The resilience of EU market citizenship

Common Market Law Review

Volumn 47, Issue 6, 2010, Pages 1597-1628

  Shuibhne, Niamh Nic ^a  

^a UNIVERSITY OF EDINBURGH   (United Kingdom)

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EID: 78650256548     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (142)

1. E.g. Kostakopoulou, "Ideas, norms and European citizenship: Explaining institutional change", 68 MLR (2005), 233 at 233-234.
2. E.g. para 54 of A.G. Mazák's Opinion in Case C-158/07, Förster v. IB-Groep, [2008] ECR I-8507: "It is thus fair to say that the concept of Union citizenship, as developed by the case law of the Court, marks a process of emancipation of Community rights from their economic paradigm ... Community law rights - in particular the right not to be subjected to unjustified discrimination - are no longer bestowed upon citizens solely when they make use of the economic freedoms and assume a corresponding status (worker, provider of services etc.), but directly by virtue of their status as a citizen of the Union." The financial resources and medical insurance conditions that curb movement and residence rights are set out mainly in Arts. 7 and 24(2) of Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, O.J. 2004, L 158/7.
3. E.g. Faist, "Social citizenship in the European Union: Nested membership" (2001) 39 JCMS 37.
4. Nicolaïdis, "The new constitution as European 'demoi-cracy'?" 7 Critical Review of International Social and Political Philosophy (2004), 76.
5. Kostakopoulou, "European Union citizenship: Writing the future", 13 ELJ (2007), 623.
6. Somek, Individualism: An Essay on the Authority of the European Union (OUP, 2008).
7. Everson, "The legacy of the market citizen", in Shaw and More (Eds.) New Legal Dynamics of European Union, (Clarendon Press, 1995) p.73.
8. E.g. "[t]he central issue [of the chapter will be] whether the concept of the market citizen has created any particular problems which require urgent attention (or correction) via the me -dium of the institution of the Union citizen".
9. For discussion of literature criticizing the status of the Statemarket citizen, see esp. pp. 84-85.
10. See O'Leary, The Evolving Concept of Community Citizenship: From the Free Movement of Persons to Union Citizenship, (Kluwer Law International, 1996), pp. 4-13.
11. See "Introduction: From national to transnational citizenship" to Bellamy, Castiglione and Shaw (Eds.), Making European Citizens (Palgrave, 2006), pp. 1-28.
12. Much of this is built on the foundational work of T.H. Marshall, Citizenship and Social Class, (CUP, 1950).
13. The idea of a polity is used here in terms of denoting an existential depth rather than the Aristotelian exposition, which related to the status and authority structures of the Greek city and was woven around more specific community-oriented features or requirements. A helpful symmetry between the EU as a polity in contemporary terms and the city as a polity in historical terms, however, is that having the characteristics of a polity is a necessary precondition for the generation of a legitimate citizenship relationship. In other words, organizations cannot have citizens; but polities - and not, therefore, only States - can. I am grateful to Claudio Michelon for discussion on this point.
14. For a recent thesis on the EU as a "federation of States", see Schütze, "On 'federal' ground: The European Union as an (inter)national phenomenon", 46 CML Rev. (2009), 1069.
15. The conceptual value of complementary citizenship (especially against the thinness of transnational welfare solidarity to date) is discussed in Bellamy, "The liberty of the post-moderns? Market and civic freedom within the EU", LEQS paper No. 01/2009, at.
16. See e.g. Meny, "De la démocratie en Europe: Old concepts and new challenges", 41 JCMS (2003), 1.
17. Føllesdal and Hix, "Why there is a democratic deficit in the EU: A response to Majone and Moravcsik", 44 JCMS (2006), 533.
18. The debate on EU constitutional pluralism is a burgeoning limb of this question: see MacCormick, "Beyond the Sovereign State", 56 MLR (1993), 1.
19. Walker, "The idea of constitutional pluralism", 65 MLR (2002), 317.
20. Poaires Maduro, "Europe and the Constitution: What if this is as good as it gets?", in Weiler and Wind (Eds.), Constitutionalism Beyond the State, (CUP, 2003), p. 74.
21. Baquero Cruz, "The legacy of the Maastricht-Urteil and the pluralist movement", 14 ELJ (2008), 389.
22. Davies, "Constitutional disagreement in Europe and the search for pluralism", Eric Stein Working Paper No. 1/2010, available at .
23. See Hunt and Shaw, "Fairy Tale of Luxembourg? Reflection on law and legal scholarship in European integration" in Phinnemore and Warleigh (Eds.) Reflections on European Integration: 50 Years of the Treaty of Rome (Palgrave, 2009), p. 93.
24. Walker, "Big 'C' or small 'c'?" 12 ELJ (2006), 12.
25. For recent, Lisbon-inclusive discussion of both narratives, see Shaw, "Citizenship: Contrasting dynamics at the interface of integration and constitutionalism" in Craig and de Búrca (Eds.) The Evolution of EU Law, 2nd ed. (OUP, 2010, forthcoming).
26. The foundational decisions on direct effect, primacy and a system of State liability for breaches of Community law include Case 26/62, Algemene Transport- en Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen, [1963] ECR 1.
27. Case 6/64, Costa v. ENEL, [1964] ECR 585.
28. Joined Cases C-46 & 48/93, Brasserie du Pêcheur v. Germany and R v. Secretary of State for Transport, ex parte Factorame, [1996] ECR I-1029. Another important example is the jurisprudence on EU recognition and protection of fundamental rights, stemming initially from one terse statement in Case 29/69, Stauder v. City of Ulm, [1969] ECR 419 and triggering ultimately the political development of the EU Charter of Fundamental Rights.
29. On the "undeniable coherence" of this constitutional progression, see Weiler, "The transformation of Europe", 100 Yale Law Journal (1990-1991), 2403 at 2524-5.
30. For others, however, the "spectre of judicial supremacy" might be a more appropriate characterization.
31. See Gerstenberg, "Expanding the constitution beyond the Court: The case of Euro-constitutionalism", 8 ELJ (2002), 175 at 177.
32. See Shapiro, "The European Court of Justice", in Craig and de Búrca (Eds.), The Evolution of EU Law (OUP, 1999) 321 at 329. For an analysis of Advocate General, Commission and Member State influence on the Court in the period of its formative constitutional case law.
33. See Stein, "Lawyers, judges and the making of a transnational constitution", 75 American Journal of International Law (1981), 1.
34. Meny characterizes the harshness of the democratic deficit debate as "a kind of mystery... given that, after all, the democratic credentials of Europe do not appear so distant, in practice, from those of democracies at the national level". This remark has added resonance in the current era of executive primacy, irrespective of what kind of polity is being discussed.
35. Conjuring the sui generis idea; see e.g. Della Scala and Wiener, "Constitution making and citizenship practice: Bridging the democracy gap in the EU?", Sussex European Institute (SEI) Working Paper No. 18, 9-11.
36. Joerges, "The law in the process of constitutionalizing Europe", EUI Working Paper, Law, No. 2002/4, , 6-9.
37. Walker, "Constitutionalism and Pluralism in Global Context", in Avbelj and Komarek (Eds.) Constitutional Pluralism in the European Union and Beyond (Hart Publishing, 2010, forthcoming).
38. The potential offered by the new citizens' initiative is discussed further below; see Arts. 11(4) TEU and 24 TFEU.
39. See Menon and Weatherill, "Transnational legitimacy in a globalising world: How the European Union rescues its States", 31 West European Politics (2008), 397.
40. See also the attempts of the German Federal Constitutional Court to grapple with these questions (albeit from a Statefavoured bias) in its Lisbon Treaty decision, BVerfG, 2 BvE 2/08, judgment of 30 June 2009; for analysis and critique.
41. See Doukas, "The verdict of the German Federal Constitutional Court on the Lisbon Treaty: Not Guilty, but Don't Do it Again!" 34 EL Rev. (2009), 866.
42. Matthews v. United Kingdom (App. 24833/94; 28 EHRR (1999), 361) and Bosphorus Airways v. Ireland (App. 45036/98; 42 EHRR (2006), 1.
43. See similarly, Joerges, "The market without the State? The 'economic constitution' of the European Community and the rebirth of regulatory politics", European Integration online Papers (EIoP), vol. 1 (1997), no. 19; , 5.
44. "What is left of the European Economic Constitution?", EUI Working Paper, Law, No. 2004/13, , 35-36.
45. As MacCormick observes, "[c]ivil liberty is favourable to markets, and markets are favourable to civil liberty...neither is strictly essential to the other" (MacCormick, "Spontaneous order and the rule of law: Some problems" 2 Ratio Juris (1989), 41, 45).
46. Similarly, Evans, "Union citizenship and the constitutionalization of equality in EU law", in La Torre (Ed.), European Citizenship: An Institutional Challenge (Kluwer Law International, 1998) 267 at 272.
47. Baquero Cruz, Between Competition and Free Movement (Hart Publishing, 2002), p. 84.
48. Monti, The Single Market and Tomorrow's Europe: A Progress Report from the European Commission (Kogan Page, 1996), p. 144.
49. The deceptive neutrality of progressing integration through the market is exemplified by the quiet but profound political and constitutional changes effected by the 1985 White Paper and the SEA (European Commission, "Completing the Internal Market" - COM(85)310 final. There are some signs of revitalized market debate at the time of writing; after its distinctly underwhelming vision of a Single market for the 21st century (COM(2007)724 final), the Commission subsequently invited former Commissioner Monti to prepare a comprehensive report on the single market, the central theme of which consistently emphasizes the importance of the market to EU integration more broadly.
50. Monti, A New Strategy for the Single Market: At the service of Europe's Economy and Society, 9 May 2010, available at ec.europa.eu/bepa/pdf/monti_report_final_10_05_2010_en.pdf.
51. For example, Chalmers points to "evidence of an express link between the single market and the normative qualities of the Community legal order" (Chalmers, "The single market: From prima donna to journeyman", in Shaw and More (Eds.) New Legal Dynamics of European Union (Clarendon Press, 1995) p. 55, 60).
52. Reich refers to the "economic rights [which] were to form and in fact still constitute the central point of [the EC] constitution" (Reich, "A European constitution for citizens: Reflections on the rethinking of Union and Community law", 3 ELJ (1997), 131, 142).
53. Maduro notes the "interplay between the constitutionalization of Community law and market integration rules" (Maduro, We, The Court: The European Court of Justice and the European Economic Constitution (Hart Publishing, 1998), p. 8).
54. Weiler describes the common market as "the heart of the material or substantive constitution of the Community" but, significantly, he continues that this "is, too, an important part of overall European constitutionalism".
55. (Weiler, "The constitution of the common market place: Text and context in the evolution of the free movement of goods", in Craig and de Búrca (Eds.), The Evolution of EU Law, (OUP, 1999), p. 349 at 350.
56. see also p. 363.
57. Mackenzie Stuart, "Problems of the European Community: Transatlantic parallels" 36 ICLQ (1987), 183 at 188.
58. More generally, see Armstrong and Bulmer, The Governance of the Single European Market (Manchester University Press, 1998) pp. 46 et seq.
59. J. Bryce, Studies in History and Jurisprudence, Vol. I, (OUP, 1901), Essay IV, "The action of centripetal and centrifugal forces on political constitutions", 216, 249.
60. See further, Edward, "Thinking about constitutions", Federal Trust European Essay No 34, available at .
61. E.g. the extensive commentary reacting to Case C-159/90, Society for the Protection of the Unborn Child (SPUC) v. Grogan, [1991] ECR I-4685.
62. Case C-36/02, Omega Spielhallenund Automatenaufstellungs-GmbH v. Oberbürgermeisterin der Bundesstadt Bonn, [2004] ECR I-9609.
63. And Case C-341/05, Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, Svenska Eyggnadsarbetareförbundets avd. 1, Byggettan, Svenska Elektrikerförbundet, [2007] ECR I-11767.
64. See that paper generally for an overview of the origins and development of ordoliberalism. While democratic legitimacy was always centred on private market actors in the original theoretical framework, contemporary debate discusses whether more formalized methods of (less-legal) governance can be accommodated in economic constitutionalism.
65. See also, Harden, "The constitution of the European Union", (1994) Public Law, 609.
66. Everson, "Adjudicating the market", 8 ELJ (2002), 151.
67. The identity-grounded claims supported in Garcia Avello and the way in which their treatment differed from the earlier decision in Konstantinidis are illustrative here: cf. Case C-148/02, Garcia Avello v. Belgian State, [2003] ECR I-11613 and Case C-168/91, Konstantinidis v. Stadt Altensteig, Standesamt, & Landratsamt Calw, Ordnungsamt, [1993] ECR I-1191.
68. See also, Case C-353/06, Grunkin and Paul v. Grunkin-Paul and Standesamt Stadt Niebüll, [2008] ECR I-7639. The challenge that these cases pose for the driver of movement raises other questions, returned to in section 3 infra.
69. The extension of Treaty protection to service recipients was a hugely significant step in free movement law, opening the way for claims from cross-border patients to tourists; see Directive 73/148, O.J. 1973, L172/14 (now repealed and replaced by Directive 2004/38/EC). Judicial affirmation and development of these principles, and the consequential decoupling of direct connection between the personal and material scope of the Treaty (especially in Case 186/87, Cowan v. Trésor Public, [1989] ECR 195) laid the analytical foundations for later case law on auto nomous citizenship rights (notably Case C-85/96, Martínez Sala v. Freistaat Bayern, [1998] ECR I-2691). The 1990s Residence Directives also shifted emphasis away from occupational activities (Directives 90/364 (general movement and residence), 90/365 (retired persons) and 93/96 (students), O.J. 1990, L 180/26, L 180/28 and O.J. 1993, L 317/59 respectively; all repealed and replaced by Directive 2004/38/EC).
70. Though still tied to facilitation of "occupational activities", there is an express reference to "Community citizens" in Case 143/87, Stanton v. Institut national d'assurances sociales pour travailleurs indépendants (Inasti), [1988] ECR 3877, para 13. This was reaffirmed in Case C-370/90, R v. Immigration Appeal Tribunal and Singh, ex parte Secretary of State for the Home Department, [1992] ECR I-4265, para 16, and sketched more rhetorically by A.G. Jacobs in Case C-168/91, Konstantinidis v. Stadt Altensteig, Standesamt, & Landratsamt Calw, Ordnungsamt, [1993] ECR I-1191, para 46 of the Opinion.
71. E.g. Evans, "European citizenship", 45 MLR (1982), 497.
72. Some of the constraints that continue to check the scope of free movement rights are discussed in more detail below e.g. the uneasy friction that characterizes the piercing by EU law of national welfare provision.
73. The Spaak Report, for example, talks about regional balance and equality of treatment where it deals with the free movement of workers (Rapport des Chefs de Délégations aux Ministres des Affaires Etrangères, Secretariat of the Intergovernmental Conference, Brussels, 21 April 1956, 88-89), but there is no indication of any particular importance attached to persons. Faist, op. cit. note 3 supra, 43, comments that "[t]he free movement of workers introduced by the Treaty of Rome (1957) was largely a product of Italy's influence which at that time was the biggest exporter of labour to the EU". Later, the Commission White Paper on Completing the Internal Market (COM(85)310 final) did make some impassioned pleas on behalf of the "people of Europe".
74. (See especially, 55, paras 219 and 220), but in the more abstract vein of advancing the Community project.
75. Kadelbach traces key political initiatives in the 1970s which display an emerging concept of citizenship, including the Tindemans Report in 1975 (Bull. EC Suppl. 1-76), the 1984 Draft Treaty on European Union (O.J. 1984, C 77/53), and the work of the Adoninno Committee (Bull. EC Supp. 7/85 and "A People's Europe", Bull. EC Supp. 2/88).
76. See Kadelbach, "Union Citizenship", Jean Monnet Working Paper no. 9/03, , 7-8.
77. E.g. European Commission, Towards European Citizenship: The Granting of Special Rights, COM(75)321 final.
78. See O'Leary, "The free movement of persons and services", in Craig and de Búrca (Eds.), The Evolution of EU Law (OUP, 1999) 377, 381.
79. The exceptions are Case C-145/04, Spain v. United Kingdom, [2006] ECR I-7917 (voting rights/Gibraltar) and Case C-300/04, Eman and Sevinger, [2006] ECR I-8055 (voting rights/ Aruba), addressed in section 3.2 infra.
80. Case C-85/96, Martínez Sala v. Freistaat Bayern, [1998] ECR I-2691.
81. E.g. Case C-274/96, Criminal proceedings against Bickel and Franz, [1998] ECR I-7637, in conjunction with service recipient rights.
82. E.g. Case C-200/02, Zhu and Chen v. Secretary of State for the Home Department, [2004] ECR I-9925.
83. ECR I-7091 (accepting less than the legislatively codified requirement of "comprehensive" medical insurance).
84. Case C-184/99, Grzelczyk v. Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve, [2001] ECR I-6193 (non-discriminatory entitlement to national minimum subsistence allowance for a final-year student). On the constitutional significance of using of proportionality in this way.
85. See Dougan, "The constitutional dimension to the case law on Union citizenship", 31 EL Rev. (2006), 613.
86. E.g. Case C-209/03, Bidar v. London Borough of Ealing; Secretary of State for Education and Skills, [2005] ECR I-2119, (maintenance grants for students, reversing Case 39/86, Lair v. Universität Hannover, [1988] ECR 3161).
87. E.g. compare Case C-109/01, Secretary of State for the Home Department v. Akrich, [2003] ECR I-9607, on Regulation 1612/68, and Case C-127/08, Metock and others v. Minister for Justice, Equality and Law Reform, [2008] ECR I-6241, on Directive 2004/38 (residence rights for third country national family members).
88. E.g. Garcia Avello, cited supra note 44 (displacing host State rules on registration of children's surnames to facilitate home State conventions).
89. E.g. Spaventa, "From Gebhard to Carpenter: Towards a (non-)economic European constitution", 41 CML Rev. (2004), 743.
90. White, "Free movement, equal treatment, and citizenship of the Union", 54 ICLQ (2005), 885.
91. The judgment in Case C-158/07, Förster v. Hoofddirectie van de Informatie Beheer Groep, [2008] ECR I-8507 is a rare example of where citizenship arguments did not persuade the Court to opt for the more favourable outcome for the individual concerned (requiring her to repay a student maintenance grant relating to a certain period when she did not meet host State conditions i.e. she was neither a worker nor resident in the host State for 5 years). The outcome in this case was clearly influenced by the adoption of Directive 2004/38 (though this measure was not yet in force at the material time).
92. See O'Leary "Equal treatment and EU citizens: A new chapter on cross-border educational mobility and access to student financial assistance", 34 EL Rev. (2009), 612.
93. Freedom of movement and residence has been described as the "central right of citizenship" (see A.G. Colomer, Joined Cases C-11 & 12/06, Morgan and Bucher, [2007] ECR I-9161, para 67 of the Opinion).
94. see also, para 19 of A.G. Maduro's Opinion in Case C-524/06, Huber, [2008] ECR I-9705: "When the Court describes Union citizenship as the 'fundamental status' of nationals it is not making a political statement; it refers to Union citizenship as a legal concept which goes hand in hand with specific rights for Union citizens. Principal among them is the right to enter and live in another Member State" (emphasis added).
95. E.g. European Commission, Fifth Report on Citizenship of the Union, COM(2008)85 final; European Commission, Report to the European Parliament and the Council on the Application of Directive 2004/38, COM(2008)840 final.
96. European Citizen Action Service, Mind the Gap: Towards a Better Enforcement of European Citizens' Rights of Free Movement, December 2009, available at .
97. E.g. Communication from the Commission to the European Parliament and Council on guidance for better transposition and application of Directive 2004/38, COM(2009)313 final.
98. see also, the European Commission's 2010 public consultation on citizenship ("EU Citizens' Rights - The way forward: Consultation on how to strengthen the rights stemming from Union Citizenship"), at .
99. See generally, Tryfonidou, Reverse Discrimination in EC Law (Kluwer Law International, 2009).
100. Reunification of static EU citizens with third country national family members is the classic example here e.g. Joined Cases C-64/96 & C-65/96, Uecker and Jacquet, [1997] ECR I-3171, para 23).
101. cf. Directive 2003/86/EC on the right to family reunification (O.J. 2003, L 251/12) which applies to third country nationals lawfully resident in Member States.
102. See Nic Shuibhne, "Free movement of persons and the wholly internal rule: Time to move on?"39 CML Rev. (2002), 731.
103. Spaventa, "Seeing the wood despite the trees? On the scope of Union citizenship and its constitutional effects", 45 CML Rev. (2008), 13.
104. Opinion of A.G. Sharpston in Case C-212/06, Government of the French Community and Walloon Government v. Flemish Community, [2008] ECR I-1683, paras. 112-157.
105. E.g. Case C-378/97, Wijsenbeek, [1999] ECR I-6207, in which the combined effect of Arts. 14 and 18 EC was found not to defeat the requirement to show proof of identification at Member State frontiers; for more on the constitutional effects of Art. 14 EC, see the Opinion of A.G. Cosmas in the case, para 37 onwards.
106. Case C-228/07, Petersen v. Arbeitsmarktservice Niederösterreich, [2008] ECR I-6989, para 28 of the Opinion (emphasis added).
107. Case C-34/09, Ruiz Zambrano v. Office national de l'emploi, pending; see O.J. 2009, C 90/10 (emphasis added).
108. Art. 20 TFEU gathers these rights together in one provision, namely: the right to move and reside freely within the territory of the Member States; the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State; the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State; and the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages (and obtain a reply in the same language).
109. In tracing the history of the European market citizen, Everson sees him/her primarily as a consumer (op. cit. note 3 supra, 86-87). That construct is considerably narrower than the concept of market citizenship advanced here but it seems to be the dominant archetype throughout the Commission's Single market for the 21st century, COM(2007)724 final. On the concept of the consumer-citizen within the EU.
110. See Everson and Joerges, "Consumer Citizenship in Postnational Constellations?" (2006) EUI Working Paper, Law No. 2006/47, .
111. See especially Arts. 4 (shared competences) and 6 (supporting, coordinating and supplementary competences) TFEU.
112. These arguments are developed in more detail in Nic Shuibhne, "EU citizenship after Lisbon", in Ashiagbor, Countouris, and Lianos (Eds.) The EU After Lisbon (CUP, 2011, forthcoming).
113. See also the case note on Case C-135/08, Rottman, judgment of 2 March 2010, nyr, by Kochenov in this Review, 1831-1846.
114. See his Opinion in Joined Cases C-158 & 159/04, Alfa Vita Vassilopoulos AE and Carrefour Marinopoulos AE v. Elliniko Dimosio and Nomarchiaki Aftodioikisi Ioanninon, [2006] ECR I-8135, especially paras 40 and 51.
115. See also Tryfonidou, "Further steps on the road to convergence among the market freedoms", 35 EL Rev. (2010), 36.
116. See Title II TFEU ("Provisions having general application") and, in particular, Arts. 8-12.
117. See further Oliver and Enchelmaier, "Free movement of goods: Recent developments in the case law", 44 CML Rev. (2007), 649, 677.
118. See further, Nic Shuibhne, annotation of Schwarz, Commission v. Germany, and Morgan and Bucher, 45 CML Rev. (2008), 771, 774-775.
119. Joined Cases C-22 & 23/08, Vatsouras and Koupatantze v. Arbeitsgemeinschaft (ARGE) Nürnberg 900, judgment of 4 April 2009, nyr (using Art. 45 TFEU to accommodate social benefits for job-seekers, thereby circumventing restrictions set down in Art. 24(2) of Directive 2004/38).
120. Case C-480/08, Teixeira and Case C-310/08, Ibrahim, both delivered on 23 Feb. 2010, nyr (using Art. 12 of Regulation 1612/68 to establish rights of residence in a host State for the primary carers of children of (former) migrant workers still in host State education, notwithstanding the fact that neither applicant satisfied the economic self-sufficiency conditions required for EU citizens in Directive 2004/38).
121. "Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties".
122. Recalling the proviso in Art. 11(4) TEU that these one million citizens must be nationals of a "significant" number of Member States.
123. See Decision 95/553/EC of the Representatives of the Governments of the Member States meeting within the Council of 19 Dec. 1995 regarding protection for citizens of the European Union by diplomatic and consular representations, O.J. 1995, L 314/73.
124. The Commission has identified this issue as a priority for further action, see ec.europa.eu/justice/policies/citizenship/ diplomatic/policies_citizenship_diplomatic_en.htm.
125. O.J. 1988, C 246/3.
126. Case C-300/04, Eman and Sevinger, [2006] ECR I-8055, Opinion of A.G. Tizzano, paras. 67-69.
127. See further, Kochenov, "Free movement and participation in the parliamentary elections in the Member State of nationality: An ignored link?" 16 MJ (2009), 197 at 214-215. The recent decision in Rottmann (cited supra note 80) on the impact of EU citizenship (and, more specifically, a required proportionality assessment) on State competence to determine the loss and acquisition of nationality is another example of a judgment that may yet challenge apparently reserved State competences in more acute ways.
128. European Commission, Towards European Citizenship: The Granting of Special Rights, COM(75)321 final, para 3.1.
129. Shaw, "EU citizenship and political rights in an evolving European Union", 75 Fordham Law Review (2007), 2549 at 2558-2559.
130. Shaw, "Citizenship of the Union: Towards post-national membership?", Jean Monnet Working Paper no. 6/97, at , 8.
131. Dougan and Spaventa, ""Wish you weren't here..." New models of social solidarity in the European Union", in Dougan and Spavanta (Eds.) Social Welfare and EU Law (Hart Publishing, 2005), p. 181 at 188.
132. For analysis of the emerging shape of transnational solidarity, see the essays in Ross and Borgmann-Prebil (Eds.) Promoting Solidarity in the European Union (OUP, 2010).
133. Starting from the premise of national solidarity, Somek, "Solidarity decomposed: Being and time in European citizenship", 32 EL Rev. (2007), 787.
134. Case C-499/06, Nerkowska, [2008] ECR I-3993, para 23 of the Opinion.
135. E.g. Barnard "Social dumping or dumping socialism", 67 CLJ (2008), 262.
136. Deakin "Regulatory competition after Laval", 10 CYELS (2007-2008), 581.
137. Syrpis and Novitz "Economic and social rights in conflict: Political and judicial approaches to their reconciliation", 33 EL Rev. (2008), 411.
138. Pointing here to codification of the "social market economy" objective in Art. 3(3) TEU and the legally binding quality conferred on the EU Charter of Fundamental Rights by Art. 6(1) TEU.
139. Directive 96/71/EC of the European Parliament and of the Council of 16 Dec. 1996 concerning the posting of workers in the framework of the provision of services (O.J. 1997, L 18/1).
140. See S Sciarra "Viking and Laval: Collective labour rights and market freedoms in the enlarged EU", 10 CYELS (2007-2008), 563 at 578-579.
141. Looking at the dormant side of EU citizenship, a credible list of citizenship duties could be articulated even by re-conceptualizing existing rules and practices. Indirect examples could include funding of the EU through the payment of different forms of taxation. Some direct examples can be distilled from free movement law (e.g. the Court has confirmed that the benefits of free movement law should not be abused (Case C-212/97, Centros, [1999] ECR I-1459, freedom of establishment; Case C-109/01, Secretary of State for the Home Department v. Akrich, [2003] ECR I-9607, free movement of workers); arguably, then, a duty not to abuse free movement law could be inferred). The evolving competences of the Union also offer new ideas about the obligations as much as rights of EU citizens.
142. See e.g. Ryall, "Communicating European environmental citizenship", draft paper presented at the 2010 UACES Conference, available at .