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

Start this free course now. Just create an account and sign in. Enrol and complete the course for a free statement of participation or digital badge if available.

Free course

Enacting European Citizenship (ENACT)

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.

Download this video clip.Video player: Interview with Jef Huysmans
Skip transcript: Interview with Jef Huysmans

Transcript: Interview with Jef Huysmans

The idea here is to cover the questions Who is seen and heard as a political actor in the EU? and What counts as a legitimate political action?

The material we discussed so far raised the issue of who is and who is not seen and heard as a political actor in the EU. Sex workers, irregular migrants, LGBT people, and Roma are not seen as political actors or at least legitimate actors as citizens. Why is this so?

There is a difference between being formally a European citizen and being a politically visible or audible actor: nationals of member states, whether Roma, Flemish, sex worker, student, plumber, are citizens who can be active. They can vote, they can go to the ombudsman, they can move across the internal borders within the limits of the free movement regulations, etc.

Yet, institutional and other constraints on how one can effectively – as different from formally – express a point of view in the EU are multiple. There might hardly be any media interest in the issues raised. If there is high media interest, as for example in some cases of irregular immigrants protesting, then they might be presented as people who should not be allowed to speak since they are not really citizens in the formal sense or because they are presented as criminals or victims who need caring for rather than people with things to say about exclusions, discriminations, violence, injustice as is often the case with sex workers.

Institutionally the European Court of Justice plays an important role to give voice to injustice. Focus on legal processes at the EU level means that mobilising through conferences, demonstrations etc. needs to be broken down into a particular individual case. It takes the collective grievance out of the picture, hence the political statement is translated into legal stake of an individual’s rights.

Some groups are not well worked into the institutions: e.g. they have no contacts with political parties who will take up their case. The farmers usually succeed well in getting their voice heard but they are not only numerous and spectacular when demonstrating they also have well tuned in spokespersons and have strong contacts with particular political parties and governments. Here the idea is to highlight who is seen and heard as political actor and why and how sexuality, gender etc play into this invisibility and inaudibility. Also how issues around labour and the market logic are fundamental to EU citizenship; to highlight then why each of this groups is not seen or heard in terms of political actors/or as citizens

Does their not being seen or heard as political actors have to do with the mode in which they participate in the society? Let me ask this differently, is there a mode in which people are supposed to partake in politics and if so, how?

It is not just the mode of participating. It is also the institutional and political framing of the issue. Let’s return to the example of the sex workers and start with the importance of the institutional and political framing of the issue:

1. They were holding their conference in the European Parliament. They were given access because of working with an MEP. Yet, the attendance of MEPs was extremely low. They were present but not very visible or audible in a way. Why is that since their conference, demonstration, manifesto all nicely fit the idea of citizens actively and democratically (they did not use violence, they followed legitimate processes of voicing opinion, etc.) engaging the European Union as a political institution?

2. Sex workers where caught between criminal activity and being victims of trafficking. As victims they need caring for, therapy etc. to take them out of sex work rather than a framework protecting them from violence and abuse during their work. Victimhood draws in charity or paternalistic caring for. They are not seen as subjects with a claim to the right to hold rights or with projects that they actively pursue not only as individuals but as a collective group – a vision of what sex work should be …

If their practice is seen as criminal then they enter the criminal justice framework and are seen as an issue problem of public security rather than as a legitimate practice that needs to be politically heard, as a practice with the right to hold rights …

3. Sex work is controversial and some feminists oppose recognition of sex work as a legitimate form of labour. A group of Swedish MEPs tried on these grounds to block the event in the European Parliament. The more general point is that some issues are kept of the political agenda because the politicians oppose them or are uncomfortable with them.

4. The sex workers also challenged the citizenship notion of the EU by including immigrants from beyond the EU. This makes them an ambivalent political collectivity since only a number of them are formally European citizens. Challenges the institutional definition of who can be a citizen by emphasising that they all work in the EU despite some being irregular immigrants, some being from outside the EU and some being European citizens does not help with being recognised as a legitimate presence in the institutions.

The mode of participating is of course also important. But the sex workers did largely participate through what are generally recognised as proper channels for politically expressing a point of view. An example of a not recognised mode of political expression is migrants entering the EU not through the recognised channels, e.g. with visa, but by simply making the journey via land, sea or air. These so-called illegal immigrants, are now often framed as partly economic immigrants with no formal right to be on the EU territory, or as victims of traffickers. But moving in numbers to the EU is not seen as a political action. It is illegitimate practice that needs policing, even with the military intervening.

There are thus different modes of mobilising, some mobilisation is seen as legitimate and/or political while other is seen as non-political. For examples, farmers have staged violent protest which were not necessarily seen as legitimate expression of grievances but where nevertheless taken to be political. Some of the reasons I have already hinted at: spokesperson and farmer organisations being tied in with political parties. Irregular migrants however do not often succeed in gaining political voice.

End transcript: Interview with Jef Huysmans
Interview with Jef Huysmans
Interactive feature not available in single page view (see it in standard view).

Take your learning further371

Making the decision to study can be a big step, which is why you'll want a trusted University. The Open University has 50 years’ experience delivering flexible learning and 170,000 students are studying with us right now. Take a look at all Open University courses372.

If you are new to university level study, we offer two introductory routes to our qualifications. Find out Where to take your learning next?373 You could either choose to start with an Access courses374or an open box module, which allows you to count your previous learning towards an Open University qualification.

Not ready for University study then browse over 1000 free courses on OpenLearn375 and sign up to our newsletter376 to hear about new free courses as they are released.

Every year, thousands of students decide to study with The Open University. With over 120 qualifications, we’ve got the right course for you.

Request an Open University prospectus371