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Enacting European Citizenship (ENACT)
Enacting European Citizenship (ENACT)

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2.2 Courts

Inside the EU, European citizenship is not contested and negotiated solely on the street and via mobilisations. It is also negotiated in the courts. In this section we will examine one court in particular – this is the European Court of Justice (ECJ). ECJ was set up in 1952 and it is based in Luxembourg. Its role is to make sure that member states apply EU legislation consistently in all EU countries. The ECJ has the power to settle legal disputes between EU member states, EU institutions, businesses and individuals.

What interests us here is the role ECJ plays in shaping EU citizenship as a legal status and the relationship between ECJ and EU member states with respect to citizenship. Do the EU member states and the ECJ interpret EU citizenship the same way? Or are there situations in which there is a tension between ECJ and individual member states in deciding who is entitled to EU citizenship?

We will look into these issues in the excerpt below. The excerpt focuses on the Council Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. The right to move freely refers to the right of the EU nationals to move from one Member State to the other and while doing so to enjoy equal treatment and non-discrimination. Freedom of movement is indeed one of the pivots of EU citizenship. The right of EU citizens with a non-EU partner to move and to permanent residency has been put into question by a number of member states who were not willing to allow entry or residency rights to non-EU partners and family members of EU nationals. The reasons member states provided for this were immigration concerns. Directive 2004/38 makes an intervention into this field. Please read the text and note down the key points of the Metock ruling, in particular what the national legislator position was and what the ECJ position was in the matter. What did the ECJ rule?

The complete text from Carrera, S. and Atgen, A. (2009) ‘Implementing of Directive 2004/38. A Proliferation of Different Forms of Citizenship?’ can be found here [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] .

Implementing of Directive 2004/38. A Proliferation of Different Forms of Citizenship?

Activity 2

Reflect on the following points and make notes.

  1. The scope and content of EU citizenship is negotiated in different sites: on the streets as well as in the courts. ECJ is a site of such negotiations hence the scope of European citizenship is not always already established but it emerges out of lengthy disputations between various actors, in case of the Metock ruling, between the ECJ and EU member states.
  2. In the context where EU law has primacy over national law, ECJ’s ruling is an act that affirms ECJ’s refusal for members states’ narrow interpretation of the Directive 2004/38 and member states’ interests to preserve national discretion regarding citizenship rights for non-nationals.
  3. It is in this light that we can consider the Metock ruling as an act of citizenship on the part of the ECJ as it stands for ECJ’s resistance against the member states nationality legislation and affirmation of a more inclusive model of citizenship than traditional national-based model.

Let us discuss some of these issues with Jef Huysmans.

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Interview with Jef Huysmans
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