15 Colum. J. Eur. L. 265 (2009)

Willem Maas. Jean Monnet Chair in European Integration and Associate Professor of Political Science and Public & International Affairs, Glendon College, York University. Grateful acknowledgements to Jenilee Ward for research assistance.

In theory, citizenship denotes intrinsic status, signifying both full membership in the political community and a set of rights that adhere inherently and equally to all citizens. In practice, however, the rights of citizenship are variable and differentiated, and governments often approach citizenship not as a fundamental birthright or basic legal status but rather as a policy tool that is subject to constant adaptation, alteration, and modification. The question of which individuals are citizens is as important as the issue of what the status of citizenship entails. The instability of citizenship is heightened by the pluralism of contemporary societies, bounded political communities in which the processes of state-building and those of nation-building have never been perfectly synonymous. Indeed, the demands of creating and operating a functioning state can clash with those of maintaining or building national identity. The result is the constant creation and recreation of exceptions and partial or quasi-citizenships. This is one sense in which citizenship is contingent: rather than being a fundamental status, it is uncertain and subject to unforeseen and perhaps even accidental events. EU citizenship is also contingent in another sense. Possessing it depends on continued recognition as a citizen of an EU Member State: if one’s Member State of citizenship withdraws the status, one’s access to the rights of EU citizenship also cease. One of the functions of rights is to insulate and protect individuals from political pressures that challenge their rights, but EU institutions have little power to prevail upon Member States which adjust their citizenship criteria and thereby include or exclude individuals from the status of EU citizen. In light of the contingent nature of citizenship generally, this article introduces three challenges to EU citizenship. First, the efforts of EU institutions to command respect for common European rights reminds us that all rights, whatever their source, are only as meaningful as the legitimacy they enjoy and, ultimately, the force available to impose them. Second, EU institutions must work to limit differential or unequal application of European rights. This is likewise a challenge for all governments committed to equality among citizens. Third, unless EU institutions are able to guarantee some degree of access and portability to the entitlements of the welfare state—in areas such as health care, education, pensions, and other benefits, which remain mostly provided at the national level—the content of EU citizenship will remain meager compared with Member State citizenship.