Our new GLOBALCIT website is under construction. In the meantime, please use the current website as before.

Should EU citizenship be duty-free?

Should EU citizenship be duty-free

By Maurizio Ferrera (Università Statale di Milano)[1]

 

Introduction

In the historical process of state formation, citizenship has played a key role for political integration. It has sorted out “insiders” (the full members of the political community) from aliens/outsiders, has conferred to citizens an equal status, regardless of market and other social positions, it has stabilized and generalized compliance, sustained social cooperation, the legitimation of political authority and, last but not least, the formation of cultural and material bonds throughout the population.

With the Treaty of Maastricht, national citizenship has been complemented with a new layer, EU citizenship. It can be said that the purpose of this innovation was two-pronged: on the one hand, to rationalize (symbolically and institutionally) the disordered array of individual freedoms and faculties linked to the EU and its legal order; on the other hand, to create a new recognizable symbol capable of enhancing, precisely, political integration and mutual bonding among all EU citizens, regardless of nationality.

While there is evidence, twenty-five years on, that European citizens do know and value EU citizenship, there is also some disappointment about the latter’s actual effects in terms of integration and bonding, especially in the light of rising Euroscepticism, souvranisme and anti-immigration (including intra-EU mobility) sentiments.

In a recent speech,[2] Rainer Bauböck has raised a challenging question: can the integrative functions of EU citizenship be enhanced and how? In a nutshell, Bauböck’s proposal is that we need to “add stuff” in the container, in order to make it more immediately recognizable and salient to individual citizens and more effective as a bonding mechanism. Two additions are, in particular, proposed by this author: a stronger social component (individual rights and levels of protection that apply universally) and “some duty”. EU citizenship is exclusively centered on rights: “a duty-free citizenship does not support a sense of solidarity and it makes citizens less keen to hold governments accountable”.

I generally sympathize with this argument and welcome an open discussion on this topic. Before outlining an agenda for reform, we need, however, to better articulate the diagnosis and clearly identify the existing flaws of the EU citizenship construct – especially in its social dimension. With this aim in mind, I will start by briefly revisiting the key historical steps and elements of national and EU citizenship. I will then highlight the political shortcomings and perverse effects of the latter and single out the challenges that need to be addressed. The last sections of the note will outline some modest proposals for “adding stuff” to the EU citizenship container, making it more consequential and, hopefully, more capable of integrating and bonding.

A bit of history

Citizenship in the modern sense was born with the French Revolution. The Declaration of Human and Citizens' Rights (1789) identified a series of "natural, sacred and inalienable" rights based on the fact that men are born free and equal. The "political association" is tasked with defending and safeguarding these rights. Thus the citoyen is not only the bearer of natural rights, but also of state-backed guarantees for the exercise of such rights. During the nineteenth century, the pre-eminent political association became the nation (the nation-state). Membership of this entity began to be called nationality. With the advent of mass democracy and the welfare state, "nationality" became the first filter for the exercise of the rights of citizenship and, prior to that, for the very legitimacy of a person’s presence on the state territory. In the sense of "nationality", citizenship assumed the role of "assigning people to states",[3] giving them the "right to have rights"[4] and participation in collective decisions.

Historically, the contents of citizenship/nationality appeared much earlier than the container. State formation was a slow process. For ordinary people, it essentially meant becoming subject to novel duties: paying taxes and serving in the army. Mass conscription was a key element of nation-building. It contributed to turning states into fully fledged political communities, sharing an identity and a sense of “destiny”, with high symbolic charges as it implied the possibility of mutual sacrifice. Territorial borders came to be perceived as “inviolable” national boundaries to be defended usque ad effusionem sanguinis. Bounding promoted bonding, which in turn generalized and strengthened the affectual and normative loyalty vis-à-vis state authorities and their binding decisions. The link between taxation and nation-building was less strong. Up to World War I indirect taxes remained by far the most important source of state revenue. Personal income taxes were legally introduced between the end of the nineteenth and the beginning of the twentieth century but only acquired quantitative relevance in the second half of that century. The words for taxation used in Northern and Southern Europe testify that its impact on social solidarity and political legitimation varied greatly: think of the Scandinavian ska/skatt (which also means common treasury ) vis-à-vis the neo-Latin terms impôt, imposta, impuesta (which evoke a subtraction).

The introduction of social entitlements as subjective rights greatly enhanced the material salience of citizenship. But it also imposed new duties. In “Bismarckian” systems based on compulsory insurance, there was a programmatic link between contributions and benefits from the very beginning. In tax-funded, universalistic systems the link remained weaker. But in the UK, for example, the sense of civic duty and reciprocity was so strong that when the means-tested pension was introduced in 1908, elderly ladies in the countryside brought flowers and food to the post officers who once a week paid them a “free” allowance.

During the Trente Glorieuses, the link between the duties and rights of citizenship (especially social rights) started to weaken. This phenomenon was noted as early as in 1950 by T.H. Marshall himself, who observed that in the UK citizenship was increasingly invoked for the defense of rights, ignoring “the corresponding duties … [which] do not require a man to sacrifice his individual liberty or to submit without question to the demands made by government. But they do require that his acts should be inspired by a lively sense of responsibility for the welfare of the community”.[5] Such sense of responsibility has been constantly eroding since the 1950s, especially within the “middle mass” of employees and pensioners. The growth of social spending has been accompanied by an increase of taxes and contributions. But since the 1990s survey evidence has shown that the vast majority of citizens think that they pay far too much for the benefits they receive – which they consider as untouchable entitlements and property rights. When the Italian trade unions supported the first reforms of a hugely unbalanced pension system in the early 1990s, on various occasions workers hurled iron bolts at their leaders: a striking departure from the times when old ladies brought flowers to the post office.

The welfare state has indeed been retrenched in the last couple of decades and the access to benefits and services has been made conditional or even “contractual” (i.e. responsibility-sensitive) in the field of unemployment and social assistance. The big “elephants” of the welfare state (pensions and health care) have also been reigned in, but the prevailing justificatory narrative has focused here on the need for cost containment, sustainability, or compliance with “the demands of the EU”. The Marshallian “lively sense of responsibility”, the fact that the rights of citizenship cannot be severed from “the corresponding duties” seem to have gone lost and appealing to them has today very limited political purchase. Even during economic crises or emergencies, consensus building must stay clear of duty-talk.

 

Enter EU citizenship

In his analysis of European citizenship, Paul Magnette has introduced the distinction between “isopolitical” and “sympolitical” rights (the distinction is drawn from the law and war practices of ancient Greece).[6] Isopolitical rights are horizontal, as it were: they confer upon individuals belonging to a given political community the freedom to enter into the citizenship space of another community and enjoy the rights recognized by the latter. Sympolitical rights are “vertical”: they stem from a common authority which takes binding decisions for all the members of the participating communities – who in turn have some say on the content of such decisions.

National citizenship is predominantly sympolitical: its scope and content are decided by central authorities through democratic procedures. Only in the case of some welfare benefits are the national rights of citizenship isopolitical, e.g. when they allow any citizen to freely move and to enjoy whatever services – say health care – are provided at the local level, based on choices made by subnational authorities. In the historical federations, sympolitical social rights made a later appearance and still play a lesser role compared to unitary states: federated units have preserved substantial autonomy, especially in health care, social services and assistance. Here the federal government limits itself to guaranteeing free movement and nondiscrimination.

What about EU citizenship? If we exclude some political rights (most notably the right to elect the European Parliament), EU citizenship is almost entirely isopolitical. It is derivative from national citizenship and basically entitles its holders to be treated as equals when they enter the citizenship space of another member state. The rights attached to the EU passport only apply when one crosses an internal border. True, the EU has adopted a Charter of Fundamental Rights and has recently launched a new initiative called the European Pillar of Social Rights. But these are rather soft rights, they apply only in respect of EU legislative acts and do not really add anything substantial to the catalogue of rights already existing in the member states.

EU citizenship does not confer subjective entitlements to material protections (transfers or services) directly provided by the EU. The limited supranational funds that exist in the social field (e.g. the European Social Fund) can only be accessed by national or regional governments. When sympolitical regulatory measures are adopted (e.g. on gender equality or employment protection) they need to be transposed into national legislation to become operative. Even if they concern individual cases, jurisdictional decisions – the rulings of the Court of Justice of the European Union (CJEU) – can only result from a request on the side of a national Court.

As all rights, also isopolitical ones have corresponding duties. In the first place, mobile citizens are subject to the same obligations that are in force in the country of destination: in particular, they must pay taxes and social security contributions. We can define these duties as isopolitical. But “isopolitics” generates a second, and less visible, type of duty. Stay-at-home citizens are obliged to make room for the mobiles, share with them their own national space (an identity-thick and rights-thick space) and bear the burdens of “hospitality”. Empirical studies demonstrate that intra-EU mobility is not driven by benefit tourism and that, in the aggregate, it tends to benefit the receiving member states. But at the disaggregate level (this or that territorial area, this or that economic sector, this or that policy field) the negative economic and social externalities produced by the mobiles may be greater than the positive ones. The influx of citizens from other EU member states may in fact decrease – locally and contingently – the availability of scarce resources such as jobs, hospital beds, emergency care, social housing, school places and so on.[7] While it may be true that national or local governments have not made the necessary public investments in this policy areas[8], the fact remains that mobility has increased the overall problem pressure and originated novel unprecedented needs and policy challenges (e.g. in terms of educational assistance, spatial congestion and segregation, and so on). The social impact of mobility has been significant and it has been perceived as such by a great number of ordinary citizens, who “blame Brussels” because mobility rules do come from Brussels.

Contrary to what happens at the domestic level, the social component of EU citizenship rests on regulation, not on allocation (i.e. material provisions directly funded through tax extractions on the side of the conferring authority). The obstacles to expand the EU budget and powers were (and still are) huge; when it was introduced – in the early 1970s – social security coordination, instead of social supranationalization, was probably the only feasible solution. But this strategy has caused serious political asymmetries: as a matter of fact, it has empowered a relatively small constituency of mobile citizens, at the (perceived) expenses of large majorities of non-mobile natives.[9] In the medium and large EU countries, more than half of the natives have always lived in the region where they were born and hardly expect to exercise themselves the rights of free movement. On average, large majorities of nationals have never visited another EU country, watched TV or read a book in another language, used the internet to purchase goods from abroad. It is not surprising that many of these people perceive the rights of immigrants as a loss in the value of their own rights and opportunities within their communities. Such perceptions are stronger among the less educated and within poorer areas, where vulnerability is higher and immigration can be seen as a threat in the competition for scarce resources or as a symbolic threat to national values and identities. Free movement rights have expanded options (freedoms, faculties), but have also disturbed national social ligatures and thus tend to generate grievances which can be – and have already been – easily politicized. The above-mentioned (cultural) transformation of social benefits and services into “property rights” and the parallel erosion of the “lively sense of collective responsibility” has offered, in turn, a fertile ground for the spread of resentments and feelings of relative deprivation.

As a result of these dynamics, the introduction of EU citizenship has not met its integrative and bonding promises. Quite to the contrary, it has provoked a sort of boomerang effect. The strategy of equal rights involves generating a “we”, but because of the isopolitical nature of the system, this strategy encounters the mobilization of a different “we”. As aptly put by Van Middelaar, the goal was “Hurray, we Europeans can work in twenty-seven countries! The public response has in fact been: Polish plumbers are coming to take our jobs and Brussels is to blame!”[10] .

Is there a way to remedy this failure? If the diagnosis is correct, any remedial strategy must address two distinct challenges: 1) deactivating the current vicious disintegrative circle by rebalancing the isopolitical system; 2) making the rebalanced container of EU citizenship more visible and its content more substantial. Only after meeting these challenges can the question of attaching “some duty” (as in Bauböck’s proposal) be put on the agenda.

 

Deactivating the vicious circle by empowering the stayers

The rebalancing of the current isopolitical system can be achieved in two complementary ways: through a partial compensation for the negative externalities produced by free movers and through some forms of empowerment of those who do not exercise free movement rights. For the time being, it seems unrealistic to imagine that such responses can be given by creating individual sympolitical rights, i.e. subjective entitlements conferred directly by the EU on the basis of a joint decision and funded by EU taxation. But the EU can at least provide the resources for the necessary compensations. As mentioned, negative externalities are felt locally, for certain occupational groups and in respect of certain public and welfare services. The establishment of something like an EU Fund to ease the impact of mobility (or immigration more generally) could serve the purpose. It could work through national (better: subnational) applications and selection criteria based on adequate evidence of impact. In the UK a similar fund was established in 2008 by the Brown government and later (rather inconsiderately) scrapped by the Cameron government in 2010. According to a recent survey, the creation of such a pan-European scheme would be highly welcomed by EU citizens (see table 1 in the Annex).

Empowering the stayers could be a second promising step. If we unpack isopolitical forms of protection, in addition to the binding supranational regulations that force the opening up of national spaces we also find a number of facilitating initiatives sponsored, organized and funded by the EU with a view to easing and supporting cross border mobility and transactions. Among these we can mention: information platforms such as EURES (European network of employment services), exchange programs such as Erasmus, the European health insurance card, e-health, quick assistance services to travelling citizens – including an EU-wide emergency number, 112 -–, a support service for crime victims. A number of additional initiatives are planned for the future, such as a single digital gateway to receive counsel and assistance in cross-border situations or a common EU disability card.

While it is true that all these facilitating initiatives provide tangible benefits only if there is a cross border element, their personal scope is potentially very wide: it goes well beyond the constituency of mobile workers, affecting travelers and tourists, patients, students, consumers. Among ordinary people there is only a very limited awareness of these initiatives. The first thing to do is thus to popularize these opportunities among the wider public, disconnecting them from free movement in the thick sense (i.e. work mobility).

A way of doing this would be to introduce an “EU social card” (with a number identifier) available to all European citizens to enhance the visibility of (and also easing access to) the various privileges and services already provided by the existing programs. In the US the social security number is not only a pre-requisite for most contacts with the public administration, but also a visible and tangible symbol of membership in the US legal space. Italy has a similar code, which is called codice fiscale, requested for any application to a public benefit, in addition to being used for tax purposes. This number used to be shown on a dedicated plastic card, identifying each citizen (and legal resident) primarily as a taxpayer. Smartly, the number is now shown on a different card: the carta sanitaria – used to access the National Health Service -– which evokes the idea of an entitlement associated to tax duties. A clever move in terms of integration and bonding.[11]

A more ambitious idea is to create a direct stake for stay-at-homers as well in the area of free movement. As has been aptly noted by various authors, the freedom to move implies also the freedom to stay.[12] Those who opt for staying do not have access to the facilitating benefits and services that the EU provides to the movers. Why not imagine a scheme offering, upon application, universal transferable vouchers (or drawing rights) that workers could pass on to their kin – in particular sons and daughters wishing to move? Such vouchers (each having a certain value) could be used to access the existing benefits and services aimed for mobile workers or cashed in for covering extra expenses linked to mobility. Every worker would be entitled to a voucher. Some workers could just transfer their voucher to other workers or young people in search of job, wishing to move, thus endowing them with more value. One might also consider, however, to allow using vouchers for participating to lifelong learning activities at home (and/or in other member states, for short periods) on the side of workers who do not wish to exercise their right of long term free movement. One promising possibility would be to link the use of vouchers for temporary, short term movement with the increasing range of labour market initiatives of trans-border regions. This system would increase the stakes of stay-at-homers. It is to be noted that EU facilitating schemes in the area of childcare, education, training, lifelong learning can be justified not only on the basis of free movement, but also of the mere fact of economic and monetary unification. Providing stayers with some EU funded benefit compensate them at least partially for the often disruptive impact of integration on domestic labour markets.[13]

 

Making EU citizenship more visible and salient

Personal security and welfare are today key political goods guaranteed by the liberal democratic nation-state. In what ways is EU citizenship complementing the security and welfare component of domestic citizenship? As is well known, Europe has no common army and only a very small (social) budget. It is hardly seen as a source of protection by its citizens. A relatively novel right (in part sympolitical, in part isopolitical) which has augmented the content of EU citizenship is the guarantee of consular protection abroad for EU citizens finding themselves in need of assistance in a country outside the EU where their home country is not represented. This novelty can be interpreted as a branching out of EU citizenship from the internal to the external (i.e. extra-EU) sphere. According to some scholars, the external dimension remains today the only one in which citizenship continues to make a difference compared to mere legal residence.[14] The external protection guaranteed by the Union to all its citizens as such would not only make the burgundy-coloured passport more consequential, but would also increase its symbolic value. As argued by Torpey, passport-based external protection can serve as an effective loyalty and bonding channel, for its capacity to “embrace” movers as citizen-members of a political community.[15] The Commission is currently studying a series of practical measures to make external protection of citizens more effective. A front along which this type of protection could be strengthened is the occurrence of terrorist attacks, in Europe and abroad. Italy already has a scheme for compensating (in the name of “solidarity”) the victims of terrorism and persons killed or injured in the line of duty. It might be a good idea to consider establishing a similar EU wide scheme, sending a signal of pan-European activism on a front – personal security – which is a fast growing popular concern.

The salience of EU citizenship could be enhanced also by strengthening the existing social funds and creating new ones. During the last decade two new funds have been created: the Globalization Adjustment Fund, providing resources to workers affected by plant restructuring or closure, and the Fund for European Aid to Deprived Persons, providing resources in case of extreme poverty. Benefits are not paid directly to recipients, but through local authorities – which must previously apply for assistance. The indirect character and the small budget of these funds greatly limit their public visibility and salience. At a minimum, the EU should seek some credit by prescribing to local authorities to clearly indicate the provenance of resources at the endpoints of the delivery chain. If an “EU social card” was in place, it could provide a tangible instrument for linking benefits and EU citizenship.

In the wake of a proposal of the Italian government during its last EU presidency (following preparatory work by the Commission), the establishment of an EU fund to compensate cyclical unemployment is currently on the EU agenda. This would be a major step in terms of pan-European solidarity – possibly one of the first important building blocks of a future European Social Union. Most likely, this fund will also operate indirectly. Given its wide personal scope, it will be extremely important to render the link between the EU and the resources accruing to national authorities and, ultimately, citizens as clear and evident as possible. Survey data show that popular support for such an initiative is very large (see Table 1 in the Annex).

Finally, a brand new supranational (and thus sympolitical) scheme could be established for insuring mobile workers against some risks (unemployment, maternity, disability etc.): a sort of 29th scheme (or 28th, after Brexit) separate from existing national schemes and providing homogeneous protections to those workers who move across borders. This idea has been circulating in the debate ever since the 1970s, when the social security coordination regime was adopted. As shown by table 2 in the Annex, popular support for the establishment of such a scheme would be very high. One of its advantages would be to ease the financial pressure (real or perceived) on domestic social protection systems stemming from the inflow of mobile workers and their families. In an ambitious scenario, this supranational scheme could catalyze the formation of cross-border insurance schemes, in line with the spatial and functional reconfiguration of the European economy and labour market. In due course, such schemes might break the path towards novel forms of transnational risk pooling and thus solidarity.[16]

Adding citizenship duties: Is it desirable? Is it feasible?

The Lisbon Treaty makes it clear that EU citizenship is not “duty-free”: rights come with duties (art. 20 TFEU). So far, such duties essentially consist in complying with EU law, including free movement and its potential negative externalities. Would it be desirable to introduce some heavier, more tangible burden, directly linked to being a citizen of the Union?

As mentioned, the classical duties of citizenship (prior to it: of “subjectship”) have historically consisted in paying taxes and serving in the army. In present times, the former duty can be absolved through indirect taxation, income/wealth taxation, social security contributions and, to some extent, co-payments and fees-for-service. As to the latter duty, mandatory service is today the exception rather than the rule: the vast majority of EU countries have replaced it with voluntary service or with professional armies.

Given widespread anti-tax sentiments among voters, the imposition of some explicit and visible EU tax would today not be a good idea in terms of political support, integration and bonding.[17] Even a recourse to "the most Europeanised of all taxes", i.e. the VAT, could be counterproductive.[18] In the present context, the only feasible strategy would probably be to introduce some voluntary financial contribution “for Europe” by means of nudging incentives. In some countries, when filling in their forms, taxpayers have the option to earmark a certain percentage (or per thousand) of their taxes for certain activities or institutions: churches, philanthropic, third sector, humanitarian institutions, political parties, cultural associations and so on. In Italy, 0.8% is mandatory (taxpayers must choose between the state or a church among a list of different denominations). 0.5% is voluntary (it can be earmarked for a long list of recognized institutions engaged in social, humanitarian and scientific research activities). An additional 0.2% can be earmarked for political parties. The cinquexmille is chosen by more than 16 million taxpayers and produces an annual revenue of half a billion euros. A similar system could be established by all national tax authorities of the member states, giving the option of earmarking a small quota of personal taxes in favor of the EU as such (or, better still, of some of the abovementioned social funds). A bolder move of nudging would be to reverse the sequence of choice: the contribution for Europe (its social funds) is mandatory, unless the taxpayer explicitly opts out of it (“automatic enrollment”).

Another possibility would be to use the co-payment or fee-for-service route in exchange for the array of facilitating initiatives that the EU already provides to ease the exercise of free movement and related rights. If access to the benefits and services of these initiatives (and the new ones that might be added) were filtered through an EU social card, the issuing (and renewal) of such card could be subject to a fee, to be used for funding the most expensive schemes (such as the above-mentioned voucher system). The UK scheme for easing the impact of migration was funded through a levy of 50 pounds on immigration permits. The possible fund for compensating the victims of terrorism could be financed through a small fee on the issuing of passports – obviously clarifying the purpose of this fee.

Beyond taxes and fees, another voluntary form of duty could be a pan-European civil service for young people. The EU has recently established a European Voluntary Service and a European Solidarity Corps. Participating to such services could be made more appealing to young people by stressing the benefit of acquiring valuable skills and experiences. In due course, these two services could morph into some sort of an EU civilian defense and civic community service that could be chosen as an alternative to national service in those member states where the latter is mandatory; in the other member states it could still be chosen voluntarily.[19] Although remaining far from proper and “hard” duties, the proposed extractive instruments would indeed move in Bauböck’s direction, through cautious and experimental steps. In the current “euro-critical” context, jumping from “duty-free” to “duty-heavy” citizenship might be politically dangerous and even counterproductive.

 

An incremental strategy – with a vision

Following the tradition of Max Weber, we can define rights as sources of power (Machtquellen). Since power is a social relation in which somebody’s “will” causes the behavior of somebody else, regardless of the latter’s “will”, the creation of a right automatically creates a correlative duty of compliance. But what exactly are the power resources which back the actual exercise of rights? First, there are normative resources: holding a right means having legitimate reasons to claim compliance (horizontally from fellow-citizens and vertically from political authorities). Secondly, there are enforcement resources: if compliance is not obtained, the right holder can activate legal coercion. Thirdly, there are instrumental resources: the conferring political authority typically provides the conditions for a full exercise of rights. In the case of social entitlements, for example, the state sets up social insurance systems (securing their financial bases), provides information and advice for accessing benefits and so on. While the second type of resources (enforcement) are what makes rights (and, by extension, citizenship) “hard”, in contemporary liberal-democratic societies we should not underestimate the importance of the other two types: normative and instrumental resources.

Even when it adopts binding norms that indirectly impinge on national citizenship, the EU cannot provide enforcement resources directly to citizens. As mentioned, even access to the CJEU is mediated by national courts. The EU does provide, however, normative resources (if only through soft law) and EU citizenship does directly empower citizens with instrumental resources for the exercise of rights.

In this note, I have argued that it is precisely the provision of instrumental resources (money, benefits and services, infrastructures and so on) that could make EU citizenship more salient, visible and tangible for wide social constituencies. A smart enhancement and packaging of such resources (accompanied by an adequate communication, capable of bringing some credit to the EU directly), could be the trampoline for strengthening the social citizenship dimension of the EU and experimenting with a range of soft duties. Intra-EU free movement rights (more precisely: the freedom to reside and work in any member state) is not only the hardest right of EU citizenship; it also the only one that differentiates EU citizens from third-country legal residents. In other words, it is the key marker of EU belonging in the thick sense.

In the debate it is often argued that the increased harmonization of rights and obligations between citizens and legal residents is making citizenship a less robust form of association, and that consequently its bonding potential has lost traction. The peculiar features of EU citizenship make it less sensitive, however, to such trends.

Internally, EU citizenship entitles to free movement. So far, this entitlement empowers only a limited constituency and has the risk of generating boomerang effects. In my scenario, the fact of free movement (and of the monetary union – a point which I cannot develop here) justifies the expansion of facilitating benefits and services that could be accessible to everybody: either in the form of transferrable drawing rights or in the form of access to training and life-long-learning services at home (or in another member state, for a short time) aimed at endowing all Europeans with the skills required by the new integrated European economy, based on a single market and international openness.

Externally, EU citizenship (which carries a passport eligibility foreclosed to third country legal residents) entitles to forms of protection against harms to personal or material security which are unfortunately becoming more frequent. The motto Civis Europaeus Sum would thus acquire a consequential meaning, both within and outside the EU.

My proposals (summarized in tables 4 and 5) may seem unambitious and low-key, but they have the advantage of being practical and can become operative without Treaty changes or major legislative innovations. National citizenship and welfare regimes were not born with a historical Bing Bang, but with a slow sequence of incremental reforms. Given the heavy legacy of such regimes, incrementalism is the only policy strategy for the EU today. A strategy that does not rule out the elaboration of grand political visions. Quite to the contrary, it presupposes visionary thinking, otherwise small steps become a purposeless and random walk, very likely to result in political failure.

 

 Annex

 


[1] This text has been written in the context of the RESCEU Project (Reconciling economic and social Europe, www.resceu.eu), funded by the European Research Council (Advanced Grant no. 340534).

[2] R. Bauböck. Still United in Diversity? The State of the Union Address, Florence, 5 May 2017

[3] R. Brubaker., Citizenship and Nationhood in France and Germany, Cambridge, Cambridge University Press, 1992

[4] According to Arendt’s famous formula. See H. Arendt. The Origins of Totalitarianism, New York: Harcourt, Brace & Co., 1951..

[5] T.H.Marshal and T.Bottomore, Citizenship and Social Class, London, Pluto, 1992, p.41

[6] P. Magnette. Citizenship. The History of an Idea, Colchester, ECPR Press, 2005.

[7] See European Commission, Evaluation of the impact of the free movement of EU citizens at local level. Final Report, Brussels, January 2014

[8] As argued, among others, by F.De Witte, in Freedom of movement under attack: is it worth defending as the core of EU citizenship?, Working Paper, Florence, RSCAS, 2016/69.

[9] The capacity of free movement rights and actual transnational mobility to nurture a sense of identification with the EU seems to be, paradoxically, rather limited. See L.Damay and H.Mercenier, “Free Movement and EU Citizenship: a virtuous circle?”, in Journal of European Public Policy, 2016, vol. 23, no. 8, 1139-1157.

[10] L. Van Middelaar, The Passage to Europe, New Haven and London, Yale University Press, 2013, p. 261.

[11] One should not underestimate the symbolic –in addition to the practical and control-oriented- value of administrative papers in forging belongingness and even bonding. See the interesting historical reconstruction by J. Torpey, The Invenstion of Passports: Surveillance, Citizenship and the State, New York, Cambridge University Press, 2000

[12] See the various responses to the kickoff essay by De Witte, supra, ft. 7.

[13] This evolution might be seen as a social counterpart of an economic dynamic which affected in the past the free movement of goods and the competition regime. In the period which led to the completion to the single market, virtually all types of public regulations at the domestic level became subject to market-compatibility scrutiny regardless of the presence of cross border elements, in the wake of a maximalist interpretation of Treaty provisions (see. Poaires Maduro, Striking the Elusive Balance Between Economic and Social Rights in the EU, in P. Alston, ed. The EU and Human Rights, Oxford, Oxford University Press, 1999.). The Lisbon Treaty could serve as the basis for a possible countermovement. European Monetary Union requires domestic adjustments which may clash with the social principles of the Treaty on European Union. Facilitating upskilling and lifelong learning at the national level even in the absence of cross-border elements could be defended based on the same logic that facilitated access to the market and deregulations at the domestic level, regardless of their pertinence for or link with free movement as such.

[14] Among aother, Peter J. Spiro, The (Dwindling) Rights and Obligations of Citizenship, 21 Wm. & Mary Bill Rts. J. 899 (2013), http://scholarship.law.wm.edu/wmborj/vol21/iss3/6; Linda S. Bosniak, The Citizenship of Aliens, 56 SOC. TEXT 29 (1998);

[15] Passports cannot be regarded merely as an instrument of government control. To use the words of the United States passport, the “passport is a valuable citizenship and identity document”. See Torpey, cited above ft. 10.

[16] Cross-border pension schemes are already being experimented with in the wake of Directive 2003/41/EC. Almost 700.000 EU workers are already covered by such schemes. See https://eiopa.europa.eu/Publications/Reports/EIOPA-BoS-16-222_2016%20market%20development%20report%202016.pdf

[17] Italy did introduce a tassa per l’Europa in 1997, to meet the deficit target required to join the euro. Nobody protested: but it was an extraordinary levy, for a defined goal, at the time perceived as beneficial for the whole nation. And then prime minister Romano Prodi promised that the tax would be paid back - a promise that was at least partially kept.

[18] Van Parijs has proposed, for instance, an EU-wide VAT of 20% to finance a monthly universal euro-dividend of 200 euros per month, for reference see http://www.theglobaljournal.net/article/view/1038/.

[19] The US National Guard and the Swiss militia system –originally meant for military and defence purposes – are being increasingly transformed into civilian defence and civic community services, and are often mobilized for various types of internal emergencies or natural disasters.

 


Liberal Citizenship Is Duty-Free 

By Christian Joppke (University of Bern)

 

Maurizio Ferrera has produced an admirably detailed and savvy catalogue of suggestions to “add stuff” to European Union citizenship, particularly on its social rights dimension. The idea is that more deliverables, particularly for the vast majority of Europeans who do not take advantage of the right of free movement that remains the beating heart of EU citizenship, will increase the cohesive and integrative powers of the European citizenship, and allow to attach some “soft” duties to it that in its current form are entirely missing. The question whether EU citizenship “should” be duty-free is only tangentially raised, and it is presumed rather than discussed that the only reasonable answer could be negative.

While the spirit of this proposal is “incremental” and pragmatic, I would like to question some larger presumptions that go into it. The first and central is that duties are a necessary component of citizenship. However, tax paying and army service, which are mentioned by Ferrera as “novel duties” attached to the rise of national citizenship, and apparently considered as model duties for a strengthened EU citizenship also, are no specific citizen duties. All legal residents are required to pay taxes; and most armies today are professional and thus facultative (and some armies, like the American, following the Imperial Roman model, also recruit non-citizens). As already Hans Kelsen observed, even “allegiance”, that quintessential citizen duty, is not a legal duty but merely a “political and moral” exigency: “There is no special legal obligation covered by the term allegiance. Legally, allegiance means no more than the general obligation of obeying the legal order, an obligation that aliens also have”[1]. Kelsen wrote this at a time when “treason” was still a crime that only citizens could commit; its functional equivalent today, “sedition”, which is the legally enforceable opposite of allegiance, is a crime that non-citizens also can be charged for [2]. A non-starter at the national level already, where—as Dimitry Kochenov put it—citizenship has undergone a process of “liberal de-dutification”[3], it is obvious that a “dutified” EU citizenship would be extra-anachronistic.

This leads me to question a second presumption of Ferrera`s proposal, which is that national citizenship provides a model for EU citizenship. If anything, one might argue, in reverse order, that EU citizenship provides a model (and guarantor) of a “lightened” citizenship that is observable at the state level already[4]. For Ferrera, the direction is for EU citizenship to move up to the national model. This entails certain questionable idealizations, for instance, of national citizenship to feed “affectual and normative loyalty vis-à-vis state authorities and their binding decisions” (Ferrera). When was that, and where, one must ask. From the ground up, states are better conceived as “protection rackets”[5], so that an “affectual and normative” attitude to that sort of thing appears delusional, at best. Undeniably, in the nationalist past, citizenship was a reason for people to spill their blood and that of others, and it was a ground to be duped by “state authorities” (who is that, one must continue asking). It isn`t, and shouldn`t be, today. Add to this the element that the EU is no ordinary state. If the equivalent of “state authorities” in Brussels, which is the European Commission, decides to relicense Monsanto`s glyphosate, a controversial weed killer that is strongly suspected by the World Health Organization to be carcinogenic to humans, in this decision presumably not uninfluenced by this multinational`s formidably resourceful, state-dwarfing lobby [6], there shouldn`t be a EU citizenship tranquilizer around to let that pass as “binding decision”. Perhaps it would be a category mistake to deploy the citizenship concept in the first place. The EU is a regulatory regime, not a protection racket, so that “citizenship”, which has grown out of a protection logic, providing a flowery “allegiance” and “loyalty” coating to the elementary state function of providing security, is the wrong concept to begin with. Citizens and others have every reason to be suspicious of a notionally technocratic but still humanly fallible European Commission that is only indirectly, if at all, liable to democratic constraints. Karl Marx would be posthumously redeemed if “citizenship” were available to feed “affectual and normative loyalty” to that elite.

There is a third problematic presumption in Ferrera`s proposal to “add stuff” and to “dutify” EU citizenship, which is the idea that “moving”—incidentally, by a tiny group that does not even cross the five percent mark of the EU population—causes harm that “stayers” should be indemnified for. As Ferrera writes, EU citizenship “has empowered … mobile citizens, at the (perceived) expenses of large majorities of nonmobile citizens” (Ferrera typescript, p.5). Ferrera cautiously talks about “perception” here but then gives credence to it by proposing to compensate for the “negative externalities” of free movers and to “empower” the stayers. This would give legal dignity to the Ur-trope of European populists, that of migrants as perpetrators and of natives are victims. More fundamentally still, it buys into the populists` hideous re-labelling of mobile EU citizens as “immigrants”. It is a fact that the fiscal effects of post-Enlargement migration into the UK, mainly from Poland, which has been the single-biggest theme of the Brexit campaign, have been positive. But then it would reward the British state twice over if tax-payers of other EU states were to pick up the bill of the region-specific infrastructural impasses (schooling, health care, transport, etc.) that are inevitably caused by this migration. In short, any scheme that gives legal dignity to slicing the European citizenry into two unequal halves, movers and stayers, with the perverse and absolutely anti-European connotation of moving as harmful and staying as virtuous (at least, as something to be rewarded for), is dangerous, because it confirms the demonology of European populists. 

This is not to deny that the binary of moving v. staying maps closely into that of openness v. closure, which is the central new cleavage of societies undergoing globalization, largely obliterating the classic left-right cleavage that has structured Western politics for over 200 years. However, if the old cleavage was reconciled by the welfare state and its social citizenship, doubts are allowed that these compromise structures can be simply applied to a new situation in which globally mobile capital has greatly diminished the fiscal capacity of the state and its judicial authority over the economy. The European citizenship, in contrast to traditional citizenship that eulogizes the value of staying and closure, has moving and openness written on its forehead. No compensatory EU funds for stayers or tangible benefits for tourists, patients, students, consumers, via a “EU Social Card”, etc., as proposed with alacrity and a great sense of practicality by Ferrera, will ever warm up the stayers to “Europe”. Peter Spiro nicely describes the novelty of the day that a Londoner opposing Brexit will feel closer to a New Yorker opposing Trump than to their notional fellow-citizens in the province voting for Brexit or Trump [7]. Or as David Goodhart commented on Brexit opponents` sense of waking up “in a different country” on the morning of 24 June 2016, this is exactly how Brexit proponents had felt before the fateful referendum [8]. Both camps quite literally inhabit different spaces, from the mental to the physical, and are tied up in incompatible loyalty structures. “Citizenship” has become an obsolete clip to tie them together. The cohesion and bottom-up support that the European project needs to survive, and to move on, is unlikely to stem from cosmetic corrections to a citizenship that cannot but be partisan in the openness v. closure rift. More urgent would be to end the intolerable situation that not just populist movements but entire member states have decisively thrown themselves on the “closure” end of the spectrum, opposing Europe from within it, by building “illiberal states” that openly repudiate the common values upon which the EU also legally rests.

Finally, if I understood Ferrera correctly, he defends his proposal as one that would sharpen the distinction between privileged EU citizens and less privileged third-state nationals, or “immigrants” proper, because only EU citizens but not settled immigrants are meant to benefit from the proposed social policy measures. This strikes me as retrograde (and against the territorial logic of dispensing welfare). The thinning distinction between citizens and legal permanent residents is a side-effect of a larger liberalisation of citizenship in Western states and of the “civilising” of nationhood that undergirds the latter. This is a hard-won achievement, not a liability. For the opposite tribal model of a citizen elite tightly sealed from second-class immigrants, consult the Gulf States. It would be ironic if the European Union, which has been created to tame nationalist exclusiveness, were now to mimic it.

These somewhat grand-scheming objections, some perhaps more plausible than others, are raised for the sake of debate; they are not meant to diminish Ferrera`s powerful and deeply knowledgeable proposal. We share the same vision of strengthening the European citizenship. At heart, however, I would guard against the notion that citizenship should be duty-full. Liberal citizenship is duty-free, in a legal (not moral!) sense, and EU citizenship is even more so. A citizenship that imposed hard legal duties was the “citizenship” of communist states, today also that of Islamic states, which arrogate to themselves a strong formatting of the preferences and beliefs of their members. This is not a model to follow, because it impairs elementary freedoms.

 

Notes:

[1] Hans Kelsen, General Theory of Law and State. Cambridge, Mass.: Harvard University Press, 1949, 235.

[2] See George Fletcher, Loyalty: An Essay on the Morality of Relationships. New York: Oxford University Press 1993; chapter 3.

[3] Dimitry Kochenov, “EU Citizenship Without Duties”, European Law Journal 20(4), 2014, 482-98

[4] See Christian Joppke, “The Inevitable Lightening of Citizenship”, European Journal of Sociology 51(1), 2010, 9-32.

[5] Charles Tilly, “War Making and State Making as Organized Crime”, in Peter Evans et al., Bringing the State Back In. New York: Cambridge University Press 1985.

[6] “European Commission Plans to Relicense Controversial Weedkiller”, The Guardian, 24 February 2016. One must concede, however, that the European Commission`s stubborn support for the multinational is backed by some large member states, including Germany and France.

[7] Peter Spiro, “Citizenship After Trump”, International Migration Review 2017.

[8] David Goodhart, The Road to Somewhere. London: Hurst 2017.


Building Social Europe Requires Challenging the Judicialization of Citizenship [1]

By Susanne K. Schmidt (University of Bremen)

 

Which rights should European citizenship entail to protect the achievements of European integration, while overcoming its pitfalls? Should we aim to ‘add stuff’, as Ferrera suggests, or rather follow Joppke's plea for non-exclusive citizenship rights? I agree with Ferrera's diagnosis that EU citizenship has an isopolitical bias, it horizontally opens nationally shaped (and financed) welfare systems to citizens from other member states. However, in his 'detecting of the flaws' he overlooks the largely judicial genesis of citizenship rights, which are crucial for understanding the shortcomings of EU citizenship. In the following, I start by filling this gap. Because Ferrera’s suggestions require political decisions, they are much welcome on this basis. 

Since Maastricht, EU citizenship saw an impressive advancement from a rather symbolic Treaty addition to being the 'most fundamental status' (C-184/99 Grzelczyk). In the light of van Gend (26/62), Costa (6/64), Cassis de Dijon (120/78), and multiple other rulings, scholars of European integration have taken for granted how much the Court of Justice of the European Court (CJEU) shapes policy in the EU by interpreting the many policy objectives the Treaty contains (four freedoms, competition law, and then citizenship). For citizenship, the judicial development implied an increasing pressure on nationally financed welfare states to open up non-discriminately to EU citizens, even if economically inactive, and with few and recent ties. But in late 2014 the CJEU made clear that those entering a state but never intending to work and contribute (C-333/13 Dano) have no European right to claim equal access to funds. 

Behind the extraordinary policymaking power of the CJEU is what Dieter Grimm calls over-constitutionalization [2]. An intergovernmental Treaty describing cooperation aims is policy-rich. If this Treaty is transformed into a constitution by declaring it directly effective and supreme, the Court’s interpretations of the Treaty acquire constitutional status themselves. For citizenship rights, this means that the rights enshrined in the Citizenship Directive or in the regulations on the coordination of national social security systems, have been shaped back and forth between the EU's judiciary and its legislature, with the latter not being able to overrule the former's constitutionalized rulings [3]. Next to EU secondary law, CJEU case law directly shapes the social policy of member states.

This peculiar way of policymaking has repercussions. As rulings on single cases take generalised effect, the resulting policy is unable to cater equally well for the differences of national welfare systems. Its character of ‘one size fits none’ is more pronounced than a negotiated policy would be, where all member states could make their preferences known regarding national conditions and singularities. And, more seriously in our context, the CJEU is hardly legitimised for opening up national welfare systems to EU citizens. This is not to say that those advocating for welfare chauvinism know about the judicial background of the rules, but rather that member-state governments would not have legitimated, absent judicial pressure, the partly far-reaching opening of national welfare systems even to those that have hardly contributed so far. For instance, following Styrelsen (C-46/12, 2013), EU students working 10-12 hours per week have gained access to Denmark’s generous non-repayable student support. Labour-activating welfare states subsidise poorly paid EU citizens, implying that tax-financed in-work benefits may be higher than actual pay, resulting also in incentives for workers’ exploitation [4].

Nationally financed welfare state systems that are only coordinated at the EU level may need to balance openness and closure in the way of an ‘earned’ social citizenship excluding those that recently joined the national community for a transition period [5]. This is not to say that internal EU migration currently takes a toll on the old member states. Overall contributions appear positive, and it is rather of grave concern that the poorer EU countries seem to lose out from the free movement rights of their citizens [6]. But within the rich states the benefits of European integration, as of globalisation, do not appear to be distributed equally. The working class feels left out from the liberal consensus. This needs to, and could be handled better within the member states. But inevitably, like the free movement of capital, individual free movement rights can be used to free-ride on different member states' provisions or to engage in regulatory arbitrage. Empirically, this may be of much less relevance than tax evasion. But to those contributing to national welfare systems, to those having themselves difficulties making ends meet, arbitrage and lack of reciprocity undermines the legitimacy of national welfare alongside that of the EU [7]. 

Are Ferrera’s suggestions likely to remedy the situation? They strengthen the necessary political debate. If the opening of national protection systems to those with recent links and few financial contributions to the member-state community lacks legitimacy, because solidarity is claimed with no reciprocity, his suggestion of an EU social scheme for those on the move appears the most promising. Those using their free movement rights, requiring support in the transition, should be compensated directly from the EU level to top up, for instance, their Bulgarian unemployment payments that do not allow them to look for a job in Denmark [8]. In addition to Ferrera's argument, this would lessen the normative drawback of the immediate opening of national welfare. To me, it therefore appears better suited than his other suggestions of compensating for possible costs of ‘hospitality’. The array of national welfare schemes and European funds already appears sufficiently confusing to the non-expert, so that more may be gained from greater transparency than from further additions. A division of competences, where the level of government granting rights also has to cover their costs would allow social Europe to progress from ‘regulation’ to ‘allocation’. And it would bolster the EU’s legitimacy if it could give added value to EU citizens moving to other member states.

Such an EU citizenship could not treat newly settled third-country nationals on a par, in the same way as mobile EU citizens would have to ‘earn’ their equal rights in host member states. If I understand Joppke well, he argues against such exclusion and for a thin, liberal citizenship, reminding us of the dangers of national privilege and allegiance. 

Intuitively, inclusion has greater appeal than exclusion, but possible costs to the achievements of advanced welfare states need empirical analysis. Highly differentiated societies rely on redistribution, social services, public education, and infrastructure. Solidarity and reciprocity are closely related, as Ferrera reminds us. A currently positive fiscal balance under conditions of EU free movement is insufficient proof, as there is no full opening and member states tread carefully to maintain their welfare schemes under the relative openness forced by the CJEU. If we fail to consider how redistribution could work in a context of encompassing non-discrimination without resulting in a race to the bottom of welfare services, we may strengthen rather than beat right-wing populism. 

Freedom of movement and EU citizenship have liberating force for the individual. But they have to be embedded so that they do not undermine the republican basis on which they ultimately rest [9]. A solely liberal notion of citizenship that does not exclude anyone, extending to third-country nationals, may be a citizenship for those whose fortunes do not seem to depend on collective action as they are individually imbued with sufficient resources. Is the inclusive, liberal citizenship vision possible without transforming it into a neoliberal nightmare of the fully liberated market-citizen? And is it really politically more attractive than a temporary exclusion from full equal treatment for those moving into other communities? An all-inclusive, truly cosmopolitan citizenship conception can hardly assure those fellow citizens that are losers of globalisation of our solidarity if they feel pitted against all humankind in need. It has been asked why the working class abandoned the Left [10]. But the converse question similarly merits debate.

We all depend on the surplus of functioning, highly differentiated societies. The rising number of failed states, and increasing problems with rule of law even in EU member states show how much ridden with prerequisites the Western highly developed (welfare) state is. Joppke sees ‘incompatible loyalty structures’ on both sides of the openness v. closure cleavage that cannot be tied together by citizenship anymore. That does not bode well for the necessary political discussion of how open national welfare states should be and under which conditions they integrate newcomers. The decision cannot be left to courts that deal with it under the principle of non-discrimination. Different from democratic majorities, the judiciary is ill-equipped to take decisions on allocating resources. Non-discrimination as a principle neither gives clear guidelines, as it requires treating like cases alike, and unlike cases differently. For welfare states depending on redistribution, which are legitimate criteria for distinction?

Traditionally European integration has been market integration and as such it is not sustainable. But the building of communities sharing values and solidarity takes time. It cannot be surprising that the increasing economic and social heterogeneity through simultaneous deepening and widening of the EU resulted in challenges. To strengthen the sense of belonging, EU citizenship rights are important, but in order to have societal backing they need to be politically shaped and granted, not judicially. Has this not been amply demonstrated by the Brexit vote? Without entering this debate, which Ferrera opens, sustainable progress towards a real European Community is unlikely. Relying on courts is insufficient.

 

Notes: 

[1] Funding of Norface is gratefully acknowledged (www.transjudfare.eu)

[2] Grimm, Dieter, 2015: The democratic costs of constitutionalisation: the European case. In: European Law Journal 21, 460-473.

[3] Schmidt, Susanne K., 2018: The European Court of Justice and the Policy Process: The Shadow of Case Law, Oxford. Oxford University Press, forthcoming.

[4] Ruhs, Martin, 2015: Is Unrestricted Immigration Compatible with Inclusive Welfare States? The (Un)Sustainability of EU Exceptionalism. Oxford: Compas, Centre on Migration, Policy and Society, Working Paper No. 125.

[5] Kramer, Dion, 2016: Earning social citizenship in the European Union: free movement and access to social assistance benefits reconstructed. In: Cambridge Yearbook of European Legal Studies 18, 270-301.

[6] Atoyan, Ruben, et al., 2016: Emigration and Its Economic Impact on Eastern Europe. IMF Staff Discussion Note.

Dorte Sindbjerg Martinsen, Gabriel Pons Rotger, 2017. The fiscal impact of EU immigration on the tax-financed welfare state: Testing the ‘welfare burden’ thesis. European Union Politics, doi:10.1177/1465116517717340 

Dustmann, Christina, Tommaso Frattini, 2014: The Fiscal Effects of Immigration to the UK. The Economic Journal, 124: F593–F643. doi:10.1111/ecoj.12181

[7] Beaudonnet, Laurie, 2014: A threatening horizon: the impact of the welfare state on support for Europe. In: Journal of Common Market Studies 53, 1-19.

[8] Bruzelius, Cecilia, Constantin Reinprecht, Martin Seeleib-Kaiser, 2017: Stratified Social Rights Limiting EU Citizenship. Journal of Common Market Studies, doi: 10.1111/jcms.12555.

[9] Scharpf, Fritz W., 2009: Legitimacy in the multilevel European polity. In: European Political Science Review 1, 173–204.

[10] Bo Rothstein. https://www.socialeurope.eu/white-working-class-abandoned-left


EU Citizenship Should Speak Both to the Mobile and the Non-mobile European

By Frank Vandenbroucke (University of Amsterdam)

 

Maurizio Ferrera tables a catalogue of proposals to add a social dimension and ‘some duty’ to EU citizenship. As always, his search for incremental solutions that reconcile feasibility and vision is challenging. However, I have some sympathy with Joppke’s reaction that one cannot dispense with a more fundamental debate on free movement, on which public opinion is deeply divided. Ferrera’s proposals may be relatively peripheral to settling that fundamental debate. On the other hand, Joppke’s insistence that EU citizenship is duty-free, because it is liberal, does not yield a justification for free movement and non-discrimination of mobile Europeans. I believe it is possible to justify free movement in a framework of principles that speak both to the mobile and the non-mobile European, whereby openness is embedded in principles of reciprocity. Reciprocity bridges rights and obligations.      

To clarify the issues at hand, we should distinguish three questions: 

1) How can we justify free movement? 

2) How can we justify non-discriminatory access to social benefits for those who move?

3) How can we justify a difference between active and non-active citizens in the application of (1) and (2)? 

 

Why free movement for active citizens?

Simply postulating that EU citizenship implies free movement begs the question. The most robust normative justification holds that free movement of workers means that EU citizens share an opportunity set, which is much larger than the opportunity sets offered by separate national labour markets. If free movement is about ‘equal access to opportunities’ across borders for all Europeans, it is hard to see how it can be mitigated or nuanced on a permanent basis (which is different from postponing it during a transitory period): either equal access applies for everybody – for the low-skilled as much as for the high-skilled, for all kinds of jobs –, or it does not apply, at least as long as equal access to opportunities is so conceived [1].

This normative justification is not premised on the idea that free movement would per se improve the position of the worst-off within the EU. The status of such a principle in a conception of social justice is comparable to Rawls’ principle of ‘fair equality of opportunity’, which has priority over his ‘difference principle’: for Rawls, ‘fair equality of opportunity’ (which is about access to positions and offices) has to be respected, even if it would limit the scope for redistribution. But is there an inevitable trade-off? With regard to the distributive consequences of free movement, I agree with Joppke that there is something problematic in Ferrera’s proposal to set up a compensation mechanism for countries experiencing intra-EU immigration. Next to Joppke’s observation that national governments are not incurring budgetary losses because of immigration and should be responsible for securing adequate provision of social services for their residents, the ‘negative externalities’ mentioned by Ferrera may be more real for countries of mass emigration than for countries of immigration. Therefore, such a proposal risks to be highly divisive in today’s Europe. The only way to tackle the distributive risks associated with mobility is to be more demanding vis-à-vis member states with regard to the quality of their welfare states, notably in the realm of labour market regulation and the provision of social services - more demanding than the EU is today. The regulation of minimum wages is a prime example. Different traditions exist with regard to the regulation of minimum wages: in some member states public authorities set minimum wage levels, in other member states this is the exclusive domain of social partners. But, however minimum wages are determined, a common European principle should be that all workers are covered by minimum wage regulation: decent minimum wages should apply universally in the EU’s member states, without exceptions for certain sectors, or types of jobs, or types of workers. A related example is access to social protection: there should be no jobs that do not create access to social protection. In short, if we don’t want immigration to boost a precarious, hyper-flexible segment of labour markets, there should be limits to precariousness and flexibility across the board. Or, think about access to social services, which can be under pressure in municipalities or regions with significant immigration: member states should guarantee sufficient provision of social services to safeguard universal access, for non-mobile citizens as much as for mobile citizens. The debate on the European Pillar of Social Rights can be the starting point to develop such common principles.  Admittedly, developing and translating such principles into tangible realities is an uphill battle in today’s Europe; but there is no alternative if free movement is to be reconciled with domestic social cohesion. 

Next to the principled case based on a notion of equality of opportunity, there is a second, more contingent argument in support of free movement: a single market needs both a regime of free movement of workers and a regime of posting of workers (which supports the freedom of service delivery), and the two regimes need each other and should constitute a well-balanced and sustainable whole. Posting [2] has become a controversial issue in the EU: it is difficult to control and generates problems of social dumping in particular economic sectors. Therefore, reform is necessary. However, one cannot dispense of a posting regime: an integrated market for services requires that workers can be sent to other member states for short-term projects, without being employed and affiliated to the social security system of the receiving country. Simultaneously, a single market needs a regime of free movement of workers seeking regular employment contracts in other countries as a necessary corollary to a regime of posting [3]. Limiting free movement of workers (with the principles of non-discrimination it implies) between a country A and a country B while allowing posting would be unfair from the point of view of workers living in A, since it would make it impossible to work in B on the basis of the full social and employment policy regime in that country. Moreover, such an imbalance would enhance a dynamic of social dumping in B: the alternative ‘non-dumping’ option, which some workers from country A might prefer (compared to the ‘posting’ option), is simply unavailable in such a scenario. For it to be fair to workers, an integrated, single market for services needs both a well-delineated posting regime and free access of workers to regular employment contracts in other countries.

 

Why non-discrimination?

There should be no denying that the case for free movement for workers has often been made on mainly economic grounds (with a view to the efficient allocation of factors of production), and that the principle of non-discrimination, notably with regard to social security entitlements, has often been defended as a corollary of free movement: non-discriminatory access to social security entitlements associated with employment obviously facilitates free movement. In the previous section, I tabled an argument for free movement based on access to opportunities, which does not refer to the traditional economic efficiency argument. In addition, we need independent arguments for non-discrimination that are not premised on the idea that free movement should be promoted per se

The fact that a mobile worker is incorporated in the solidarity circle of the country where he or she works is most often defended as crucial to European citizenship. Without appeal to European citizenship, there is another argument, premised on the idea that the European Union should be union of welfare states. The fact that a Polish worker enjoys the same social rights as Belgian workers when working and living in Belgium justifies that his employment generates the same social security contributions and tax revenue for the Belgian government as the employment of a Belgian national in Belgium. In other words, non-discrimination in terms of social rights justifies and so sustains the principle that we do not tolerate competition between the Polish and the Belgian social and taxation system on Belgian territory: such competition is a recipe for social dumping. The non-discrimination principle establishes a notion of reciprocity across EU member states, in the following sense: all member states guarantee that all economically active mobile citizens will have equal access to social policies in each of the member states; simultaneously, all member states understand that including economically active mobile citizens in the solidarity circle of their host country protects these solidarity circles against practices of social dumping within their own territory.

 

Earned social citizenship

The coexistence of national welfare states and free movement in the EU is made possible by a principle of ‘earned social citizenship’. Historically, the tension between free movement and the bounded welfare state was reconciled by granting the right to move only to the economically active (and their dependents) to the exclusion of the economically inactive and by establishing a coordination regime for social security systems to the exclusion of social assistance. This simple dichotomy was not tenable, but, when the right to free movement became open to economically non-active citizens, EU citizens were granted a right of residence throughout Europe “as long as they do not become an unreasonable burden on the social assistance system of the host Member State”. The 2014 Dano-judgment by the Court stresses that member states have “the possibility of refusing to grant social benefits to economically inactive Union citizens who exercise their right of free movement solely in order to obtain another Member State’s social assistance” [4]. Dion Kramer sketches the combination of continuity and change in the evolution of the EU’s principle of ‘earned social citizenship’ and situates that evolution in a broader notion of “neoliberal communitarianism”, which “combines a communitarian care of the national welfare state with a neo-liberal emphasis on the individual’s responsibility to achieve membership of that welfare community”. He labels it ‘neo-liberal’ since “it becomes the individual’s own responsibility, expressed in the form of ‘earning’ citizenship, to convert to a bounded community of economic, cultural and social values”[5]. Kramer sees dangers in the current evolution, as an expanding notion of individual responsibility, not only with regard to economic contribution but also with regard to cultural traits such as language, risks to be pushed further and further within the confines of the national welfare state itself. However, taking on board these cautionary notes, there is also a more positive reading of the notion of ‘earned social citizenship’ for mobile Europeans, at least if the EU would oblige its member states to develop comprehensive and adequate systems of minimum income protection and if an increasingly restrictive interpretation of what ‘earned social citizenship’ means can be avoided. In this more positive reading, a carefully delineated possibility for member states to exclude non-nationals from domains of social policy in which principles of compassion rather than principles of responsibility dominate (such as social assistance) would be a corollary of a duty for each welfare state to protect its own citizens against vulnerability on the basis of compassion. 

I would indeed argue that in a ‘European Social Union’ – a true union of welfare states – two complementary logics can apply legitimately with regard to social citizenship if they are applied conjointly: 

1) Economically active citizens have the right to take up employment opportunities across borders, and on the basis of employment they – and those who depend on them – ‘earn’ non-discriminatory access to all social benefits in the member state where they work, including protection against the consequences of involuntary inactivity (unemployment, illness). National regulations that guarantee fairness in labour markets apply fully to them. This serves both a pan-European notion of equal access to employment opportunities and the purpose of social cohesion in each welfare state. 

2) A non-active citizen who needs protection cannot simply rely on any member state of his (or her) choice: his nationality determines the member state which is first and foremost responsible for his protection. Under carefully delineated conditions, another member state to which he has no bond of nationality is allowed to say that the non-active citizen’s social protection would create an ‘unreasonable burden’ on its welfare state (these conditions must substantiate that, in the absence of a real link with the host member state, the right of free movement was exercised solely in order to benefit from the host state’s social assistance). In contrast, it would be ‘unreasonable’ for any member state not to provide adequate social protection for its national citizens, whatever the causes of their vulnerability and dependence. 

Obviously, setting the boundaries between these logics is a complex task and raises many questions. As Verschueren pointed out, there is both a broad and a narrow interpretation of the Dano judgment to which I referred earlier [6]. What are the exact conditions under which the notion of ‘unreasonable burden’ can be applied, and what is the role played by criteria of ‘integration in the host country’ to show a ‘real link’ with that country? The reciprocity that a member state can demand from nationals of another EU member state must be judiciously defined. Also, next to principles that apply to labour markets and income protection, a space of European social citizenship needs specific principles in the domains of education and health care. In addition, and importantly, if these logics lead to a regime of ‘enter at your own risk’ (whereby residence of non-active non-nationals is de facto tolerated, without guarantee of protection), this may lead to precariousness and marginalization of non-nationals [7].

I am not implying that, today, the EU and its member states apply these complimentary logics carefully and consistently: both with regard to ‘fair mobility’ and minimum income protection for the non-mobile citizens there is an agenda to be taken up (some of Ferrera’s proposals fit well into an agenda of ‘fair mobility’). However, these complexities, tensions and risks do not make these complementary logics illegitimate as a general framework for regulating social citizenship in the EU. If those principles were applied consistently, EU citizenship would speak both to the mobile and the non-mobile citizen: it would support mobility, but also impose on member states the adequate protection of and delivery of social services to the non-mobile. 

 

Notes: 

[1] There is no denying that formal equality of opportunity does not guarantee real, substantive equality of opportunity. This distinction is emphasized, rightly, by Bruzelius, C., Reinprecht, C. and Seeleib-Kaiser, M. (2017). Stratified Social Rights Limiting EU Citizenship, Journal of Common Market Studies; DOI:10.1111/jcms.12555 (although I’m not convinced by the policy solutions they propose – but space forbids to pursue this here). 

[2] A ‘posted worker’ is an employee who is sent by his employer to carry out a service in another EU member state on a temporary basis. Posted workers are different from EU mobile workers in that they remain in the host member state temporarily and do not integrate in its labour market, as they maintain an employment contract with an employer in their home (‘sending’) country. In contrast to posted workers, EU mobile citizens who work in another member state and have an employment contract with an employer in the latter member state are entitled to full equal treatment with nationals in access to employment, working conditions and all other social and tax conditions.

[3] I develop this argument in a paper on basic income, reciprocity and free movement: Vandenbroucke, F. (2017) Basic income in the European Union: a conundrum rather than a solution, ACCESS EUROPE Research Paper No. 2017/02. Available at SSRN: https://ssrn.com/abstract=3011847.

[4] Dano, C-333/13, EU: C: 2014:2358, para 78, emphasis added. 

[5] Kramer, D. (2016). Earning Social Citizenship in the European Union: Free Movement and Access to Social Assistance Benefits Reconstructed, Cambridge Yearbook of European Legal Studies, 18 (2016), pp. 270-301. The first quote is on p. 277; the second quote is on p. 272.

[6] Verschueren, H. (2015). Preventing ‘Benefit Tourism’ in the EU: a Narrow or Broad Interpretation of the Possibilities Offered by the ECJ in Dano?, Common Market Law Review, 52: 363-390.

[7] Heindlmaier, A. and Blauberger, M. (2017). Enter at your own risk: free movement of EU citizens in practice, West European Politics, DOI: 10.1080/01402382.2017.1294383


The Impact and Political Accountability of EU Citizenship

By Dorte Sindbjerg Martinsen (University of Copenhagen)

 

Maurizio Ferrera’s essay on how to take EU citizenship forward is an inspiring and welcome contribution to a heated, politicized debate. Ferrera not only presents the state of EU citizenship, its current challenges but also suggests concrete policy proposals how to make it more substantial and less counter-productive. His essay addresses the question raised by Rainer Bauböck: can the integrative function of EU citizenship be strengthened and how? 

Ferrera’s text raises several pertinent issues one could take up, but here I shall focus on the sketched tension between the ‘small constituency of mobile citizens’ and those who stay. As Ferrera writes, the hardest right of EU citizenship is the right to reside, work and become a member of the welfare community of another member state. At the same time, this core of EU citizenship has produced public and political concerns about social dumping and welfare tourism. To confront this tension, Ferrera proposes to empower the ‘stayers’ by, for example, introducing an EU social card while at the same time ‘dutifying’ EU citizens, for example by introducing a small earmarked ‘Social Europe’ tax.

While I agree that there is a pressing need to examine and confront the tension between the ‘free movers’ and the ‘stayers’, I see neither time nor current political support for such EU solutions to materialize. They may be interesting future objectives but there is a call for more immediate engagement with the tensions described, be they mainly perceived or real. First of all, in my view, as researchers we should engage in a fact-finding mission. We need to know more about how EU rules and rights actually work in the member states and what their outcomes are. Much of the debate has been assumptive and situational. However, as also noted by Ferrera, empirical evidence demonstrates that mobile EU citizens are net contributors to the public purse, i.e. at an aggregate level they contribute more to the welfare budget than they take out [1]. Such findings should lead to a more nuanced way of portraying mobile EU citizens. They pay income tax, VAT, corporate tax, estate tax and social security contributions in their hosting member state, tend to be relatively young and take time to claim benefits. The public revenue they generate are part of financing the welfare benefits, services and public goods for the ‘stayers’ too. In addition, research demonstrates that EU citizenship is stratified [2] and that when applied in practice, some EU citizens have only precarious status in their host member state [3]. 

This is not to say that EU mobility has no negative social and economic consequences. Some citizens – and some member states [4] – are obviously more fit for the internal market than others. Negative externalities should indeed be confronted politically. The question then becomes at what regulatory level and with which means? First of all, domestic politics is foremost responsible for scarce welfare resources, i.e. hospital beds, emergency care, social housing or school places, etc. Ordinary citizens may tend to blame Brussels because mobility rules come from Brussels, but Brussels does not decide on the level of taxation or the proper level of public investment. Domestic politics does and should be held accountable. Secondly, domestic politics is responsible for the implementation of EU rules. Social dumping, lowering wages and reducing health and safety at work places across the Union, is indeed a negative side-effect of free movement. The recently adopted enforcement directive concerning posting of workers gives the member states new means of monitoring compliance with the rules and introduces a principle of chain responsibility in the construction sectors. But the effectiveness of these new control measures again depends on national implementation and the resources allocated to control and correct for social dumping. Domestic politics shares political accountability for ineffective EU rules. The ‘blame-game’ seems so far to disregard domestic implementation and enforcement of Brussels’ mobility rules. Thirdly, EU politics is responsible for the adoption of EU rules and should be held accountable for their content and development. When unintended consequences of EU rules surface, it is a political obligation to correct such rules. Here there is no quick fix in a European context. Changing EU rules requires overcoming significant thresholds for the necessary majorities in both the Council of Ministers and the European Parliament. But it is not mission impossible [5]. If the Court of Justice of the European Union has interpreted the concept of worker in EU law in a way that deviates too far from political intentions, this calls for EU legislative politics. Otherwise, considerable variation in implementation will continue [6]. Or if member states can prove that influx of EU citizens or outflow of benefits challenge the financial sustainability of a specific welfare scheme, corrective mechanisms or exemptions should be adoptable. The latter form of differentiated integration may disturb the uniformity of EU rules – but could at the same time increase its domestic support. 

We have already seen the disruptive effects of political discourse where EU mobile citizens are regarded as welfare seekers and social dumpers; just recall the Brexit debate. Ferrera’s call for avoiding further disintegrative and counterproductive consequences of EU citizenship’s core rights is thus timely and urgent. Bridging the cleavage between the ‘mobile’ and the ‘stayers’ calls for further research, for multilevel politics as well as multilevel accountability. 

 

Notes: 

[1] See Dustmann C, Frattini T (2014) The fiscal effects of immigration to the UK. The Economic Journal 124(580): 593–643; Ruist J (2014) Free immigration and welfare access: The Swedish experience. Fiscal Studies 35(1): 19–39 and Martinsen, D.S and Rotger, G. P. (2017) The fiscal impact of EU immigration on the tax-financed welfare state: Testing the ‘welfare burden’ thesis. European Union Politics, http://journals.sagepub.com/eprint/TESAUcFRQ4jVRvp9aQkb/full . 

[2] Bruzelius, Cecilia, Constantin Reinprecht, and Martin Seeleib‐Kaiser.  2017. "Stratified Social Rights Limiting Eu Citizenship." JCMS: Journal of Common Market Studies, http://onlinelibrary.wiley.com/doi/10.1111/jcms.12555/full 

[3] Heindlmaier, Anita, and Michael Blauberger.  2017. "Enter at Your Own Risk: Free Movement of EU Citizens in Practice." West European Politics 40 (6): 1198-1217.

[4] Hassel, Anke, Jette Steen Knudsen, and Bettina Wagner.  2016. "Winning the Battle or Losing the War: The Impact of European Integration on Labour Market Institutions in Germany and Denmark." Journal of European Public Policy 23: 1218-39.

[5] Martinsen, Dorte Sindbjerg. 2015. An Ever More Powerful Court?: The Political Constraints of Legal Integration in the European Union: OUP Oxford.

[6] O'Brien, Charlotte, Eleanor Spaventa, and J. De Corninck. 2016. "Comparative Report 2015-the Concept of Worker under Article 45 TFEU and Certain Non-Standard Forms of Employment."


“Feed them first, then ask virtue of them”: Broadening and Deepening Freedom of Movement

By Andrea Sangiovanni (King’s College London)

 

Maurizio Ferrera’s contribution is characteristically sharp, engaged, and imaginative. In this comment, I will not unpack his various proposals. Rather, I want to discuss the way the issues are framed, and propose an alternative way of grounding them. 

 

Citizenship as an instrument for bonding and integrating

‘In the light of rising Euroscepticism, souvranisme and anti-immigration … sentiments’, Ferrera wonders under what conditions EU citizenship might play a more integrative role in European politics. Currently, EU citizenship only secures a thin set of entitlements (to nondiscrimination activated only when an EU citizen is involved in activities or situations that cross an internal EU border), and only secures them for a tiny fraction of the European population (primarily those who actually exercise their rights to freedom of movement, which amounts to less than 5% of the EU population). Ferrera’s proposals for reform aim both to broaden and deepen the appeal of EU citizenship, mainly by securing a novel set of entitlements to immobile citizens and by extending the range of social entitlements available to those who move.

Given Ferrera’s insistence that EU citizenship should play a more ‘integrative role’, the criteria by which we should judge whether his proposals would be successful, assuming they were ever adopted, are therefore explicitly functional. We should endorse the proposals if and insofar as they enhance the perceived legitimacy of further European social integration and if and insofar as they increase support for freedom of movement. Ferrera writes, ‘I have argued that it is precisely the provision of instrumental resources (money, benefits and services, infrastructures and so on) that could make EU citizenship more salient, visible and tangible for wide social constituencies. A smart enhancement and packaging of such resources … could be the trampoline for strengthening the social citizenship dimension of the EU…’ It is as if Ferrera were to say: “We (European elites?) agree that further European social integration and freedom of movement are desirable; the task that remains is to get EU publics to agree with us. How might we do that? By enhancing the symbolic, material, and instrumental significance of European citizenship in such and such ways. ‘Feed them first, then ask virtue of them’[1]”. 

What is odd about such a perspective is that it cannot be offered to EU publics themselves. Imagine a member of the public asks: ‘And why should I aim to augment European citizenship in the ways you propose?’ Given how Ferrera has framed his question, the answer must be: ‘Because it will get you to bond more with fellow Europeans and therefore assent to further EU social integration without undermining freedom of movement’. But that’s no answer at all, given she is asking why she should assent to the proposals, bond with other Europeans, and support freedom of movement in the first place

To be sure, there is nothing wrong with making an argument intended to propose reforms that might feasibly sustain the European project in the face of growing skepticism. And yet there is still something lacking. This contrast can be sharpened if we further imagine that EU publics in fact reject Ferrera’s proposals (despite the evidence that Ferrera has marshaled that indicates some support for the general direction). Should one abandon them as therefore misguided? Or might there be something still to be said for them? What might we say, for example, to an engaged, publically minded EU citizen that rejects Ferrera’s proposals because they believe either that (a) freedom of movement is a mistake (as many British do, including those who voted for Remain), (b) freedom of movement should remain formally open to all but without further support for either movers or stayers, or (c) freedom of movement should not be limited to EU nationals (but extended to all third-country nationals [TCNs] as well)?

 

Broadening and deepening freedom of movement

In the following, I want to sketch a response that provides an alternative basis for Ferrera’s proposed reforms while addressing (a), (b) and (c). 

With our publically minded EU citizen in view, what is the best argument in favor of EU-wide freedom of movement? One might argue that the free movement of persons is an essential aspect of the Single Market, and, as such, is to be recommended mainly as a device for securing a more efficient allocation of the factors of production. This is an advantage that leads, through productivity gains, to aggregate gains. But there is also an advantage, in principle, from the perspective of each individual. Freedom of movement and nondiscrimination expands every EU citizen’s choice set, providing them with an expanded range of opportunities both to seek gainful employment abroad and to pursue broader cultural, social, political and personal interests [2].

But, as Ferrera and others have rightly pointed out, freedom of movement also brings costs—costs, furthermore, that do not fall equally on everyone. In particular, there is some (albeit heavily contested) evidence that, while there are net aggregate economic benefits from greater immigration, some communities, some groups, and indeed some member states will inevitably lose out. In the same way as any shift in technology, say, from candlesticks to electric bulbs, will diminish the pay and bargaining power of the candlestick makers (or displace them entirely), the same can be said with immigration: a greater supply of cheaper, unorganised labor will put downward pressure on wages and diminish the bargaining power of those who work in immigrant-heavy sectors. At the same time, public services (education, healthcare, social services, etc.) in communities in which newly arrived immigrants concentrate will bear relatively greater burdens than other communities. Finally, member states that are net senders of immigrants may suffer brain drain, as their skilled labor force moves abroad [3]. These costs are most often borne not by the well-off but by those who are already disadvantaged. Our member of the public will want some explanation for why she must bear these costs to make way for gains that accrue mostly to others.

The best response will appeal to a broader conception of social justice for the European Union [4]. Consider that, in integrating, member states and their peoples open their societies, polities, economies, and territories to international and supranational control. By pooling sovereignty, member states and their peoples of course stand to gain, but the constraints of intergovernmental bargaining and supranational control often expose states both to a range of negative externalities and to risks and costs that they can no longer confront on their own. To face them, member states depend on the collaboration and cooperation of other member states and supranational actors. To name but one example, think of the constraints of monetary union, and the relative position of Greece and Germany within it. As I argue elsewhere [5], the best normative model for deciding how these benefits, costs, and risks ought to be distributed is grounded in a conception of reciprocity: member state peoples owe one another a fair return for their mutual submission to EU rules and supervision. The fair return for risks and losses is, in turn, best captured by the idea of a hypothetical insurance market, in which member state peoples know the risks associated with integration but not their place in that distribution. On this view, member state peoples and their citizens are owed a fair division of the gains—which are secured mainly through the convergence promised by the implementation of a Single Market—and indemnification against those risks and losses that are a result of integration, and which they could do little to prevent or avoid. This model can be used to support a much broader Social Union among member state peoples than at present (though stopping well short of providing support for an EU-wide federal welfare state). 

We can also use this framework to address our hypothetical members of the public and their concerns with respect to freedom of movement (recall [a] and [b]) [6]. As I have said, freedom of movement brings benefits, but with these benefits also come costs that fall disproportionately on some. Those on whom such costs fall – those whose communities, services, career opportunities and wages are most affected – have a claim, according to the reciprocity-based view of social justice I have just outlined, to be indemnified against these losses in exchange for their support for freedom of movement as a whole. The logic of this reciprocity-based view reinforces and undergirds Ferrera’s proposals for an EU fund (modeled on the Globalization Adjustment Fund) to ease the impact of mobility on affected groups. Although this is not discussed by Ferrera, we could also imagine extending the fund to provide for education and vocational programs in countries suffering from brain drain. This addresses the member of the public who wonders why she should support freedom of movement in the first place, given the costs involved (see [a] above), and, at the same time and in the other direction, addresses those who wonder why they have a duty to support those who bear the costs, given the aggregate benefits. 

From within such a reciprocity-based conception of social justice for the EU, what can be said on behalf Ferrera’s proposals for ‘empowering the stayers’? In this category, Ferrera includes, among other things, a proposal for a universal and transferable voucher system intended to compensate those who do not exercise their rights to freedom of movement. Here we can invoke again our member of the public who, in (b) above, wonders why freedom of movement should guarantee anything more than a formal right to move. An appealing response points to the difference between a merely formal and a more substantive equality of opportunity, not generally (i.e., with respect to all socioeconomic opportunities – as in Rawls’s Fair Equality of Opportunity principle – which would require vastly more redistribution across EU member states) but with respect to opportunities to exercise, more specifically, freedom of movement. Recall that one rationale for freedom of movement is an expansion of every EU citizen’s opportunity set. The value of that opportunity set to each individual will be very unequal if some can exercise the option to move easily and others, through no fault or choice of their own, cannot – for example, because they have dependents or lack sufficient resources to make use of that freedom. (Here I register a small disagreement with Ferrera, who does not distinguish – from the point of view of their respective entitlements – between those immobile citizens who freely choose to stay and those whose choice is much more constrained [7].) In those cases, providing merely formal freedom of movement unfairly disadvantages those who cannot easily move. As in the previous case, we can say that they have a reciprocity-based entitlement to compensation derived from their support for freedom of movement as a whole. 

The same logic, finally, can be used to buttress Ferrera’s perhaps most ambitious proposal, namely to set up a social insurance scheme – a kind of mobility fund – protecting workers who decide to exercise their free movement rights. Such a fund would have the effect of mitigating inequalities of opportunity to move that are due to differences, for example, in the exportability of benefits for mobile jobseekers. As Bruzelius et al. have shown, given differences in the exportability of benefits for jobseekers and limitations in access to social benefits for jobseekers in host states, it is much easier for someone to move from Britain to Latvia in search of work than the other way around [8]. An EU-funded mobility fund of the kind advocated by Ferrera would serve, among other things, to dampen these inequalities and so, once again, to address our hypothetical member of the public in (b). 

 

The duties of citizenship

In his comment, Christian Joppke wonders whether an excessive emphasis on the duties of citizenship betrays an anachronistic and potentially dangerous revival of what we might call Romantic citizenship. Allegiance and loyalty, death and ethnic belonging, exclusion of those who do not share in the myths of national identity, suspicion of immigrants, and so on, are the foundation stones of Romantic citizenship. To be sure, Ferrera invokes none of these in defense of his proposals, but Joppke worries that Ferrera’s proposals (whose aim is to strengthen allegiance to EU citizenship) have an unavoidably exclusionary ring to them. They both give too much credence to those who falsely see movers as ‘benefit tourists’ or (in the language of the CJEU) ‘unreasonable burdens’, and threaten to impose an artificial divide between EU citizens (who are entitled to the benefits of freedom of movement Ferrera advocates) and TCNs (who are not). 

I think that that Ferrera has a ready response. The first step is to emphasize that not all ‘citizenship duties’ are made equal. Ferrera here can easily agree with Joppke (as I, too, would) that the set of Romantic duties are outmoded and dangerous. But citizenship also includes more prosaic duties, e.g., to pay one’s taxes, as well as duties of civility, toleration, and, indeed, justice. These are duties that flow from what Rawls calls citizens’ ‘sense of justice’. It is these duties that support Ferrera’s proposals, not the Romantic ones. This becomes especially clear if we interpret those duties as obligations of reciprocity in the ways I have suggested. From this point of view, we do owe those whose communities, wages, and so on, are most affected indemnification – but this duty is compatible with both requiring evidence of such effects and with acceptance of the fact that movers are, on average, a net benefit – socially, culturally, fiscally, economically, politically – to the polity as a whole

What about the divide between TCNs and EU citizens (and so [c] above)? Here the response – again within a reciprocity-based perspective – is straightforward. Because legally resident TCNs participate in their host society’s political, civil, social, economic life (in the relevant sense) to the same extent as EU citizens, they bear the same duties and are owed the same benefits and advantages as member state citizens (even if they are economically inactive) [9]. And because of their legal residence in their host country, they also contribute willy-nilly to the European project. Recall that TCNs, too, contribute – in the same way as EU citizens – to the project of integration both in complying with laws enacted or constrained by the European legal order and in contributing (politically, socially, economically, etc.) in ways that ultimately support and sustain European institutions (and EU freedom of movement). To be sure, such an extension of duties and entitlements is not currently on the agenda, but the point is that it should be as a matter of justice. If Ferrera were to qualify his functionalism (which gives perhaps too much credence to the current state of public opinion), I do not see why a conclusion like this would not be available to him as well.

In this comment, I have not sought to challenge Ferrera’s proposed reforms. Rather, I have sought to ground them, not in a functional-empirical analysis of what is most likely to inspire support for EU citizenship, but in a broader conception of social justice. The two perspectives are not in direct competition, but they do depart from very different starting points. 

 

Notes:

[1] As the Grand Inquisitor says in F. Dostoevsky, (1991), The Brothers Karamazov. R. Pevear and L. Volokhonsky (trans.)  New York: Vintage Books, p. 253.

[2] This point is well made in F. Vandenbroucke (2017), 'Basic Income in the European Union: A Conundrum Rather Than a Solution', SSRN Research Paper 2017/02, The Amsterdam Centre for Contemporary European Studies.

[3] To calibrate this effect, one must also take into account that many of the CEEC countries were happy to support free movement as it served as a means of relieving excessive labor supply. See, e.g., M. Kahanec (2013), 'Labor Mobility in an Enlarged European Union', in International Handbook on the Economics of Migration, A. Constant and C. Zimmerman (eds.), Cheltenham: Edward Elgar Publishing, 137-52 and references cited therein.

[4] For this point, see also the contribution to a previous EUDO debate by Daniel Thym. ‘The failure of Union Citizenship beyond the Single Market’. 

[5] See A. Sangiovanni (2013), 'Solidarity in the European Union', Oxford Journal of Legal Studies 33: 213-41; A. Sangiovanni (2012), 'Solidarity in the European Union: Problems and Prospects', in Philosophical Foundations of European Union Law, J. Dickson and P. Eleftheriadis (eds.), Oxford: Oxford University Press, 384-412; A. Sangiovanni, (forthcoming), The Bounds of Solidarity: International Distributive Justice, Reciprocity, and the European Union. Cambridge: Harvard University Press. Here of course I can only briefly sketch the model.

[6] I say more about the tension—and how to resolve it—between facilitating freedom of movement and domestic commitments to social solidarity in Sangiovanni, 'Solidarity in the European Union'.

[7] See also the useful discussion in a previous EUDO forum by Kieran Oberman, ‘What to say to those who stay? Free movement is a human right of universal value’.

[8] C. Bruzelius et al. (2017, forthcoming), 'Stratified Social Rights Limiting EU Citizenship', Journal of Common Market Studies

[9] I say much more about the grounds for such reciprocity in A. Sangiovanni (2007), 'Global Justice, Reciprocity, and the State', Philosophy & Public Affairs 35: 2-39.

 


EU Citizenship, Duties and Social Rights

By Martin Seeleib-Kaiser (University of Oxford)

 

Social rights and EU citizenship have moved from the fringe to the centre of the political debate. Ferrera’s proposals are timely and address important issues of this urgently needed political and academic debates. 

Since the ratification of the Maastricht Treaty (1993) European Union citizenship has formally become a reality and citizens of European Union Member States are no longer only citizens of the respective Member States, but also ‘multinational citizens’ (Aron 1974) of the European Union. However, welfare states continue to be largely defined through nation-state borders (Ferrera 2005), creating welfare state insiders and outsiders. Accordingly, EU migrant citizens  are often considered as outsiders, who access social benefits and services without having fulfilled their duty of having paid taxes in the country of destination. This perception has led to a significant politicisation of freedom of movement and to the notion of ‘welfare tourism’ in a number of Member States. 

Despite the at times dominant frame of ‘welfare tourism’, especially in the UK media, the main reason for intra-EU migration is work. Due to high employment rates among EU migrant citizens, it is not surprising that empirically there is no evidence of ‘welfare tourism.’ Moreover, various analyses have demonstrated that EU migrant citizens are net contributors in countries of destination, i.e. they contribute more in taxes and social (insurance) contributions than they take out in benefits and services (cf. Dustmann/Frattini 2014; Martinsen/Rotger 2017). As a group EU migrant citizens ‘over-fulfil’ their duty to contribute to funding welfare benefits and services in the Member State of destination. This obviously does not mean that every EU migrant citizen fulfils an individual duty. But, does this mean s/he should not be entitled to minimum income benefits or services? In this context it might be helpful to highlight that welfare states do not apply the principle of an individual duty to nationals or permanent residents as a precondition for receiving (subsistence) benefits or certain social services, such as health care. And there are good reasons not to do so!

Nevertheless, the significant increase in intra-EU migration has led to problems and challenges at the local and regional level putting pressure on social services. Ferrera suggests the establishment of a special EU fund to address these problems, while Joppke argues that such a fund would benefit those countries that already benefit from intra-EU migration. In my view, this debate seems rather academic, as EU funds to deal with challenges arising from intra-EU migration are already available under current EU funding arrangements. By using resources from the European Social Fund (ESF) and the Fund for European Aid to the Most Deprived (FEAD) affected local authorities and organizations, for instance in Germany and Sweden, were able to address some of the challenges arising from intra-EU migration at the local level. In other words, existing European funds can provide local actors with additional resources, without necessarily providing Member States that benefit from intra-EU migration with additional funds. No such funds were used in England to address the challenges in the localities most affected by intra-EU migration -- a political choice by the UK government! For the future it would seem reasonable to increase the overall levels of the ESF or FEAD and making these funds more conditional upon addressing ‘European’ social issues (including the potential negative effects of intra-EU migration at the local level, be this in the countries of origin or destination), thereby strengthening EU social citizenship at the local level (cf. Bruzelius et al. 2014). 

Another challenge associated with EU citizenship is the risk of exploitation in labour and housing markets. Job-seeking EU migrant citizens from Central and Eastern European as well as Southern Member States often cannot rely on substantive social rights, as the system of Social Security Coordination does not provide any substantive exportable unemployment benefits for them. As a consequence of residence requirements they are neither entitled to minimum income benefits in the country of destination, putting them at risk of exploitation. If one considers the concept of freedom of movement not only as a negative liberty, but also as a positive right, it would seem reasonable to introduce a European Minimum Income Scheme or a supra-national unemployment scheme, as suggested by Ferrera, to address the identified challenge of insufficient social security and risk of exploitation among job-seeking EU migrant citizens (cf. Bruzelius et al. 2017). 

Vandenbroucke suggests the introduction of an EU minimum wage, strengthening the ability of Member States to provide good and comprehensive social protection at the national level and reforming the existing arrangements for posted workers. These are laudable proposals, but they would seem largely ineffective to address the problems of potential exploitation among EU migrant citizens without substantive exportable unemployment benefits or insufficient social protection, especially since main destination countries, such as Britain and Germany, already have national minimum wage systems. It is the duty of Member States to enforce national and EU minimum standards in labour and social law to avoid social dumping and the undermining of national working conditions for this we do not need new regulation, but the enforcement of current laws (cf. Bruzelius et al. 2014)! In this context it seems worthwhile to note that British authorities have only recently started to ‘accept’ the duty to enforce minimum wage and working conditions by appointing the UK’s first labour market enforcement chief (Khan 2017).

Irrespective of the increasing importance of EU citizenship and social rights in the current political and academic debates, many participants still shy away from getting to the core of EU citizenship as a fundamental right. The issue of social rights and duties of EU migrant citizens within the EU is not sui generis, as it has been at the centre of many political and judicial debates in (con)federal jurisdictions. In this context it might be worthwhile to learn from two historical examples: the North German Confederation (Norddeutscher Bund, NDB; 1867-1870) and the United States of America. Citizenship of these two jurisdictions was derived from the citizenship of the constituent states – very similar to EU citizenship. Furthermore, important elements of the welfare state, such as providing a minimum of subsistence or certain social services, were the responsibility of the constituent states. For Bismarck the system of local and regional poor relief with restrictive residence requirements was incompatible with the principle of freedom of movement in the NDB. Consequently, the Unterstützungswohnsitzgesetz (law on the domicile for social assistance) of 1870 entitled every poor person within the territory of the NDB to poor relief at the place of residence, irrespective of the Member State of origin and duration of residence. The US Supreme Court ruled against the State of California, which in the 1990s once again had introduced minimum residence requirements for the state welfare programme, declaring the residence clause as unconstitutional, arguing: “Citizens of the United States, whether rich or poor, have the right to choose to be citizens of the State wherein they reside. … The States, however, do not have any right to select their citizens” (Saenz v. Roe; 526 U.S. 489 (1999): 511; cf. Bruzelius/Seeleib-Kaiser 2017). 

For EU citizenship to become truly a fundamental status it is necessary to overcome the differentiation between economically active and non-active EU migrant citizens and finally abolish the residence requirements, as it was the case in the NDB and the US -- territorial jurisdictions with isopolitical citizenship. Simply put: to be, or not to be, an EU citizen that is the question!  

 

Notes:

[1] I define EU migrant citizens as EU citizens who are, or intend to become, habitually resident in a Member State of which they do not hold nationality. This category differs from EU mobile citizens, i.e. citizens who move across borders for limited periods of time. EU citizens belonging to the category of mobile citizens fall into the subcategories of cross-border workers, posted workers, students or tourists.

 

References:

Aron, R. (1974) ‘Is Multinational citizenship possible?’, Social Research, 41 (4): 638-656.

Bruzelius, C.; Chase, E; and Seeleib-Kaiser, M. (2014) “Semi-Sovereign Welfare States, Social Rights of EU Migrant Citizens and the Need for Strong State Capacities,” Social Europe Journal, Research Essay No. 3.

Bruzelius, C.; Reinprecht, C.; and Seeleib‐Kaiser, M. (2017) “Stratified Social Rights Limiting EU Citizenship.”  Journal of Common Market Studies, doi: 10.1111/jcms.12555.

Bruzelius, C.; Seeleib-Kaiser, M. (2017) Freedom of Movement and the Right to a Minimum Income: Comparing the North German Confederation, the US and the EU. Paper prepared for the 2017 Annual Conference of the Research Committee 19, ISA, University of North Carolina, Chapel Hill, June 22-24, 2017.

Dustmann C, Frattini T (2014) “The fiscal effects of immigration to the UK,” The Economic Journal 124(580): 593–643

Ferrera, M. (2005) The boundaries of welfare (Oxford: Oxford University Press).

Khan, M. (2017) “UK appoints enforcer to crack down on minimum wage abuse,” in Financial Times, January 17, 2017, available at https://www.ft.com/content/b61d7370-d31e-11e6-9341-7393bb2e1b51

Martinsen, D. S.; Rotger, G. P. (2017) “The Fiscal Impact of EU Immigration on the Tax-financed Welfare State,” in: European Union Politics, DOI: https://doi.org/10.1177/1465116517717340.

Pennings, F. (2015) European Social Security Law (Cambridge: Intersentia), 6th Ed.

 


Why Compensating the “Stayers” for the Costs of Mobility is the Wrong Way to Go

By Julia Hermann (Utrecht University)

 

Like most of the previous respondents, I agree with Ferrera that the unequal division of the costs and benefits of free movement calls for action. My main criticism concerns his proposal to compensate non-mobile citizens. In my response, I shall expand on Christian Joppke’s critique of Ferrera’s presumption that “moving” causes harm that “stayers” should be indemnified for.

Ferrera argues that one way of strengthening the integrative capacity of EU citizenship would be to compensate those EU citizens who do not make use of their right to free movement for the negative effects of intra-EU mobility, and to empower them through particular initiatives. Joppke takes this to be a non-starter, because by making such a proposal, Ferrera confirms the populist portray of migrants as perpetrators and natives as victims and “buys into the populists’ hideous re-labelling of mobile EU citizens as ‘immigrants’”. I agree with the direction of this criticism, but not with Joppke’s apparent denial of the existence of real adverse effects of freedom of movement. A crucial question is to what extent the perceived negative externalities are real. Ferrera is fully aware of the fact that some of the fears are ungrounded, and Joppke rightly criticizes him for not addressing this when he makes his proposals for compensating and empowering non-mobile citizens. However, Joppke seems to presume that there are no negative externalities at all, thereby ignoring the point emphasised by Ferrera that despite the fact that, in the aggregate, mobility tends to benefit the receiving member states, there are also adverse effects, which are felt at the local level. We have to identify the real adverse effects in order to get a clearer picture of those perceptions of negative effects that are false, and must then ask what can and ought to be done to change these false perceptions.

Ferrera notes that in a particular territorial area, economic sector or policy field, the negative economic and social externalities (e.g. a decrease in available jobs, hospital beds, emergency care, social housing, school places etc.) may exceed the positive ones. He presents the negative externalities as “produced by the mobiles”. Vandenbroucke and Sindbjerg Martinsen address “social dumping”. Vandenbroucke moreover mentions the possibility that the negative externalities may be more real for countries of mass emigration than for countries of immigration. Independently of the answer to that question, it is important to address the fact that mobility can place a big burden on the latter countries. Take a country such as Italy, where many well-educated young people emigrate in order to work in Britain, Germany, The Netherlands, etc. (brain drain). Would compensating, for instance, non-mobile Italian citizens be the adequate response to the brain drain that the country experiences? No. The adequate response would be to make the reforms necessary for making it attractive for talented young Italians to stay in their country, and for attracting talented citizens of other member states.

The proposal to compensate non-mobile citizens is problematic for a number of reasons. First, it gains support from the view that the mobiles produce the negative externalities, which is not correct. They are produced by the system, i.e., they are the consequences of giving people the right to free movement without providing mechanisms that prevent a race to the bottom of welfare services, wage dumping and so forth. Once we abandon the picture of movers producing negative externalities, Ferrera’s proposal becomes much less plausible. Second, every EU citizen is a potential mover. Someone who is a stayer today might be a mover tomorrow. Every EU citizen has the formal freedom of movement. At any point in time, this is not a substantial freedom for many people, but this situation is not static. Not only is it possible that stayers may want to exercise their freedom of movement in the future, it is also possible that they get into a situation where they find themselves compelled to do so. Third, the demand for compensation doesn’t fit well with Ferrera’s claim that one of the corresponding duties of the right to free-movement is “to bear the burdens of ‘hospitality’”. Fourth, the demand makes negative externalities seem unavoidable, which is not the case. Fifth, although the burdens are not shared equally, mobility ultimately affects society as a whole when it leads to a decline of domestic cohesion. In the long run, the burdens are not felt merely locally, but globally. Finally, compensatory measures don’t go far enough. We have to address the systemic flaws, the origins of the European malaise

The costs of mobility call for two things: a justification to those bearing them disproportionately, and measures to reduce them. Those who lose out are entitled to a justification for why they ought to support freedom of movement (see Sangiovanni’s contribution to this debate). It might well be that such a justification is currently not available, because if we consider the situation of EU citizens on the whole, the costs of free movement might be disproportionately high. There seems to be an agreement between most of the respondents in this forum that the required justification would be available if the social dimension of the EU were strengthened significantly, implying that, as things are now, many EU citizens are entirely justified in opposing freedom of movement.

Given the present form of the EU, some of the negative effects might indeed be unavoidable. Due to big differences between member states concerning minimum wage regulations, access to social protection, flexibility of the labour market, taxes etc., mobility of workers leads to a race to the bottom. As Vandenbroucke writes, “if we don’t want immigration to boost a precarious, hyper-flexible segment of labour markets, there should be limits to precariousness and flexibility across the board”. Vandenbroucke claims that the only way to tackle the distributive risks associated with mobility is to be more demanding with regard to the quality of welfare states. He asks for common principles, e.g. “All workers are covered by minimum wage regulation”. Seeleib-Kaiser argues that the relevant regulation (in the form of national and EU minimum standards in labour and social law) is already there but needs to be enforced. At this point the question becomes whether the EU is, in its current state, able to enforce it. Vandenbroucke admits that “developing and translating such principles into tangible realities is an uphill battle in today’s Europe”, but emphasises that “there is no alternative if free movement is to be reconciled with domestic cohesion”. Ferrera proposes to establish a supranational scheme providing homogeneous protections to mobile workers. Sangiovanni stresses that justice requires a much broader social union than we currently have. He suggests grounding Ferrera’s proposals in his conception of justice for the European Union. 

There are doubts as to whether the EU as we know it is capable of achieving the political union necessary for broadening the social union. Because the EU is, in the first instance, an economic union – the project of a common market – and because of its well-known democratic deficit, a broader social union might only be reachable via fundamental reforms. Perhaps we even need to start all over again. Ferrera may be right that “incrementalism is the only policy strategy for the EU today”, but this may mean that our problem is not solvable by any of the policy strategies that are available to the EU in its current form. One rather radical proposal is to create a European Republic, in which there are no nation-states anymore, but only regions, cities, and – most importantly – citizens [1]. I do not wish to defend this utopia here, but want to emphasise that there is the real possibility that in its current form, the EU cannot achieve the required social union. This would mean that due to the internal constitution of the EU, EU-citizenship couldn’t fulfil its integrative functions. If we follow Ulrike Guérot, citizenship that fosters integration and solidarity has to imply equality in front of the law, equal general voting rights and equal social participatory rights [2]. In today’s EU, citizens do not have any of this. Unfortunately, this is not stuff that could simply be added to the “EU-citizenship container”. I am not saying that this is the correct diagnosis. My point is that given the enormous problems the EU is facing, we have to take this possibility very seriously.

 

Notes:

[1] Guérot, U. (2017), Warum Europa eine Republik werden muss! Eine politische Utopie. Third edition. Bonn: Dietz.

[2] Ibid.


Balancing the Rights of European Citizenship with Duties Towards National Citizens: An Inter-national Perspective

By Richard Bellamy (European University Institute)

 

Discussions of European citizenship have tended to mobilise around two somewhat divergent views. The first view, well represented by Maurizio Ferrera’s argument for his ingenious proposals, treats this status instrumentally: as a mechanism for promoting both greater allegiance to the EU from those individuals subject to its authority and greater solidarity amongst them. As with Ferrera’s argument, such views tend to conceive European citizenship in analogous terms to citizenship within the member states, with the goal being to wean individuals away from the national to the supranational, at least to some degree (Habermas 1992 remains the classic statement of this approach). By contrast, the second view, of which Christian Joppke’s contribution offers a fine example, treats European citizenship as transnational. So conceived, it involves not only denationalizing citizenship but also transforming the very nature of citizenship itself (for full accounts of this thesis, see Kostakopolou 2007 and Kochenov 2014). A citizen becomes no more than an individual bearer of liberal rights, with no special duties to any particular political community but only the moral obligations to uphold the liberal rights of all other individuals (actually Joppke is silent on this issue, but I assume de-dutification can only be taken so far). 

Although Ferrera’s account moves in the direction of a supranational view, his policy proposals occupy a mid-point, providing a transitionary phase that seeks to reconcile the national to the transnational. By contrast to Joppke, I believe such a reconciliation is not only a pragmatically necessary endeavour but also normatively justifiable. However, I shall argue that the grounds for doing so indicate difficulties with the conventional supra- and trans-national views of European citizenship, and point to an alternative view that I shall call inter-national. 

As Andrea Sangiovanni has observed in his contribution, Ferrera’s declared grounding for his proposals beg the question of why the vast majority of citizens of the different member states, who do not themselves take advantage of freedom of movement, should view further European integration and the creation of social solidarity at the European level as desirable in the first place. Although Ferrera does not articulate his reasoning explicitly, the implicit rationale would appear to be the two standard functional and moral arguments that are habitually offered for an ever closer Union. The functionalist case contends that in an interconnected world, the only way to take advantage of the economic benefits globalisation brings while managing its costs is through scaling up beyond the nation state. The moral case involves a form of cosmopolitanism, whereby the argument holds that if we are to treat all individuals as of equal moral worth we must likewise remove those political boundaries that entail treating them unequally. Both these arguments certainly need to be taken seriously. Whether they can only be adequately or appropriately addressed by a scaling up of political authority to the regional level or beyond is another matter (for a discussion of these two views, see Bellamy 2015a).

Given these arguments, the obvious question to ask is why we should take national citizenship seriously at all? As Joppke contends, surely the moral argument in particular suggests we should avoid either pandering to nationalism in the short term or replicating its exclusionary characteristics at the supranational level in the long term? One reason arises from the fact that, for all their faults, democratic nation states, such as those that are members of the EU, provide the most effective political systems so far devised for rendering governments accountable to the governed in ways that encourage these governments to pursue policies aimed at treating the governed with equal concern and respect, and thereby securing their rights. Pace the transnational de-dutifyers, individual rights claims are likely to go unheeded without some political and legal authority capable of upholding them consistently and coherently over time. Meanwhile, that authority will only be likely to uphold these rights in an impartial and fair way if suitably constrained to do so, with the most effective constraint being to subject rulers to a system of equal influence and control by the ruled. As a result of such a set up, citizenship becomes the ‘right to have rights’ (see Bellamy 2001). Indeed, it could be argued that it is only within such a context that rights can be either effectively or legitimately claimed (Bellamy 2012a). For it is only through participating, on the one hand, in a scheme of social and economic cooperation capable of supporting expenditure on a suitable public infrastructure needed to secure rights; and, on the other hand, within a scheme of political cooperation through which individual rights can be claimed, justified and agreed to on equal terms to others, that a system of rights that is fair and sustainable can emerge. The duties that arise from involvement in these two schemes may have gained a romantic, nationalist colouring, yet as Andrea Sangiovanni notes they are for the most part prosaic – paying taxes, treating others with civility – not least by accepting the rules of the political game, and acknowledging the obligation to treat others with equal concern and respect. 

The transnational view tends to overlook the role democratic states have had and continue to have in generating rights not only for their citizens but also for those citizens of other countries who may temporarily move to visit or work there. They treat them as self-evident moral properties of individuals that apparently can be met spontaneously (for a detailed critique see Bellamy 2015b). Many proponents of the transnational view among legal academics have also been overly sanguine about the judicialisation of the EUs transnational citizenship provisions, which has largely occurred as an extension of the lex mercatoria of the single market (see Bellamy 2012b). As Susanne Schmidt remarks in her contribution, the deployment of litigation by market actors gains a false legitimacy from exploiting the terminology of citizenship rights. For it allows those actors with an economic interest in further market integration - the majority of which are enterprises rather than individuals - a privileged venue that is biased against, and often inaccessible by, the immobile majority, undermining the relative political equality offered by democratic citizenship (Isiksel 2016: 142-3). Nevertheless, transnational critics are right to note that many of these same states have been, and still can be, great sources of injustice for those individuals and whole peoples they have dominated either directly, through colonization and war, or indirectly, through exploitative trade deals, and who they continue to exclude through various immigration policies. 

In this regard, the supranational solution might seem superior because it can overcome the possibility of domination and exclusion simply by being more inclusive of who is a citizen. Yet, as Ferrera acknowledges, establishing anything coming close to such a social and political system at the national level required a long period of political struggle facilitated by mass conscription in war, which gave ordinary people a degree of leverage over those whose wars they were obliged to fight – not least in prompting the establishment of social insurance and ultimately the granting universal adult suffrage. Meanwhile, a degree of bonding sufficient to agree upon and abide by collectively binding decisions was facilitated not only by boundaries delineating among whom they were made and to whom they applied, as Ferrera reports, but also by a common history, culture and language. These latter features in particular may belong to the romantic attachments that Joppke deplores as reactionary throw-backs, but they served a functional purpose in facilitating the operation of democracy as a mechanism for the public realization of the equal status of citizens. For to achieve that result, citizens must be able to air their disagreements and deliberate in ways all can see are fair and addressed to their common concerns, all of which assumes a public sphere and shared interests. As the events unfolding in Catalonia indicate, where these features are deemed to be lacking, then large numbers of people are likely to be willing to exercise their liberal rights to freedom of speech and association to militate for a political community that can embody them and can only be prevented from doing so through coercion. 

Such factors make a rapid shift to supra-nationalism unlikely if not unfeasible a priori. Even if achievable it may also be undesirable. There are a plurality of reasonable ways of combining and pursuing the goods that give value to human lives, and even among liberal democracies there can be found a variety of economic, social, legal and political systems. Within a large, socially and culturally diverse political unit, the risk of common policies being inefficient and inequitable increases, along with the prospect of majority tyranny over consistent minorities. Finally, just as in a domestic political system, checks and balances between different institutions can be important for ensuring that individuals and groups of individuals all get treated with equal concern and respect in the making and implementation of collective policies, so a collaborative system of mutually checking and balancing states can operate in a similar manner.

Against this background, an alternative characterization of Ferrera’s proposals holds that they comprise not transitional steps aimed at easing and promoting a gradual shift towards the development of a European supra-national citizenship but as components of an inter-national European citizenship designed to supplement rather supplant national citizenship in response to the functional and moral arguments reported above. Such a status forms part of a more general international arrangement aimed at promoting equality of concern and respect between the citizenship regimes of its constituent member states, not least by facilitating the movement of citizens between these different regimes. Within an interconnected world, the national citizens of democratic states can be regarded as having obligations not to dominate the national citizens of other democratic states, not least by undercutting their capacity for self-government. They also have joint obligations to address problems that can only be tackled through collaboration and that involve harms and injustices that almost all moral systems regard as such. These include the prevention of the most egregious infringements of basic human rights, and the need to tackle global poverty and avoid a climatic catastrophe. A feature of such an arrangement is that it does not seek to subsume national citizenship regimes within a more encompassing supranational regime but rather to facilitate their effective and legitimate operation through cooperation and the mutual regulation of their interactions. 

I have argued elsewhere that to a large, if imperfect, extent the EU conforms to this kind of arrangement (Bellamy 2103), not least through its decision making involving the normative logic of a two-level game whereby governments reach consensual agreements as the representatives of their respective peoples, from whom these agreements must be capable of winning their acceptance over time. I call such an arrangement a form of ‘republican intergovernmentalism’. Union citizenship likewise can be assimilated to this account as a form of inter-national citizenship. Inter-national citizenship has two main aims. On the one hand, it addresses both the functional and the cosmopolitan critiques of national citizenship regimes by allowing citizens to move freely between these regimes without discrimination on grounds of nationality so far as access to employment or short or long-term residence is concerned. On the other hand, though, it remains justified to maintain the viability and diversity of these citizenship regimes and the solidarity among national citizens that make them possible. After all, they remain the source of the rights that mobile citizens move to enjoy. That can involve rules limiting immediate access to certain social benefits in the case of individuals who have yet to find employment and contribute to them. It would also justify giving a vote only in local as opposed to national elections for those unwilling to become national citizens and to commit to the future sustainability of the citizenship regime. Finally, it would entail the possibility – as suggested by Ferrera – for states that are a party to this arrangement to collectively agree on some indemnification for those national citizens who lose out. Note that in this conception of citizenship the source of rights is strictly speaking provided by the contracting states that agree to this arrangement and fulfil the obligations necessary to their realisation rather than any supra-national entity per se. Hence, it is logical that the entitlement to access this status stems from being a citizen of one of the contracting states. Moreover, the rights associated with an ‘inter-national’ conception are ‘isopolitical’ rather than ‘sympolitical’. The policies that Ferrera proposes can all be offered on this account on ‘isopolitical’ grounds – as part of the mutual recognition and associated duties of the citizenship regimes of the member states.

As I remarked, this account fits the existing citizenship provisions relatively well, at least once the relevant directives are taken alongside the rights enumerated in the Treaties. As Schmidt notes, it has been the reading in of an aspirational, transnational, account of citizenship by the Court post Grzelczek that has distorted the justified balance between the rights of European citizenship and their duties towards (as well as of) national citizens that lies at the heart of this status. Similarly, though Ferrera tackles a genuine and pressing issue in an innovative and imaginative way, I believe his approach will have not only more appeal but also a better justification through being grounded in an inter- rather than a supra- national account of European citizenship. 

 

References:  

Bellamy, R. (2001). `The “Right to have Rights”: Citizenship Practice and the Political Constitution of the EU’ in R. Bellamy and A. Warleigh (eds) Citizenship and Governance in the European Union, (Continuum, 2001), pp. 41-70

Bellamy, R. (2012a). `Rights as Democracy’, Critical Review of International Social and Political Philosophy, 15(4): 449-471

Bellamy, R. (2012b). ‘The Liberty of the Moderns: Civic and Market Freedom in the EU’, Global Constitutionalism: Human Rights, Democracy, Rule of Law 1(1): 141-72

Bellamy, R. (2013). ‘An Ever Closer Union of Peoples: Republican Intergovernmentalism, Demoi-cracy and Representation in the EU’, Journal of European Integration, 35(5): 499-516. 

Bellamy, R. (2015a). ‘Between Cosmopolis and Community: Justice and Legitimacy in A European Union of Peoples’ in S. Tierney (ed), Nationalism and Globalisation: New Settings, New Challenges, (Hart, 2015), Ch 10, pp. 207-232

Bellamy, R. (2015b). ‘A Duty-Free Europe? What’s Wrong with Kochenov’s Account of EU Citizenship Rights’, European Law Journal, 21(4): 558-565.

Habermas, J. (1992). ‘Citizenship and National Identity: Some Reflections on the Future of Europe’, Praxis International, 12(1): 1-19.

Isiksel, T. (2016) Europe’s Functional Constitution: A Theory of Constitutionalism Beyond the State, Oxford: Oxford University Press

Kochenov, D. (2014). ‘EU Citizenship without Duties’, European Law Journal, 20(4): 482-498.

Kostakopolou, D. (2007). ‘European Union Citizenship: Writing the Future’, European Law Journal, 13(5): 623-646.