish nationality law he would be entitled to opt for Spanish citizenship, due to his being the son of a Spanish national by origin, even though he resides abroad.11 If he ­exercised 6 See for instance Council Directive 2003/109, supra Chapter 1, at note 158. 7 See Table 1-3 Naturalization Requirements in the EU. 8 See id. 9 See id. 10 See Law n. 91 of 1992 of 5 February 1992, Nuove Norme sulla Cittadinanza, in 1992 O.J. 38, article 9. 11 See Spanish Civil Code, art. 20.1.b. as modified by Law n. 36/2002 of 9 October 2002, 242 BOE 35538. Also see Ruth Rubio Marin, Spain in Acquisition and Loss of Nationality. Policies and Trends in 15 European Countries, supra Chapter 1 at note 306, at 477.

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this option he would become a Spanish national and European citizen, and at any time, without requirements to accrue any peculiar period of residence, he could move to any country in the EU, access the labor market over there, exercise some political rights, move around unconstrained and qualify under eased conditions for other European nationalities. It is true that this hypothetical Argentinean has a link to Europe by family descent and this arguably puts him in a position distinct from the one of the Albanian and Congolese immigrants. However, the Spanish rule also protects children of people who have emigrated and lost their Spanish citizenship. The link to Spain and to Europe of the same parent, who transmits this option for European citizenship, may be quite thin, particularly if he or she left Spain at a young age and never went back. While his/ her children inherit some measure of belonging to Spain, it is debatable whether this justifies their having many more options not only in Spain, but also in the entire EU than a person who has resided in a EU member state for a number of years. If these three hypothetical immigrants were to be ranked in descending order according to their rights to free movement within the European Union, which in turn are an expression of their level of European inclusion,12 the ranking would be as follows: Argentinian, Congolese, Albanian. If on the other hand, they were to be ranked in descending order according to their level of belonging to the EU measured in terms of their presence in the European Union, the ranking would be reversed: Albanian, Congolese, Argentinian. Thus, the divide between mobile nationals and immobile aliens that European citizenship operates is also a divide in opportunities and life choices among individuals who are randomly European. European citizenship in setting its distinctions and allocating rights potentially cuts across immigration histories. This includes both histories of legal and illegal immigration. Illegal immigration has now become one of the main concerns of coordinated immigration policy at the EU level.13 In the past few decades, some member states have handled their large numbers of illegal immigrants through periodic amnesties, that would give these people legal residence 12 See AG Jacobs in Konstantinidis supra Chapter 2 at note 240. 13 See European Council, European Pact on Immigration and Asylum, October 2008 at 7–8, available at http://register.consilium.europa.eu/pdf/en/08/st13/st13440.en08.pdf (last visited June 2013).



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documents, legal status and thus potentially a pathway to citizenship.14 People legalized in this way compete for inclusion on the same terms as people who have originally entered the EU legally. Depending on the require­ ments for naturalization in the specific state where they reside, there is a chance that some of them might even obtain nationality and European citizenship before communities of immigrants in other member states, who have resided in the EU longer, and have always had legal status.15 Situations of this kind raise an important question of fairness with respect to the experiences through which different European immigrants may earn inclusion through citizenship. External diversity rather than being channeled into inclusion pathways through shared membership rationales seems to be left to the casual and arbitrary interaction among sets of rules obeying distinct and conflicting rationales (emigrant citizenship under Spanish nationality law, eased nationality conditions under Italian nationality law for EU citizens). Insider/outsider divides for immigrants remain thus mediated by nationality, and as a result they are either softer or harsher depending on several factors, which have little to do with the European belonging of the immigrant. In addition the horizontal effect of free movement law projects the effects of softer national divides into national communities where those divides are harsher, creating additional insider/outsider divides within the same immigrant community.16 In the long run, the disparate 14 For instance in Italy this has happened in 1986, 1990, 1995, 1998 and 2002. See Illegally Resident Third Country Nationals in Italy: State Approaches Towards Them and their Profile and Social Situation, Report of the European Migration Network, supra Chapter 1, at note 288; 105,000 applications were accepted in 1986, 222,000 in 1990, 246,000 in 1995, 217,000 in 1998, and 650,000 in 2002. Also see, with regard to regularizations in Spain, Karolina Rostek, Gareth Davies, The Impact of Union Citizenship on National Citizenship Policies supra Introduction, at note 12, at 15–16. 15 The European Return Directive, which aims at coordinating Community action in the field of illegal immigration and return of illegally staying third country nationals, proposes to give a Community frame to the handling of illegal immigration, in part as a response to the practice of organizing so called “amnesties” which were experienced as unfair in several member states. Parliament and Council Directive 2008/115, of 16 December 2008, on common standards and procedures for returning illegally staying third-country nationals, 2008 O.J. L 348, at 98. 16 Many different factors drive a person’s choice to migrate and the choice of a destination. It is possible however that this inequality of immigration experiences might result in the long run in immigrants being drawn to member states where nationality laws are more liberal and thus easier opportunities for inclusion are made available. So far in any case empirical data do not support the idea that immigrants choose where to immigrate in the EU in correlation with the ease of access to nationality. The Migrant Integration Policy Index (MIPEX) elaborated by a research consortium led by the Migration Policy Group and

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treatment of similar immigration histories may generate a sense of discrimination, social unrest and perhaps a distinction between first class and second-class immigrants.17 In light of these considerations, it seems that the interest of immigrants in even inclusion options, interest which has been introduced earlier in this work, does not find meaningful protection in the membership logic that European citizenship espouses. 3.2. Member States The second category of subjects for whom insider/outsider divides may change as a result of the operation of European citizenship consists of the 28 member states of the European Union. Member states protect the boundaries of their own community by setting insider/outsider divides of their own, by deciding who can be and who cannot be a member of the community, and by selecting the relevant criteria for inclusion through the grant of nationality.18 Nationality law may be seen as one of the main legal tools member states employ to this end. The substance of the process of selection of insiders and outsiders passes through nationality rules. European member states are very jealous of their power to draw and guard the boundaries of the national community. In the context of the process of European integration, this has become a fundamental way in which to defend their own cultures, values and particularities, and to by the British Council, provides a ranking of EU member states, according to the accessibility of their nationality. There is no correspondence between the countries, which rank highest in MIPEX and the countries with the higher net immigration and higher net immigration rate. For instance Portugal, which is at the top of the ranking for accessibility of nationality, had in 2011 a level of immigration much lower than Austria, and a net migration rate of -2.3 versus a net migration rate of 4.4 in Austria. France, which has the same score as the United Kingdom, had a level of immigration in 2011 half the one of the United Kingdom, and a net migration rate of 0.8 versus a rate of 3.5 in the United Kingdom. The accessibility of nationality ranking is available at http://www.mipex.eu/access-to -nationality (last visited June 2013). For relevant data on net immigration see Eurostat data on population and social conditions. 17 See e.g. Council of Europe, Parliamentary Assembly, Recommendation 1500 (2001), Participation of immigrants and foreign residents in political life in the Council of Europe member states, par. 6–7, suggesting that “Restrictive criteria may prevent legally resident non-citizens from acquiring the citizenship of the host country, depriving them of full participation in the life of the community and, in the worst case, pushing them to the margins of society”, and also emphasizing that the lack of integration of immigrants and foreign residents can be a cause of social tension and conflict. 18 See Linda Bosniak, Membership, Equality and the Difference that Alienage Makes, 69 N.Y.U. L. Rev. 1047 (1994). Also see Michael Walzer, Spheres of Justice-A Defense of Pluralism and Equality supra Chapter 2, at note 28, at 39 suggesting that “the distinctiveness of cultures and groups depends upon closure, and without it, cannot be conceived



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preserve a marked national identity, in contrast with those of the other member states.19 Jealousy of the member states in this respect finds expression in the repeated affirmation of their exclusive sovereignty in matters of nationality. There can be talk of European citizenship, there can be free movement rights, internal borders may be dismantled and the handling of immigration may be gradually communitarized. However, the power of the member states in matters of nationality remains untainted. Several factors have facilitated this situation. First there is the declaration attached to the Treaty of Maastricht, at the time of the introduction of the provisions on European citizenship, which clarifies that each member state remained free to determine, who his nationals were for purposes of European citizenship.20 Second, the case law of the European Court of Justice, which, as illustrated earlier, tends to be extremely deferential to the member states in matters concerning the determination of which categories of nationals may or may not exercise political rights as European citizens.21 And lastly, the reaffirmation of the member states exclusive power in matters of nationality in the conclusions of the Tampere Council.22 Nationality law remains a fundamental way for the member states to set their own insider/outsider divides. At the end of Chapter 1, it was suggested that the mechanisms of European citizenship, and particularly the free movement regime it brings about, tend to alter and reduce this power’s effectiveness.23 Free movement rights have become a way to extend the entitlements of national citizens to EU citizens, whom a host member state has not selected as nationals according to its own criteria. Each member state identifies in its own terms its citizens and thus its portion of European citizens. As that portion of EU citizens is increasingly able to claim rights comparable to those of nationals in other member states, this as a stable feature of human life. Some of the considerations discussed in this paragraph have been the object of analysis in Francesca Strumia, Tensions at the Borders, supra Chapter 1, at note 1, at 1023–1029. 19 Karolina Rostek, Gareth Davies, The Impact of Union Citizenship on National Citizenship Policies supra Introduction, at note 12 at 3. 20 Member states are also allowed to deposit declarations indicating who is to be considered a national of their state for Community purposes; see Declaration on Nationality of a Member State supra Chapter 1, at note 45; also see Gerard Rene de Groot, The Relationship between the nationality legislation of the member states of the European Union and European Citizenship, supra Introduction at note 12 at 120. 21 See above, par. 1.2.3.1.2. 22 See Conclusions of the 1999 European Council in Tampere supra Introduction at note 5. 23 Also see Karolina Rostek, Gareth Davies, The Impact of Union Citizenship on National Citizenship Policies, supra Introduction, at note 12 at 11–12.

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means that each member state is delegating part of its power to define to other member state.24 Free movement rights and the power of community definition are inversely proportional. The more the rights entailed by free movement expand, the more the power of community definition each member state retains shrinks. At the apex, where free movement rights allow free moving EU citizens to do anything national citizens can do and to claim anything national citizens can claim, the power of self-definition a member state possesses is annulled. The potential corollaries of a 2008 French case regarding citizenship provide a telling example in this respect.25 In June 2008, a Moroccan woman, Faiza M., married to a French man of Moroccan origin applied to obtain French nationality as the spouse of a French national. Under French nationality law, one of the requirements for naturalization is assimilation of the applicant into the French community.26 The French government can oppose the request of naturalization on grounds that assimilation is lacking. This is what happened here, on the basis of the fact that the applicant woman engaged in radical religious practices, which were considered by the relevant authorities to provide evidence of her lack of assimilation. The Conseil d’Etat upheld the French government position, holding that the applicant’s practice of a radical form of Islamism and her habit of wearing a niqab were incompatible with French secular values and with the principle of equality of the sexes in the Republic.27 This decision raises a number of different concerns. Whether citizenship is the proper framework to defend the community from the fragmenting effects of potentially unwelcome religious practices, or whether 24 Also, member states are prevented from imposing on a national of a EU member state any additional requirement in order for him to benefit of Community law rights on their territory: the European Court of Justice set a clear rule in this respect in the 1992 Micheletti case; Spain had refused here the right of establishment to a dual national Italian-Argentinian who had previously resided in Argentina. Spain had demanded that a dual national, national of both a member state and a non member country, have his last habitual residence in a member state before being able to establish his activity in Spain. The Court held that requirements of this kind are not admissible. Nationality of a member state remains the only requirement for a person to be a fully entitled European citizen. See Case C-369/90, Mario Vicente Micheletti and others v Delegación del Gobierno en Cantabria, supra Chapter 1, at note 49. 25 See Conseil d’Etat, n. 286798, Lecture du 27 Juin 2008, Faiza M., available at http:// www.gisti.org/IMG/pdf/jur_ce_2008-06-27_286798.pdf (last visited June 2013). 26 See French Civil Code art. 21–24 and art. 21–4 (concerning foreign spouses). Also see Table 1-3 Naturalization Requirements in the EU. 27 See Conseil d’Etat, n. 286798 supra at note 25 at “considerant” n. 3.



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a defense of this kind should take place through institutions other than citizenship? Whether denying citizenship to the Moroccan wife of a French-Moroccan man on the ground of violation of the principle of the parity of sexes is not in fact a way to betray the very rationale of the rule of parity of sexes, by denying protection to the sex that the logic of the rule protects? Whether the practice of religion in a private, albeit radical way, can be considered to conflict with the secular values that a political community is premised on? And whether cultural assimilation is a necessary element for coexistence in a civic community and thus a proper criterion for distinction between insiders and outsiders. All these questions pose important issues, which cannot be disregarded when rethinking rationales of membership in a demographically changing society such as the European one. At the same time, the framework of European citizenship poses the question of effectiveness of these kinds of decisions on nationality, in pursuing their stated effects of protecting the secular values of the national community. The Moroccan woman faces the prospect of having to move to another member state of the EU, perhaps Belgium, which does not impose any assimilation requirement to grant nationality,28 residing there for the necessary time and being naturalized as a Belgian national, thus also becoming a European citizen. At that point she could then return to France, claim her right to reside there as a European citizen, exercise some political rights (perhaps voting for instance, at the municipal level for a party opposing the one in power when the French government denied her citizenship request), and claim non-discrimination on the French labor market.29 The question that arises is whether, as a resident and as a European citizen she poses a smaller threat to French secular values than she would as a French national. In addition, someday she might apply for French nationality as a European citizen. French authorities would at this point be confronted with the delicate task of arguing that a European citizen fails the test of assimilation into French society. Can somebody be European, be an insider in the Community and in another member state, and yet not fit in French society? One could certainly argue that this is the case and that the being nationals of another member state does not guarantee a good fit into French society. Yet there would be something jarring in allowing somebody in as a European citizen, with a measure of political voice, a right to reside, a claim to social inclusion, and on the implied 28 See Table 1-3 Naturalization Requirements in the EU. 29 See Directive 2004/38, supra Chapter 1 at note 149.

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assumption of some shared identity, while arguing that this person does not fit in the national social fabric well enough to be a national citizen. The proud nationalism of the French might even support a thesis of this kind, but the logic of membership, national and supranational, would probably begin to screech. Not only is the power to admit somebody into the national community diluted, but the power to keep somebody out of the Community is also diluted. The 2008 Jipa case,30 decided by the CJEU, illustrates this point. Mr. Jipa was a Romanian national illegally residing in Belgium and he was subject to an expulsion order and repatriated to Romania in 2006 under the terms of a bilateral readmission agreement between Romania and Belgium.31 The Romanian Ministry of the Interior subsequently applied for a court order prohibiting Mr. Jipa from leaving Romania to travel to Belgium for the following three years under relevant Romanian legislation.32 The court to which the application had been made referred to the CJEU to ask among other things, whether an order of this kind interfered with Mr. Jipa’s right to free movement as a EU citizen under the terms of Art. 18 EC (now art. 21 TFEU).33 The Court held that a similar restriction on a EU citizen’s right to leave a member state and enter another one was indeed an infringement of Art. 18, and was not admissible in the absence of justifying reasons of public security, public order or public health, which did not seem to be accounted for in the situation at hand.34 Through the dynamics of Union citizenship and free movement, what may previously have been the legitimate independent choice of a member state in dealing with the issue of illegal immigration now turns into an undue interference with the rights of a European citizen. The power to define each national community in Europe begins to fade. The case of Faida M. as well as that of Mr. Jipa and their potential consequences illustrate, from different directions, how, in the wake of the extension and consolidation of the rights of European citizenship, this power in the hands of the member states tends to gradually shrink. The possibility that the Moroccan woman has to get around the French nationality decision by becoming a European citizen somewhere else also raises a further point. It questions the continuing legitimacy of the 30 Case C-33/07, Ministerul Administraţiei şi Internelor – Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa, 2008 E.C.R. I-05157. 31 Id. at par. 9. 32 Id. at par. 10. 33 Id. at par 11–12. 34 Id. at par. 17–27.



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rationale according to which member states may be willing to accommodate European citizens within their community but not third country nationals. At first glance, this is a perfectly acceptable distinction. Once again the distinction is based on an extension of nationality logic. From the point of view of a member state, European citizens are nationals of some other member states and they are participants in the same community of law in which the member state itself and its population also take part. The fact that they are members of another member state can be taken as evidence of allegiance and commitment to a set of shared values, so that they seem to pose reduced threats to the cohesiveness of the national community. Further, member states can argue with apparent legitimacy that they have accepted the EU law obligation to treat nationals of other member states in a certain way. However, they have undertaken no obligation to treat third country nationals in any specific way or to accommodate their claims, beyond what is explicitly demanded in European legislation.35 Third country nationals are newcomers to the EU and outsiders in any national community within the EU. They import the values and culture of some external, foreign community. Their allegiances, commitments, intentions still need to be proved. Thus, a further measure of their diffidence or resistance to, and the subordinations of their interests to those of the national community may seem, if not necessarily desirable, at least justifiable. Mechanisms of conferral of European citizenship shake this architecture of thought and the legitimacy of the distinction between EU citizens and third country nationals. Justifying this distinction might become troublesome for the member states. France could say that on its territory it is willing to accommodate the Germans, who are EU citizens, but not the Turks, who are not Europeans and EU citizens. However, what if Germany one day, led by proponents of some new integration policy, decided to grant citizenship to all the foreign population currently residing within its borders through a massive collective naturalization, including the 1.8 million resident Turks? The very next day all those Turks could move to France as EU citizens and exercise there their claims of rights. But how different would they be in terms of Europeanness from the Turks they were the day before? Would the fact of having obtained a different status through an una tantum determination of German law make them any closer to the French and European ways of life, any more committed to shared Community values and to French national values, and ultimately 35 See e.g. Directive 2003/109 supra Chapter 1, at note 158.

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any less excludable from the French community? The insider/outsider divides that nationality law confidently traced have been blurred by European citizenship. While hyperbolic and unrealistic, the example of Germany and the Turks helps to shed light on how the independent power of the member states in setting divides is becoming subject to several qualifications. Nominally, member states are still free to distinguish between European citizens and third country nationals, and to draw an autonomous insider/outsider divide in-between those two groups. However, their autonomy in tracing that divide is subject to the choice of any of the other member states with respect to who is a national and who is an alien within their community. To consider a less unrealistic example than that of the Turks, let us go back for a moment to two of the three hypothetical immigrants considered in the previous section. Specifically let us look at the Albanian national who has been a resident in Italy and in the EU for eight years, and the Congolese national, who has been a resident in the EU for four years and is now a Belgian national. Earlier it was discussed how, with respect to them, the insider/outsider divide loses some of its fairness through European citizenship. From the point of view of Italy, a member state, the legitimacy of the insider/outsider divide traced through national law tends to weaken. As described in the previous section, the BelgianCongolese national can vote and reside in Italy, and become a national after only four years of residence in Italy. The Albanian national who has been there legally for eight years, needs to wait two more years in order to become a national, and has no voting rights. Now, is there any reason why, from the point of view of Italy and Italian nationality law, a Congolese who has resided in the EU for a total of eight years by the time he becomes Italian national, three of which he resided in Belgium, is any more of an insider in Italy than an Albanian, who by the time he becomes an Italian national has resided for ten years in Italy and possibly even longer in the EU? On the one hand, Italian nationality law views European citizenship as a valid proxy for national belonging, which makes perfect sense. At the same time however, since pathways to European citizenship are so heterogeneous throughout the Union, the choice under Italian nationality law may be seen as questionable from the point of view of national inclusion and exclusion. This is because it potentially penalizes for the purposes of obtaining nationality, the direct presence in and integration into Italy itself, with respect to presence in and integration into other parts of the EU. This does not mean that Italy should not treat EU citizens favorably, but it does lead one to question the outcomes of the horizontal



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effects of European citizenship on the grip of different nationality laws throughout Europe. Laws that do not bite lose both their effectiveness and their legitimacy. Mechanisms of European citizenship provide ways around the insider/ outsider divides set through nationality laws by each member state. Not all these ways around are easily achievable and not all immigrants will take advantage of them. Already the fact that these ways around exist and that they will be available to some, reduces the bite of various European nationality laws, and thus puts both their effectiveness and legitimacy up for debate. Those laws no longer guarantee the protection of the cultural distinctiveness of the member states and of their national communities, or at least they do not protect it to the same extent as before the advent of European citizenship. This is how the insider/outsider divide has changed from the point of view of the member states. This is not to suggest that the member states have lost the legitimate capacity to protect their own values and cultures, nor to advocate that the borders of Europe and of its community of members should be wide open to anybody willing to enter. The European Union and its member states certainly maintain a legitimate interest in setting conditions for those willing to enter and stay. The population of Europe is changing and transformations are welcome and beneficial if they are handled with care. Openness to newcomers does not mean that the European communities, both the supranational and the national ones, should compromise the values they are founded upon and around which their societies are organized. They can demand, on the part of those willing to enter, respect for these values, for the laws that protect them, and for the models of coexistence they entail. They are not only defending their own interest in this way, but also in part the models of coexistence, which attract many immigrants and lure them away from less desirable lifestyles of life and levels of wealth around the globe. In light of the interaction between nationality and mechanisms of European citizenship, protection of the community might need to take new forms in any case and to rely on novel insider/outsider divides. This is one of the challenges that Union citizenship poses to the member states. 3.3. Citizens The last category of subjects for whom it is important to consider the effect of European citizenship on divides is that of native European citizens.

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Native European citizens are those that by birth are nationals of one of the member states. This category primarily refers to people who are born in a state that at the time of their birth was already member of the European Union. However, many of the rationales that are applicable to this class of people are also applicable to people born in a state that subsequently, during the course of their lives, became a member of the European Union. Both categories have a sense of insider/outsider divides, distinguishing people who are part of the same group of members and people who are extraneous to that group. The logic of European membership operates by relying on this sense of theirs to different extents and from different directions, but in both cases what can push towards a shift of their perception of divides is the constructive power of law, as examined in Chapter 2. Natives’ perceptions of civic insider/outsider divides are important for purposes of harmonious coexistence in a polity. The growing of a sense of sameness and of belonging to a same group based on citizenship can attenuate the disaggregating effects of ethnic, cultural, linguistic, and religious boundaries. Boundaries of this kind may otherwise have a strongly divisive effect in an integrated society, as they tend to pitch contrasting collective identities of the population one against the other. They can foster hostile competition for scarce social, occupational, and govern­ mental resources. They can also result in prejudices and the aversion of each group toward the other, and in unbalanced political voice and representation. The logic of civic belonging cannot be the only answer to issues of this kind. The problem of coexistence calls for responses in several fields such as non-discrimination policies, positive government intervention, family life, and education just to mention a few. They do a part of the job, by bringing together people potentially divided by cultural frictions and by giving each one of them the same stake in a civic, legal and political community.36 36 In the sense that legal citizenship is not enough, see e.g. Jo Shaw, The Trans­ formation of Citizenship supra Introduction, at note 3 at 170, focusing on the situation of children of immigrants in France, who despite their being legally citizens are discriminated on the labor market and in other ways. However, on the intrinsic importance of legal membership see Ruth Rubio Marin, Transnational Politics and the Democratic NationState: Normative Challenges of Expatriate Voting and Nationality Retention of Emigrants, 81 N.Y.U. L. Rev. 101 (2006) at 136 observing that “the feeling of membership that national citizenship conveys should not only be judged instrumentally. For some such membership provides experiences that are valuable in themselves”; “the national culture renders vivid the set of options that people have in life, gives people a sense of effortless belonging and



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When citizens begin to take notice of the stake they share, they can be led to change their reciprocal attitudes and to interact as members of a group. Contextually, their perceptions of insider/outsider divides might shift and potentially enlarge to include more people in their recognized group of co-members. In these terms, part of the promise of grafting the logic of membership onto the discourse of social and economic rights in the EU could be interpreted as being for the purpose of coexistence of diversity. As previously demonstrated in Chapter 2, norms of citizenship may have an easier time exercising pressure in this way on societal perceptions if they bring about notions of ‘groupness’, which somehow resonate with societal ones. It has been found in Chapter 2 that by contrast in the EU the spread of legal sameness through the extension of European citizenship goes hand in hand with increasing factors of societal diversity and thus potentially with a diluting sense of societal ‘groupness’. European citizenship is extended not only through birth as national of one of the member states, but also through naturalizations and the enlargement of the Union to include new member countries. Both the naturalization and enlargement processes expand the scope of the legal notion of sameness that European citizenship entails, but at the same time bring in more and more difference. On the other hand, in all the aforementioned cases, birth, naturalization, and enlargement of the Union, the vesting of European citizenship happens in the shadow of nationality, and in the absence of any ceremonial or substantive occurrences which might give salience to this specific change of status for the recipient. Consequently, the impact of this change on the sense of divides felt by both recipients and those that were citizens already and whose group of membership has suddenly expanded is likely to be quite limited. For these reasons, the expansion of the group of European citizens when it does take place comes into conflict with the contextually strong inertia of the natives’ perception of insider/outsider divides. Despite the label of sameness that citizenship brings about, European citizens keep being a group of differences. rootedness, and allows for a sense of intergenerational connectedness and thus historical transcendence and continuity.” Still on the value of membership see Michael Walzer, Spheres of Justice-A Defense of Pluralism and Equality supra Chapter 2, at note 28 at 63, “For it is only as members somewhere that men and women can hope to share in all the other social goods-security, wealth, honor, office, and power-that communal life makes possible”.

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Chapter 2 considered the hypothesis that the pull of European citizenship on insider/outsider divides relies on mechanisms of acculturation. If the necessary preconditions are met, perceived divides may soften as a result of the continuing and expanding interaction of citizens as a conscious group of legitimate participants in business, leisure and educational encounters at the supranational level. These interactions may solicit social and cognitive pressures towards a growing sense of belonging and sharing among the citizens, and that sense might then spill over into other societal fields. This kind of dynamic has some promise in interpreting the possible effect of a norm of supranational citizenship on perceived divides. This holds true even if it faces many potential objections, obstacles and has long processing times, which might exceed the terms of more than a generation. Even if acculturation were to occur with respect to European citizenship, it would have its limits. Acculturation could not change divides. Even within a group of acculturated European citizens, societal factors would keep pointing at internal linguistic, cultural, religious and traditional divides competing with those drawn by European citizenship. Acculturated European citizens would remain Portuguese, Polish or Latvian, Catholic, Protestant, Jews or Muslims, German-speakers, Frenchspeakers or English-speakers. These competing insider/outsider divides relate to collective identities in Europe, many of which are heart-felt and long-held, and corresponding perceptions would not be obliterated by a citizenship-related sense of “groupness”. Acculturation to the scripts of coexistence as European citizens might in the long run attenuate resistances and frictions, which result from cohabiting in a legal and political community, whose boundaries are wider than the divides drawn around those various collective identities. Novel perceptions of ‘groupness’ brought about by interacting as legitimate participants in a community of citizens may shift momentarily the alternative insider/outsider divides perceived by the natives. Even if these perceived divides would then go back into place, their exclusionary effects would have already been partially alleviated. The only thing that could roil perceived insider/outsider divides in the EU thereby shifting them once and for all, would be the ripening of a real European identity, complete of socio-psychological and political components, which would support and consolidate the sense of ‘groupness’ brought about by having a common citizenship. However, the ripening of a European identity remains as described from a Hirschmanian viewpoint in Chapter 2, quite a chimerical prospect,



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and to some extent an undesirable one, as it would supersede the diverse selves of the Europeans and thus conflict with the very essence of the European project. The novel identity of an insider that European citizenship brings about is thus likely to keep competing with resilient, alternative insider/outsider divides, which manifest in the perceptions of the natives, and in their sense of otherness. Union citizenship has so far not produced a real shift in those divides, and is not likely to change them greatly any time soon. However, the rationale of membership connected to it, is important in taming the effects of some of those divides, and in reducing the legitimacy of some of the discourses of exclusion that they illustrate. *** This overview of both the actual and likely effects of the regime of European citizenship on insider/outsider divides, from the perspectives of immigrants, member states and natives, yields a somewhat unsatisfactory picture of the role, which logics of Union membership plays with respect to internal and external diversity within the European Union. It seems that rather than relying on a consistent rationale of membership and belonging in the European Union, rules of European citizenship de facto borrow in their operation divides introduced in other fields of law. In doing this they stretch and deform those divides in a manner that betrays the rationale of membership according to which they were originally drawn and that at the same time does not rely on any clear notion of belonging to the European Union. The resulting arbitrary character of European membership logic may contribute in discouraging the ripening of new perceptions of sameness in the citizens themselves. The balance between the competing interests of member states in distinctiveness and of immigrants in fair options for inclusion, a balance, which also passes through the altering of the sense of otherness and sameness of existing citizens, seems to be unsteady and not convincingly protective of either one of the two sets of interests.

CHAPTER FOUR

SUPRANATIONAL CITIZENSHIP AS MUTUAL RECOGNITION OF BELONGING The analysis in the previous chapters has revealed how the indirect operation of mechanisms of European citizenship, and its interaction with other regimes relevant to membership, such as nationality and immigration regimes, alters, and in part confounds, insider/outsider boundaries from the point of view of immigrants, member states and natives. The confusing membership rationale that European citizenship brings about, by relying on insider/outsider boundaries drawn in other fields of law, does not offer a convincing balance between the interest of the member states in cultural and community distinctiveness and the interest of the immigrants in fair inclusion options. At the same time, it offers few effective incentives to European natives to overcome and alter their reciprocal sense of otherness. In light of these observations, it seems that European citizenship, as a notion and norm, has little say with respect to the two levels of diversity in Europe. These two levels of diversity, as it was suggested at the beginning of this work pose peculiar challenges for the bonding role of European citizenship. This goes for both the internal level, among the composing nations of the Union, and the external level, between the indigenous population and the increasing waves of immigrant population. This final chapter focuses on the belonging rationale underpinning European citizenship.1 In particular, it questions whether the notion and rule of European citizenship point to a more coherent membership ratio­nale, which might be taken into account in trying to bring order to European insider/outsider boundaries. A more consistent notion of belonging to Europe, backing the notion of European citizenship, could represent a preliminary step towards a more convincing approach to the coexistence of diversity in Europe. A harder look at the European citizenship rule and at the scope of its application in the case law of the European Court of Justice is the starting 1 A shortened version of the analysis of arguments and cases on mutual recognition of belonging presented in this chapter is included in Francesca Strumia, Looking for Substance at the Boundaries: European Citizenship and Mutual Recognition of Belonging, 32 Yearbook of European Law (2013).



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point of this search, as in final analysis it is the CJEU that has “put flesh on the bones of European citizenship”.2 This second look produces the sense that there is indeed a potential rationale of belonging behind the notion of European citizenship. European citizenship seems to be about horizontally extending the effect of belonging to a certain national community within the Union in order to ground the rights of belonging in other national communities. In other words, a logic of mutual recognition of belonging seems to be at the basis of European citizenship. By “mutual recognition of belonging”, this work is referring to a rationale of membership, according to which nationals of a member state, through the medium of European citizenship, come to belong, to some degree, to any other member state of the EU, in which they may decide to take up residence. Their national belonging becomes “exportable” through European citizenship in two ways. First, by residing in a member state other than that of their nationality, EU citizens do not lose their rights of membership in their home state. Second, when taking up residence in a member state other than their own, they are entitled there to certain rights of membership comparable to those of nationals. A rationale of this kind is well represented in the case law of the E.C.J. Cases in which European citizenship is put to the test, gradually build and specify different aspects of member states’ obligation to mutually recognize belonging. Member states have to recognize the condition of belonging of nationals of another member state for purposes of granting them rights comparable to those of nationals. Member states are also prevented from treating their nationals taking up residence elsewhere as expatriates for purposes of their enjoyment of membership rights. This chapter explores the possibility of extending this notion of mutual recognition in two ways. The first way is by bringing the obligation of mutual recognition that member states face to bear not only on belonging as expressed by nationality in one of the member states, but also on belonging as expressed by residence, presence, and acquaintance with the traditions and culture of a member state. The second way is by considering how the idea of mutual recognition of belonging may resonate for the citizens themselves. Both citizens and aspiring citizens, by receiving and claiming rights on a horizontal basis in different member states, may come to shape their own experience of membership around the idea that when they go to another member state they belong there to some extent, 2 See Síofra O’Leary, Putting Flesh on the Bones of European Union Citizenship, 24, E.L.Rev. 68, 77 (1999).

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and when nationals of other member states come to theirs, those newcomers already belong in a certain degree.3 From a future oriented perspective, it is possible that a rationale of this kind may help to rethink EU citizenship as a notion emancipated from nationality regimes and to shift the insider/outsider boundaries that EU citizenship contributes in drawing. 4.1. Searching for the Rationale of Belonging Behind EU Citizenship Article 20 TFEU (former article 17 EC) states that “every person holding the nationality of a member state shall be a citizen of the Union […]”. This rule has already been referred to several times in this work to underline the derivative link between national citizenship and Union citizenship. Beyond that link, the rule of article 20 TFEU can also be seen as expressing a “transfer” notion of belonging. This is because belonging to one nation of the Union, for a national of a member state, through the medium of Union citizenship, also equals belonging, to some extent, to the other ones. The Micheletti case provides a telling example in this sense.4 In Micheletti, the Spanish government had refused to an Italian-Argentinean national the right to establish an economic activity in Spain, on the ground that his last place of residence before moving to Spain had been Argentina. Spain had demanded that a person who was a national of both a member state and a non-member country, have his last habitual residence in a member state before being able to establish his activity in Spain.5 The Court found that this requirement for the exercise of a right of establishment was in conflict with relevant Treaty rules, as holding that nationality of a member state remains the only criterion for a person to be a fully entitled European citizen.6 Member states could not add condi­tions  or 3 See Paul Magnette, How Can One be European? Reflections on the Pillars of European Civic Identity, 13/5 ELJ 664 (2007), at 671, who after describing the institution and practice of European citizenship as based on a notion of “isopoliteia” argues that in a Kantian perspective, the enjoyment of rights and opportunities on a horizontal level may have for citizens “a strong transforming influence on self-perceptions and on perceptions of others”. 4 Case C-369/90, Mario Vicente Micheletti and others v Delegación del Gobierno en Cantabria, supra Chapter 1, at note 49. 5 Mr. Micheletti was seeking a permanent residence card to establish himself in Spain as a dentist. Mario Vicente Micheletti and others v Delegación del Gobierno en Cantabria, Case C-369/90, supra Chapter 1, at note 49, at 4–5. 6 Id. at 10–11.



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extra-requirements before recognizing rights of European citizenship to citizens of other member States. In other words, European citizenship compels member states to mutually recognize, to some extent, the condition of belonging of the nationals of each of the other member states. This idea of mutual recognition of belonging surfaces also in other CJEU cases. In particular the citizenship case law of the European Court of Justice supports two propositions on exportability and mutual recognition of belonging. The first proposition is that the rights which a EU citizen enjoys in his member state of origin do not weaken, if the EU citizen chooses to exercise his rights as EU citizen, for instance to take up residence in another member state. The second proposition is that a EU citizen, who belongs by nationality to a certain member state, when exercising EU citizenship rights by moving to a different member state is entitled to certain rights of belonging in that host state. In the following, this work considers some judgments which exemplify these two propositions. 4.1.1. First Proposition A number of cases on exportability of benefits from one member state to the other while exercising free movement rights within the European Union support this proposition. In these cases the EU citizenship approach applied by the Court stands for the idea that residence in a member state other than his own does not reduce a EU citizen’s rights back in his home state. This is the case both when the rights in question are directly and when they are indirectly related to national membership. Further, it does not matter for these purposes whether it is the host state or the home one, which is trying to interfere with those rights. In the 2006 Turpeinen case,7 for instance, the Court held that a member state cannot impose a higher tax rate on the pension of a retired national, residing in a different member state, than it would impose on him if he lived in that same member state. As the Court observed, National legislation which places some of its nationals at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State gives rise to inequality of treatment, contrary to the principles which underpin the status of citizen of the Union, that is, the guarantee of the same treatment in law in the exercise of the citizen’s freedom to move.8 7 Case C-520/04, Pirkko Marjatta Turpeinen, 2006 E.C.R. I-10685. 8 Id. at 22.

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Thus, the actual exercising of rights to free movement as a EU citizen throughout the Union does not reduce the rights one enjoys by reason of his membership as a national in another member state. Two cases focusing on the right of non-resident nationals to compensation for civilian victims of war confirm the idea of exportability of belonging. The 2006 Tas Hagen case had to do with two Dutch nationals, residing in Spain and claiming a benefit for civilian war victims in the Netherlands.9 Dutch authorities refused to grant the benefit on the grounds that the two applicants were not residing in the Netherlands at the time of application. The government justified application of a residence requirement by claiming that this was as a way to ensure that the recipient of benefits had a connection to Dutch society sufficient to justify the solidarity expressed by the grant of the benefit.10 However, the CJEU judges were not convinced. They held that a residence condition of this kind would have had an unjustified chilling effect on the free movement rights as EU citizens of the Dutch nationals entitled to relevant benefits. Thus, such a condition was not a proportionate way to prove attachment.11 Similarly, in the 2008 Nerkowska case, the Court held that denial of a civilian war victim benefit to a Polish woman deported to the U.R.S.S. who continued to reside there until 1957, on the basis of her not residing in Poland but in Germany at the time of application, is not justified, either by the need to monitor compliance of the claimant with the conditions for receipt of the benefit or by the need to prove her attachment to Poland.12 Such a determination is in contrast with the rights of European citizenship under art. 18 EC (now art. 21 TFEU).13 The CJEU holding in these two cases is conducive to the goal of avoiding detrimental effects for EU citizens who choose to exercise free movement rights. A certain membership rationale however surfaces in between the lines. The exercise of rights of EU citizenship does not call into question the attachment of a member state national to her state of nationality, attachment which justifies the solidarity owed to him as a citizen. By residence, the migrant EU citizen comes to belong to a new member state, but as residence there is a right of European citizenship, by means 9 Case C-192/05, K. Tas-Hagen and R.A. Tas v Raadskamer WUBO van de Pensioen- en Uitkeringsraad, 2006 E.C.R. I-10451. 10 Id. at 34. 11 Id. at 36–39. 12 Case C-499/06, Halina Nerkowska v Zakład Ubezpieczeń Społecznych Oddział w Koszalinie, 2008 E.C.R., I-03993. 13 Id. at 33 and at 41–44.



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of mutuality, he also remains a full member of the society of his state of origin. EU citizenship extends belonging beyond national boundaries, but does not for that reason alone reduce the rights that one enjoys due to belonging within national boundaries. In the cases considered so far, it was the authorities of the state of origin, which were trying to interfere with the rights of a migrant European citizen.14 However not even the authorities of the host member state may interfere with the condition of belonging that one exports by exercising rights of European citizenship. The Garcia Avello judgment stands for this.15 The parents of Diego and Esmeralda Garcia Avello, Spanish (Mr. Avello) and Belgian (Mrs. Weber) wanted their children’s last name changed into Garcia Weber, so as to reflect the Spanish tradition according to which children bear both the maternal and the paternal last name.16 Belgian authorities had opposed this request on social order grounds.17 The Belgian Conseil d’Etat, to which the Garcia Avellos had appealed, referred the case to the CJEU. The CJEU held that the determination of Belgian authorities was in conflict with the provisions on European citizenship and non-discrimination on the basis of nationality. According to the European judges: Articles 12 EC and 17 EC must be construed as precluding, in circumstances such as those of the case in the main proceedings, the administrative authority of a Member State from refusing to grant an application for a change of surname made on behalf of minor children resident in that State and having dual nationality of that State and of another Member State, in the case where the purpose of that application is to enable those children to bear the surname to which they are entitled according to the law and tradition of the second Member State.18 14  For more examples of this kind, see Joined Cases C-502/01 and C-31/02, Silke Gaumain-Cerri v Kaufmännische Krankenkasse – Pflegekasse and Maria Barth v Landesversicherungsanstalt Rheinprovinz, 2004 E.C.R. I-06483 (EU citizens providers of care under a German care insurance scheme are entitled to an old age contribution notwithstanding their member state of residence); Case C-76/05 Herbert Schwarz and Marga Gootjes-Schwarz v Finanzamt Bergisch Gladbach, 2007 E.C.R. I-06849 (fees paid by EU citizens to send their children EU citizens to school for specially gifted children in another member state have to be detracted from income tax in the state of nationality); Case C-152/05 Commission of the European Communities v Federal Republic of Germany, 2008 E.C.R. I-00039 (subsidy granted for owner occupied dwelling must be applied, as a matter of EU citizenship, also to dwellings located in a member state other than the one granting the subsidy). 15 Case C-148/02 Carlos Garcia Avello v. État Belge of 2 October 2003, 2003 E.C.R. I-11613. 16 Id. at 15–16. 17 Id. at 40. 18 Id. at 45.

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The Garcia Avello children, despite belonging by nationality and residence to Belgium, are as European citizens entitled to the continuing application of the laws and traditions of the other member state to which they also belong by means of dual nationality (Spain). This is particularly true with respect to laws and traditions, such as the rules on name composition, which are a core expression of belonging to a certain community. The Garcia Avello case is both about non-discrimination on the basis of nationality and about the rights, which EU citizens can claim in a host state.19 For these reasons, it bridges the gap between the first and the second proposition. 4.1.2. Second Proposition Cases where the court scrutinizes situations of discrimination on the basis of nationality in a certain member state lend support the second proposition. Some of these cases have already been examined earlier in this work. In the Martinez Sala case,20 for instance, the Court found that a Spanish national European citizen residing in Germany was entitled to a child rearing allowance at the same conditions as German nationals. In particular, she could not be denied the said allowance only because she did not have a formal title of residence. A German national indeed would not have been required to prove such a title in order to obtain the allowance. A contrary solution would have amounted to discrimination on the basis of nationality of a European citizen.21 In the Trojani case,22 the Court held that a Belgian-resident, French-national, European citizen could not be denied in Belgium, as a matter of equal treatment, a subsistence allowance that a Belgian would have obtained in his condition.23 In the Grzelczyck case,24 the Court recognized the entitlement to a 19 Discrimination on the basis of nationality in this case amounted to the fact that the Garcia Avellos children were being treated as Belgian nationals only (by being denied to register a double surname) despite the fact that they had dual nationality, Belgian and Spanish, and hence found themselves in a situation distinct from Belgian nationals only. Id. at par. 34 and 45. In a mutual recognition of belonging optic, Belgium was refusing to recognize here the fact that they belonged, both by nationality, and by being European citizens, not only in Belgium but also in Spain. 20 Case C-85/96, Martínez Sala v. Freistaat Bayern, supra Chapter 1 at note 262. 21 Id. at par. 63. 22 Case C-456/02 Michel Trojani v. Centre public d’aide sociale de Bruxelles (CPAS), supra Chapter 1, at note 262. 23 Id. at par. 46. 24 Case C-184/99, Rudy Grzelczyk v. Centre Public d’Aide Sociale d’Ottignies-LouvainLa-Neuve, supra Chapter 1, at note 262.



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non-contributory social benefit to a European citizen pursuing university studies in a member state other than that of his nationality, and who had been self-supporting for the first 3 years of his studies. The state argued that he did not qualify as a worker under Community law but the CJEU disagreed because this benefit would have been granted to nationals in his situation.25 The court reminded that European legislation on European citizenship implied the requirement of a “minimum degree of financial solidarity” across the member states.26 The combination of the provision on European citizenship and of the provision on non-discrimination on the basis of nationality, which supports the holding in these cases, can be read to express a membership rationale prone to the idea of the extension and mutual recognition of belonging. A European citizen who belongs by nationality to a member state, belongs to some extent also to the other member states, and thus within certain limits he has to be treated like a member of those states if he takes up residence there. 4.2. Mutual Recognition of Belonging and the Substance of the Rights of European Citizenship The rights of European citizenship apply only within the scope ratione materiae of European law. This means in practice that a national of a member state cannot invoke his rights as a European citizen in a purely internal situation.27 Such rule, albeit criticized as it potentially generates reverse discrimination, has stood firm for several years.28 In a cluster of recent judgments, however, the European Court of Justice has set this principle in doubt.29 In doing so, the Court has ventured onto novel doctrinal terrain, introducing a new concept of the genuine “enjoyment of the substance of the rights of European citizenship”.30 Which exactly this substance is, however, is not clear to the interpreter. Looking at the genuine 25 Id. at 10–11 and at 42–46. 26 Id. at 44. 27 For a discussion of wholly internal situations and of the principle of reverse discrimination, see Catherine Barnard, The Substantive Law of the EU-the Four Freedoms, supra Chapter 1, at note 301, at 257–60. 28 See D. Kochenov and R. Plender, EU Citizenship: From an Incipient Form to an Incipient Substance? The Discovery of the Treaty Text, 37 E.L. Rev 369 (2012) at 383. 29 Case C-34/09, Gerardo Ruiz Zambrano supra Chapter 1, at note 12; Case C-434/09, Sheila McCarthy v. Secretary of State, 2011 E.C.R. I 03375; Case C-256/2011, Murat Dereci v. Bundesministerium für Inneres, 1 CMLR 45 (2012). 30 See Case C-34/09, Gerardo Ruiz Zambrano, supra Chapter 1, at note 12, at 42.

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enjoyment of the substance rationale, through the lenses of the mutual recognition of belonging rationale may yield some insights on where the Court is going with European citizenship.31 The first time the Court has turned to the genuine enjoyment of the substance of the rights of European citizenship is in the 2010 Zambrano case.32 At the centre of this case were the claims of a Colombian national, Mr. Zambrano, for a residence and work permit in Belgium.33 Mr. Zambrano had first entered Belgium in 1999 and had applied, together with his wife who was also a Colombian national, for asylum. His asylum claim had been denied and Mr. Zambrano had subsequently applied several times for regularization of his situation, and in particular for a residence permit, a work permit, and, after losing his job in 2006, for unemployment benefits, based on several Belgian national law provisions.34 Pending the review of his legal situation, Mr. Zambrano had remained in Belgium on the basis of temporary residence permits and residence cards.35 In the meanwhile, the Zambrano had had two children in Belgium, Diego and Jessica, who had acquired Belgian nationality, and thus European citizenship, based on Belgian nationality law.36 After his application for a residence permit and for unemployment benefits was eventually denied by Belgian authorities, Mr. Zambrano brought an action for annulment in front of the Brussels Tribunal du Travail.37 He claimed, among others, to have a directly effective right of residence in Belgium as he was the parent of two minor European citizen children. Neither of the two European citizen children however had ever exercised free movement rights, and thus the main question referred to the European judges by the Tribunal du Travail was whether the rights of European citizenship could be activated here in a purely internal situation.38 European judges deal with this issue by introducing the genuine enjoyment of the substance of EU citizenship doctrine. They hold that denying a right of residence to the parent caretaker of two minor European citizens would 31 See D. Kochenov and R. Plender, EU Citizenship: From an Incipient Form to an Incipient Substance?, supra at note 28, at 371, suggesting that the turn to the genuine enjoyment of the substance of the rights of EU citizenship signals emancipation of the concept of European citizenship from market logics. 32 Case C-34/09, Gerardo Ruiz Zambrano, supra Chapter 1, at note 12. 33 Id. at 14–31. 34 Id. 35 Id. at 32. 36 Id. at 19 and 22. 37 Id. at 29–31. 38 Id. at 34–35.



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have the effect of thwarting the genuine enjoyment, on their part, of the substance of the rights of European citizenship. Such a denial would indeed force the two children to leave Belgium, and probably even the European Union. As a result, the children would be deprived of the substance of their EU citizenship right even before having benefited from it.39 The substance of the rights that the Court refers to could be interpreted as that cluster of rights based on mutual recognition, which the Zambrano children would be able to enjoy by exercising free movement rights in the European Union. If deprived of the very possibility to reside in Belgium with their father, they would be de facto denied access to this cluster of rights and to the hard core of European citizenship, which is based on mutual recognition of belonging. In the 2011 McCarthy judgment,40 the court spoke again of substance. Mrs. McCarthy was an adult dual UK and Irish national who had always resided in the United Kingdom and had thus never exercised free movement rights. Mrs McCarthy, who was furthermore not economically selfsufficient, claimed a right of residence in the UK under European law for herself and her Jamaican husband, who had no leave to remain in the UK under UK law.41 The UK Supreme Court had referred the case to the European Court of Justice, asking once again whether the provisions of directive 2004/38 and the TFEU provisions on European citizenship could be read to include a situation like the one at hand, which had the appearance of a purely internal situation.42 This time the European judges were reluctant to find a violation of European citizenship. The court held that Mrs. McCarthy’s situation did not fall within the scope of European law provisions on directly effective rights of residence. Mrs. McCarthy was certainly a European citizen and entitled to exercise relevant rights. She had however not exercised any rights connected to her European citizenship, and there was no indication that she had been in any way deprived of the substance of her rights in the case at hand.43 The court distinguished Zambrano by observing that Mrs. McCarthy was not facing the risk of having to leave the European Union.44 She was free to activate her 39 Id. at 44–45. 40 Case C-434/09, Sheila McCarthy v. Secretary of State, supra at note 29. 41 Id. at 14–17. But see D. Kochenov and R. Plender, EU Citizenship: From an Incipient Form to an Incipient Substance?, supra at note 28, at 390, suggesting that it had been omitted from relevant reports in the case that Mrs. McCarthy had three children, of which one severely disabled. 42 Case C-434/09, Sheila McCarthy, supra at note 29, at 21. 43 Id. at 49 and 56. 44 Id. at 50.

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European citizenship, by moving out of her state of nationality and enjoying all the rights based on mutual recognition of belonging, which are linked to such citizenship. In subsequent cases the European Court has confirmed that interference with the substance of European citizenship encompasses exceptional situations, in which the application of a provision of national law would have the effect of forcing a European citizen to leave the European Union.45 The reconciliation of mutual recognition of belonging and genuine enjoyment of the substance of citizenship turns thus around a notion of exit. The substance of European citizenship is interfered with when the citizen is threatened with forced exit from the Union, and thus with the prospect of losing the opportunity to experience mutual recognition of belonging. The main concern of these recent cases on Union citizenship is, of course, the problem of purely internal situations and reverse discrimination.46 Seen from a different perspective, the problem is however also to what extent purely internal situations may be left out from the rationale of mutual recognition of belonging. The Court’s answer seems to be that the relevant balance breaks, calling for judicial intervention, once the citizen in a purely internal situation risks being deprived of even the potential opportunity to experience European citizenship with its inherent mutual recognition content. This was the difference indeed between the situation of the Zambrano children, and that of Mrs. McCarthy.47 Taking into account the mutual recognition of belonging rationale, and the potential muting effect that national law may have on it, may help European judges to better articulate at least one prong of the genuine enjoyment of the substance doctrine. 4.3. The Logic of Mutual Recognition of Belonging This second look at some well-known CJEU cases reveals that European citizenship, despite its dependence on nationality, does bring about a novel and in part independent logic of membership. It has been observed 45 See Case C-256/2011, Murat Dereci v. Bundesministerium für Inneres, supra at note 29. 46 See D. Kochenov and R. Plender, EU Citizenship: From an Incipient Form to an Incipient Substance?, supra at note 28, at 394–95, suggesting that the genuine substance doctrine recently inaugurated by the European Court represents a shift away from a paradigm of European citizenship based on market rights. 47 But consider that some aspects of the McCarthy’s family situation had been misreported. See D. Kochenov and R. Plender, EU Citizenship: From an Incipient Form to an Incipient Substance?, supra at note 28, at 390.



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that for a long time European judges dealt with European citizenship by relying on well-tested, pre-existing, market logics.48 However while twisting and turning the concept of citizenship around such market logics, they ended up tracing the contours of an independent membership rationale. This is the mutual recognition of belonging rationale which may be read in-between the lines of European citizenship case law. According to this membership logic, Union citizenship makes the condition of national belonging on which it depends partly exportable to other member states and subject over there to a measure of mutual recognition. This judicially interpreted role of European citizenship in stretching elements of national belonging beyond national boundaries has of course much to do with its intimate connection to free movement rights. The essence of European citizenship is about making those rights effective.49 While bent to make sure that EU citizens enjoy authentic free movement options, the rationale of exportable and mutually recognizable belonging potentially acquires a life of its own. It may eventually cast the status of EU citizenship in a new light and it may also be extended beyond the scope of free movement rights for member state nationals. Both the horizontal promise and power of European citizenship have been already shown by different proponents. Paul Magnette, for instance, describes the polity of which the European citizens are part as an “isopoliteia”,50 where being citizens means “having a bond of mutual recogni­tion with nationals of other member states”.51 Thus the host state is pre­vented from treating European citizens as strangers or outsiders.52 This reciprocal acknowledgement in turn lays the seeds of civic community among 48 See id. at 384. 49 Paul Magnette, How Can One be European? Reflections on the Pillars of European Civic Identity, supra at note 2, at 670: “in the experience of the Europeans, freedom of movement is the first expression of the citizenship of the Union”. 50 Id. at 670, suggesting that equality of treatment on the basis of nationality is combined with free movement, and this stands at the basis of the isopoliteia, which was already typical of the Greek polis and which is also at the basis of modern federal citizenship. 51 Id. at 668. Here Magnette focuses on the citizens’ side of the idea of mutual recognition; as he says “the legal concept of mutual recognition entails a moral transforma­ tion  required of individuals engaged in the European project”. Mutual recognition is a horizontal process in his view which leads an individual to strengthen his self-esteem by feeling that he is recognized by the other; this process of horizontal recognition and self-reassurance becomes a necessary condition for vertical identification with a group. 52 This constraint on the member states, enforced by the European Court of Justice, is in his view the result of a horizontal conception of European citizenship, rather than a vertical one. “European citizenship reveals the essential core of the European project, which is to erode the borders of citizenship”. Id. at 669–670.

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European citizens.53 Ulrich Preuss also underlines how European citizenship, more than bringing about a new status, multiplies the opportunities for economic, cultural and civic engagement of the citizens, by extending them beyond national boundaries. European citizenship in other words, is more “an amplified bundle of options within a physically broadened and functionally more differentiated space than a definitive legal status.”54 This horizontal element of belonging based on mutual recognition of nationally bounded experiences of membership has much potential with respect to the internal diversity of the Union. As Magnette suggested, it is conducive to creating civic community even beyond national difference.55 This logic of horizontal mutual recognition does not need to be limited to the relationship among nationals of the member states. It may represent the quid pluris of European citizenship, which might be truly decoupled from nationality and work as a free standing notion of European belonging.56 A notion, according to which what one, whether national or not, earns or matures as a member or aspiring member in a given member state, also has some value in the other ones. Such notion harbors European citizenship’s potential for bounding and for mitigating the divisive effect of diversities. In times of crisis for the process of integration, it is precisely in this mission of softening boundaries that European citizenship may ground its own claim for legitimacy. While formal European citizenship remains linked to nationality, the element of mutual belonging is the independent component of European membership, which also attaches to simple residence or presence in the territory of the Union. As evidenced earlier in this work, this component might also be extended to regimes such as immigrants’ rights and access to nationality, which are not properly within the scope of the regime of

53 See id. at 671, where European citizenship is interpreted as the enactment of the Kantian idea of federation; there is a right to visit, and a corresponding prohibition for each host state to treat the visitor as an enemy. In turn this “civilizes transnational relations” and contributes to create a civic community through the bonds of mutual recognition. Also see id. at 674, “by forcing the host counties to acknowledge nationals from emigrant countries as equals, the citizenship of the Union illustrates the primary dimension of mutual recognition: to be acknowledged by the other strengthens self-esteem”. 54 Ulrich K Preuss, Problems of a Concept of European Citizenship, 1/3 ELJ 267 (2007), at 280. 55 Paul Magnette, How Can One be European? Reflections on the Pillars of European Civic Identity, supra at note 2 at 671. 56 On European citizenship as decoupling of citizenship and nationality, see Joseph Weiler, To be a European Citizen: Eros and Civilization, supra Introduction, at note 1.



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European citizenship, but which because of their outcomes are linked to its operation. This way, if not citizenship itself, at least the logics sustaining it would begin to play a role with respect to external diversity. One step would be accomplished in the direction of EU citizenship vesting the function, which was advocated earlier, of handling a double level of diversity. The following paragraph considers to what extent and on what premises the logic of horizontal mutual recognition of belonging, which seems to animate European citizenship might be extended to the case of immigrants. 4.4. Immigrants and Mutual Recognition of Belonging As shown in the previous chapters immigrants in the EU effectively find themselves in a condition of immobility because of the high cost in terms of inclusion, which a decision to resettle throughout the European Union entails on their part. It has been suggested that current modes of access to national citizenship through naturalization have the effect of highlighting internal diversity in order to absorb external diversity. It has also been suggested that the interaction between regimes of nationality and free movement in the EU poses a problem of fairness with respect to immigrants and also the treatment of their potentially similar histories of immigration. While the European Court of Justice consolidates a rationale of mutual recognition of belonging in adjudicating rights of European citizenship, the member states are busy revising their nationality laws and immigration laws in order to strengthen requirements of national integration for entrants and aspiring citizens.57 As a result, despite the intimate connection between national and supranational citizenship in Europe, there is a widening disconnect between the belonging rationale which underpins each citizenship. Such disconnect reflects poorly on the bounding role of European citizenship, and consequently, on its potential in respect of diversity. 57 See e.g. Italian law n. 94 of 15 July 2009, adding art. 4-bis, on the integration agreement, in the Italian Immigration Act (Legislative Decree 286 of 1998, 191 O.J. of 18 August 1998). Also see Andrea Barŝová, Country Report: Czech Republic, EUDO Citizenship Observatory, April 2010. On the disconnect between rationales underpinning national and supranational citizenship in the E.U., see Francesca Strumia, Le Dissonanze della Cittadinanza: Inclusione ed Esclusione nell'Unione Europea tra Cittadinanza Nazionale e Cittadinanza dell'Unione, Diritto Pubblico Comparato ed Europeo, forthcoming 2013.

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Taking notice of this calls for considering whether and how the rationale of mutual recognition of belonging underpinning European citizenship may be extended to inform the experience of immigrants into the European Union. An extension in this way would probably offer some responses to the above-evidenced problems but also poses several different questions. How would a mutual recognition rationale operate with respect to immigrants? On what basis could this extension be operated? Which additional problems and issues would the fact of opening up the notion of European citizenship in this way entail? Each of these questions is addressed in the following. 4.4.1. The Operation of Rules of Mutual Recognition in Respect of Immigrants Rules of mutual recognition could operate, with respect to immigrants, in the direction of reducing the inclusion costs of their potential decisions to relocate to different European states during the course of their period of rise to membership. After a qualifying threshold is set under European law, and perhaps represented by a minimum period of legal residence within the European Union, then a minimum level of membership might be recognized for an immigrant, triggering a number of mutual recognition effects for the purposes of his qualification for nationality under specific nationality laws. First of all, immigrants who have met the minimum membership threshold could be allowed to count periods of residence in different parts of the European Union for purposes of complying with the residence requirements in individual naturalization laws. Other voices have already underlined how important it would be for the fairness of the immigrants’ experience in Europe to count periods of residence in different member states.58 As examined earlier in this work, the problem of residence periods becoming volatile, for the purposes of nationality laws, when one relocates to a different member state, does not only concern first generation immigrants, but even more importantly their children. Second generation immigrants are the ones most likely to plan their life permanently within 58 See Rainer Bauböck and Bernhard Perchinig, Evaluation and Recommendations, supra Chapter 1 at note 306 at 446, first to propose to count years of residence in different member states for purposes of naturalization in a member state.



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the European Union, and full inclusion through citizenship is particularly important to them. Also, for them, relocation throughout the Community at an early stage of their lives is not an independent choice, but one dependent on the employment and life plans of their parents. This makes it particularly unfair that they should pay the costs of these choices in terms of their inclusion. The mutual recognition of belonging rationale could offer helpful responses in this respect also. It might justify a rule according to which, birth in the territory of one member state is equal to birth in the territory of the member state of naturalization for purposes of compliance with certain provisions of European nationality laws. Many European nationality laws provide for eased requirements for naturalization for children born in their territory. Most nationality laws provide for the possibility of minor children co-naturalizing with their immigrant parents.59 In this case there would be no need for a rule of mutual recognition of places of birth. Additionally, other rules provide that children may have access to nationality if they were born in the territory of the state, even if their parents do not become nationals, provided they satisfy some additional requirement, which might include having resided in the state for a certain number of non-continuous years (e.g. France), or having completed compulsory schooling in state (e.g. Luxembourg). In these cases, a mutual recognition rule might be applied to the first part of the naturalization requirement: being born on the territory of the state. From a mutual recognition perspective, the rule could come to include children who were born in other member states and later moved to the one in question with their parents. Still other nationality rules provide that children born in the territory of the state have access to nationality if their parents had been residing there legally for a certain number of years.60 With respect to these types of rules, the logic of mutual recognition might affect the second part of the requirement: the residence of the parents. Access to nationality may be extended to locally born children, whose parents have resided legally for the prescribed number of years in the Union, and not necessarily only in the specific member state where their child is born. Also with respect to language requirements, there might be room to think of mutual recognition rules. It is true that language knowledge 59 This is the case for instance in Poland, Slovakia and Lithuania; see Table 1-3 Naturalization Requirements in the EU. 60 A rule of this kind is found for instance in Belgium, Ireland and Germany, supra Table 1-3 Naturalization Requirements in the EU.

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requirements play a stronger functional role. They are seen as a way to ensure that the prospective citizen will be in a position to function properly in his new country of belonging. However, the fact of having learnt the language of one member state could be considered an element justifying leniency in the naturalization process when assessing the language skills of the immigrant. It is true that knowing French might not be of much help to somebody who wants to live in Germany, or knowing Czech might not be of great support to somebody who wants to live in Sweden. However, the fact of having successfully learnt one Community language in the course of a period of residence in a certain member state, can be seen as a first a signal of membership within the European Union and of a willingness to integrate, and second, as a meritorious achievement deserving of some credit in other member states.61 Lastly it can be taken as a proxy for the ability of a person to learn additional languages during the course of periods of residence in subsequent member states. In terms of integration requirements, such as the requirement of knowledge of the history or Constitutional tradition of a certain state, or broader requirements of assimilation and integration in the society of a member state, there is significant room for the logic of mutual recognition to operate. Directive 2003/109 on long-term resident third country nationals,62 already provides for a measure of mutual recognition, when a TCN holder of a EU long-term residence permit exercises his right to move to a second member state. The second member state, under the directive, may apply to the TCN certain integration requirements. No integration requirements may be applied however, if the relevant TCN has already been subject to 61 In this sense, it might be necessary to consider how leniency in assessing language skills relates to merit in learning a new language; some people indeed might know a Community language not because they have put genuine effort in learning it, but because their parents spoke it or because it was one of the official languages and perhaps the language of school instruction in the country where they grew up. Application of a mutual recognition rule in respect of language requirements might be for instance tied to a case to case assessment of the genuine effort of the applicant for naturalization in learning a Community language as a second language Attention should also be paid to not defeating the functional aspect of language requirements for purposes of citizenship; being lenient in applying that requirement to somebody who has shown genuine effort in learning another language does not mean that he is exempted from learning the language of the state of naturalization. It might mean however that even if he does not have yet the skills to pass the language test, he still can get citizenship if he shows that he has learnt some and he is willing to learn more. In this respect the fact of having put genuine effort in learning another community language helps his case in terms of merit in seeking integration in the EU and in terms of suggesting that he has the skills and ability to learn a further language. 62 Directive 2003/109, supra Chapter 1, at note 158.



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integration requirements in the first member state for purposes of obtaining his EU long-term residence permit.63 In a mutual recognition of belonging perspective, integration of an immigrant in a certain member state should be taken as a proxy for his integration also in a second one.64 If an immigrant is fit for life in a member state, he is likely to be fit for life also in the other ones. The constitutional values and traditions to which he will have proved attachment have a common hard core, which is shared among several member states.65 These are all considerations, which should play a role, under a mutual recognition of belonging approach, in the naturalization decisions of administrative or judicial authorities in the various member states. If considerations of this kind carried weight in the course of the naturalization process in a certain member state, and if periods of residence in different member states could be tacked, many of the issues connected to the immobility of immigrants in the European Union would find a solution. A choice in this sense could also provide a desirable balance between the two sets of interests, which were described earlier as challenging EU citizenship from opposing sides: it would be respectful of cultural distinctiveness of the member states, yet it would accommodate TCNs interests in inclusion. It is true that even just introducing mutual recognition requirements with respect to residence, language proficiency and other integration conditions may end up altering the nature and the impact of different nationality laws, forcing member states to shortchange requirements through which they strived to protect a measure of national identity. Yet, mutual recognition is already a more gentle approach than harmonization. It would allow for a case-to-case evaluation of the level of recognition to be applied, and would leave room to the member states to protect the rationale underpinning the requirements of their nationality laws.66 63 Id., at art. 15. 64 Thoughts go for instance to the French integration contract, see supra Chapter 2, at note 181. 65 The new article 2 TEU, after the adoption of the Lisbon Treaty, states that “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.” 66 With respect to the burden-shifting and other unintended effects of choosing a local rule or a federal one to govern the case, in the interest of uniformity and certainty of regulation see Paul J. Mishkin, The Variousness of Federal Law, Competence and Discretion in the

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Furthermore, the mutual recognition rule would not apply to each and every applicant for nationality but only to those who have earned a minimum level of belonging in the EU by means of legal residence. This would reduce the risk that rules of this kind are taken advantage of in order to avoid harsh requirements for inclusion and to find eased ways to achieve membership. Second, the notion of mutual recognition implies in the field of belonging, as in other fields where rules of mutual recognition are applied in the Community, such as diplomas or certifications,67 a measure of discretion on the part of the authority that applies the rule when evaluating which experiences of belonging are really equivalent for the purposes of national law. The assessment of equivalence provides an important opportunity for national authorities to make sure that the rationale of national rules, and the interests they protect, are not bypassed. Some requirements for legal membership, such as residence, can be subject to straightforward evaluations of equivalence. Others, such as language, commitment to national values, knowledge of history and traditions are more conducive to a case-to-case examination, where different individual experiences may be more carefully appreciated. 4.4.2. Procedural and Substantive Issues Concerning the Extension of Mutual Recognition Several procedural and substantive questions challenge the potential extension of ideas of mutual recognition to the process of rising to citizenship for immigrants. The tools and the legal basis to operate such an extension need to be carefully considered. Also, some thoughts need to go to the levels of authority which would be involved. In particular, an important issue which exporting the rule of mutual recognition of belonging from the field of citizenship to that of immigration raises, has to do with

Choice of National and State Rules for Decision, 105 U.Pa.L.Rev. 797 at 830–32 (with reference to the case of Clearfield Trust Co. v. United States 318 US 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943) (case about a forged check drawn on Treasurer of the US, and endorsed in good faith by a Pennsylvania company, which is later requested to reimburse the US for the amount of the check), suggesting that in this case the fact of choosing a federal rather than a state rule only has the effect of shifting the burden of regulatory complexity from one party to the other, and the burden of bearing the financial loss connected to the forged check from the government to the endorser. 67 See e.g. Case 71/76, Thieffry v. Conseil de l’Ordre des Avocats à la Cour de Paris, 1977 E.C.R. 765. Also see Francesca Strumia, Citizenship and Free Move­ment:  European and American Features of a Judicial Formula for Increased Comity, supra Chapter 1, at note 236 at 743–44.



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the fact that European citizenship is tied to the rule of article 20 TFEU and the Community has no competence in the field of nationality law.68 However, while the formal status of European citizenship remains tied to nationality according to the rule of article 20 TFEU, the belonging rationale underlying that status is not inextricably linked to the formal provision on EU citizenship and could be stretched to inform decision making and legislation. This could occur at the Community level, in the field of immigration, even without modifying the rule of article 20 TFEU. Access to citizenship for immigrants keeps being decided by each single member state according to their own nationality laws. However in 1999, in the Conclusions of the Tampere European Council, the status of citizenship had been taken as a blueprint for the Community approach to the treatment of third country nationals. According to these con­ clusions, their status should have indeed been approximated to that of citizens.69 This mission of approximation may justify borrowing rationales that apply in the field of citizenship and importing them into the field of immigrants’ rights. Mutual recognition of belonging represents one such rationale, which if applied to immigrants, could substantially contribute to approximating their status to that of citizens as proposed in Tampere. As has already been suggested in Chapter 1, this extension would contribute in attenuating the disquieting distinction between mobile citizens and immobile aliens. Further, while it is true that the Community has no power in the field of nationality law, it has been granted a growing power in the field of immigration and treatment of third country nationals. The Treaty of Lisbon has changed in relevant ways the language related to third country nationals. Article 79 of the TFEU has expanded the Union competence in this field, entrusting the Union with the task to develop “a common immigration policy, aimed at ensuring at all stages the efficient management of migration flows, fair treatment of third country nationals residing legally in member states […]” among other goals.70 This provision specifies that in the framework of this policy the European Parliament and the Council should adopt, according to the ordinary legislative procedure, measures for the “definition of rights of third-country nationals residing legally in a Member 68 See e.g. Declaration on Nationality of a Member State supra Chapter 1, at note 45. 69 See Conclusions of the 1999 European Council in Tampere supra Introduction at note 5. 70 See TFEU, article 79 par.1.

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State, including the conditions governing freedom of movement and of residence in other Member States.”71 There is certainly some room thus, to bring ideas of mutual recognition to bear on EU immigration policy. The legal and political solutions to achieve these could be various. Arguably, it would not be beyond the EU competence to adopt legislative instruments, such as directives, touching upon issues of mutual recognition of periods of residence among different member states for purpose of making the movement rights of third country nationals effective. Legislation of this kind has already been adopted. The rights of third country nationals to relocate to other member states are already considered in the 2003 directive on long-term residence.72 In addition, the directive on highly skilled immigrants provides for this category of immigrants to be able to count periods of residence in different member states for the purposes of obtaining the status of long-term residents.73 As an alternative to direct European legislation, mutual recognition of experiences of membership in different member states may eventually kick in by means of negative integration through the adjudication of the rights of free movement of third country nationals in front of the European Court of Justice. Once a right of free movement is clearly granted to third country nationals in European legislation, claims are likely to arise that the lack of recognition of periods of residence and other requirements for naturalization in different member states conflicts with the effectiveness of those rights. Rationales prevalent in the case law on free movement for European citizens might also easily apply with respect to third country nationals.74 Negative integration has its limits, and poses the danger of producing effects that are beyond those desired. While the mutual recognition of belonging idea provides an important alternative to the harmonization of 71 See id. art. 79 par. 2b. Article 79(4) adds that according to the ordinary legislative procedures measures may also be adopted to “provide incentives and support for the action of Member States with a view to promoting the integration of third country nationals residing legally in their territories, excluding any harmonization of the laws and regulations of the member states”. 72 Directive 2003/109 supra Chapter 1, at note 158, at art. 14. 73 See Council Directive 2009/50, 2009 O.J. (L 155) 17, supra Chapter 1, at note 154, at art. 18. 74 See e.g. case C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department, supra Chapter 1 at note 7, where on the ground of making effective the right to move freely and reside of a Union citizen, an independent right to residence was granted to a third country national.



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nationality laws and allows member states to preserve a measure of autonomy in selecting their prospective citizens, negative integration through judicial adjudication may end up exceeding the goal, and promoting a full-fledged harmonization of the various European nationality laws.75 Thus, it might be preferable to address the issue more directly, either through legislative tools, provided this remains within the scope of Community competence, or through policy documents and soft law. Judges are not necessarily well equipped to appreciate, when faced with a concrete case of disparities in nationality legislation obstructing free movement, the entire range of consequences for eliminating these disparities. National interest in maintaining special ties to the population of certain countries or in putting an emphasis on certain particular requirements for belonging in the national community in order to preserve a certain model of national citizenship can be more carefully appreciated and discussed in the context of the Community legislative process. In the course of this process, the different Community institutions and the member states in the Council have a chance to consider the effects of proposed legislation on their own national systems, in order to raise issues and concerns and to negotiate compromises when needed. Passing such legislation would probably also guarantee a more harmonious approach to the recognition of different experiences of immigrant belonging throughout the Community. The episodic character of adjudication though a balancing of different competing interests, poses the further threat of opening up easier gateways to belonging in some parts and not others within the Community. Mutual recognition of immigrants’ experiences of belonging might also be the subject of recommendations or other Community documents and positions aimed simply at encouraging, while not demanding, a certain attitude on the part of the member states.76 An approach of this kind may yield the positive result of calling the attention of the relevant authorities within the member states to the issue and of stimulating a measure of voluntary adherence to principles of mutual recognition. 75 Indeed while nationality laws remain an exclusive competence of the member states, the need to reduce the distance among the provisions of different European nationality  laws has already been expressed from several sides. See Alain Lamassoure, Député européen, Le Citoyen et l’Application du Droit Communautaire, supra Chapter 2, at note 226, at 110. Also see Rainer Bauböck and Bernhard Perchinig, Evaluation and Recommendations, supra Chapter 1 at note 306 at 442–446. 76 For a perspective on the harmonization of nationality laws through soft law see Karolina Rostek, Gareth Davies, The Impact of Union Citizenship on National Citizenship Policies, supra Introduction, at note 12 at 30–32.

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In addition to and possibly in conjunction with a hard or soft law approach, some aspects of a regime of mutual recognition of experiences of membership might also become the object of informal cooperation among the member states perhaps within the framework of the open method of coordination.77 The adoption of a best practices policy for administrative agencies and other entities reviewing naturalization applications may be a viable way to foster leniency in the application of integration and language requirements to immigrants that meet these requirements in other member states.78 Several member states are likely to be hostile to choices of this kind. Reforms of nationality legislation, as well as the public discourse on immigration, suggest a defensive attitude in several member states, as well as an intent to reaffirm an exclusive competence to draw boundaries and to decide on inclusion and exclusion. However, naturalization rules enacted in several member states, which provide for eased requirements for the naturalization of European citizens,79 already betray a measure of mutual recognition. European citizens, who are favored for naturalization, may be just former TCNs, naturalized in other member states on the basis of experiences of belonging earned in those member states. Acknowledging, in a mutual recognition fashion, the experiences in other member states of TCNs, who have not yet naturalized there, is just a short step further. Member states should come to realize this. 4.5. Mutual Recognition as the Theory of Belonging Behind EU Citizenship The field of immigration and immigrants’ inclusion rights represents the first practical area of possible application for a rationale of mutual 77 See Rainer Bauböck and Bernhard Perchinig, Evaluation and Recommendations, supra Chapter 1 at note 306, at 442–446. 78 Cooperation in this sense is already actively encouraged by the European Commission; see Communication from the Commission to the Council, the European Parliament, the Social and Economic Committee and the Committee of the Regions on Immigration, Integration and Employment, of 3 June 2003, COM(2003) 336 final, at 30. 79 This is the case, for instance, in Austria, where EU citizens have the right to naturalize after 6 (rather than 30) years of residence; see Bundesgesetz über die österreichische Staatsbürgerschaft (Staatsbürgerschaftgesetz 1985, last modified 2006) available at http:// www.unhcr.org/refworld/country,,,LEGISLATION,AUT,,3dda341c4,0.html (last visited April 2013), and in Italy, where EU citizens have the right to naturalize after 4 (instead of 10) years of residence; Law n. 91 of 1992 of 5 February 1992, Nuove Norme sulla Cittadinanza, in 1992 OJ 38, art. 9(c).



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recognition of belonging, that is connected to European citizenship. Other proponents have already called for a reinforcement of the horizontal character of the requirements for access to nationality in the EU’s various member states.80 The idea of mutual recognition of belonging needs not stop at the experience of inclusion of immigrants in any case. It potentially offers, from an explorative perspective, further ways of rethinking and reforming of the rule and notion of European citizenship, which may be worth additional thought and research. European citizenship, in order to be a status of membership that is responsive to the tensions brought about by internal and external diversity, needs to be backed by a more consistent theory of belonging, which in turn may help in the redrawing of relevant insider/outsider divides in the EU The ideas of mutual recognition and exportability of belonging might provide useful guides in this sense. Birthright citizenship rules typically rely on one of two different theories of belonging, or on a combination of those two: ius sanguinis rules and ius soli rules. Ius sanguinis rules recognize as citizens of a certain entity at birth those people who have relevant family links to citizens of that entity. Ius soli rules recognize as citizens, at birth, people born in the territory of a certain entity, in most cases if some additional requirements are simultaneously met, such as at least one of their parents having been a legal resident for a minimum period of time before birth of the child. In addition to these, citizenship rules based on acquisition at some point after birth, rely on naturalization requirements, which usually take residence as a proxy for belonging. These rules often combine residence with a number of additional requirements aimed at proving, according to one or another idea of belonging, whether a certain person fits into the entity that is granting citizenship. The analysis of the nationality legislation of European member states in previous parts of this work has outlined many of these requirements for citizenship acquisition and the belonging logics hiding behind them. Beyond rules of citizenship by birth and rules of citizenship by acquisition, a status of membership may also be obtained, either at birth or in conjunction with a subsequent acquisition, by derivation.81 Derivation 80 Rainer Bauböck and Bernhard Perchinig, Evaluation and Recommendations, supra Chapter 1 at note 306. 81 See Rainer Bauböck, Why European citizenship, supra Introduction, at note 12, at 482 analyzing access to citizenship in the EU in terms of the link between union and state

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rules link the status of citizenship in a certain entity, to the possession of a further status of citizenship, either narrower or broader with respect to the former one. The current rule of Article 20 TFEU, according to which European citizenship is tied to national citizenship in one of the European member states, represents a rule of derivation, where the source status of citizenship is the narrower one.82 Ius soli rules, ius sanguinis rules, naturalization rules and derivation rules all address practical mechanisms by which a person becomes legal member of a community. These are in turn backed by the expression of different rationales of belonging, mainly turning around conceptions of either residential or ancestral attachment to the community in question. European citizenship, can be taken to express the idea that a national of a European member state, by belonging to that member state, also belongs to some extent, by transfer, to the other member states of the Union. This can be seen as an innovation of the aforementioned rationales of membership, even if it departs from their premises. European citizens/member state nationals still belong based on ius sanguinis, ius soli, acquisition and derivation rules. Based on one of these rules, they belong to one European nation and to Europe as a supranational entity. As an additional step, according to the rationale of mutual recognition of belonging, which finds concrete expression on the operative side of European citizenship, they belong, to some extent, to each one of the other member states of Europe. This last step represents the novelty of European citizenship. Belonging to a member state by mutual recognition may seem akin to belonging by derivation, and indeed it may be taken to be a variation on a rule of derivation. However, the aim of the rule of derivation is slightly different from that of the rule of mutual recognition. According to a derivation rule, somebody who is a national of state X is also citizen of entity Y. While somebody who is a citizen of entity Y is also a citizen of state X, within entity Y, where he resides. According to a mutual recognition of belonging rule, somebody who is a national of state X and by derivation also a citizen of entity Y, because of that combination belongs to some extent to state Z within entity Y. He can export his rights of belonging citizenship and according to a 3-part formula: linkage (meaning how connected the 2 are), derivation (which one is dependent on the other) and access (depending on derivation, the similarity or divergence of conditions for access to citizenship in the various member states). 82 Id. at 481–82.



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from state X to state Z within entity Y and claim in state Z rights of belonging comparable to those given to nationals of state Z. There is one main practical difference between the rule of derivation and the one of mutual recognition. In the case of the rule of derivation, a national of state X and derived citizen of entity Y, enjoys in state Z within entity Y, a number of rights as a citizen of entity Y under the laws of entity Y. But in order to have rights in state Z as a citizen of state Z under the laws of state Z, he has to take up the citizenship of state Z. This may or may not require that he also give up his membership in state X. The latter would be the case under the US rule of derivation. For instance, a US citizen, resident and thus state citizen of California who moves to Massachusetts, in order to become a citizen of Massachusetts and have rights of membership under Massachusetts state law has to give up his California residence and membership. However, in the case of a mutual recognition rule, a national of state X and derived citizen of entity Y, enjoys within state Z, also within entity Y, rights as citizen of Y under the laws of Y, and also some rights as citizen of Z under the laws of Z, even if at the same time, he maintains his belonging in state X and continues enjoying his rights as a citizen under the laws of state X.83 The concrete rules on European citizenship and the way they have played out in practice in the adjudication of rights of EU citizenship suggest that a rationale of this kind informs the notion of European citizenship. While the scope, virtues and vices of an idea of mutual recognition of belonging certainly need to be more carefully assessed through further thought and research, the idea provides potential fruitful terrain to rethink European insider/outsider divides. A way in which this may happen can be found in the issues brought about by immigration. A further area, in which a re-designed idea of European citizenship and of its belonging rationale could have a substantial impact, is the one of political participation of European citizens in national elections. 4.6. A Further Hypothesis of Mutual Recognition: Rights of Political Participation at the National Level In spelling out potential ways in which a rationale of mutual recognition of belonging would re-orient existing rights of European citizenship, one 83 While this situation might appear similar to the one of a dual national, enjoying rights in both the entities of which one is national, the mutual recognition of belonging

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question to be asked is what kind of rule would a rationale of this kind support with respect to political participation of European citizens in member states of which they are not nationals? Recent work on the subject of political rights of European citizens has tackled the problems in this area insightfully and exhaustively.84 The goal here is neither to expand on the results mentioned in that literature nor to significantly contribute to that literature as the work to this date has not engaged specifically with the issue of European citizenship as political participation. The aim is rather to sketch the different possible traits of a model of membership based on mutual recognition. Jo Shaw describes the absence of political rights in national elections for migrant European citizens as a democratic loss tied to the concrete exercise of rights of free movement in the EU.85 Among the potential ways to achieve the inclusion of European citizens into national political life, she considers generalizing expatriate voting in the state of origin of a migrant European citizen, extending voting rights to EU citizens by means of bilateral conventions between member states in an international law framework, or including a provision in the Treaties encouraging member states to extend electoral rights to EU citizens.86 It seems that many of these proposed solutions would fit well within the framework of a Union citizenship based on mutual recognition of belonging. Indeed, as also Shaw highlights, the grant of political rights to EU citizens/non-nationals enhances the character of “sympolity” of European citizenship.87 It contributes in giving flesh to the idea of isopolity on which European citizenship has been founded,88 and is also the basis of a rationale of belonging based on mutual recognition. In particular, the logic of mutual recognition of belonging might support a form of extension of national political participation to migrant European citizens based on the contextual holding on their part of a dormant and an active political status. European citizens, who belong to their state of nationality, but also belong in part, by transfer through European citizenship, to their state of residence, might elect to retain active political rights in their member state of residence and dormant ones in their state approach is distinct, because membership of entity Y is the medium by which all of this happens. 84 Jo Shaw, The Transformation of Citizenship supra Introduction, at note 3. 85 Id. at 195. 86 Id. at 197. 87 Id. at 49. 88 Paul Magnette, How Can One be European? Supra at note 49.



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of nationality, or vice versa. What mutual recognition of belonging would warrant would be their capacity to autonomously decide in which of the two communities, where they can claim a measure of belonging, they will exercise political rights. It would also allow for the capacity to change that choice at different times in one’s life, as the fact of being active political citizen in either the state of nationality or the one of residence, does not weaken belonging in either one according to the logic of European citizenship. A regime of this type would remedy the democratic loss that the exercise of free movement currently brings about. While at the same time, it would not conflict with the principle of one person, one vote. And it would provide a reinforcement of the democratic content of European citizenship, without extending into the more complex and problematic domain of dual nationalities. The idea described above would have something to share with the ideas that have been advanced with respect to the condition of dual nationals and their possible external citizenship. There has also been talk of distinguishing a dormant and an active citizenship. This can provide a way for migrants who acquire nationality in a host state to retain a form of external citizenship in their state of origin.89 European citizenship, re-thought in the way suggested above, would leave in the hands of the migrant European national the choice of whether to make external and dormant, the status of membership he holds by means of nationality, or rather the one he holds by means of residence. In other words it would allow them to freely allocate their rights of internal and external citizenship. The rationale behind this choice would be that they belong, through the medium of EU citizenship, to both states to some extent. Their experience of movement throughout the European Union is not an experience of emigration and transfer of membership, but rather an experience of stretching one’s own membership rights into an allowed, enlarged, space of action. Similarly to the extent that external citizenship produces an effect on migrant people, European citizenship would serve to partially detach the practice of political citizenship from the territorially bounded nation.90 89 Ruth Rubio Marin, Transnational Politics and the Democratic Nation-State: Normative Challenges of Expatriate Voting and Nationality Retention of Emigrants, supra Chapter 3, at note 36 at 140. 90 See id. at 124. A solution of this kind was provided for, in respect of dual ItalianArgentinean nationals, in the 1971 Treaty on dual nationality entered into between Italy and Argentina. This treaty provided for retention of both nationalities, with one of the two, with all the ensuing rights and duties, becoming dormant depending on the place of

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National citizenship would lose its monopoly as gateway to national political participation and in this sense it might appear that an evolution would thin national citizenship and threaten its meaning. However, national citizenship would remain the main repository of cultural identity for the European citizen. He would be allowed to opt out of that condition, depending upon his residency status, for certain purposes such as voting. However, he could always make the choice to come back to his national citizenship, to exercise political voice in the national community of belonging and to align his identity-belonging with his political belonging. This opportunity of interchange would be warranted by the idea that membership in the EU, as European citizens, makes these conditions of national belonging interchangeable to some extent. One of the objections evoked by the idea of external political citizenship emphasizes the fact that emigrants lack a sufficient stake in the political community where they would exercise political rights.91 A similar objection applies, in a different direction, with respect to nationals of a member state, acquiring through the exercise of rights of free movement as EU citizens, an external political citizenship in the host member state, where in terms of nationality they remain outsiders. In the case of the European Union, the progress of integration and the growing institutionalization of united Europe tend to weaken the force of this objection. The national political spaces of the member states are becoming increasingly inter-communicant. This is happening through the reinforcement of the guiding role in European foreign policy of the government of the country holding the rotating presidency of the Council of the Union, through the transfer of more issue areas from the intergovernmental field to the ordinary legislative process,92 and through the reforms that the ratification of the Treaty of Lisbon has brought about.93 residence of the dual citizen. See Giovanna Zincone, Marzia Basili, Country Report: Italy, EUDO Citizenship Observatory, September 2009, at 10. 91 Ruth Rubio Marin, Transnational Politics and the Democratic Nation State: Normative Challenges of Expatriate Voting and Nationality Retention of Emigrants, supra Chapter 3, at note 36, at 128. 92 With the Treaty on the Functioning of the European Union, the fields of Judicial Cooperation in Civil and Criminal Affairs, formerly at the core of the third pillar of the EU, have become subject to the ordinary legislative procedure. See TFEU, articles 81–89. 93 Under the new provisions, for instance, national Parliaments are to review European draft legislative proposals for compliance with subsidiarity provisions; they are also involved in forms of interparliamentary cooperation. See Protocol n. 1 to the Consolidated Version of the EU Treaty and of the Treaty on the Functioning of the European Union, on the Role of National Parliaments in the European Union, 2010 O.J. C83, at 201. Interactions of this kind indeed make national political and legislative spaces, and the European one, more closely knit and inter-communicant.



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Citizens, having a stake in one political space, also have stakes in others. In addition, the exercise of their rights in the common market, through the trading of goods, services and capitals among the various member states, provides citizens material, other than political stakes in other member states. This would warrant a heightening of their political voice, as partial insiders, in other member states. Many obstacles remain when attempting to rethink European citizenship as political citizenship and miles left to traverse before the necessary political consensus is built. Reinforcing the political side of European citizenship could impose a high price on the distinct political identities of each European nation. Also, the political scope of European citizenship depends in part on the evolution of the project of European integration and on the way it meets the challenges that presently confront it. In the climate of distrust that surrounds the process of European integration in the first decades of the 21st century, the hypothesis of a European citizenship with stronger political content seems more remote than ever. At the same time, however, a European citizenship that meant more in terms of political voice could open up a path out of the crisis. The extension of mutual recognition mechanisms to political rights may be conducive to strengthening such voice effect, and may in turn help populate the vacant European sphere. Tracking the blueprint of the national state democracy is neither feasible nor desirable for the European Union. The European public sphere will probably never resemble the political arenas of the member states. However, opening up the separate political spaces of the member states to a measure of voice for non-national European citizens, may be a way to foster participation, interest, confrontation. It may be a way to bring back Europe to those citizens of the Union, who have been estranged by the integration process. Several obstacles face an evolution of this kind, at a time when the trend seems to be one of retrenchment into national political, legal, and cultural spaces, rather than opening to a trans-national EU sphere. The process of European integration is however one where crisis has often been overcome through the propeller of mission legitimacy.94 This may happen yet again. In this perspective, it is important to be conscious of how European citizenship, and the rationale of belonging underpinning it, may come to support the integration mission. 94 For a discussion of the mission legitimacy of the European Union, see G. De Burca, Europe’s Raison d’Etre, in The European Union’s Shaping of the International Legal Order (D. Kochenov and F. Amtenbrink eds. 2013).

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chapter four 4.7. Mutual Recognition of Belonging and Insider/Outsider Divides

The search for a more consistent rationale of belonging to Europe, potentially tied to ideas of European citizenship, was originally triggered by the finding, in the previous parts of this work, that current rules and notions of European citizenship do not bring about a set of insider/outsider divides convincingly tied to some measure of European belonging. Rather, European citizenship tends to borrow the insider/outsider divides drawn by other regimes, such as nationality and immigrants’ rights, extending them at the European level with a softening or harshening effect and with somewhat arbitrary outcomes. This fact weakens its role, from both a regulatory and a constructive perspective, with respect to the handling of diversity in Europe. In particular, this state of things tends to perpetrate a limbo in which European citizenship’s failure to bound negatively affects, in turn, its potential for bonding. Chapter 3 focused on insider/outsider divides from three distinct points of views: immigrants, member states, and native European citizens. The last question that must be addressed in this chapter is how a more decisive application of the logic of mutual recognition of belonging, in the penumbra of European citizenship,95 might benefit or otherwise affect insider/outsider divides from each one of these three points of view. In looking at this issue, two aspects of the idea of mutual recognition of belonging described here will be taken into account. First, the effect of potential new concrete rules inspired by mutual recognition of belonging rationales as described above. Second, the possible influence of mutual recognition of national belonging considered as broader, abstract logic underlying statuses of membership in the EU. 4.7.1. Immigrants The extension of rationales of mutual recognition of belonging to the phase of ascention to citizenship of immigrants would grant them more and fairer options for full inclusion in the community of the EU and of its member states. It would rationalize insider/outsider divides in their respect, and make them less arbitrary. 95 I.e. either as a matter of rights of European citizenship, or as a matter of rationales of belonging which may be exported from the formal rule of European citizenship and extended so that they come to bear on broader notions of European membership, such as for instance the residence status of immigrants.



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The condition of de facto residential immobility, in which the trade-off between their free movement rights and inclusion rights confines them would be alleviated. Indeed, if they were made able to tack periods of residence, under mutual recognition rules, in different member states, and if proofs of integration and of acquaintance with the culture and language of one member state counted somehow in the course of naturalization processes in another one, many of the disincentives they currently face when trying to exercise the limited free movement rights they are granted would fade. Second generation immigrants would face easier options when passing through an insider/outsider divide, which for them is particularly important, if the fact of being born in the territory of the European Union could be stretched to satisfy conditions under many EU nationality laws that they be born in the national territory. Through increased mobility options, which mutual recognition of requirements for naturalization would create, immigrants would have more chances to further appreciate the European dimension of their condition and of their experience. Also the insider/outsider divide that they would at some point pass through to become citizens, whether under any European nationality law, would tend to become a bit less national and more European, as the nationally imposed conditions to pass it would become somewhat interchangeable. This in turn would reduce the tension between external and internal diversity, which as described in the previous chapter, the course to inclusion of a third country national is fraught with. Overall, mutual recognition of experiences of belonging through residence, work, and societal integration in different member states would make the condition of immigrants throughout the European Union fairer and more uniform.96 The inclusion options they would gain would be more linearly tied to the length of their presence in the European Union at 96 There is a risk that the fact of having to recognize periods of residence of immigrants in different parts of the EU might induce member states, which are still autonomous in deciding pathways to their nationality, to compensate by lengthening the period of residence required for citizenship; on the one hand however, the trend in recent nationality reforms in Europe has been towards easing albeit mildly, rather than harshening the residence requirements for citizenship; indications coming from the European Commission and from the Council of Europe go in this sense as well. See Communication from the Commission to the Council, the European Parliament, the Social and Economic Committee and the Committee of the Regions on Immigration, Integration and Employment, of 3 June 2003 supra at note 78, at 30. On the other hand, if the member states were to agree through European legislation on mutual recognition of residence requirements they would probably do so on the basis of carefully considered policy goals, including the fair treatment of

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large and thus to their levels of European, rather than national, belonging. This seems to be a desirable result, at a time when prospective reforms are aimed at enhancing the European Union’s cohesiveness as a political entity, and at giving it deeper responsibility in matters of immigration and handling of external borders. 4.7.2. Member States In the preceding chapters of this work it has been proposed that EU member states have an interest in maintaining a certain control over insider/ outsider divides. This is done as an expression of their power to draw the boundaries of their national communities and to protect their particular identities. Chapter 3 highlighted how the power of community definition that member states possess has lost some of its effectiveness, as well as some of its legitimacy as a result of the operation of the regimes of European citizenship. This loss in effectiveness of a member state’s power and ability to include or exclude, which the extension of free movement rights to European citizens generates, is genuine. Rules inspired by rationales of mutual recognition of belonging are not likely to bring back any of the autonomy that the member states have already lost. On the contrary, they may even accentuate that loss of autonomy, by extending the range of inclusion requirements, which potential entrants into a member state may satisfy by complying with the laws of a different member state. However, this lowered independence of the member states in making inclusion/exclusion decisions is an unavoidable result of the process of integration, of the limitations of sovereignty that this process demands of the participating states, and of the transformation of the European Union into an area where internal borders are open. Even if member states maintain the control of nationality laws, the boundaries of the national community can become permeable because of the absence of controls at internal borders, which makes exclusion less practicable. The doctrine of free movement of citizens gives prominence to the directly effective right of residence of European citizens in other member states and their right to equal treatment with nationals over there, thereby opening up the immigrants and their own interest in having a well integrated immigrant population, and in benefiting from the unimpeded circulation of immigrant work throughout the Community; foreclosing those same policy goals by subsequently harshening their nationality laws might be in part against their same interest and in part politically uncomfortable, in light of the burgeoning institutional consensus throughout Europe.



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national community to some extent also to nationals of other member states.97 Loopholes have already been opened in the national boundaries of each member state community, and more are likely to open up with the continuing enforcement of the rights of European citizenship. This will happen whether or not mutual recognition of belonging principles are put to work. Relying on the logic of mutual recognition of belonging might be seen as protecting the interest of the member states in defining their own communities by providing a valuable alternative to the harmonization of nationality laws. The European Union has no powers in matters of nationality, and it has been reemphasized several times that the member states would remain sovereign in this respect. The facts of integration and the issues related to the treatment of TCNs tend to create pressure towards a convergence in the requirements for access to citizenship in different member states. Thus, nationality laws might soon be put to the test as the next candidates for harmonization.98 The rationale of mutual recognition of belonging accommodates this need for convergence by responding to the same issues that call for it and that might be satisfied through harmonization of nationality laws.99 At the same time, it acknowledges the value and importance of independent nationality laws, which reflect different cultures and traditions, different links with third countries, and different affinities with various linguistic and national communities throughout the world.100 It may be argued that 97 See Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, supra Chapter 1 at note 80. 98 See Alain Lamassoure, Député européen, Le Citoyen et l’Application du Droit Communautaire, supra Chapter 2, at note 226, at 110–112; also see Communication from the Commission to the Council, the European Parliament, the Social and Economic Committee and the Committee of the Regions on Immigration, Integration and Employment, of 3 June 2003 supra at note 78, at 30, in the sense that the Commission welcomes the relaxation of requirements for access to nationality undertaken in recent years by several member states. But see TFEU, article 79(4) explicitly excluding any harmonization of the laws and regulations of the Member States. 99 Considerations potentially calling for convergence might be fairness to immigrants, effectiveness of mobility options, overall coherence of the system of access to legal membership in the EU. 100 French nationality law for instance provides for the grant of French nationality at favorable conditions for nationals of former French colonies; see Law 61-408 of 22 December 1961, art. 2–6; also see Patrick Weil and Alexis Spire, France in Acquisition and Loss of Nationality-Policies and Trends in 15 European States (Rainer Bauböck, Eva Ersboll, Kees Groenendijk and Harald Waldrauch eds. 2006) at 194. Italian nationality law recognizes a right to Italian nationality to former Italian nationals who lost Italian nationality as

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by requiring member states to recognize elements of membership from other member states for purposes of their own nationality laws is equal to emptying those laws of their grip and meaning. However this would not genuinely be the case as those laws would keep applying. Rules of mutual recognition would mostly have the effect of making some level of belonging to the EU, through residence and de facto membership in another member state, interchangeable with a requirement of belonging to one specific member state. For instance under provisions of French nationality law, the required residence period to qualify for naturalization is five years. Nationals of former French colonies may obtain French citizenship even without complying with the five years residence requirement and people who have rendered a special service to France qualify for citizenship after a shortened residence period.101 Thus, a regime of mutual recognition based on European citizenship would entail that a person, who is not a national of a former French colony and who has never rendered any special services to France, but who has legally resided two years in Belgium and three years in France could apply for naturalization in France after three years, by requesting that his period of Belgian legal residence be recognized in France. This would not necessarily restrict or alter the range of links and experiences, which France recognizes in its nationality law, as proxies for belonging to its own community. People who rendered special services to France would still be entitled to French nationality on more favorable terms,102 and nationals of former French colonies would still be able to obtain French nationality without residence requirements. Only the group of people composed of those who are able to qualify for nationality based on residence would expand. The new boundaries of the group would be drawn to include people who have resided for some time in a result of the 1947 Treaty of Paris and the 1975 Treaty of Osimo, and to their descendents. See Law 124/06, “Modifiche alla legge 91/92, concernenti il riconoscimento della cittadinanza italiana ai connazionali dell’Istria, di Fiume e della Dalmazia e ai loro discendenti”, Official Journal of 28 March 2006. 101 See Table 3 Naturalization Requirements in the EU; also see Law 61-408 of 22 December 1961, art. 2–6; also see Patrick Weil and Alexis Spire, France in Acquisition and Loss of Nationality. Policies and Trends in 15 European Countries, supra Chapter 1 at note 306, at 194. 102 The mutual recognition of belonging idea would not go as far as to recognize that people who have rendered services to another member state may benefit of the French provision on more favorable conditions. Indeed this kind of citizenship requirement is closely tailored to the experience of belonging and of allegiance to a specific member state. A mutual recognition of belonging rule should be tailored to capture and compare only those experiences of belonging that are equivalent in nature and interchangeable, such as residence.



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other parts of the Community or people who, even if they are not yet fluent in French, are fluent in another Community language, one have learned while residing in another member state. The logic of mutual recognition of belonging may also bring renewed legitimacy to member states’ choices of inclusion and exclusion, remedying the second shortfall found in their power to set insider/outsider divides, which was exposed in Chapter 3. Chapter 3 delineated how member states’ decisions to accommodate EU citizens within their own community, but not offer the same treatment to third country nationals have become subject to stricter scrutiny in legitimacy terms. This is in light of the fact that some current EU citizens may be former third country nationals who have found easier ways than others to obtain a European nationality. Under principles of mutual recognition of belonging, member states’ ability to distinguish between European citizens and TCNs would be limited by the requirement that they recognize, for purposes of granting certain membership rights, the measure of belonging that a TCN might have earned by residing, working or somehow integrating in another member state. Thus, member states would now come to distinguish among EU citizens, TCNs who have achieved some belonging in Europe and newly arrived TCNs, who have yet to earn any measure of European belonging. This tripartite distinction appears to be more legitimate because it ties inclusion and exclusion not only to national belonging, but also to European belonging. In this way, member states would end up accommodating both TCNs who have been in the EU for a time, perhaps resettling in different member states so that they have not yet qualified for a EU nationality, and EU citizens, who are former TCNs having been naturalized earlier under a more lenient nationality law or after residing continuously in the same member state since their entrance into the EU. In con­trast with the current situation, where member states are free to treat the former group as complete outsiders while treating the latter as partial insiders, despite the potential similarity of their immigration histories in the EU. The application of rationales of mutual recognition of belonging to fields other than requirements for access to citizenship requires further thought with respect to its impact on the member states’ capacity to set insider/outsider divides and to define their own communities. Such would be the case if logic of this kind came to fully inform European political citizenship. This would open up the active political community of a member state beyond the boundaries, which that state itself has drawn through autonomous inclusion and exclusion choices.

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In the final analysis, the consolidation of the logic of mutual recognition, which is already in use with respect to what citizens can and cannot do in member states other than their own, would likely not strip the member states of significantly more power of community definition than they have already been stripped of through the introduction of a European citizenship. It is the idea of a European citizenship, which dictates that their historically bounded national communities be open to other Europeans. Member states do not lose the power to set boundaries, what they lose is the power to keep those boundaries impermeable and rigid. The logic of mutual recognition merely interpret and provide a rationalization for this new situation. 4.7.3. Natives With respect to insider/outsider divides as perceived by native European citizens, the outcome of membership rules tied to rationales of mutual recognition of belonging would be less direct. In attempting to find the impact that the logic of belonging expressed in legal rules may have upon their perceptions one should consider the constructive power of law, rather than its immediate regulatory effects. Building upon the argument that was presented at the end of Chapter 3, while the membership rationale attached to European citizenship cannot alter perceived insider/outsider divides which are tied to heartfelt collective identities, it may contribute to making those perceptions more elastic, and to limiting the exclusionary effects that they translate into. Considering how this could happen is more of an effort in speculation than a rigorous analysis because the same acculturation hypothesis proposed in Chapter 2 with respect to native European citizens faces much uncertainty and could be subject to several possible detours. With this caution in mind, it can be said that at first glance, the spreading logic of mutual recognition of national belonging seems to support and reinforce the premises of the acculturation hypothesis. The operation of the rules, which are based on ideas of mutual recognition is conducive to reinforcing the feeling, on the part of European citizens, that they are legitimate participants in the European community of law. For instance, if political rights at the national level ever came to be granted to European citizens on a mutual recognition basis, according to a model along the lines of the one described above, then the citizens’ sense that the boundaries of the group to which they belong does not stop at the borders of the nation would be reinforced. There may be initial



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resistance both on the part of migrant European citizens who exercise political rights in member states other than their own, and on the part of nationals who see European citizens actively participating in their political community. The extension of the logic of mutual recognition of belonging and renewed emphasis on European belonging moments as suggested in Chapter 2 may operate in a mutually reinforcing way to make European citizenship matter to the citizens themselves and the status connected to it salient in their perceptions. Further, rules inspired by mutual recognition of belonging may contribute to the inter-state mobility of European society in all facets of one’s life, from family life, to educational life, to professional life. They would contribute in reducing the costs for a European citizen faces when planning his life across borders, even if they would not remove obstacles to mobility that stem from different sources, such as language, tradition, and lifestyles. More intensive free movement experiences can have positive effect on those social and cognitive pressures considered in Chapter 2 as potentially conducive to the acculturation to the script of coexistence as European citizens.103 The above hypotheses are merely speculative. It is also possible that mutual recognition of belonging may have no constructive effect at all with respect to the citizens’ sense of insider/outsider divides. A more certain response can only come from empirical research. However, the benefit of the above suggestions is that they frame the potential questions for future empirical studies. *** While European citizenship depends on nationality, as the shadow depends on the body that carries it along, a closer look at the rule of common citizenship and at the way the rights it brings about operate in practice allows the identifying of a potential, independent membership rationale located within the boundaries of its penumbra. Somebody who is a national of a EU member state is also a European citizen, and by means of that additional status automatically gained 103 With respect to the natives, it is plausible to think that it would be mainly the application of logics of mutual recognition with respect to rights of citizenship that might have a constructive effect in this direction. This does not exclude however that even the extension of principles of this kind to the domain of immigration might end up having a coterminus effect: in respect of immigrants, natives would in this way become witnesses of interchangeable belonging, and this might appeal once again to their sense of groupness beyond national belonging.

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through nationality, he comes to belong to each of the other member states in the Union. The practical consequences of the rationale of extended belonging may range from the field of immigration and access to citizenship to that of political participation beyond the boundaries of the nation. Even beyond the limits of the formal rule of European citizenship, the idea of mutual recognition and exportability of belonging that EU citizenship elicits may come to influence additional informal statuses of European membership based on residence, or presence in the European Union. Rethinking the content and meaning of supranational membership along these lines can help to rationalize these European insider/outsider divides that currently often represent just the arbitrary and deforming extension of their national counterparts. At the same time, an effort in this sense may lead to a clarification of the bounding role of European citizenship, with possible positive effects on its contribution to bonding among the European people.

CONCLUSION This work set out to explore the potential value added by having a notion of European citizenship with respect to the internal and external diversity that the European Union faces in its evolving integration process. At the end of this journey through the perspectives of immigrants, member states and natives on the issues of citizenship and legal membership, the promise of European citizenship vis-à-vis diversity has assumed a more distinct profile. European citizenship can make a difference, if it helps in preserving those important diversities, which underpin the character of the project of integration, while contributing to mitigate their potential disruptive effects in terms of the cohesiveness of the European polity. The European citizenship way, in this project of contextual preservation and alleviation, must push through its effect on insider/outsider divides in Europe. Its task is to re-assess and re-balance the relevant competing interests of member states and immigrants, while at the same time arousing the natives’ interest in, and sense of, these divides. Some hard thoughts on what it means to belong to Europe and to the European Union, on how one belongs, on which elements can be taken as proxies for this link of belonging, and on how this European belonging finds expression in the several member states are a preliminary requirement for any future development of European citizenship. The grouping challenge of European citizenship is an entirely new one. It is not by mimicking existing paradigms of membership that the notion of European citizenship might make a difference. However, packaging a limited set of economic and political rights in the language of citizenship might represent a first step in the process of developing a sense of reciprocal attachment and membership among those who somehow belong in Europe. A sense which allows them to coexist peacefully and respectfully, and yet is reconcilable with their spontaneous need to feel different, to feel attached to their own nations and to feel that they belong on several different levels. A process of this kind would represent the translation of the ethos of European integration from the realm of states to that of citizens. While a prospect of this kind is demanding in time and resources, and uncertain in course and outcomes, it blows new life into the idea of European citizenship and encourages the stretching of that skinny legal construct to meet new regulatory demands and new theoretical challenges.

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The European Union is at the forefront in this respect, thereby only making its case more complex and fascinating. However, the outcomes of European integration in terms of citizenship and diversity, speak loudly in furthering regional projects in a world that is growing in cross-border dynamism. While the citizenship of the future does not need to become post-national, it faces many important choices when venturing beyond the safe environs of the nation. European citizenship, when closely explored, concretely portrays some of those options.

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INDEX accession into the European Union 157, 158n136, 159 and belonging moments 232–234 Copenhagen criteria 157 referendums for accession 233–234 transitional limitations 164n146 Turkey 161n142 acculturation 109, 110, 111, 133–134, 142–143, 220, 237, 245, 276, 314 and elites and masses 247 and third country nationals 246 Berry definition 142 Goodman-Jinks definition 133 into norms of coexistence 225, 315 lack of 256 mechanisms 144–149 admission 35, 60, 63 and internal borders 99–101 categories of 46 in the EU 42–46 in the US 36–37 of family members 50 rights 47 rules 100 volume of 46 Adonnino report 238–239 AFSJ, see Area of Freedom, Security and Justice Albanian and Romanian communities in Italy 160–161 allegiance 57–59, 61, 112, 118, 251, 262, 312n102 and third country nationals 271 in early US naturalization laws 54n186 oath of 57–59, 62–63 split allegiances 191, 249 Area of Freedom, Security and Justice 89, 96, 97 assimilation 206–207, 261, 268–269, 294 Baumbast case (CJEU) 92–93 belonging 80, 101, 108, 111, 112, 204, 212, 264 as expressed by residence, presence, and acquaintance with traditions 279 civic 26 emotional 137

European 163, 207, 231, 242, 265, 290, 313 exportability of 282, 289, 301 legal 158 moments 144, 231–235, 315 mutual recognition of, see mutual recognition of belonging political 121, 137 rationales 100, 107, 278 script 221, 229 shared 223 status of 116 transfer notion of 280 blue card directive, see directive 2009/50 borders definitional 17, 57, 59, 61, 63, 107 external 16, 59, 60, 63, 260, 310 internal 9, 16–19, 35, 36, 38, 40, 42, 43, 45, 59, 80, 107, 310 map of 99 physical 15, 17n19, 81–82, 88–90, 96, 107 regulatory 15–16, 17n19, 39, 40, 41, 42, 45, 46, 47, 49, 51, 54, 59, 63, 87–88, 91, 97 thick and thin 18–19, 42, 46, 48, 53, 88, 89, 91, 95, 99, 100–106 Cassis de Dijon case (CJEU) 17n20 Centrum case (CJEU) 52n182 Checkel, Jeffrey 131–132, 138–140, 202 Chen case, see Zhu and Chen case citizenship 116, 122, 123, 127, 128, 137, 190, 268–269 application of the theory of acculturation to 143–144 as filter for diversity 256 as socializing institution 129, 130 central or peripheral 53–54 common 2, 18, 130, 169, 215 constructive character of the norm of 118, 149 effectiveness of the norm of 134, 211, 214 European, see European citizenship external 305–306 federal and state 19–24, 55, 56, 86n240, 100, 151n131 imperial 158 legal norm of 117, 119, 125, 130

332

index

citizenship (Cont.) marker of community 107, 117, 118, 122, 132 marker of bounded community, see marker of community national 59, 60, 123, 128, 235, 306 political 305–307 post-national 127–128, 318 supranational norm of 108, 134, 169 test 61, 232 cognitive dissonance 147–148, 224, 244 Comity Clause 82 compact theory, see federalism compliance 134, 219, also see norm diffusion approach 108, 202 pull towards 130, 138, 202 pull towards compliance of the citizenship norm 211, 214, also see, citizenship, effectiveness of the norm of conferral, see principle of conferral constructivism 131 Copenhagen criteria, see accession into the European Union Costa v. Enel case (CJEU) 31 critical mass of adherence to a norm 145–146 cultural match 109, 138–141, 202 Declaration on European identity 112, 238 democratic deficit 33, 112, 252–253 derivation, see rule of diffusion, see norm diffusion directive 2000/43 11, 52n181 directive 2000/78 11, 52n181 directive 2003/86 48–51 directive 2003/109 48, 98–99, 294, 298 directive 2004/38 45, 45n149, 94–95, 287 directive 2009/50 46, 98, 298 directive on free movement of EU citizens, see directive 2004/38 directive on long-term resident thirdcountry nationals, see directive 2003/109 discomfort with the other 108, 111, 203, 211–215 discrimination 213–214, 266 on the basis of nationality 11n6, 52n182, 93, 284–285, also see non-discrimination reverse 102n301, 288 state-based discrimination of aliens (US) 39 diversity 1, 29, 105, 107, 119, 120, 163, 197, 301, 317

amalgamation of 261 coexistence of 110, 127, 134, 149, 191, 275, 278 discomfort with 218, also see, discomfort with the other exposure to 190 external 2, 265, 291 filter for 101 internal 1, 10–11, 29, 290 layers of, see levels of levels of 168–169, 197, 278 reverse relation between internal and external diversity in Europe 259 societal 165, 189, 201 tension between internal and external 309 divorce rate 192–196, 199 double subjecthood 135 Dred Scott case (US Supreme Court) 20–21 economic migration, see immigration, economic Edwards v. California case (US Supreme Court) 84–85 effectiveness of international norms, see norm diffusion encounters as Europeans 221–223, 246, 247 enhanced cooperation 90n251 enlargement 109, 111, 151, 157, 159, 161, 163, 165, 168, 190, 200 2004 enlargement 163 reflexive effect of 236 equal protection 11n, 39, 84–88 equal treatment 85, 98, 104n304, 310, also see discrimination, non-discrimination EU common immigration policy, see immigration European citizens as legitimate participants, see legitimacy of European citizens as participants European citizenship 24–25, 59, 60, 63, 91–95, 102–103, 106, 123, 127, 128, 129, 134–135, 142, 144–145, 149, 150, 162, 262, 277, 282–283, 285, 317 and political participation 303–307 and power of community definition, see free movement rights and power of community definition as proxy for national belonging 272 bonding role of 278 conferral of 150, 271

index333 dynamics of expansion 200, also see, sameness, oil-stain expansion of legal sameness genuine enjoyment of the substance of the rights of 285–288 geography of 161 horizontal effect of 273, 279, 289–291 participation options for European citizens 226–227 pool of candidates for 151–156, 162 pull towards groupness or sameness 202–203, 204, 219, also see, pull of legal norm of sameness towards societal rationale of belonging underlying 301–303 salience of 232, 236 European cultural action 240–241 European cultural policy 238, 242 European identity 108, 110, 111–112, 113, 114–116, 221, 230, 276 common European cultural identity 146, 242 formation of 248–255 European natives 156, 159, 160, 161, 162, 257, 273–277, 314–315 European public sphere 136, 251–252, 307 European social fields 147, 221 exit, see socio-psychological exit family reunification 36, 92, 102 directive, see directive 2003/86 in the EU 49–50 in the US 39–40 family reunification directive, see directive 2003/86 federalism 10, 26–28, 191 compact theory 27–28 national theory 27–28 Fligstein, Neil 147, 221 Fortress Europe 245 framework directive on equal treatment, see directive 2000/78 free movement 14, 35, 100, 222, 282, 286, 289, 310, 315 as a right of citizenship 15 evolution of the right in the EU 88–95 for third country nationals 96–99, 103–106, 298 horizontal effect 265 human rights perspective 15 rights and the power of community definition 268, 314

transitional restrictions for workers of new member states 164n146 Garcia Avello case (CJEU) 283–284 globalization 126n95, 127, 249 Goodman, Ryan 133–134, 136, 142–144, 225 Graham v. Richardson case (US Supreme Court) 39, 53, 86–87 groupness 107, 108, 110, 119, 121, 122, 127, 128, 145, 150, 162, 204, 243, 276 marker of 209 Grzelczyck case (CJEU) 284 health and police power of the states 17n21 Hirschman, Albert 248, 254, 276 human rights regime design 132–133 identity/ies 111, 113, 118, 119, 161 collective 108, 110, 119, 121, 122, 163, 189–197, 216, 261, 274, 276 competing 191, 200, 249–251 critical level of shared 146, 238 cultural 17, 146, 239–242, 306 European, see European identity formation mechanisms 142 group 125, 221 Hirschmanian approach 248–255 national 114, 127, 165, 169–189, 197, 201, 209, 295 overlapping, see competing political 116, 307 shared 117, 120, 163, 238, 239, 270 socio-psychological 116 split 191 sub-national 126 IL/IR debate 134–137 imagined community, see national idea immigrants’ interest in inclusion, see sub-polities, competing interests of immigrants and of sub-polities rights 50, 291, 297 immigration 35, 36, 44, 151, 201, 207, 215–218 and mutual recognition of belonging 296–297 economic 45 EU common immigration policy 44–46, 297–298 histories 159, 259, 313 illegal 35n97, 155n134, 217, 264, 270

334

index

immigration (Cont.) laws 14, 39, 87, 206–207, 291 policy 39, 100, also see common EU immigration policy regulation 36 rules 14, 102 Immigration and Nationality Act (US) 41 inclusion 35, 53, 55, 59, 60, 61, 63, 100, 106, 259, 261, 264, 266, 293 and exclusion 35, 81, 102, 272, 313 power of the member states 266–268, 300, 310 also see, free movement rights and the power of community definition rationales 15 requirements for 296 rule of 21 insider/outsider divides 5, 9, 14, 26, 102–103, 106, 107, 108, 110, 149, 257, 265, 266–267, 273, 274–276, 278, 280, 301, 303, 308–315 blurring effect of European citizenship on 272 insiders and outsiders, see outsiders integration 54, 159, 259, also see integration requirements strategies 217 integration requirements 98, 206–207, 216, 260, 294, 300 in the EU 60–63 in the US 56–59 internal borders, see borders Internationale Handelsgesellschaft case (CJEU) 31–32 International law/international relations debate, see IL/IR debate ius sanguinis 301–302 ius soli 301–302 Irish rule 13–14 Jinks, Derek 133–134, 136, 142–144, 225 legal permanent residents 37, 38, 40, 42, 54, 56 legitimacy 109, 110, 111, 112, 133, 144, 145, 146, 237 as a source of pressures to conform 225–229 bond of 244 of European citizens as participants 228, 230, 243, 244 life expectancy 192–196, 197, 198 loyalty, see vicious circle of loyalty LPRs, see legal permanent residents

Magnette, Paul 289, 290 marriage rate 192–196, 197, 199 Martinez Sala case (CJEU) 284 membership 34, 35, 40, 55, 137, 262, 282, 296, 305 as right 14 as source of rights 14, 80 central or peripheral 54, 102 escalation to 47 legal 19 legal criteria for 127, 128 legal factors of, see legal criteria for legitimate 236 logic(s) of 26, 80, 275, 288 minimum level of 292 rationale 101, 269, 277 societal factors of 119 Micheletti case (CJEU) 268n24, 280 mismatch, see sameness mobile citizens and immobile aliens, see mobile nationals and immobile aliens mobile nationals and immobile aliens 105, 258–264, 297, 309 mutual recognition 17n20, also see mutual recognition of belonging mutual recognition of belonging 279, 281, 285, 287, 288, 289, 290, 291–295, 296–300 and immigrants 292–296, 308–310 and member states 310–314 and natives 314–315 and political participation 304–307 v. rules of derivation 301–303 nation, see national idea, nation state, national community national community 123, 128 national idea 124–125 national identity, see identity nationalism 111, 124–126, 127, 142, 156, 162, 205–209, 212, 249 nationality 12–14, 24, 25, 26, 53, 87, 102, 106, 144, 150, 260, 267, 289, 290–291, 292, also see discrimination on the basis of nationality, nationality laws, non-citizen nationals, territories accessibility ranking 265n16 and internal borders 99, 101–103 as a proxy for belonging 258 as indicator of diversity 156 declaration on nationality of a member State 24n45

index335 decoupling of citizenship and nationality 256, 290 dual 60, 284, 305 Faiza M. case (French Conseil d’Etat) 268–270 mutual recognition and access to nationality 292–296, 309–310, 311–313 requirements for 261, 301 rules 14–15 nationality laws 206, 250n297, 291, 293, 295, 299–300 and Union competence 297 and Union legislative process 299 harmonization of 311 in the EU 59–63, 64–79 in the US 54–56 Irish reform 13n13 loss of effectiveness and legitimacy 272–273 national theory, see federalism native American tribes 22 natives, see European natives naturalization 55, 57, 58, 59, 109, 111, 156, 200, 206–207, 216, 231, 260, 292–295, 300, 312 acts 55 reflexive effect of 236 requirements 55, 59–63, 104, 259, 265, 302, also see integration requirements residence period for, see residence requirement for residence requirement for, see residency requirement for residency requirement for 55, 59, 64–79, 87–88, 104, 292, 294, 298, 312 uniform rule of 21, 55 Nerkowska case (CJEU) 282 non-citizen nationals 22–23 non-discrimination 11n, 51–53, 93, 283–284, 285 norm cascade 133, 145 norm diffusion 130–137, 145, also see, critical mass of adherence to a norm, norm cascade channels of diffusion 137 diffusion process 138 norm effectiveness, see norm diffusion otherness, see sense of otherness outsiders, also see, insider/ outsider divides

conditions while outsiders, see status of outsiders distinction between insiders and outsiders 12 divisions between insiders and outsiders 80 perception of European nationals as outsiders 224 rights of outsiders 47 selection of insiders and outsiders 266 status of outsiders 47, 63, 100 treatment of outsiders 35, 37–42, 47–53, overseas territories, see territories Passengers Cases (US Supreme Court) 83 persuasion 133–134, 142, 145, 237n257, 237n258 mechanisms 237 political voice 111, 248–255, 307 Preuss, Ulrich 290 principle of conferral 31, 34 principle of subsidiarity 31, 306n93 purely internal situation 286, 287, 288 race directive, see directive 2000/43 rational choice theory 131 referendums for accession, see accession into the European Union religiosity 192–196, 199 residence 22, 26, 60, 290, 316, also see, naturalization, residence requirement for durational residence requirements (US) 84–86 EU long term residence permit 48, also see, directive 2003/109 limiting effects on citizenship rights 23 mutual recognition of residence periods for nationality 292–293, 295, 298, 309 permits for spouses and partners 50, 93 requirements for enjoyment of benefits 282 residence rights of European citizens, see directive 2004/38 residence rights of third country nationals, see directive 2003/109 rights of 12–14, 92–95, 106, 286, 310 resistance to immigrants 150, 203, 255, 259, 271 resistance to integration 150, 203, 209–211

336

index

Rewe-Zentral v. Bundesmonopolverwaltung für Branntwein, see Cassis de Dijon case rights of outsiders, see outsiders right to travel 35, 39, 82–88, 101 rule of derivation 21–22, 24, 26, 54, 301–303 Saenz v. Roe (US Supreme Court) 86–87 sameness civic 111, 127, 129, 149, 209, 213–214, 256 cultural 123 dilution of societal 162, 197, 200 dilution of societal factors of, see dilution of societal distinction between societal sameness and identity 142, 248 legal 108, 110, 111, 119, 122–123, 127, 151, 162, 163, 168 societal 108, 110, 119–122, 123, 127, 143, 199–200 meta-legal norm of 119 mismatch between legal and societal sameness 109, 111, 128, 137–141, 142, 149, 150, 202, 210, 218 norm of 137 oil-stain expansion of legal sameness 157–162, 163–164, 200 pull of legal norm of sameness towards societal 128, 137–141, 142, 145–146, 147, 149, 150 reconciliation of legal and societal 245 sense of 222–223, 274 societal factors of 109, 111, 127, 128 societal perceptions of 119, 120, 128, 277 Schengen Agreement 43, 44, also see, visa, uniform (Schengen) sense of otherness 200, 225 Shapiro v. Thompson case (US Supreme Court) 85 Shaw, Jo 304 Slaughter House cases (US Supreme Court) 85n237, 86n240

socialization 115, 129, 133, 149, 150, 203, 225, 237, 244, also see, citizenship as socializing institution strategic socialization 133 social learning 115, 132, also see, socialization social pressures 148 societal factors of sameness, see sameness societal sameness, see sameness socio-psychological exit 111, 248–255 spectrum of mobility 103 states’ distinctiveness, see sub-polities, competing interests of immigrants and of subpolities sub-polities 9, 15–19, 54, 81, 101 competing interests of immigrants and of subpolities 9, 101 subsidiarity, see principle of subsidiarity territories incorporated and unincorporated 23 overseas 24–26 theory of social impact 146 Tas Hagen case 282 Tindemans report 238 Trojani case (CJEU) 92–94, 284 Turpeinen case (CJEU) 281 Van Gend en Loos case (CJEU) 31, 252n301 variable geometry, see enhanced cooperation vicious circle of loyalty 255 visa immigrant and non-immigrant 37 rules 87 uniform (Schengen) 44, 96–97 voice, see political voice xenophobia, see discomfort with the other Zambrano case (CJEU) 286–288 Zhu and Chen case (CJEU) 12–14