The unpatriotism of the economic constitution? Rights to free movement and their impact on national and European identity

European Law Journal

Volumn 14, Issue 2, 2008, Pages 186-202

  Hilson, Chris ^a  

^a UNIVERSITY OF READING   (United Kingdom)

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[No Author keywords available]

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EID: 65249086870     PISSN: 13515993     EISSN: 14680386     Source Type: Journal    
DOI: 10.1111/j.1468-0386.2007.00410.x     Document Type: Article

References (124)

1. J. Habermas, 'Why Europe Needs a Constitution', (2001) 11 New Left Review 5.
2. J. Weiler, The Constitution of Europe (Cambridge University Press, 1999).
3. See AG Mischo in Case C-224/97, Ciola [1999] ECR I-2517, para 24. Court case-law on the operation of these derogations is thin on the ground: there are three key cases, all of which involve Austria;s derogation in Art 70 of its Act of Accession, from the free movement of capital rules regarding acquisition of second homes (Case C-302/97, Konle [1999] ECR I-3099; Case C-355/97, Beck and Bergdorf [1999] ECR I-4977; Case C-300/ 01, Re Salzmann [2003] ECR I-4899). This derogation allowed Austria to maintain its existing legislation regarding secondary residences for five years. Although, in these cases, the court was in principle prepared to allow otherwise discriminatory breaches of Art 56 on capital to be saved by Art 70, it left it to the national court to determine whether the relevant Austrian legislation was 'existing; and thus covered by the derogation.
4. See AG Elmer, Case C-189/95, Franzen [1997] ECR I-5909, para 122.
5. Although there are of course other important derogations (such as the single currency opt-outs and the derogations from free movement of workers secured by the existing Member States against the new accession States in the relevant Accession Treaties), these are not included, either because (unlike the four case examples listed) they are not seeking exceptions from the court's constitutionalised four freedoms case-law (single currency) or because their cultural element, though present, has been less marked (eg with workers, the 'Polish plumber' fear was based more on economic job and welfare insecurities than issues of cultural fit).
6. D. Miller, On Nationality (Clarendon, 1995).
7. The sense of 'culture' adopted here is thus neither overly narrow nor overly broad (T. Eagleton, The Idea of Culture (Blackwell, 2000), at 32). It is not so broad as to include all social practices and constructed meanings (including, eg, rights) because that would collapse the analytical distinction between civic and cultural identity employed here. On the other hand, it encompasses more than just high culture such as art, classical music and literature. Rather, it lies somewhere between the two.
8. M. Bruter, Citizens of Europe: The Emergence of a Mass European Identity (Palgrave Macmillan, 2005), at 11.
9. R. Abdelal et al, 'Identity as a Variable', (2006) 4(4) Perspectives on Politics 695, at 698-699.
10. R. Craufurd Smith, 'Community Intervention in the Cultural Field: Continuity or Change?', in R. Craufurd Smith (ed), Culture and European Union Law (Oxford University Press, 2004), at 37-40.
11. Eg Torfaen BC v B&Q plc [1989] ECR 3851.
12. Case C-159/90, [1991] ECR I-4685.
13. Eg Case C-275/92, HM Customs and Excise v Schindler [1994] ECR I-1039.
14. Eg Case 34/79, Henn and Darby [1979] ECR 3795.
15. Case 379/87, [1989] ECR 3967.
16. Though the court is not hands-off if it believes that measures to protect national identity through language and education are disproportionate: Case C-473/93, Commission v Luxemburg [1996] ECR I-3207, where it ruled that a requirement that Luxembourg teachers had to be nationals went too far given that national identity (supported by reference to what is now Art 6(3) EU) could equally be protected via language, experience and training requirements.
17. Eg Case 36/74, Walrave & Koch v Association Union Cycliste Internationale [1974] ECR 1405
18. Case 13/76, Donà v Mantero [1976] ECR 1333.
19. Case 178/84, Commission v Germany [1987] ECR 1227.
20. Case C-288/89, [1991] ECR I-4007.
21. Where, though health arguments were made by the German government as part of its submissions, these were particularly weak and unconvincing and thus easily rejected by the court.
22. Cases C-1/90 and C-176/90, [1991] ECR I-4151.
23. A fluidity and contentiousness which she herself acknowledges.
24. n 15 supra.
25. n 13 supra.
26. Of consumer protection and public order there.
27. Though not always.
28. Case C-415/93, [1995] ECR I-4921.
29. Craufurd Smith, op cit n 10 supra, at 30-31. Hence the court's express ruling against consumer habits being allowed to crystallise in, eg, the German Beer Purity case, n 17 supra.
30. n 12 supra.
31. Article 40.3.3.
32. n 12 supra, paras 25-27.
33. Protocol 17: 'Nothing in the [Treaties] shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland'.
34. P. Kurzer, Markets and Moral Regulation: Cultural Change in the European Union (Cambridge University Press, 2001), at 143-169.
35. L. Smyth, 'Narratives of Irishness and the Problem of Abortion: The X Case 1992', (1998) 60(1) Feminist Review 61, at 65
36. R. Fletcher, 'Post-Colonial Fragments: Representations of Abortion in Irish Law and Politics', (2001) 28(4) Journal of Law and Society 568, at 577.
37. In particular the European Parliament.
38. Smyth, op cit n 33 supra, at 69.
39. Fletcher, op cit n 33 supra, at 584-588. Although the latter point has also been seized upon and inverted by pro-choice activists, who argue that the hypocrisy of this practice is good reason for making abortion available within an independent Ireland: Ibid, at 584.
40. AG v X [1992] 1 IR 1.
41. J. Kingston and A. Whelan, Abortion and the Law (Round Hall Sweet & Maxwell, 1997).
42. Negative because it sought to weaken its previously more stringent position in the Protocol. Cf the other 'positive' declarations considered elsewhere in the article.
43. The declaration states: 'the Protocol shall not limit freedom either to travel between member States or ... toobtain or make available in Ireland information relating to services lawfully available in member States'.
44. N. Yuval-Davis, Gender and Nation (Sage, 1997)
45. Smyth, op cit n 33 supra
46. J. Nagel, 'Ethnic Troubles: Gender, Sexuality and the Construction of National Identity', in H. Kriesi et al (eds), Nation and National Identity (Verlag Ruegger, 1999), at 64.
47. T. Mayer, 'Gender Ironies of Nationalism - Setting the Stage', in T. Mayer (ed), Gender Ironies of Nationalism: Sexing the Nation (Routledge, 2000), at 7.
48. Smyth, op cit n 33 supra, at 64-68.
49. ibid., at 68-71. After X, attempts were also made to replace the view of abortion as a barbarian colonial threat to Irish cultural identity with one describing it as practised by St Brigid, the most significant Irish female saint, thus representing an embodiment of an ancient, indigenous Irish Christianity
50. Fletcher, op cit n 33 supra, at 582-583.
51. Although, in practice, the Catholic Church was broadly tolerated in Communist Poland.
52. J. Plakwicz and E. Zielinska, 'Poland', in B. Rolston and A. Eggert (eds), Abortion in the New Europe: A Comparative Handbook (Greenwood Press, 1994). Although as Plakwicz and Zielinska note (ibid, at 206-207), the Communist authorities used abortion as a social policy, liberalising or tightening it according to prevailing social need (eg increasing female employment or the birth-rate). As for de-Stalinisation, they point out that the Stalin era was in fact characterised by a complete ban on abortion.
53. M. Fuszara, 'Abortion and the Formation of the Public Sphere in Poland', in N. Funk and M. Mueller (eds), Gender Politics and Post-Communism: Reflections From Eastern Europe and the Former Soviet Union (Routledge, 1993), at 245-247.
54. Though, as Baldacchino states, the EU now arguably represents the 'Other', helping to shape a Maltese nationalism: G. Baldacchino, 'A Nationless State? Malta, National Identity and the EU', (2002) 25(4) West European Politics 191, at 200-201.
55. ibid.
56. Protocol No 7.
57. Declaration L39.
58. As opposed to Ireland's negative one - see n 39 supra.
59. Since 1953.
60. Under the old, Stalinist-inspired, Polish Constitution, itself replaced in 1997.
61. A. Szczerbiak, After the Election, Nearing the Endgame: The Polish Euro-Debate in the Run Up to the 2003 EU Accession Referendum, SEI Working Paper No 53 (Brighton, 2002), at 28.
62. I. Traynor, 'Abortion Issue Threatens Polish Admission to EU', The Guardian, 30 January 2003.
63. BBC, 'Polish Cardinal Enters EU Abortion Debate', News (2002).
64. See, eg, Konle, n 3 supra
65. Case C-452/01, Ospelt [2003] ECR I-9743
66. Cases C-515, 519-524 and 526-540/99, Reisch [2002] ECR I-2157. While earlier, discrimination-based case-law on property acquisition was based on other freedoms including establishment (Case 182/83, Fearon [1984] ECR 3677; Case 305/87, Commission v Greece [1989] ECR 1461), the court's more recent case-law has focused, increasingly exclusively, on capital.
67. While bans or lesser distinctly applicable restrictions on foreign ownership (such as prior authorisation) are clearly discriminatory and impermissible, even systems of indistinctly applicable prior authorisation for secondary residences may be open to discrimination and represent too great a restriction on capital movements (Konle, n 3 supra). Non-discriminatory notification or declaration procedures prior to property purchase are, however, permissible (Konle, n 3 supra; Reisch, n 58 supra; Case C-213/04, Burtscher v Stauderer [2005] ECR I-10309). Cf agricultural and forestry land, where indistinctly applicable prior authorisation has been accepted as justification in order, inter alia, to preserve agricultural communities, viable farms and conservation objectives (Ospelt, n 58 supra).
68. For many accession states, the very limited range of permissible restrictions described in n 59 supra thus clearly did not go far enough.
69. T. Kostakopoulou, Citizenship, Identity and Immigration in the European Union - Between Past and Future (Manchester University Press, 2001), at 154-159.
70. S. Wood, 'A Common European Space? National Identity, Foreign Land Ownership and EU Enlargement: The Polish and Czech Cases', (2004) 9(3) Geopolitics 588.
71. K. Verdery, 'Transnationalism, Nationalism, Citizenship and Property: Eastern Europe Since 1989', (1998) 25(2) American Ethnologist 291.
72. ibid, at 300.
73. Wood, op cit n 62 supra, at 588-592.
74. Government Plenipotentiary for Poland's Accession Negotiations to the European Union, Poland's Position Papers for the Accession Negotiations with the European Union (Warsaw, 2000), at 76.
75. Wood, op cit n 62 supra, at 595.
76. J. Langer, 'Last In, First Out? - Austria's Place in the Transformation of National Identity', in Kriesi et al, op cit n 41 supra, at 166.
77. M. Skak, Access to Private Nature: The Social vs. the Political Optimum, Annual Meeting of the European Public Choice Society, Belgirate, Lago Maggiore, Italy (2002), at 2.
78. A. Batory, The Legal Implications of EU Enlargement: Hungary, Poland and the Czech Republic, The Royal Institute of International Affairs, Chatham House, European Programme Working Paper (2003), at 11.
79. ibid.
80. In the end, 77% voted in favour of EU accession and 23% against, with a turnout of 59%.
81. Government Plenipotentiary, op cit n 66 supra, at 77.
82. T. Unwin, 'Contested Reconstruction of National Identities in Eastern Europe: Landscape Implications', (1999) 53 Norwegian Journal of Geography 113, at 116-117.
83. ibid, at 113.
84. S. Schama, Landscape and Memory (Harper Collins, 1995), at 37-74.
85. ibid.
86. Case C-415/93, [1995] ECR I-4921.
87. ibid, para 127.
88. See also case-law cited at n 16 supra.
89. Paragraph 143 of his Opinion. See also the court's judgment at para 131.
90. M. Platini, Platini: 'Football must Return to its Core Values' (Fifa, 2004).
91. Paragraph 143. Empirical evidence supports this - eg, pre-Bosman, over 70% of surveyed Glasgow Rangers fans were against UEFA's previous three 'foreigner' rule
92. H. Moorhouse, 'Scotland, Football and Identities: The National Team and Club Sides', in S. Gehrmann (ed), Football and Regional Identity in Europe (Lit Verlag, 1997), at 191.
93. M. Roche, 'Citizenship, Popular Culture and Europe', in N. Stevenson (ed), Culture and Citizenship (Sage, 2001), at 89-90
94. M. Roche, Europe, 'the Cosmopolitan Condition' and International Sport: 'Cultural Europeanisation' and EU Regulation in the Case of European Football, Europe and Cosmopolitanism Conference (Royal Holloway College, London, 2004), at 22.
95. Paragraph 143.
96. Paragraph 146.
97. G. Magnusson, 'The Internationalization of Sports: The Case of Iceland', (2001) 36(1) International Review for the Sociology of Sport 59, at 61.
98. R. Levermore and P. Millward, 'Official Policies and Informal Transversal Networks: Creating "Pan-European Identifications" Through Sport?', (2007) 55(1) The Sociological Review 144, at 154.
99. R. De Biasi and P. Lanfranchi, 'The Importance of Difference: Football Identities in Italy', in G. Armstrong and R. Giulianotti (eds), Entering the Field: New Perspectives on World Football (Berg, 1997).
100. R. Parrish, 'The Politics of Sports Regulation in the European Union', (2003) 10(2) Journal of European Public Policy 246.
101. Declaration 29: 'The Conference emphasises the social significance of sport, in particular its role in forging identity and bringing people together. The Conference therefore calls on the bodies of the European Union to listen to sports associations when important questions affecting sport are at issue. In this connection, special consideration should be given to the particular characteristics of amateur sport'.
102. Declaration on the Specific Characteristics of Sport and its Social Function in Europe (Nice European Council, 7-9 December 2000). The key passage reads: 'even though not having any direct powers in this area, the Community must ... take account of the social, educational and cultural functions inherent in sport and making it special, in order that the code of ethics and the solidarity essential to the preservation of its social role may be respected and nurtured'
103. see Parrish, op cit n 89 supra, at 255.
104. Case C-176/96, Lehtonen [2000] ECR I-2681, para 33
105. Cases C-51/96 and C-191/97, Deliege [2000] ECR I-2549, para 42.
106. It is a questionable reading of the wording of the declaration which speaks of 'special consideration' being given to amateur sport and which, implicitly, means that commercial sport may itself deserve some (albeit less special) consideration in relation to its social aspects.
107. Case C-243/06, SA Sporting du Pays de Charleroi and G-14 v FIFA.
108. In relation to competition law, the allegation is of, inter alia, an abuse by FIFA of its dominant position under Art 82 EC. Alleged free movement breaches are of Arts 39 (workers) and 49 (services). That economic sporting activity may fall within the scope of Arts 81-82 was established by the Court of First Instance in Case T-313/02, Meca-Medina and Majcen v Commission [2004] ECR II-3291, para 42 (though the anti-doping rules at issue there, being of a purely sporting as opposed to economic nature, were held to fall outside Arts 81-82).
109. See the Swedish/Finnish Accession Treaty, Annex XV, section IX, Taxation, para 3.
110. The declaration reads: 'Without prejudice to the obligations arising under the Agreement, Finland, Iceland, Norway and Sweden recall that their alcohol monopolies are based on important health and social policy considerations.'
111. Declaration 50: 'The Conference at Ministerial level was informed at its 5th meeting on 21 December 1993 of the exchange of letters between the Commission and Finland and the Commission and Sweden on alcohol monopolies'
112. see further AG Elmer in Franzen, n 4 supra, paras 4 and 122.
113. Soon confirmed, later in 1994, by EFTA Case E-1/94, Restamark [1994-1995] EFTA Court Report 15, involving the Finnish import monopoly.
114. n 20 supra.
115. n 4 supra.
116. Kurzer, op cit n 32 supra, at 27-72.
117. ibid, at 27-30 and 173.
118. H. Holder, European Integration and Nordic Alcohol Policies: Changes in Alcohol Controls and Consequences in Finland, Norway and Sweden, 1980-1997 (Ashgate, 1998)
119. T. Ugland, 'European Integration and the Corrupting Gaps of the System', in P. Sulkunen et al (eds), Broken Spirits: Power and Ideas in Nordic Alcohol Control (Helsinki, NAD-Publication No 36, 2000), at 126
120. Kurzer, op cit n 32 supra, at 183.
121. Kurzer, op cit n 32 supra, at 92.
122. Ugland, op cit n 104 supra, at 128.
123. Kurzer, op cit n 32 supra, at 93-94.
124. See also the 'Polish plumber' derogations, n 5 supra.