10 Colum. J. Eur. L. 577 (2004)

Michael F. Maltese, Centre for Socio-Legal Studies, Wolfson College, Oxford University.

At the most fundamental level, the current academic debate on the status of European Union (EU) citizenship can be distilled to a matter of preferential access to limited state resources. That is, citizens of Member States are provided a wide range of rights, from free movement to employment concessions, from minimum subsistence benefits to a host of civil protections. In fact, Article B of Title 1 of the Maastricht Treaty, signed in February 1992, offers as one of its objectives, “to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union.” In the aftermath of Maastricht, the Treaty of Amsterdam (entered into force in May 1999) explicitly stated that the goal of Union citizenship was not to displace, but rather to complement national citizenship. In the wake of Amsterdam and several influential cases (Wijsenbeek, Martinez Sala, Grzelczyk, etc.), important questions remained, such as: What are the rights and entitlements of people residing in Member States who are not national citizens, but citizens of other Member States? Further, where do refugees, Third Country Nationals (especially those who have entered the European Community (EC) from northern Africa, Turkey, and former Commonwealth countries), and others whose legal status exists in the no-man’s-land of neither national nor Union citizenship fit into this puzzle of access to state resources? Given the differential legal standing that circumscribes the privileges and rights of each group, public policy analysts and academics desperately sought a comprehensive overview of the social benefits accorded to all who reside in the EC, regardless of citizenship status. In an ambitious, cogent, wide-ranging, comparative disquisition on the topic by AP Van Der Mei, these issues are methodically disaggregated and examined in light of the American experience.

In the six chapters that comprise Free Movement of Persons Within the European Community: Cross-Border Access to Public Benefits, Van Der Mei describes the eligibility requirements for obtaining subsistence benefits, public health care, and public education. Aside from combining a close reading of European Court of Justice (ECJ) decisions with European Commission directives, Van Der Mei attempts a comparison that is certain to gain him both the praise and criticism of his peers-drawing a parallel to the American experience. In his explanation for including the cross-Atlantic juxtaposition, Van Der Mei writes, “…. the book investigates whether, and if so, how, Community law governing access to these three types of public benefits, as it stands today, can, or may have to, be adjusted or improved and whether in doing so, some lessons can be drawn from American constitutional, and where applicable federal, law.” Detractors might argue that the dissimilarities between the US and EU are so vast that parallels are strained, if not unwittingly artificial. That said, if the recently published Draft Constitution of the EU is any indicator, parallels are not only possible, but in some cases wholly applicable.

While today nationals within Member States can avail themselves of rights to “enter, reside in and gain access to public services in other Member States,” Van Der Mei finds that public benefits are a privilege, not a right, for non-nationals.