15 Colum. J. Eur. L. 343 (2009)
reviewed by Gregory A. Odegaard. Editor-in-Chief, Columbia Journal of European Law.
There are few topics that generate more interest in contemporary European scholarship than the development of a pan-European citizenship. In fact, the very existence of this special issue of The Columbia Journal of European Law is evidence of the current activity in this rapidly evolving field. However, despite the large amount of attention being devoted to this area, it is, in fact, a very recent concern. As George Bermann pointedly asks at the outset of this special issue: “Who would have imagined even fifteen years ago that a notion of ‘EU citizenship’ would come to occupy center-stage in the arena of EU legal developments . . . ?”[2]
Of course, the fact that scholars did not recognize the centrality of such citizenship does not mean that there was no interest at all at that time. As soon as the Treaty of Maastricht announced that “[c]itizenship of the Union is hereby established,”[3] scholars naturally became interested in the implications of that assertion.[4] However, considering the sea change that Maastricht represented, the creation of European citizenship was not put at the forefront of the general discussion of the treaty. On the one hand, there was a sense that:
In accepting [the Maastricht treaty’s formulation of Union “citizenship”], the Member States followed a community tradition of attaching grand concepts like “union” to the integration process, which has often tended to raise both hopes and fears that turn out to be unfounded once the substance behind the rhetoric is revealed.[5]
On the other hand, there were other provisions in the treaty that seemed far more pressing—like the establishment of a common economic and monetary policy and the promise of a common European currency by the end of the century.[6]
As noted above, in the period immediately following Maastricht, there was a lot of research on the treaty itself, which touched on European citizenship as one of the many innovations contained therein.[7] In the context of citizenship, much attention was paid to political rights, since this is what was expressly provided for in the treaty.[8] However, the perspective of the academic discourse surrounding European citizenship underwent a distinct shift towards social welfare and human rights.[9] This was a result of a number of high profile European Court of Justice decisions that greatly expanded European citizenship into areas that were not specifically enumerated in the new citizenship provisions of the EC Treaty.[10]
One of the earliest movers in the study of European citizenship was Jo Shaw of the University of Edinburgh, who was writing actively on the subject in the years following the Maastricht Treaty.[11] Her research has focused not only on citizenship, but also how it intersects with political rights and with European constitutionalism in general.[12] Professor Shaw has published in this area consistently since the mid-1990s and has become one of the foremost scholars in the field. Moreover, even when the general tenor of the conversation on European citizenship moved towards certain aspects of citizenship rights, such as free movement, welfare rights, and family law, she never lost sight of the political aspect of this citizenship.[13] Considering Professor Shaw’s stature in the field, the publication of her new book was certain to be well received. Moreover, considering the general shift away from studying European citizenship in the context of voting rights, this book is a very comprehensive guide to filling that gap.
The book’s title, The Transformation of Citizenship in the European Union, may lead to some confusion because—given the recent focus on human and social rights—it would be reasonable for a reader to expect this book to be another contribution to the scholarly analysis of those rights. However, the subtitle, Electoral Rights and the Restructuring of Political Space, makes it clear where the focus of the book lies. In fact, Professor Shaw is quite forthright with her intentions for the book, noting in the first paragraph that the book “looks at the cases where non-nationals . . . are permitted to vote (and indeed to stand) in elections in the host state.”[14] Using her introduction as a platform for placing Article 19 voting rights in the context of the Maastricht “citizenship package,”[15] she then locates that package in the wider context of national citizenship laws in the Member States. [16] Thus, any reader who takes the time to read the introduction should have a very clear view of the scope of this book, and throughout the book Professor Shaw does a good job of comprehensively analyzing the issues brought up in the introduction, without leading the reader down tangential lines of inquiry.
Perhaps the greatest strength of this book is its truly multidisciplinary nature. Professor Shaw seamlessly weaves leading scholarship on citizenship and voting rights from political and sociological, as well as legal, perspectives. This comprehensive outlook lays a strong foundation for the central discussion on voting rights for non-nationals, avoiding the inevitable lacunae that persist in any attempt to analyze a complex problem from one perspective alone. Moreover, in addition to taking a liberal view of relevant scholarship, the book also takes an expansive approach to the key terms in this book—citizenship, non-national, alien—trying to dissect what is at the root of this categorization and how it touches on issues of membership, otherness, and national sovereignty. By undertaking an in-depth exploration of these issues at its outset, the book avoids being limited only to comparing voting rights in various Member States.
The Transformation of Citizenship in the European Union is divided into three distinct parts, each representing a specific mode of inquiry and clearly named to reflect the inquiry undertaken. Part I (chapters one through three)—“Electoral rights in legal and political context”—is where Professor Shaw sets out much of the foundational research discussed above. Part II (chapters four through seven)—“The past, present and future of EU electoral rights”—discusses the legal developments leading up to the Maastricht Treaty, the development of the Maastricht citizenship package through ECJ decisions, Council Directives, and recent high-profile developments like the Charter of Fundamental Rights and the European Constitution, and then moves on to discuss the future of electoral rights for citizens and third country nationals. Part III (chapters eight through ten)—“The contestation of electoral rights in the Member States of the European Union”—embarks on a very interesting analysis of the development of inclusive and exclusive voting rights in individual Member States as a result of immigration in western Europe and the breakup of the U.S.S.R., Yugoslavia, and Czechoslovakia in central and eastern Europe.
Despite this very sensible division of content, there is another way of looking at the organization of the book, which helps make sense of its interdisciplinary approach. On this view, Part I in its entirety serves as an introduction to the book. This can be seen in the opening paragraph of chapter three, which again sets out a detailed purpose for the book.[17] The final two sections of the chapter—“Electoral rights and the transformation of citizenship: the approach of this book”[18] —then set out the goal of the book, emphasizing that it is a “constitutional ethnography” [19] and mapping out how the rest of the book is organized. In this way, chapter three actually serves as a better introduction to the book than chapter one. It is on these pages that Professor Shaw makes clear that the book is not “about the ethics of inclusion and exclusion” or “trying to ‘explain’ the existence of cases of non-national voting as political practices,” but rather that it seeks “to use the case of non-nationals voting . . . to illuminate the process of development and transformation of concepts of citizenship in modern Europe . . . .”[20] That is, the book does not make value judgments or critical suggestions about how states should deal with the potential votes of non-nationals, but rather tries to identify and examine the actual evolution of the existing laws.
On the whole, this book should be of great interest to a wide range of readers because of its interdisciplinary approach and its very well-written prose. In fact, Professor Shaw’s writing style and general lack of jargon make this book very accessible to non-experts. Moreover, when she finds it necessary to use specialized vocabulary, it is usually explained in full before being employed. However, although the book is interesting as a whole, different readers will certainly get more out of certain sections. For example, those that are interested in the theoretical underpinnings of the Westphalian system of citizenship will find Part I and chapter eight to be particularly interesting, while those that are looking for concrete examples of how the EU and its Member States have dealt with the electoral rights of non-nationals will be interested in chapters five, nine, and ten. Less expected, but very welcome, is the careful attention paid to the new Member States. Their experiences are the exclusive focus of chapter ten, but Professor Shaw also very fairly analyzes them throughout the book. Although it may be true that, as Professor Shaw notes, “[t]he ambitions of this book . . . have been limited,”[21] the result is a very engaging book that should be of immense use to students and academics in a wide range of fields.
Endnotes
[2] George Bermann, Introduction, 15 COLUM. J. EUR. L. 165, 165 (2009).
[3] Treaty on European Union, art. G(C), Feb. 7, 1992, 1992 O.J. (C 191) 1, 7 (currently consolidated as Treaty Establishing the European Community, art. 17(1), Dec. 24, 2002, 2002 O.J. (C 325) 33, 44 [hereinafter EC Treaty]).
[4] See generally Carlos Closa, The Concept of Citizenship in the Treaty on European Union, 29 COMMON MKT. L. REV. 1137 (1992); Elisabeth Meehan, Citizenship and the European Community, 64 POL. Q. 172 (1993); Malcolm Anderson et al., European Citizenship and Cooperation in Justice and Home Affairs, in MAASTRICHT AND BEYOND 104 (Andrew Duff et al. eds., 1994); Carlos Closa, Citizenship of the Union and Nationality of Member States, 32 COMMON MKT. L. REV. 487 (1995); Michelle Everson, The Legacy of the Market Citizen, in THE NEW LEGAL DYNAMICS OF EUROPEAN UNION 73 (Jo Shaw & Gillian More eds., 1995); Siofra O’Leary, The Relationship between Community Citizenship and the Protection of Fundamental Rights in Community Law, 32 COMMON MKT. L. REV. 519 (1995); Heather Lardy, The Political Rights of Union Citizenship, 2 EUR. PUB. L. 611 (1996); see also Special Issue on Sovereignty, Citizenship and the European Union, 1 EUR. L. J. (1995).
[5] Anderson et al., supra note 4, at 104 (concluding that the “new citizenship . . . changed very little”).
[6] EC Treaty arts. 98–124.
[7] See, e.g., MAASTRICHT AND BEYOND (Andrew Duff et al. eds., 1994); Heinrich Kirschner, The Framework of the European Union under the Treaty of Maastricht, 13 J.L. & COM. 233 (1994); Sari K. M. Laitinen-Rawana, Creating a Unified Europe: Maastricht and Beyond, 28 INT’L LAW 973 (1994); Frederic J. Jouhet, The Maastricht Treaty on European Union—Is Western Europe Truly Getting Closer to Unity?, 1 COLUM. J. EUR. L. 285 (1995).
[8] The newly created European citizenship had provisions for “the right to move and reside freely within the territory of the Member States,” (EC Treaty art. 18); “the right to vote and to stand as a candidate” in municipal and European Parliament elections (EC Treaty art. 19); entitlement to “protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State,” (EC Treaty art. 20); and the right to petition the European Parliament or apply to the Ombudsman (EC Treaty art. 21). Thus, with the exception of free movement rights, the citizenship provisions expressly granted only political rights.
[9] Annette Schrauwen, Sink or Swim Together: Developments in European Citizenship, 23 FORDHAM INT’L L. J. 778 (2000) (dividing the benefits of EU citizenship into the right to equal treatment and the right to free movement); Paul O’Neill & Susan R. Sandler, The EU Citizenship Acquis and the Court of Justice: Citizenship Vigilante or Merely Treaty Guardian, 7 RICH. J. GLOBAL L. & BUS. 205 (2008) (a detailed analysis of EU citizenship including in depth discussion of the Court of Justice rulings that furthered social and economic rights but not including analysis of EC Treaty Article 19 voting rights).
[10] The first case to expressly rely on the Maastricht citizenship provisions involved a Spanish national who applied for a German child allowance while residing in Germany. Case 85/96, Martinez Sala, 1998 E.C.R. I-2691, ¶ 61 (holding that, despite being unemployed, she could rely on her European citizenship to receive the child allowance). For a comprehensive look at the ECJ cases that have shaped the discussion of European citizenship in terms of social rights, see Marlene Wind, Post-National Citizenship in Europe: The EU as a “Welfare Rights Generator?”, 15 COLUM. J. EUR. L. 239, 248–52 (2009).
[11] TRANSFORMATION OF CITIZENSHIP, at xiii. See also THE NEW LEGAL DYNAMICS OF EUROPEAN UNION (Jo Shaw & Gillian More eds., 1995); Jo Shaw, The Many Pasts and Futures of Citizenship in the European Union, 22 EUR. L. REV. 554 (1997); Jo Shaw, European Citizenship: The IGC and Beyond, 1 EUR. INTEGRATION ONLINE PAPERS No. 3 (1997); Jo Shaw, The Interpretation of European Union Citizenship, 61 MOD. L. REV. 293 (1998); Sybilla Fries & Jo Shaw, Citizenship of the Union: First Steps in the European Court of Justice, 4 EUR. PUB. L. 533 (1998); Jo Shaw,Citizenship of the Union: Towards Post-National Membership?, in VI(1) COLLECTED COURSES OF THE ACADEMY OF EUROPEAN LAW 237 (1998).
[12] See generally Jo Shaw, Constitutional Settlements and the Citizen after the Treaty of Amsterdam, in EUROPEAN INTEGRATION AFTER AMSTERDAM 290 (Karlheinz Neunreither & Antje Wiener eds., 2000), available at http://www.jeanmonnetprogram.org/papers/98/98-7-.html; Jo Shaw, Postnational Constitutionalism in the European Union, in THE SOCIAL CONSTRUCTION OF EUROPE 66 (Thomas Christiansen et al. eds., 2001); Jo Shaw, Sovereignty at the Boundaries of the Polity, in SOVEREIGNTY IN TRANSITION 461 (Neil Walker ed., 2003).
[13] See, e.g., Jo Shaw, EU Citizenship and Political Rights in an Evolving European Union, 71 FORDHAM L. REV. 101 (2007); Jo Shaw, Political Rights and Multilevel Citizenship in Europe, in ILLIBERAL LIBERAL STATES: IMMIGRATION, CITIZENSHIP AND INTEGRATION IN THE EU (Sergio Carrera & Elspeth Guild eds., forthcoming 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1291765. Of course, the fact that Professor Shaw has maintained a focus on political rights does not mean that she has not engaged the recent scholarship on social rights and European citizenship. See, e.g., SOCIAL LAW AND POLICY IN AN EVOLVING EUROPEAN UNION (Jo Shaw ed., 2000); Jo Shaw, A Strong Europe Is a Social Europe (The Fed. Trust Const. Online Paper Series No. 05/03, Feb. 1, 2003), available at http://ssrn.com/abstract=515783.
[14] TRANSFORMATION OF CITIZENSHIP, at 3.
[15] Id. at 6–9.
[16] Id. at 3–17.
[17] This book is not a general normative or empirical enquiry into the topic of electoral rights for non-nationals, or the theme of alien suffrage. [It] is not concerned with arguing the case for increasing, or restricting, the voting rights of non-nationals in the context of particular polities, including the European Union. On the contrary, it uses electoral rights for non-nationals . . . as one possible framework within which to examine the multiple and varying meanings of citizenship in the contemporary European political space. Id. at 52.
[18] Id. at 82–89.
[19] Id. at 83. In chapter one, constitutional ethnography is described as “the study of the central legal elements of polities using methods that are capable of recovering the lived detail of the politico-legal landscape.” Id. at 16 (quoting Kim Lane Schepple, Constitutional Ethnography: An Introduction, 38 LAW & SOC’Y REV. 389, 395). This “lived detail” concerns itself more with an organic comprehension of the legal system, which helps explain why Professor Shaw favors couching her observations in a more interdisciplinary framework, rather than “the case-selection traditions of comparative politics.” TRANSFORMATION OF CITIZENSHIP, at 16 n.28. As she explains, the goal of the book “is not prediction, in the social-scientific-sense, but comprehension.” Id. at 16.
[20] Id. at 83.
[21] Id. at 358.
