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Frontiers of EU Citizenship. Three Trajectories and their Methodological Foundations

As a supranational polity, the European Union depends – much more than a nation-state – upon the law and judges to preserve its viability and to develop its constitutional infrastructure. It therefore did not come as a great surprise when the ECJ started exploring the potential of the Treaty rules on Union citizenship. However, the outcome of individual cases and the overall orientation of the case law have remained controversial. There was and remains nothing inevitable in the evolution of Union citizenship, since there are different visions of how to conceptualise the legal rules which direct judicial decisions and underlie academic interventions on the topic (below II). To highlight these divergent trajectories supports an enhanced methodological sensitivity on the part of academics, who often argue for particular outcomes without explicitly explaining their underlying decisions and the alternatives they rejected (III). Against this background, this contribution will extrapolate three trajectories which define the academic debate on the judicial evolution of Union citizenship. Many authors support a certain degree of ‘aspirational citizenship’ that promotes social change and supports the inclusion of outsiders, such as third-country nationals (IV). In contrast, proponents of ‘citizenship as a legal creation’ focus on the wording and structure of the EU Treaties: they emphasise the need for sound doctrinal hermeneutics, including respect for the wider constitutional landscape (V). Finally, ‘citizenship as a social fact’ explores the empirical underpinnings of citizens’ rights and highlights their corresponding weaknesses (VI). Throughout this chapter, I will use selected examples to explain the relevance of these routes in the resolution of individual cases disclosing the status of Union citizenship.