02 Dezember 2016

After Fragmentation: The Constitution of a Core European Citizenry?

Everywhere you look, Europe seems to be at a turning point. The prospect of complete withdrawal of an EU Member State (‘Brexit’) is only the most dramatic instance of a general trend of fragmentation in European integration. For the first time in the history of the Union, every national of a Member State may lose their rights and status as EU citizens. I would like to propose that the prospect of such fragmentation means that we should now consider whether a more radical overhaul of the European project is necessary. If the UK government adheres to its commitment to trigger Article 50 in March 2017, then the clock will start ticking on finding solutions for individuals. It appears increasingly unlikely, however, that the fraught negotiating relationship between the United Kingdom and the EU will result in a satisfactory protection of rights and status for individual citizens. Consequently, barring re-accession, I would argue that the only way to preserve the benefits of the EU legal and political order for UK nationals is the constitution of a core European citizenry. This would change EU citizenship from being passively acquired with Member State nationality to an active choice of participation. Such a constitutive moment would not only protect the rights and status of EU citizens from current fragmentation, but insulate them from the negative consequences of future fragmentation. Beyond Brexit and fragmentation, the disconnection of citizenship from Member State nationality has the potential to finally create the elusive ‘demos’ of Europe through individuals coming together to construct a true constitutional polity.

In its simplest terms, the idea is a reframing of the existing conception of creating a ‘Core Europe’ of ‘more integrationist’ states that act as a vanguard of integration. However, rather than states, the constituent subjects of this core Europe would be individual citizens. The idea that there are states that are more ‘integrationist’ or less ‘integrationist’ is reductive: instead, attitudes to European integration will vary between each member of a national polity due to numerous separate but interrelated factors. The 52% who voted to leave in the United Kingdom as opposed to the 48% who voted to remain is testament to this. Regardless of the internal democratic legitimacy of a vote to leave the European Union, the fact remains that this seismic decision leads to the loss of rights of free movement, residence, employment and access to social benefits that individuals rely on in order to pursue their life plans in the territory of the European Union.

Consequently, I submit that those European individuals who were granted the embryonic status of ‘EU citizenship’ with the Treaty of Maastricht, and who rely on this status and these rights for their pursuit of fulfilment throughout the European Union’s territory, should be given the choice to establish themselves in a real European constitutional polity. But it should be stressed that this is not a call for a federal United States of Europe. National citizenship would still exist, with acquisition of EU citizenship operating in the same way as ‘dual’ citizenship of states. Indeed, I would even argue that the creation of such a European citizenry could accommodate the concerns of the ‘Eurosceptics’ who rally against the imposition of the EU in national law and politics by finally providing a clear demarcation of competences and individual subjects. Although these individuals may not want to be EU citizens, in the same way that the state-centric idea of Core Europe is that certain states push ahead with integration in the expectation that others will follow, the choice to become an EU citizen should also remain open to all Member State nationals.  By making the deliberate choice to ‘become’ a European citizen, individuals would constitute themselves into a form of floating polity that is not tethered to state territory, but to particular values and societal ideals.

Perhaps most importantly such a constitutional moment would not only serve the backwards-looking purpose of protecting individuals from fragmentation by insulating the status and rights that have already been achieved in the European Union. It would also serve a forward-looking purpose by enabling European citizens to come together and decide the shape of their European social, economic, political, and personal community space. In a time of seemingly constant crisis and the consequent perception that the Union does not take social rights seriously, this could enable the creation of new social welfare mechanisms that are more responsive to the needs of citizens. Extending the boundaries beyond existing EU citizens, in theory the disconnection of EU citizenship being predicated on nationality of a Member State would and should allow citizens of countries outside of the European Union (‘Third Country Nationals’) to become EU citizens. Such reforms would indeed be radical. However, it should be stressed that this proposal does not necessarily entail a constitutional ‘revolution’. The status of citizenship already exists, and therefore the disconnection from Member State nationality is more akin to evolution. Indeed, the terminology of devolution may be even more appropriate: the constitution of the Core European Citizenry would entail shifting the perspective of the European Union’s core legal and political order down from the grand politics of inter-state relations and back to the ‘everyday’ level of relations between individuals in their societies and communities.

I would tentatively submit that such a reset for the European project is the only way to vindicate the Union’s repeated yet unfulfilled calls to bring the EU closer to its citizens. When I first started considering this idea in pre-emption of Brexit in my PhD proposal in January 2016, I believed it was closer to utopian fantasy than reality. However, even before the United Kingdom’s withdrawal, the population’s vote to leave on 23 June has arguably changed the rules of the game. The apparently locked doorway to a true European constitutional polity now seems to have opened slightly. Cracks of light are evident, such as the proposal in the European Parliament to offer ‘associate citizenship’ to nationals of a former Member State. I would not claim that any one person can offer all the answers to the complex problem of fragmentation. Instead, what I hope to propose is that we should now at least consider the potential for such radical overhaul of the European project, as opposed to piecemeal and incremental solutions to symptoms which do not address the underlying malaise. From the ashes of Brexit’s fragmentation in the scope of the legal order, the phoenix of a true constitutional polity may arise.

This post distills an argument made in the EUI Law Department Working Paper ‘After Brexit: Protecting European Citizens and Citizenship from Fragmentation’ published on the SSRN.

 


SUGGESTED CITATION  Garner, Oliver: After Fragmentation: The Constitution of a Core European Citizenry?, VerfBlog, 2016/12/02, https://verfassungsblog.de/after-fragmentation-the-constitution-of-a-core-european-citizenry/, DOI: 10.17176/20161205-101049.

6 Comments

  1. Uk citizen Fr 2 Dez 2016 at 23:17 - Reply

    We don’t want to be EU citizens.

  2. Oliver Garner Sa 3 Dez 2016 at 11:27 - Reply

    Then I believe that you should support this proposal. It would precisely enable you and others not to be EU citizens if you do not want to be, whilst enabling those individuals who do wish to be EU citizens to have this status.

  3. Ed Webb Sa 3 Dez 2016 at 20:58 - Reply

    As a UK national who feels more European than British, and who is destined to have his EU citizenship stripped from him by a referendum from which he was excluded, I would very much welcome the opportunity to opt in as an EU citizen.

  4. Oliver Garner Mo 5 Dez 2016 at 08:12 - Reply

    Dear Ed,

    Thank you for your comment. It is preciselely the prospective negative consequences for people in positions comparable to yours that led me to start considering this proposal. I myself will also lose a status that I believe is fundamental to my life plans (although because I fell the right side of the arbitrary 15 year residence condition I was fortunately able to vote).

    I hope that the eventual outcome of this moment of great upheaval will be that you and others in your position can indeed retain the substance of your EU citizenship. Furthermore, if implemented correctly,I do not believe that such a result would undermine any apparent „will of the British people“ contrary to what some narratives would like us to believe.

    Best, Oliver.

  5. Y M de Ruiter Mo 12 Dez 2016 at 21:18 - Reply

    Interesting idea theoretically, but in practice…
    It raises a lot of questions. I name one: what if all Syrians become EU citizens, would we be obliged to send an army to defend them?

  6. Oliver Garner Di 13 Dez 2016 at 22:00 - Reply

    Thank you for the question – the issues of how the ’security constitution‘ would operate in such a differentiated European polity are pertinent.

    My initial response would be that my proposal would operate as a form of dual-citizenship. Consequently, I do not believe that a prima facie obligation for one polity to intervene militarily in order to defend another polity can be derived from the fact that individuals are dual-citizens. I am, however, no expert in international relations and military intervention so I would welcome any different opinions on this point.

    Of course, your question also presupposes that such a European polity would require an army. It could well be that defence co-operation would remain a competence for intergovernmental co-operation between Member States. However, the only thing that is certain is that these nuances require far more thought and development.

    Best, Oliver.

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Europa
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