1. Introduction: in the spirit of euro-moderation
Nowadays, the enlightened European classes speak and act as if "Europe", which supposedly means "Europeans", had made a firm, deliberate decision to create a politically united Europe. However, for this to be true, a European political culture of active citizenship that has not yet evolved would have to exist. The European demos and public space, two essential and interrelated components of the European civitas,are still intangible communities and places. The unease quite a few Europeans experience regarding what really goes on in the heart of the European Union is clear. Many seem indifferent to how European institutions work, if not to the very existence of these institutions, and don't seem to understand the labyrinth of regulations and directives that emanate from them. Sometimes, when called to vote on a referendum to approve the results of negotiations undertaken among the European political elite, the public refuses to validate the situation, as was seen in Ireland, Norway, Switzerland and Sweden, and nearly happened in France as well with the ratification of the Treaty of Maastricht. Euro-enthusiasts scorn these gestures and adopt the slogan "advance at any cost", as can be seen in the political elite's current reaction to low turnout in the latest European elections, while hurrying to enact a Constitution people know little about. Nevertheless, these reactions suggest a lack of democratic leadership, as they highlight the little respect leaders have for the demos they supposedly lead.
Over time, this excessive eagerness to "advance at any cost" will end up being counterproductive. Instead, I believe a more intelligent strategy would be a pause to reevaluate the conceptual and historical foundation of the European process, particularly in the current context of external aggression, internal division and general confusion. Thus, in a spirit of euro-moderation, I propose to apply a certain amount of critical thinking to a crucial but still absent component of political culture that should be the foundation of any democratic construction of a united Europe. I will highlight the limited understanding many Europeans have of the European city as a structure of freedom and of their civic duties as citizens. I will explore some of the causes of this situation, rooted in the relatively recent past, and leave the debate as to its effects on how we face current threats for another time (except for a brief allusion).
My argument is developed in two stages. In the first place I analyze the language of citizenship and delve more deeply into its "civic duty" dimension through classical discourse. I defend the concept of civitas as a structure and framework of freedom and maintain that this structure is neither self-perpetuating nor self-defending. From a regulatory standpoint, it must be created, recreated and defended time and again. However, regulatory concepts and orientations must be understood in context. To do this, in my second stage I seek out a plausible context for this discourse in the history of modern and contemporary Europe. My analysis lays out, in general terms, the reasons why the dimension of civic duty is relatively underdeveloped on the European continent which has led people and governments to get accustomed to adopting an attitude of (relatively) passive beneficiaries (free-riders) with respect to foreign defense and security.
2. The discourse of citizenship and the duty to defend the city as a structure of freedom
Expressions of practical reasoning and lifestyles
Alasdair MacIntyre suggests that our language of practical reasoning is derived from tacit presumptions that go along with our lifestyle and fit with the type of people we think that we are (1988: 389 ff). We cannot invent or decide upon this language as we please; we can only do this through reflection or changes in our mindset. Language tends to adapt to our real-life experiences. A specific language of practical reasoning in politics, that of citizenship, corresponds to the practice of living in the city and dealing with the rights and duties a citizen is supposed to carry out, as well as the common good.
The discourse of citizenship allows for a range of variations. That of our modern city, the western political community of the past centuries, has evolved around a complex compromise, a mix between the classical language of the cities of antiquity and a range of arguments born at the dawn of modern Europe. It is still highly influenced by the classical language of the past and as a result, for that language to survive there must also be a significant fragment of classical lifestyle (MacIntyre 1988: 391) preserved in the new ways of living in an open, modern society, meaning those ways that correspond with liberal (and, pace Maclntyre, not "community") principles of the market economy, a pluralistic society, and a diversity of worldviews.
Europe as a system of European cities and the emergence, in some of them, of a structure of freedom
The very idea of "Europe" and that of "Europe as a system of cities", or autonomous political communities, were forged nearly simultaneously. According to some historians, like J.G.A. Pocock (1999: 20), the term "Europe" slowly came to substitute "Christianity" in the period between the Spanish War of Succession (roughly 1713) and the French and American Revolutions. During this time, Europe gradually became a system of states that competed with each other but were united by a trading community and a set of social manners or behaviors. In England and, at certain times to a certain extent, other countries, an educated, mercantile society emerged, along with a government that was capable of ensuring internal peace, with relatively little hindrance from the Church and congregations or religious sects, all subject to the rule of law. The conditions were thus established for a resurgence of the language of citizenship, adopted from an extremely old and distinguished tradition that, following a number of routes such as that of Christianity and legal and civic humanism that was so important in Italian cities, harked back to the classical age.
This language is based on the definition of a citizen as a member of a civitas, a specific type of political community. Although belonging to this group confers upon the individual a series of rights, it also requires of them specific obligations. In the classical city, the right to govern was counteracted by the right to be governed in an appropriate way. This implied the duty of obedience under certain conditions, including submission of the very governors to the laws of the city. In the classical view, the "many" could make their voice heard and possibly elect their leaders, while the "few" governed, but were responsible to the "many", and all of them had to carry out their functions in the framework of stable and predictable rules (Aristotle 1941 [4th century B.C.]: 1212 ff).
For its part, the modern political community, which corresponds to an educated, mercantile society à l'anglaise, introduced the idea of rules subject to strict limits, since the rights of citizens restricted their sphere of application. These rights implied a general right to "negative freedom" (Berlin 1969: 118 ff), by which the individual was protected from external coercion when accessing and using basic resources and attributes, such as physical safety, private property, honor and religious beliefs. Each of these freedoms developed in response to specific situations; however at a certain time all were considered to be interconnected, mutually reinforcing, and to answer to a "principle" of freedom, which gave meaning to those connections, and to the understanding of a "well ordered" society as a structure of freedom. This structure could be understood as the network of individual negative freedoms, intertwined to form a system.
Defense of the city and the two dimensions of citizenship: a classical heritage
Nonetheless, this structure of freedom must be defended by human agents. It is not a series of institutional mechanisms that can regulate, defend and perpetuate themselves. The mere fact that this structure exists does not guarantee it will persist in being. We don't live in a Parmenidean world in which the Being survives in and of itself. Laws establish the general conditions, which must underlie any legitimate political action, but don't prescribe their content nor substitute them. Thus the need for continued action by members of society aimed at mantenere lo stato (Pocock 1975: 175) in the face of external enemies, internal corruption, or both, and when faced with vicissitudes of fortuna, meaning new, unpredictable contingencies; this is particularly necessary in times of war, when there is a pressing need to defend the structure of freedom. To this situation we must apply Pericles' words, which have become a sacred text for the western tradition of open society (according to the Athenian city model, and not that of the closed society of the Spartan cities), with which he reminds us that freedom cannot last unless the people are willing to defend it and to die for it (Thucydides 1972 [5th century B.C.]: 143 ff)
This way, the classical open or liberal city, which corresponds to a structure of freedom, is free in two senses: it guarantees the individual freedoms of its citizens, and does so while not falling to external forces that are hostile to that structure. Belonging to a city, citizenship thus has two dimensions: rights, through which the people can exercise their freedoms, and civic duty, which includes the obligations each citizen has to the others and all have to their city.
Varieties of active citizens: ‘classic' citizens and ‘monitorial' citizens
This liberal interpretation of citizenship is the legacy of intellectual debates and historical experiences accumulated over a long period, mainly since the 17th and 18th centuries, on both sides of the Atlantic. Our ideas regarding the foundations and challenges of citizenship in a free society have remained basically unchanged since that time. Its foundations are institutional mechanisms and cultural interpretations through which a balance is attempted between individual rights and duties that result from being an intelligent, voluntary and active part of a structure of freedom. Given that various internal and external threats can put that structure at risk, the city needs citizens that are committed to its defense. It doesn't need "professional", full-time citizens that are constantly involved in public affairs and prone to fits of political enthusiasm, but alert citizens that are sufficiently committed so as to hold their leaders responsible for their actions, not lose sight of the course of events, and are willing to accept personal losses in defense of the city.
Under "normal" conditions, these citizens would take care of their own affairs, but would be ready to intervene in topics judged most relevant, as Michael Schudson believes citizens of the United States often do now, which would fit with the model of the "monitorial citizen" (1998: 311). This monitorial citizen becomes an "active citizen" at the moment they cross the line separating intermittent attention and continued or nearly continued attention to political affairs. Nevertheless, "crossing that line" is a permanent and ever-imminent possibility. The reason for this is that the monitorial citizen's selective behavior is only possible in a functioning structure of freedom. In other words, for those citizens to be able to explore the totality of political issues and select those they deem significant, they must meet a series of general conditions; and, although in favorable eras they can be taken for granted, in critical moments they are threatened and must be defended. As critical circumstances can arise at any time, citizens, even if they are only "monitorial", must strike a balance between their attention to public and private affairs, paying attention to both at the same time.
Defending the city as a structure of freedom is therefore a crucial part of being a citizen. It is a complex, multidimensional task. Legal work, political deliberation, diplomacy, trade, education, religious rites: all of these activities can contribute to this defense and can be understood as instruments any city must use to such an end. However in no way is it possible to escape the fact that, in this context, the willingness to use force to defend the city, if and when necessary, is the true core of this task and provides us with a test of each citizen's sense of civic duty.
3. A European history: a) the drama of the Great War and the following drift
The record of contemporary European societies with regard to the ability of their citizens to live up to the concept of citizenship that I have described, and to respond to the challenges posed in each moment, including that of resorting to force in defense of the city, is contradictory. And our current political character is both derived from and a reflection of that contradiction.
As I pointed out before, an outline of European civil society can be seen in the emerging system of states of the 18th century which were linked through trade and a community of common social manners, as well as a worldview that highly valued the "earthly city" and a type of government aimed at guaranteeing internal peace when faced with the threat of religious conflicts typical of previous centuries. However, the hopes and dreams civil society held in the 18th century didn't come to fruition over the following two centuries. In that time, what unfolded before the observer was not so much a European civil society as a complex scene in which processes of civility mixed with intermittent civil war,interspersed with periods of truce among armed adversaries that would turn into enemies almost at the drop of a hat.
The European absolutist states, and later the nation-states, became embroiled in frequent wars. They fought in Europe, in America and in Asia, participated in the Revolutionary and Napoleonic wars, and became involved in a series of local wars throughout the 19th century. For most of this time, the citizens' actions reflected highly contradictory dispositions. Although nationalism included the willingness to fight against other nation-states, it also combined with constitutionalism, individual rights and liberalism. Citizens saw themselves subjected to an education of mistrust and even hate towards other nations, but always with the possibility of reaching agreements and having interests and points of view in common with citizens of other countries. Although nationalism made citizens more inclined to the excesses of incivility, the language of civility was also part of the experience of citizenship.
In any case, the most crucial experiences in forming our understanding and practice of citizenship took place in the 20th century. Again the data is contradictory, and Western Europe's "happy experience" over the second half of the century must be seen in perspective and contrasted with a dark side of such magnitude that it cannot be scorned nor made light of. In this period, the most important experiences in Europe were the drama of the Great War, the disorder of the time between the wars, the Second World War and the Cold War.
The Great War was the culmination of a series of steps that began in the previous century. In inevitably somewhat broad strokes, it must be said that the population had been domesticated and driven down a road towards mutual destruction, in a good part suicidal, at the hand of its governing elite. In public schools, teachers imbued children with patriotic, if not chauvinistic, doctrines. Afterwards, young people carried out their obligatory military service in barracks where other state functionaries indoctrinated them with similar ideas. People read the patriotic press, which described the world as a stage on which the rivalries between nations were played out. They went to church to hear sermons from priests or pastors that mixed religious and patriotic symbols. They backed political parties impregnated with patriotic enthusiasm or caught up with it at the critical moment. It is no surprise that these people threw themselves into the Great War singing patriotic songs and that they tried, to the best of their ability, to adjust to a miserable life in the trenches and a devastating number of casualties over more than four years.
However they only adjusted to it to a certain extent. Because once they had fulfilled their duty, these citizen-soldiers returned home deeply demoralized, which explains the consequent spread of totalitarianism and uncivil political parties and regimes throughout the European continent over the following years. The warlike spirit underpinned European life in a number of ways, both new and old, such as class wars and racism, religious conflicts and aggressive nationalism.
In the period between the First and Second World Wars, a good part of the new generations found themselves adrift. Many ended up joining the various authoritarian, or worse yet totalitarian, movements of the time. The moderate center, with its supporters of a civil, liberal mentality, became a supporting actor in the "Great Game".
This way, continental Europe didn't "suffer" totalitarianism in the 20th century, even though some observers (such as, for example, Todorov 2003: 90) have defended the European experience of totalitarianism as "suffering". "Suffering" here is a euphemism that evokes an image of passive victims of a regime that has been imposed upon them, when in reality very many Europeans embraced and practiced these totalitarian doctrines with fervor, imposing them on themselves and their neighbors, and, once put into practice, defending the resulting regimes with conviction and, in some cases like that of the Germans, fighting to defend it to the very end.
Hitler came to power and stayed there with the support and acquiescence of the majority of the German and Austrian population. Many of the French consented to a government that collaborated with the Germans, and only changed sides when the US Government landed in the country and liberated it when the war was nearly over. Mussolini lasted much longer in power than Hitler, thanks to the support of the majority of the people, and his downfall was the result of the vagaries of war. Fascist governments, of one variety or another, were predominant in continental Europe for ten or twenty years, and their decline was a by-product of World War II. Christian churches were accommodating toward this situation. On the Iberian Peninsula, two authoritarian regimes held power for the thirty years following the Great War. In the East, communism prevailed in the conquered countries, but it was backed by minorities of some significance in a number of them, and survived thanks to the collaboration of a large segment of the population.
Under these circumstances and at that time, the expression "civic duty" took on the opposite meaning of how it was originally intended. It didn't denote civic virtue, with its implicit reference to Roman republican virtue in conjunction with a liberal spirit. It became, in reality, a way to express submission to the Caesar, namely Il Duce, Die Führer or El Caudillo, their followers and the right-wing totalitarian parties; or, at the other extreme, the Secretary General of the Communist Party, its army of professional revolutionaries and the left-wing totalitarian parties.
4. A European history: b) a freedom not won, but granted after World War II and the ambiguities of the role of the passive beneficiary (‘free rider') during the Cold War
The Cold War pitted left-wing totalitarians against those in favor of an open or free society, and this confrontation only partially respected the division between East and West. On one hand, communist totalitarianism continued to control the destiny of most of Central and Eastern Europe over two or three generations. But to this we must add the influence the Communist Party held over an important part of the population of Western Europe, receiving ample backing in elections in countries like Italy and France (for many years one-third of the vote in Italy and one-fourth in France). Even today, the Party's influence is clear in intellectual and communications media, part of which still show themselves distant or even hostile towards civitas as a structure of freedom that must be defended against its enemies.
On the other hand, the vast majority of the population of Western Europe rejected totalitarianism and embraced liberal democracy, the rule of law, the market economy and a plural and tolerant public space. This laid the foundation for the construction of the European Union. The resurgence of the concept of citizenship in European nation-states, and now the EU, is part of that brilliant panorama, which, nevertheless, has its own shadowy side.
Imbalance between the two dimensions of citizenship in the post-war period
In the space of only a few generations, many Europeans moved from an excess of "training" and exercise in war-related and in many cases uncivil activities during the Great War, to a deficit in training regarding their duty to defend the civitas against totalitarians in the period between the two wars. This was followed by the complex role they played in defending the structure of freedom during World War II and the Cold War.
As I indicated previously, active citizens must strike a balance between exercising their rights and carrying out their duties in the public sphere, including the duty of defending the city. If they don't do so, they have relegated themselves to the status of subjects, who can't understand the city as a structure of freedom created through their own actions nor, as a result, feel fully responsible for it. It should be noted that continental Europe didn't free itself from totalitarian regimes between 1920 and 1940, nor did it manage to contain the later threat of communism on its own. For this reason, most Europeans couldn't consider that the structure of freedom they began to enjoy after World War II was a consequence of their own actions. In reality, it was, above all, the result of the actions of others. This has undoubtedly been a crucial and defining experience for Europeans, because if they are incapable of vindicating their structure of freedom as being something of their own creation, they cannot feel fully responsible for it either.
Therefore, a slow, laborious process of practical and intellectual appropriation of their own world has opened up in front of them. However this venture, over time, has only been a partial success.
After World War II, Western Europeans didn't fully take responsibility for defending the Western world from left-wing totalitarianism, the Soviet Union and its allies. In this effort, they depended enormously on the protection of the United States. France was no exception to this rule. The French have been able to pretend they didn't need US protection but it is clear that NATO and the USA shielded France from Soviet aggression, and that US nuclear power was what ultimately contained the Soviets. Withdrawing from the NATO military chain of command was a way for the French political class to se dégager in the eyes of the public, without really giving up their dependency on foreign protection.
Europe has maintained its level of military spending relatively low. Above all, the public and political class has not cultivated the necessary skills to develop realistic thoughts on the risks and losses that a determined foreign policy or defense action entails in terms of both principles and interests, nor the ability to know when to act and when to put off action without implying a lack of resolve that reveals a simple inability to act. All this has inhibited awareness of external threats and also inhibited the determination to contemplate the use of force in response.
On the other hand, although the dimension of citizens' duties, including that of defense of the city, is underdeveloped, that of Western Europeans' rights is overdeveloped. In fact, many authors simply take for granted that the definition of citizenship can be reduced to the dimension of citizens' rights, and some of them speak, for example, of "an ideal of citizenship symbolized in the granting of rights," in accordance with Marshall's texts on "the centrality of the state as a guarantor of civil, political and social rights" (Crouch, Eden and Tambini 2001: 261). It is highly likely that Europe has been able to devote important economic resources to different areas of social policy, in part due to its unwillingness to invest in defense. State bureaucracies have promoted all sorts of welfare programs, with public health, education, pension and family-benefit plans. This fit well with the natural inclinations of the Social Democrats, Christian Democrats and Conservatives, while also helping them remain in power throughout Europe, for most of the time, either alternating or in coalition. This has been true because the offer of a welfare state by politicians and civil servants, from one party or another, has coincided on the demand side, with the natural inclination of people made weary from years of war, and maybe also ashamed of the crimes (exterminations, deportations) committed or consented to for so long, and of so many examples of failure and impotence, thus making them eager to feel part of a community and live in benign surroundings. Hence their yearning to define citizenship in terms of belonging and rights: human, civil, political, social, economic and cultural rights.
Used to colonial and intra-European ventures, but little accustomed to the risks and hardships of a global foreign policy
European citizens have focused their attention on the exercise and guarantee of their rights on the domestic front. In general, they have paid less attention to foreign policy. On some occasions, they have shown a certain tacit consent (neither total support nor categorical rejection) towards a foreign policy, which could be interpreted as not that different from colonial and nationalist policies harking back to the 19th century. Their tacit consent couldn't become a full-fledged exercise of active citizenship given the moral ambiguity of many of the foreign ventures, which could only be fully justified in terms of realpolitik and national interest. In some cases, like that of Germany, the memory of their history in the first half of the 20th century made this discourse impossible. Countries like France and the United Kingdom (as well as others) went through the experience of failed colonial wars (Indochina, Algeria), aborted semi-colonial expeditions (Suez) and withdrawal from former colonies leaving behind a trail of internal fighting (India, Congo), coups d'état that led to bloody dictatorships (Middle East), unviable states and endemic violence (a good part of Africa). These experiences left most Europeans with a feeling of guilt, shame or moral confusion.
The training received by the generation of 1956/1968, which is that of the majority of the current European governing classes, has also left a questionable and confusing moral legacy in terms of foreign policy. It was easier for this generation to pass judgment on the Vietnam war than to face the totalitarian world closer to home and react to Soviet tanks entering Berlin (1953), Budapest (1956) and Prague (1968) or to their attempts to enter Warsaw (multiple occasions). Likewise, protests against the deployment of Pershing missiles in the 1980s suggest a manifestation of the abstract idealism of youth or of their ethics of good intentions.
However, a careful study of the practical adaptation of the members of that generation to the realities of public and private life reveals a more complex moral attitude. Their good intentions in the sphere of foreign relations were combined with a high degree of realism when taking advantage of the opportunities made available by their own countries. In fact, throughout the 1970s and 1980s, the most conspicuous members of this generation initiated a silent march through the institutions, leading them to positions of power and responsibility which they used to maintain the established economic and political system with only minor changes. Their rhetoric of "change" and symbolic gestures went hand in hand with pragmatic, gradualist behaviors. As a result, this generation drove the development of identity and interest groups that moved into the public arena with a similar spirit, and articulated their demands in an attempt to gain reforms that would recognize these identities and interests. With all this, this generation focused its efforts in the national sphere and tended to maintain the imbalance between the rights and duties of citizenship in favor of the former.
At the end of the Cold War, in the 1990s, the same difficulties arose in establishing foreign policy and forceful defense, which is reflected in the attitude of many Europeans towards terrorism today. On one hand, quite a few Europeans were inclined to minimize the importance of the attacks on September 11th 2001, to de-emphasize their long-term effects in Europe and the world. They tended to believe that these new challenges required "something more" than the habitual concern that normally leads to the use of a combination of diplomacy and police action, but "not so much" as to talk of a "war on terror". This attitude seems coherent with their previous experience. As free riders, or (relatively) passive beneficiaries, during the Cold War, most Europeans had become accustomed to not taking responsibility for their own defense. Moreover, as little had been invested in this area, Europeans knew their defense abilities were modest, which made them tend to downplay their sense of danger.
On the other hand, the governments in countries like France and Germany, which were at the heart of the European constitutional process, felt justified in using the war in Iraq as an opportunity to reaffirm their place as European leaders, either because they believed the external threat wasn't so great or because they did realize its extent but took for granted that the United States would face it and solve it in any case.
To top it all off, there was perhaps a elective affinity between populations anxious to avoid external threats and governments that wished to prioritize intra-European politics. In fact, neither party seemed to feel a pressing need to invest more money in defense (in 2003, per capita defense spending in France was 41% of that of the United States and in Germany it was 23%: SIPRI 2004) and both tended to downplay foreign threats and focus on internal affairs.
Eastern Europe's partial apprenticeship regarding foreign policy
During the Cold War, we observed an asymmetry in certain fundamental viewpoints of Eastern and Western Europeans. Western Europeans contemplated and deplored the lack of freedom that the other half of the continent suffered, without it affecting them too profoundly. They took for granted that the status quo would continue in the predictable future and a significant number of them, particularly on the left, tried to reach a modus vivendi with a totalitarian system they even came to hold in some esteem. On the other hand, the dissidents from Eastern Europe, who yearned for the freedom their Western European neighbors enjoyed, had a much more lucid view of their situation. Their day-to-day life gave them a better understanding of both the principles in question and the harsh reality. They clearly understood that the communist system, lacking legitimacy, was fundamentally based on force. They also knew that the Western European structure of freedom was the result of a war, and was defended against the communist threat, thanks to a military coalition led by the United States.
In the end however, although totalitarian Central and Eastern Europe's resistance was notable, the transition towards a structure of freedom was more the result of the implosion of the Soviet empire under US pressure than that of their own efforts. After this transition, in those countries lacking training in the exercise of active citizenship after decades under a totalitarian government, an attitude of "citizen-consumers" prevailed, which judged the new regimes on their ability to provide economic growth, social well-being and other public goods. At the same time, by projecting that attitude in their foreign relations, and particularly on the European scene, this led to a vision of each country as a "consumer" that demands its rights and fights for its interests vis-à-vis a European club it is trying to join, more than as an "active citizen" that shares in supranational deliberation and decision-making processes with other countries aimed at an European "common good".
5. Conclusion: will Europe become a community of people who are alien to each other and governed by strangers?
The European (and North American) language of citizenship comes, in large part, from the classical era, and through time has mixed with other discourses to create the foundations of modern civitas. However, our contemporary historical experiences only contribute part of the context of plausibility to this language. In Pericles' view, the city is free because it guarantees individual freedoms to its citizens while not subjecting itself to hostile external forces. Therefore, an appropriate understanding of citizenship includes understanding its two dimensions, that of rights and that of duties, which includes defending the city. The problem is that, in this last respect, contemporary European experience has been unsettling. The trauma of the 20th century, above all the First and Second World Wars, in addition to other events, has left behind a legacy of imbalance between an oversized dimension of citizens' rights and an underdeveloped dimension of civic duties. The experience of the Cold War only eased this imbalance slightly, if at all, and today there is still a deficit of active citizens with a sufficient sense of their civic duty.
Maybe today's European Union lies halfway between nation-states and a more wide-reaching political community, but, in any case, this complex institutional process isn't accompanied by the corresponding development of a political culture in which the discourse and practice of an active citizenship play a key role.
Throughout the process, specific rights of European citizenship have been added to those of each nation-state. Europeans now have the right to vote in local and European elections in whichever EU country they reside, to the diplomatic protection of a European representative wherever they travel, and to petition European institutions. Attempts are also being made to define other economic and social rights linked to European citizenship, although this will depend on the resolution of the debates underway between a liberal Europe, in the classical European sense of the word, and a social-democratic or social-conservative viewpoint. In any case, the mere accumulation of a citizen's rights doesn't lead to their full and active membership in a civic community, in the same way that the accumulation of legal rights and guarantees didn't put Romans under the Roman Empire on the road to forging a civic community in any true sense.
The litmus test for citizenship takes place at critical moments, when it is necessary to defend the city and appeal to civic virtue and duty. A revealing sign of the weakness of the European political order is the timidity of its policies regarding defense and foreign affairs. The fundamental issue of sovereignty is resolved at the moment of war, when the relationships between a community and its surroundings, its enemies and its allies are all clarified, and everyone must define themselves in action by taking on the corresponding risks and losses. This is the classical locus of civic duty, but it hasn't been the case in the European Union, which should put us on alert. Because it suggests that we are "moving", of course, but perhaps it is a movement that is taking us, without our realizing it, towards a community of passive European citizens, of people who are alien to each other and governed by strangers, which, if true, would contain the "promise" (as suggested by Larry Siedentop: 2001) not of a free city but of a despotic government.
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Translated by Morgan Malvoso
Claves de Razón Práctica, No. 148, December 01, 2004
Translated by Morgan Malvoso
Law Essay: Legal Framework of European Union Citizenship
John | October 20, 2011
WritePass - Essay Writing - Dissertation Topics [TOC]
How has the legal framework of European Union citizenship been constructed? To what extent has this translated into a substantive practice of European citizenship?
The construction of the legal framework for European Union citizenship started with the Treaty of Maastricht in 1992 and has grown into its present form under the fractious Treaty of Lisbon which came into force on 1st December 2009 after an Irish referendum and excruciating Czech uncertainty. These provisions have been the product of years of work. The Lisbon Treaty, the Charter of Fundamental Rights, the Citizenship Directive and the case law so far constitute the remainder of what is a complex and dynamic legal framework. In spite of the fact that the concept of the European Union citizenship has entered into common knowledge with even a flag, an anthem and a EU passport (Lenaerts & Van Nuffel: 2005) and is indisputably a key part of the European Union, it attracts criticism for being “toothless” (Jacqueson: 2002 p. 263) and departing from the original pure notions of citizenship as envisaged by the Adonnino Committee of 1985 (Lenaerts & Van Nuffel: 2005, Kent: 2008). In the second part of this paper, it will be argued to what extent the legal framework of the European Union citizenship has translated into substantive practice and to what extent the concept is merely symbolic. This will be accomplished by an analysis of the relevant case law and interpretation of the factual findings of the European Commission as well as academic opinions.
It was not until 1975 and the Tindeman’s Report, instigated by the Paris Summit of December 1974, that the term European Citizenship was used for the first time (Chalmers: 2010). The aim of the report prepared by the Belgian Prime Minister was to indicate how the term “European Union” might be interpreted (European Navigator online: 2011). In the report there was a chapter devoted solely to “A Citizen of Europe” (Tindeman: 1975). It dealt with giving the nationals of the member states civil, political and social rights. The 1970s and 1980s witnessed numerous yet fruitless attempts of the European Commission and the European Parliament to implement these notions (Chalmers: 2010). In September 1990, the Spanish government initiated a proposal called “The Road to European Citizenship” (Lenaerts & Van Nuffel: 2005, Kent: 2008). It expressly called for European Union Citizenship to be established (Chalmers: 2010). The Parliament, the Commission and many Member States supported the proposal and as a result, Part 2 of the TEU dealt with the notion of Union citizenship (Chalmers: 2010).
Part Two of the TEU, in particular Articles 17-22, constitutes the substantial part of the early legal framework of the citizenship of the European Union. Article 17 extended the rights of citizenship to “every person holding a nationality of a Member State shall be a citizen of the Union” (Art 17(1)). Crucially, Union citizenship is “not to replace the national citizenship” (ibid). Thus it is frequently asserted that citizenship created by this provision is supplementary or complementary to that of citizenship of Member State (Birkinshaw: 2010, Lenaerts & Van Nuffel: 2005, Kent: 2008). It is also derivative, which means that a person is citizen of the Union only when he or she is a citizen of a member state (see Case C-369/90 Mitchelitti  ECRI)
TEU provides for certain identifiable rights such as the right to move freely and reside within the territory of a Member State for the citizens of European Union and their families, if they are engaged in internal market economic activity or financially self-sufficient (Article 18(1). furthermore, under article 19(1), citizens have a right to vote and stand for municipal elections in the host Member State. They also have passive and active voting rights in host Member State for elections to the European Parliament (Article 19(2) TEU). Article 20 offers diplomatic and consular protection. Article 21 enshrines a right to petition the European Parliament and a right to complain to the European Ombudsman. The Council of the European Union may strengthen or add to the citizenship rights already specified in the Treaty, however it may not detract from them (Article 22 TEU). Another level in the construction of the citizenship’s legal framework is The Treaty of Lisbon. It brought about advances to the notion of European Union citizenship such as European Citizens’ Initiative (Articles 11 TEU and 24 TFEU) and Provisions on Democratic Principle (Title II TEU). Moreover, the Charter of Fundamental Rights contains in is legally binding under Lisbon although the UK has an opt-out.
The final step in the making of the framework of the European Union citizenship was Directive 2004/48 on the Right of Citizens of the Unionand their Family Members to Move and Reside Freely within the Territory of the Member States. The aim of the Directive was, inter alia, to promote moving and residing freely within the European Union and to reduce administrative formalities to minimum (Horsepool: 2006) A period of three months has been allowed for citizens to reside in a Member State with merely having an ID or passport. The limitations to this Directive are having sufficient resources or being workers or self-employed so not becoming a burden on the State due to the benefits claimed (Horsepool: 2006). Furthermore, after 5 years residence in a Member State, a citizen would receive a permanent right of residence (Horsepool: 2006). This particular provision does not impose any conditions (ibid).
The provisions listed above as the legal framework of Union citizenship constitute an invaluable step towards a more complete belonging of people to the European Union. The idea of universal citizenship, although it has been developing in the course of the last forty years, is still an incomplete one. It is an unfinished and unpolished product. Looking closely at the provisions listed above, the inevitable question arises: is the Union citizenship substantive or merely symbolic? To what extent has the framework of citizenship translated into a substantive practice? Quintessentially, is European citizenship what would be generally understood as citizenship?
Some harsh comments have been made about the concept over the years. It was argued that the concept is “toothless” (Jacqueson: 2002 p. 263). In fact, some went even further to say that it is not citizenship at all: “Citizens are individuals who decide upon citizen’s rights, and so citizens have the power to define their content and scope” (p. 205 Birkenshaw: 2010). It is difficult to see how this definition applies to Union citizenship since the citizens of the European Union have very limited powers (Birkenshaw: 2010). Accusations are madeof it being a passive kind of citizenship which does not encourage or allow for participation of citizens in the community and lacks a sense of membership (Craig: 2003 p. 760 and see Konstadinides: 2010).
There are also practical problems with implementation of some of the provisions in certain Member States. Such problems reduce the extent to which the theoretical framework translates into substantive citizenship. One of the difficulties is with Article 19 of TEU, the right to vote: “different constitutional provisions in certain Member States and hence derogations are permitted”. (p. 759 Craig: 2003)
Perhaps most prominently, criticism has attached to the restrictions on residence right and discrimination against resident third country nationals (Craig: 2003). Article 18 TEU deals with rights of free movement and residence. This right is subject to “limitations and conditions laid down in the Treaty and by the measures adopted to give it effect” (Art. 18(1)). Curiously, these were not the first provisions regarding free movement and residence enacted (Craig: 2003). Three Directives were adopted in 1990 (90/365, 90/366, 90/364) which required Member States to grant rights of residence (work permits) to specific groups of people other than workers and their families subject to those people with resources not to claim social security benefits and had health insurance (Craig: 2003). Despite the fact that the right of residence no longer requires economical activity, financial self-sufficiency is still essential (Craig: 2003). The difficulty with this condition is that it means the right of free movement is significantly restricted as Chalmers memorably observed: “The European Union citizenship is a citizenship for all Europeans who are not poor or sick” (Chalmers: 2010 p. 449).
The ECJ has also played a vital part in developing substantive practice. In the Case C-85/96 Martínez Sala v. Freistaat Bayern ECR I-2691 social and financial inequality among citizens were addressed and laid to rest criticisms that TEU citizenship were merely “symbolic”. The effect of this ruling was that any Union citizen lawfully resident in a Host State can rely on the principle of non-discrimination (Lenaerts & Van Nuffel: 2005). The problem was further addressed in the Case C-184/99 Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve  ECR I-6193. In this case Grzelczyk was held to be allowed welfare benefits in accordance with the notion that those in the same situation should enjoy the same treatment (Hofmann: 2010 p.6), The difficulty remains in the restrictive application of art 18(1) dealing with the right of residence and the interaction with equal treatment (Jacqueson: 2002).
Further developments in the doctrine of citizenship and the difficulties of application of Art 18 were created in the case of C -413/99 Baumbast, R v Secretary of State for the Home Department (2002). This case held that Article 18(1) is directly effective subject to the principle of proportionality. As a result a migrant worker who was a Union citizen could renew his residence permits in the UK. Further innovative case law came in Case C-200/01 Zhu and Chen where it is clear that a mother’s rights may derive from a child who needs to be cared for and the UK’s refusal of residence rights was overturned (Horsepool: 2006). Conversely, it is also argued that European Union citizenship is constrained to the consequences of free movement of people (Konstadinides: 2010).
Additionally, to lend credibility to the view that the legal framework has not translated into substantive practice of Union citizenship, there are a number of complaints made by the Union citizens who have sought to enforce their rights (Turner: 1999). These problems have been revealed following studies of the Commission, Council and the Parliament (ibid). The results showed a number of difficulties which included:
“obtaining residence permits because of unnecessary and unlawful administrative practices in the Member States; administrative practices in some member states whereby passports are held while residence-permit applications are processed; policies of stamping of passports on entry (the stamp thus serving as a residence permit and no separate permit being issued); rejection of visa applications without justification; unjustified expulsions or expulsions for minor offences; failure to recognise professional qualifications; unjustified discrimination on the grounds of nationality when applying for certain jobs; and difficulties in the registration of foreign cars and motorcycles for personal use.“ (Turner: 1999 p. 3)
To address the difficulties, the Commission responded by creating a list of aims (Turner: 1999 p. 3). These included minimizing undue delays in the administration of residence-permit applications, corrected application of free movement rules in expulsions and other measures aimed at EU citizens and protecting the rights of groups such as “third-country nationals who are family members of EU citizens” (ibid).
In addition to the above listed practical and legal aspects, Union citizenship has been criticised for reasons such as “the symbolism of super-statehood inherent in the notion of EU Citizenship” (Craig: 2003 p. 760), the “Literal interpretation of the citizenship provision inserted by the Maastricht Treaty reveals symbolic nature of the concept” (p.260 Jacqueson: 2010) and furthermore, “If the Community is to gain the respect and support of its citizens, European citizenship must be seen to amount to more than a few extra voting rights and an easier ride from the immigration authorities of the Member States” (Vincenzi: 1995 p. 274-275,) To move away from the dangerous zone of EU citizenship being considered bringing nothing new and symbolic, perhaps, an overall institutional and political reform in EU needed for meaningful citizenship (Craig: 2003).According to Turner (1999) what would make the notion of European citizenship translate into more substantive practice would be “the existence of an effective body of EC legislation giving effect to the citizenship provisions in the EC Treaty.“(1999: p. 3). Nevertheless, Turner is hopeful that with time, the obstacles on the way of reality of European citizenship will be overcome and: “The concept of EU citizenship will then be transformed from myth into reality” (p.3). As much as it is easy to criticize the notion in the light of the factual findings, perhaps Turner’s positive outlook should be embraced. What must be acknowledged is that the architects attempted to “rethink and transform citizenship” in order to create something new and better for the people of the European Union (Kostakopoulou, p. 38).
When on 16 April 2004, in an interview with Jacques F. Poos, former Luxembourg Foreign Minister, he was asked whether he regarded the European citizenship as a great success, he answered: “It is a success formally speaking” and although at the time he referred to not making use of voting rights due to lack of information and politics, his statement was very true about the notion of European citizenship altogether (www.ena.lu). European Union Citizenship is a new and dynamic concept. The plethora of complex case law and negative academic opinions together with opinions of the citizens conferred to the European Commission show that although the legal framework of the European citizenship is “formally speaking a success”, it has not translated into substantive practice yet to any great extent at all. However, some credit must be given as Union citizenship is likely to, in time, turn into a fully effective legal instrument, grow teeth and shed its old “toothless” image.
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