Integrating Europe and Demarcating States: Towards the Europeanization of Belonging? (1989–2020) (2024)

Dieter Gosewinkel

For Europe, 1989 marked the end of the “short twentieth century” that had begun with the outbreak of the First World War. The political turn ended the Cold War, eliminated the ideological confrontation between the blocs that had persisted since 1917, and for the first time since 1914 brought Europe together peacefully and with shared political values. And for the first time since it had come into being, the system of liberal democratic constitutionalism and human rights, which strengthened the rights of the individual and the citizen, prevailed as the political model over the entire continent united in the Council of Europe. With the breakup of the Soviet Union and the Soviet power block, new states emerged, and state entities liberated from the hegemony of the Soviet bloc regained their sovereignty. This often led to the redefinition of state territories and political belonging, spawning new conflicts. In a contrary development, the institution of a new European citizenship over and beyond national citizenships gradually began to modify the political imaginary and life practices of people in the European Union. The first quarter of the twenty-first century has seen revolutionary reorganization and a reversion to old confrontation patterns, the firming of demarcations between states, and the establishment of new supra-national forms of political belonging. This chapter traces out these fault lines from the constitutional revolutions in Central and Eastern Europe (section 1), the redefinition of state membership in a continent criss-crossed by new borders and migrations (section 2), and the political and legal development of the new European Union citizenship as key civil law institution of the European Union (section 3). The lead question is: To what extent do all these contradictory developments between nation-state demarcation and European integration point to a Europeanization of political belonging?

1 Constitutional Revolution and Citizenship Rights Since the 1990s

The revolution of 1989 was also a revolution in law. It radically changed the significance and forms of law in the countries of Central and Eastern Europe, which abandoned state socialism to become liberal democracies in a new constitutional framework. In communist thinking on the subject of political order, the fundamental, comprehensive primacy of law over politics was an ideology of bourgeois legal thought and was rejected as an inadmissible constraint on the politically legitimated powers of the people and the communist party organization.

1 It was precisely this primacy of law that was codified in the new constitutions drawn up in Central and Eastern Europe during the 1990s.2 In initiating these new constitutions, dissidents and civil rights activists from socialist times played a central role: in Czechoslovakia Václav Havel, in Poland Bronisław Geremek and Władysław Bartoszewski, in Russia Andrei Sakharov and Alexander Solzhenitsyn.3 Their projects for a new policy of respect for individual rights, which had placed them in direct confrontation with the conception of community under socialist law found their way by many paths—directly or through new political actors—into the new constitutions.4 They established the comprehensive subordination of all state authority to the law. In the rule-of-law hierarchy, the constitution had primacy over all other law. It could be amended only by a formalized procedure subject to strict conditions. These new foundations for the rule-of-law and constitutional state broke the decades-long subordination of law to political authority that the countries of Central and Eastern Europe had experienced since the interwar years under fascist and communist dictatorship.

This breach with the past was achieved by abandoning the subjection of the individual to the community—in two regards.5 First, the entire legal order was now based on and directed towards the individual. The individual was guaranteed subjective rights enforceable by legally safeguarded procedures. The key concern of the new constitutions was to sanction the systematic violation of human rights in socialist legal orders and to systematically prevent it for the future.6 The binding force of the law held for all state authority—and prevented any exceptions or privileges for an institution or a party with a claim to political leadership. Even the people, from whom all constitution-making and legislative power derived their legitimation, were bound by the limits of the procedures laid down for abolishing or amending the constitution. The strict individualization of the purpose of state and constitution found its key point of reference in copious catalogues of fundamental individual rights binding on all state authority. The 1993 Constitution of the Russian Federation presents an example. It states that: “Man, his rights and freedoms shall be the supreme value. The recognition, observance and protection of human and civil rights and freedoms shall be an obligation of the State.” Further: “Human and civil rights and freedoms shall have direct force. They shall determine the meaning, content and implementation of laws, the functioning of legislative and executive authority and of local self-government, and shall be guaranteed by law.”7 Second, the individualization of the new constitutional orders broke with the justification through and limitation to an ethno-culturally defined community. The new constitutions of Russia, Poland, and Czechoslovakia—and most of the new constitutions in Central and Eastern Europe during the constitutional revolutionary phase in the 1990s—all asserted that the human being was the focus of their projects to establish a new order of the state and constitutional law. Their preambles called for “human rights and freedoms” to be respected along with “the inherent dignity of the person, his or her right to freedom, the obligation of solidarity with others,” and recognized the “inviolability of the natural rights of man.”8 In constitution-making, national and national cultural references and legitimation were thus not erased. The 1997 Russian constitution stressed “love for the Fatherland,” “the well-being and prosperity of Russia,” and “responsibility for our Fatherland.” The Polish constitution, too, declared that the nation was “beholden to our ancestors for their labours,” and the constitution of Czechoslovakia invoked the “right to self-determination of the Czech and Slovak peoples.” But these formulations contained no intimations of dominance, expansion, or revenge. Precisely in Poland and Czechoslovakia, proud patriotism was rooted in “learning from bitter experience” under oppression and in their own republican traditions. The “nation” in the sense of these new constitutions was the citizenry of the state, not an ethnic community. The Russian constitution accordingly spoke of a “multinational people,” while the Polish constitution was more ambivalent and, after having declared that the “Polish nation” was “bound in community with our compatriots dispersed throughout the world,” had to engage in a polarizing debate before explicitly equating the “Polish nation” with “all citizens of the Republic.”9

But the outstanding common focus for the new constitutions as legal orders was the human being with his “innate dignity,” his rights and freedoms, and not persons of the same ethnicity or holders of the same citizenship. The consequences were all the greater because the new constitutions clearly distinguished conceptually between the rights of human beings and those of citizens. In the justificatory hierarchy, universal human rights ranked higher than citizenship rights and far outweighed them quantitatively in catalogues of rights. This was particularly demonstrated by the Russian constitution, which endowed aliens and stateless persons with basically the same rights and duties as its own citizens where the law did not explicitly require them to be treated differently.10 The Russian constitution thus broke with a principle of Soviet constitutional law: To reserve individual rights to the citizens of the state. All three constitutions placed the “human being” as holder of irrevocable rights and freedoms first in legal guarantees for the individual. These rights and freedoms were to be distinguished conceptually and in the consequent scheme of the law from the rights of the “citizen,” which were reserved to citizens of the state.11

The sections of the new constitutions on individual rights made a clear tripartite division between civil, political, and social rights. A conceptual12 distinction13 was at times drawn between rights of national and ethnic minorities, economic and cultural rights, and the right to legal protection. Basically, however, the classical triad of civil rights (complemented by economic and cultural rights), political rights, and social rights was retained. Civil rights, that is, those concerning the freedom of the person, including economic relations and the right to property, were accompanied by political rights such as the right to vote, the right to petition, the right to free elections and participation in the administration of public affairs, free access to public office and social rights, the right to social support in the event of need, the protection of health, the right to training and education, the right to fair pay and working conditions, protection for the socially weak, and so on. Given the wide range of subject matter and the high proportion of civil rights in the catalogues of fundamental freedoms, it was particularly relevant that they were granted almost without exception as human rights.14 The core rights of personal freedom, the right to physical integrity, freedom, privacy, freedom of opinion, the classical habeas corpus rights, and fundamental judicial rights, as well as the freedom to engage in economic activities including the freedom to own property were formulated only to a limited extent as citizenship rights. In the community-related tradition of real property in East-Central Europe, they included land ownership in Russia and the particular restrictions on the freedom of occupation for aliens in Czechoslovakia. Only associations of persons directly connected with politics, that is to say political parties and public assemblies, were to be reserved for citizens.15

Social rights establishing a claim against the state were guaranteed to “everyone,” which presumably means both citizens and aliens. They included the right to good working conditions and leave, to health, to a healthy environment, school education, and safeguarding a subsistence level for those in need, as well as the right of employees to a fair wage.16 The Russian constitution even went so far as to grant everyone all social rights, which it fully guaranteed, up to and including social security, medical care, and housing. The background was that all the political forces engaged in drawing up the constitution had agreed to incorporate existing international codification standards of civil and social human rights directly in the new constitution.17 Leaving aside this Russian exception, however, the new constitutions reserved particularly costly services directly affecting the public purse to their own citizens; this was partly the case for free schooling, but above all for claims to state provision for old age, invalidity and unemployment, for public health care, free education and the right to found schools.18 Furthermore, during the profound crisis of economic transformation in the mid-1990s, the welfare state systems of East-Central European countries as a whole were badly hit by sinking state revenues and growing unemployment. Social services often proved impossible to finance.19

Thus, while costly core social rights remained the preserve of citizens, this was the case for all political rights. The Czechoslovakian and Polish constitutions also granted aliens the right to petition. For the rest, all rights of political participation, voting rights, and the right to hold public office were strictly reserved for citizens of the given state.20 These specific rights of the citizens correlated with special duties and burdens, above all military service, the duty of loyalty, and with the sanction of losing civil rights and liberties.21 However, in keeping with constitutional tradition,22 everyone was liable to pay tax.

A review of the individual rights granted under the new East-Central European constitutionalism reveals ambiguities. The universalistic human rights motivation that launched and drove the programme of the various rights catalogues was succeeded by a mix of human and civil rights in which two core areas of state sovereignty were denied aliens, that is, non-members of the state: political will-formation and the welfare state budget. In distributing rights, they were therefore somewhat less generous than Western European systems. In the Federal Republic of Germany and the United Kingdom, for example, the absence of constitutionalized social rights gave lawmakers latitude to weave a whole network of rights to benefits for non-members of the state, above all immigrants, which consolidated into a new status of belonging, a sort of post-national membership.23 Similar legislative leeway was to be found in France, where social rights were also not set out in the constitution but where the preambles of post-war constitutions couched social welfare principles in the form of human rights, above all the right to employment and the protection of health and material security.24

However, merely comparing the wording of constitutions with Western European legal practice does not do justice to the historic novelty of the new East-Central European constitutional law. For one thing, its treatment of individual rights went beyond the standard of Western European constitutionalization in substance and differentiation. For another, and far more importantly for their place in history, the new constitutions broke throughout with the principle, which had prevailed in all pre-1989 socialist constitutions modelled on Soviet constitutionalism, of granting exclusively national fundamental rights.25 The shift reached beyond political regime change. Whereas the Polish interim constitution of 1992, for example, had upheld the state socialism topos of “fundamental rights and fundamental duties of citizens” with national citizenship rights, this changed drastically with the extensive opening of the new constitution of 1997 to human rights.26 Overall, rights to which only “citizens” of the USSR, Poland, or Czechoslovakia were entitled gave way to differentiated catalogues of rights where, in strong contrast to the practice of socialist constitutionalism, above all civil rights—liberties of the person—were granted as human rights.

For constitutional practice, this change was even more significant because the implementation of the new fundamental freedoms by a judiciary committed to the rule of law promised to be immeasurably more effective than under the socialist system of concentrated powers. This was where the tradition of authoritarian Eastern and Central European regimes hostile to human rights that had predominated in the twentieth century was really abandoned. This development was accompanied by harmonization with and often adoption of Western constitutional standards and models. Measured against historical traditions and baseline conditions, this change amounted to a revolutionary break with the past of the countries concerned.27

To what extent, however, did this normative watershed affect constitutional practice?28 If we take the example of the 1993 Russian Constitution with its relatively extensive human and citizenship rights, we note a twofold legal transfer. Legal experts from the “West” who were often involved in the constitution-making process had brought their preconceptions and expertise to bear. And under their influence Russian constitution-makers had directly incorporated existing “Western” law, notably in the field of individual rights, in the new constitutional law. They thus established an exhaustive standard of individual rights that even contemporaries described as “idealistic” or “maximalist.” In the first place, it was not in keeping with the Russian and Soviet legal tradition and, secondly, it set out from the normative programme of Western constitutions.29 This engendered tensions, which manifested themselves in greater discrepancies between constitutional demands and constitutional practice. Already in the constitution-making process, the Russian president Boris Yeltsin had urged that no individual rights complaint should be admissible before the Russian Constitutional Court. The court was thereupon given competence only to review legislation for violations of fundamental freedoms.30 The restriction of this key instrument of individual rights protection reflects the persisting tradition of authoritarian government. This found expression above all in the position that the new constitution gave the president outside the constitutional separation of powers.31 Even after the demise of the Soviet Union, moreover, Russia was so ethnically, culturally, and historically heterogeneous that any tradition of Western freedom concepts and individual citizenship rights on which the new constitutional rights could dock was lacking outside the urban metropolitan centres.32 To some extent, as in the case of Chechnya, which found itself in a long-drawn-out civil war with the Federation, such rights were imposed on republics opposed to centralized constitution-making. This pointed to a basic problem: A liberal, individual rights conception of constitution was an implant in a society shaped over the centuries by authoritarian government that had stifled any institutionally entrenched awareness of individual rights and their enforceability through law. Even though the liberalization of the Russian legal system had already begun in 1985 with perestroika, the decade of legal development prior to the systematic launch of constitutional legislation from 1994/1995 was a very brief span of time and a period destabilized by unrest close to civil war.33

The many constitutional amendments in the former socialist states over the subsequent two decades show a process diametrically opposed to the Western ideal of the “normative force of the constitution”34 in the sense that it was not the force of the constitution that shaped constitutional reality but rather, vice versa, that the content and ultimately the text of the constitution, as well, were adapted to fit constitutional reality.35 The maximalist normative programme of individual rights in the Russian Constitution of 1993 began to come up against restrictive legal practices, which under Putin gained in intensity and normative force themselves from 2004 onwards. The gradual demotion of the Russian Constitutional Court—an institution which during the Yeltsin era had made a valuable contribution to strengthening the constitutional guarantees of individual rights—to mere “bit player” set the course for restricting the separation of powers.36 Restriction of freedom of the press and opinion and of fundamental judicial rights and political citizenship rights in the light of irregularities in a number of elections therefore induced Russian citizens to turn to the European Court of Human Rights after Russian courts had failed to accept their complaints or had quashed them.37 The standards of the European Convention on Human Rights, in many cases the model for freedoms under the 1993 Russian Constitution, held up a legal mirror to the constitutional reality of the post-socialist country. No post-socialist state was more often sued before the Strasbourg Court than Russia—which had joined the Convention in 1996—and called upon to change its legal practices on account of violations of the Convention.3839

The protracted drafting of the 1997 Polish constitution, adopted relatively late considering the outstanding position of the Polish civil rights movement Solidarność in late socialism, processed the country’s experience with lengthy constitutional reform. Other post-socialist systems had required far less time and groundwork. Less under the influence of Western experts and advisers and largely in the hands of Polish actors, the new constitution was nevertheless more strongly oriented on the values and legal standards of the European Union, which Poland had been edging towards since the early 1990s.40 While the distribution of human and civil rights in the 1997 constitution recalled the receptiveness to human rights and liberal standards of Western European constitutions, the new Polish Aliens Act, adopted shortly after the constitution in December 1997, took advantage of constitutional latitude to regulate residence and rights for aliens on Polish territory in the national political interest. The backdrop was Polish experience during the political turn of 1989/1990, when the erstwhile country of emigration became one of immigration, with a rapidly growing influx in the early 1990s. One side effect was the simultaneous surge in illegal immigration, which the new Act sought to control.41 The rules on the rights of entry and abode for aliens in Polish territory and on expulsion and deportation were to some extent restrictive, but were in line with the standards of international contractual obligations, including legal protection, to which Poland had committed itself under the UN Refugee Convention and the human rights pacts in the framework of the United Nations and the Council of Europe. While the Aliens Act used the possibility of allowing exceptions to the fundamental constitutional principle of equal legal treatment for aliens and citizens, it stuck by the criteria that had long applied in Western Europe, too, with regard to work42 and residence permits.

Nevertheless, national preferential criteria came to bear that stood in a long tradition. For instance, a special type of repatriation visa addressed aliens formerly of Polish nationality. They were given preferential residence status that allowed them to acquire Polish citizenship—as had been provided under the citizenship acts of 1920, 1951, and 1962.43 While this afforded ethnic Poles preferential treatment, the constraints on aliens acquiring real property introduced by statute in 1920 and explicitly confirmed by the 1997 constitution were directly restrictive. The outstanding political and symbolic importance of real property in the new nation-states of East-Central Europe during the interwar years had, as we have seen, consolidated a protectionist legal system of safeguards for property, which had been tightened after 1945 in the context of ethnic cleansing and expulsion.44 Even the Third Polish Republic, ethnically much more hom*ogeneous than its predecessors, upheld the core of this protectionist property regime after 1990. Buyers of Polish nationality and their family were given preference. For aliens without this ethno-Polish connection, by contrast, it was difficult in the 1990s to acquire Polish real estate.45 The exclusionary logic of a polity that saw itself under threat like the Second Polish Republic cast a long shadow, when especially major or borderland acquisitions of real property required approval by the state. Mistrust, particularly of the large, re-unified neighbour Germany remained virulent in the 1990s.

This shows that even in the 1990s—despite the far-reaching universalization of fundamental rights at the constitutional level—the distinction between aliens and Polish citizens remained potent in both law and public opinion. The vast majority of Poles took a dim view of foreign labour immigration and were consequently in favour of restricting it. This majority considered—apart from self-identification as “Poles”—the acquisition of Polish citizenship to be a necessary condition for social acceptance and integration.46 Only with the new Citizenship Act of 2009 did the legal position begin to improve for aliens hoping to be naturalized.47

In Czechoslovakia—where neither reform initiated from within the machinery of communist government as in the Soviet Union nor a strong civil rights movement as in Poland had triggered the erosion of socialist law and the constitutionalization of politics—relatively small but intellectually and conceptually high-profile civil rights groups with such outstanding protagonists as Václav Havel gained lasting influence over the elaboration of the new constitutional order. In collaboration with Western intellectuals and legal experts,48 a conception of constitutional fundamental freedoms was developed that, earlier and more strongly than in Russia and Poland, built on a clear individualistic and universalistic model and adopted the classical formulations of the great liberal codifications of human rights and freedoms.49 Consistent with this was the provision of comprehensive legal protection for individual rights through constitutional jurisdiction,50 which, after first steps in this direction between the wars, the Czech and Slovak Republic established on the model of the German Federal Constitutional Court.51 Constitutional court protection went farther than in Russia and Poland, where the court could rule not on individual cases but only on the constitutionality of normative acts in relation to the impairment of fundamental rights.52 Such far-reaching powers for a constitutional court were new to the Czechoslovakian legal tradition and had on occasion to be defended against other organs of the constitution. Above all with rapidly mounting adjudication on fundamental rights, the Czech Constitutional Court stabilized the post-socialist Czech legal order within a few years. It was this that gave legal shape and enforceability to citizenship rights within a legal culture where the judiciary as a whole met with deep-rooted distrust and the executive pursued a policy of scepticism vis-à-vis legal institutions.53 Even more than the Czech court, the Slovak institution performed the function of a rule-of-law counterweight in preserving freedom, especially when in the mid-1990s the Slovakian regime, veering towards authoritarianism, increasingly restricted civil rights and openly threatened constitutional jurisdiction.54 In the first two decades of its existence, the Czech Constitutional Court, by contrast, went from strength to strength with the interpretative expansion of its powers and adjudication, which to a high degree can be attributed to close alignment with the German model of constitutional jurisdiction and its strong position in the constitutional order.55

Citizenship Rights: Jews and Women

The copious catalogues of fundamental individual rights, their rule-of-law and judicial safeguards were at the heart of new constitutions not only in Eastern and Central Europe. In Western European constitutionalism, too, their validity was strengthened. In France, the direct applicability of the European Convention on Human Rights boosted the protection of individual rights at the latest since the early 1990s.56 With German reunification and the accession of East Germany to the jurisdiction of the Basic Law, the fundamental rights standards of the Federal Republic with its highly developed constitutional judicature became applicable in the territory of the former German Democratic Republic. The harmonization of constitutional standards in Western and Eastern Europe after 1989 affected the citizenship rights of women and Jews in different ways if we consider the extent to which the rights of these groups had been respected in pre-1989 constitutions. At the latest since the 1980s, the right of women to equality in citizenship rights had been an integral component of constitutions in all European states.57 Precisely in Eastern Europe, this had been a key element in the socialist ideal of emancipation. With the post-1989 surge of constitutionalization, women’s right to equal citizenship transmuted from a point in political programmes into subjective rights constitutionally binding in principle and wording on all branches of government and actionable before independent courts.

The right of Jews to equality in citizenship, by contrast, was given special mention in no constitutional text. Before 1989, it seemed to be implicitly included in the prohibition of discrimination contained in all European constitutions, for example the Soviet Constitution of 1977, which referred to the equality of citizens’ rights “without distinction of … race or nationality.”58 In the rule-of-law constitutional orders of Western Europe, these principles committed the state to preventing discrimination against Jews. In socialist Eastern Europe, by contrast, sometimes systematic discrimination against and persecution of Jews was typical of the prevailing pseudo-constitutionalism. For this reason, binding state authority in post-socialist Europe to a constitutional, rule-of-law order brought a new stage in legal protection against anti-Semitism legitimated by the state.

However, anti-Semitism remained firmly entrenched in the societies of post-socialist Eastern Europe as in Western Europe. It manifested itself in sporadic hate campaigns and violent attacks. The situation was exacerbated by the high proportion of pro-Arab, Muslim population groups in Western Europe, who, in a new form of Israel-related anti-Semitism, protested against the politics of the Jewish state. France, which also had the largest Jewish and Muslim minorities in Western Europe, experienced the highest rate of anti-Semitic violence.59

After 1989 there were no more outbreaks of anti-Semitism openly tolerated or fomented by the state.60 Nevertheless, in Hungary, Belgium, and the Netherlands, for example, opposition parties had considerable success in elections with anti-Semitic slogans, to some extent recurring to pre-1945 fascist programmes. Since its founder Jean Marie Le Pen had stood for president, the extreme rightwing Front National in France had campaigned with often flagrantly anti-Semitic campaigns. In Poland and Russia, however, the Eastern European countries with the largest Jewish populations prior to 1939, the highest number of Holocaust victims, and the severest state discrimination against Jews in the socialist system after 1945, anti-Semitic currents now received no support from governments. Although some parties and politicians in these countries, for example in the Russian regions, displayed anti-Semitic tendencies, even national-conservative and authoritarian presidents like Vladimir Putin and Lech Kaczyński condemned anti-Semitism.

What is more, the freedom of entry and exit that the new constitutions of Eastern Europe guaranteed lowered the political pressure. Emigration by the Jewish minority from Eastern Europe after 1989 took on the dimensions of an exodus. Between 1989 and 1999, the “core” Jewish population in the areas most densely settled by Jews in the former Soviet Union, in Russia and Ukraine fell by just under 60 to 80 per cent. Thus, the section of this population with the greatest religious and cultural attachment to their religion emigrated, while the remaining Jewish population assimilated more strongly and fell in numbers because of their high average age and the decline in the birth rate.61 In Poland and the successor republics to the former Czechoslovakia, too, the Jewish population dropped.62 The chosen destinations of the Jewish diaspora were first Israel, then the United States and—at times in equal numbers—Germany, which by means of the legal construct of “quota refugees” and for humanitarian and historical reasons, gave Jewish immigrants preferential treatment over other refugees and asylum seekers. It was immigration from the former Soviet Union that, within two decades after 1990, tripled the size of Jewish communities in Germany (from about 30,000 to more than 100,000) and thus secured the survival of these ageing communities. At the turn of the twenty-first century, the Federal Republic was the only European country whose Jewish population was growing, whereas the Jewish diaspora in Russia and Ukraine, which in 1989 still ranked second and fifth respectively in the world, had suffered high losses through emigration.63

For Jews in Europe, the turn of 1989 meant the end of state persecution and legal discrimination. Thenceforth, their disadvantagement was explicitly forbidden. To this extent, the political programme of the Enlightenment, the emancipation of the Jews as citizens, had for the first time been realized as a legal project for the entire continent. Nonetheless—or perhaps for this very reason—Jews retained a special legal status as a religious or cultural/ethnic group. This was essentially a consequence of the discrimination that Jews had previously suffered from the state and the continuing menace of anti-Semitic invective and violence. In all European legal orders after 1989, the continuity of this experience led to Jewish citizens being guaranteed particular protection and compensation. Even in France, whose republican ideal of equality was in principle incompatible with special law for specific groups of its citizens, a whole bundle of norms had been adopted to compensate Jews for the material and immaterial wrongs committed against them by the Vichy regime, to provide legal protection against racism and denial of the Holocaust, and to ensure the free exercise of their faith.64

Never before had Jews in Europe enjoyed such comprehensive legal protection—and not only as members of a minority and citizens but also has human beings with inalienable rights. In a reunited Europe, the experience of the Holocaust and state anti-Semitism even after 1945 shaped a system of national and international protection of individual rights that provided Jews and those labelled as Jews with effective protection in Europe even if they were stateless or non-Europeans. Any legal definition of the nation-state and its citizenship that excluded Jews, as had been the case in Germany covertly before 1918 and overtly after 1933 was—under the European legal order in the twenty-first century—an injustice. Originating in Western Europe, this position was shared by all of the new Europe after 1989. This pan-European community of law was the condition and basis for the development of a specifically “European Jewry” between Israel and the United States, which gradually took legal shape in addition to its cultural contours.65

But this European community of law reflects a special historical situation, the moment of a political sea change that led to a legal revolution.66 A decidedly anti-dictatorial impetus to freedom playing out on a universalistic basis created a political consensus in the new Europe grounded in “recognition of the other.” But the legal revolution was rooted in this consensus. Should a state cite a democratic decision by its own citizenry as a ground for breaching the consensus and for politically violating the taboo on unequal treatment,67 the legal order would in itself provide no absolute protection against the use of old and new patterns of discrimination. Jews—like other minorities—would then not enjoy lasting and unconditional protections, either as citizens of their state or of the European Union, against discrimination on account of the cultural, ethnic, or “racial” characteristics ascribed to them.

Women’s Rights: Transnationalization and Europeanization

While the dividing line between political systems in Europe before 1989 had played a decisive role for the citizenship rights of Jews, this was far less the case for women’s rights. Even before 1989, common ideational ground in emancipatory objectives, developments in the welfare state, and the organization of work had brought the two political systems closer to one another as regards the legal status of women. With the turn of 1989 the constitutional setting now also fell into line. All the constitutions of the new Europe included a ban on gender discrimination, comprehensive equal citizenship rights and legal equality for women, as well as special protection for motherhood and family obligations.68 These codifications came at a time when transnational political influence and movements were speeding up and concentrating. After reviewing national developments in the social and political citizenship rights of women, we will therefore be taking a closer look at transnationalization and, in particular, Europeanization.

But does harmonization of the legal setting after 1989 also mean equality of opportunity for women in enforcing their rights? The contrary was initially the case. Even though the legal and economic framework was coming into line, the entrenched differences in social and cultural traditions between Western and Eastern Europe left a growing gap in the actual exercise of women’s rights. With the demise of the state-organized labour market and state welfare in the former state socialist systems, the differences in family structures between Western and Eastern Europe had a direct impact on the conditions under which women could earn a living. The lower marrying age, the higher number of children and the relatively early and high rate of gainful employment among women were possible only in a socialist welfare state that guaranteed social security and almost complete protection against unemployment. The collapse of these security systems in the course of transition to a liberal, capitalist economic order often led to a considerable decline in female employment. At the same time, birth rates fell sharply in the former German Democratic Republic and Poland.69 The broader access to the working world and the high employment rate, especially in full-time work, which Eastern European women—unlike their sisters in the West—had enjoyed was now often reversed in the course of politico-economic system change. The qualifications and employment requirements of Eastern European women were less well adapted to the increased need for flexible labour, especially in the services sector, which had played a smaller role in the Eastern European labour market before 1989. In a private capitalist economy, the lack of job opportunities neutralized the right of free access to the working world that women had won.70 Similarly, the considerably greater access for women to educational opportunities did not directly translate into job opportunities. Educational expansion before 1989, from which women had increasingly benefited and which had been particularly strong in Eastern Europe, meant that by the mid-1990s more than half of students were women.71 However, more or less equal qualifications did not give women the same chances as men to find employment. The labour market remained segmented by gender.72With the same qualifications, women had distinctly poorer career prospects than men and to this day they earn much less than men doing the same job.73 This perpetuated a situation common to both the capitalist and state socialism systems beyond 1989 in a reunited Europe.74

This state of affairs demonstrated the limited reach of a sorely won core right: “social citizenship,” which Thomas Marshall had placed at the heart of his welfare state theory of social citizenship rights. Although it created the preconditions for upward social mobility, its realization came up against traditional social barriers and cultural patterns of the gender order75 antecedent to the law and which the law could modify only slowly. These lines of tradition were deeply etched, precisely in the post-communist states. After 1989, anti-feminist notions from communist times reinforced refamilization trends, which led to women more frequently abandoning working life to retreat to the household.76

With regard to the exercise of political rights, participation in political decision-making and representation in decision-making bodies, 1989 initially brought no decisive change—considering Europe as a whole. Even if women in both parts of Europe had been extremely underrepresented at all levels of politics before 1989, there had nevertheless been progress: Since the 1970s, the proportion of women in government and parliament had risen markedly in Western Europe. Nominally, the proportion was higher in Eastern European representative assemblies, but these bodies had no political influence. When after 1989 parliaments in Eastern Europe gained political clout, the proportion of women members fell so drastically that, before East-Central European countries acceded to the European Union in 2004, their numbers had dropped to below the EU average of 23 per cent in political decision-making positions.77 However, this did not hold for all of Eastern Europe. Within a decade after the first free elections—the proportion of women parliamentarians rose by more than 5 per cent in Poland and the Czech Republic—and by almost as much in Slovakia. Twenty percent of members of parliament in Poland were now women. Decisive for growing female political representation in these countries was the drive for integration in the European Union, which spurred rapprochement with sister parties in Western Europe and Western models of political representation.

Vice versa, female representation in another group of Eastern European countries stagnated at the low level to which it had fallen since the last elections under the communist system. This was the case in Ukraine and also in Russia: The latter experienced an even more radical fall in women parliamentarians. In these two countries, the finding that women in Central and Eastern European parliaments were strongly underrepresented was particularly true. They faced open discrimination and a political culture that regarded politics as the preserve of men.78 “Citizenship” in the sense of equal participation and representation therefore became a slogan for women in the struggle for equality in political and parliamentary representation. Female representation was even more important in the context of Eastern European transition countries, because male-dominated parliaments pursued a neo-liberal economic and societal policy bringing drastic changes to the traditional social system.79

Although 1989 established the political and constitutional preconditions for harmonization with regard to women’s citizenship in Eastern and Western Europe, it was not in itself a turning point. In the upheavals of a long-drawn-out economic transformation process, the social systems of the new states in Eastern Europe stabilized only from the end of the 1990s, when they once again began to offer female employees more security in their social rights and careers.80 Differences in national political cultures lastingly weakened political participation by women, especially in the eastern part of the new Europe and despite their constitutional emancipation.

By contrast, integration factors manifested themselves more strongly since the 1990s that had an increasing impact over and beyond the nation-state, and whose growing importance calls for more detailed examination. This involved transnational initiatives that had already begun to shape the old Western Europe from the 1960s: Women’s and gender policies were pursued on a more and more global scale by international organizations and by the European Union. The International Labour Organization (ILO) had been a driving force in equality policy since the interwar period. Since 1945, the ILO had codified and championed the principle of gender equality in a series of ground-breaking conventions in key areas of society and law.81 For its part, the European Economic Community had in the 1960s begun to develop a social policy that made equality guidelines binding, also within central fields of European integration such as female employment, pay, and freedom of movement.82 However, European law lent this important domain of Europeanization not only formal legitimation but also substantive legitimacy. The growing juridification and ultimately constitutionalization of gender equality through entrenchment in European constitutional law83 brought such a concentration of equality norms that the European Union can claim to have developed the strongest equality programme in the world.84

With the accession of Central and Eastern European countries in 2004 and 2007, European equality norms also began to shape the new Europe, including Poland, the Czech Republic, and Slovakia. But the obstacles to transferring an equality policy developed in liberal-capitalist Western European countries to societies emerging from state socialism also became apparent. In ex-state socialist countries, the old-established patriarchal habits of an intransigent society rejected official emancipatory standards. These positions were not eliminated by the eruptive economic transition process; to some extent they were even reinforced. However, their impact varied in post-socialist societies. Whereas in Catholic Poland and in Lithuania, for example, marked traditionalism in gender roles diminished support for equal access to the labour market, this political demand gained strong support in another group of countries, including the Czech Republic and Slovakia.85

The political institutions of the European Union themselves were ahead of member states in female representation. Whereas in 2008/2009, 26 per cent of MPs in EU national parliaments were women, in the European Parliament the figure had risen to 35 per cent and in the Commission to 37 per cent.86 The predominance of women politicians from the old EU member states reflected the still strong differences with the new accession countries of Central and Eastern Europe where an overall patriarchal political culture remained an obstacle to higher female representation.87

All in all, however, this increase in political representation at the European level did not transfer to national policy on gender equality. On the contrary: Rates of female representation in national parliaments, which were still the decisive authority in gender policy, were much lower than at the European level. Moreover, recent research has shown that the proportion of women members of parliament has little to do with other gender equality measures in these countries, for example concerning pay and the overall development of gender norms. Economic factors have been decisive that over the past fifty years have strongly favoured gender equality precisely in developed national economies and democracies.88 If this is the case, the decline and continuing—if weakening—fall in female employment and political representation89 in Central and Eastern Europe after 1989 cannot be definitively attributed to cultural factors and traditions determining active or passive citizenship for women. The key factor lay in the political economy of these countries, whose socialist planned economies were exposed more rapidly and much more radically to the shock of market liberalization.90 Nevertheless, women in Central and Eastern Europe were generally more strongly hit by falling employment and unemployment.91 In 2010, unemployment among employable women in Poland and in the Czech and Slovak Republics was higher than among men. In Western Europe, this was also the situation in France but not in Germany or the United Kingdom.92 Even more important in Central and Eastern European accession countries were associations and non-governmental organizations that articulated women’s rights and publicly demanded them at all levels of politics. The burgeoning of these civil society organizations—for instance in the Czech Republic and Poland—reflected the deteriorating position of women in working life and political representation and sought to counterbalance these deficits outside established political institutions. The women’s network KARAT, bringing together Central and Eastern European, as well as Central Asian groups, is one example for the nascent transnational organization of these interests.93

All these transnational initiatives and steps towards codification in an effort to achieve equality and equal opportunities for women show the degree to which, in a key field of citizenship rights, equality and social security reached far beyond the national sphere of influence. Often initiated and strongly supported by transnational non-state organizations that exercised decisive influence on the politics of gender equality, a transnational regulatory regime developed that not only complemented but increasingly superimposed itself on national orders, obliging them to adapt and expand their policy.94

Nevertheless, the nation-state remained an indispensable guarantor for the enforcement of women’s citizenship rights. This was of fundamental importance for a European policy on gender equality at the turn of the twenty-first century. Firstly, as regards political prerequisites: The initiation, codification, and judicial enforcement of women’s rights in the European Union, needed the institutions of member states and depended on their political will.95 Secondly, with respect to material resources: Ultimately, nation-states are the addressees of transnational norms for improving equality. The cost of these measures is therefore very largely to be borne by national social budgets.96 Transnational regulation and national financing no longer match. In world society, women’s rights are therefore increasingly regulated at the transnational level. At the same time, however, they oblige the guarantor state to reach into many areas of society relevant to women’s rights. The standard of equality policy therefore depends to a considerable degree not only on the political will of the given state but also on its economic capabilities, which experience appreciable fluctuation and pressure. In effect, this does not diminish let alone supplant the important role of the state; it tends rather to strengthen it.97 Even if many rights and much progress in furthering women’s equality are now transnational in origin, those who benefit perceive them as an achievement of their state and a product of their citizenship.98

However they are regarded, equality norms in the field of women’s rights were created at the transnational level more than in almost any other domain of citizenship rights. Compared with mid-twentieth century Europe, the legal development, political recognition, and binding territorial authority of gender equality norms had never reached such a level as at the beginning of the twenty-first century. However, this says nothing about the actual differences and discrepancies in their development within Europe. They tend to disprove the thesis of convergence in European equality policy.99 The enforceability of equality norms also depended strongly on a stable economic and social constellation, so that the global financial crisis of 2009/2010 directly impacted equality policy in European countries.100 Finally, in employment, pay, and political representation, considerable discrepancies and discrimination remained between the genders. But history shows that defeating this discrimination in Europe has never been higher on the political and legal agenda as it is today. In this regard, women citizens in Europe are European citizens, citizens of the European Union. Persisting violations of equality principles therefore do not affect them only as citizens of their given state. As EU citizens they can invoke the violation of European norms when their states discriminate against them.101 The binding force and doubling of this legal protection do not yet make women equal citizens in practice. But their status as citizens has fundamentally changed since the beginning of the twentieth century.

2 Citizenship and Migration in a United Europe

The Peaceful Revolution of 1989/1990 brought constitutionalization to all post-socialist states in Europe, along with the need to redefine the citizenry of the state. After the collapse of the Soviet bloc system, a new and independent statehood came into being as currents of national identity concepts re-emerged which, although they had never quite succumbed to the pressure of bloc alliance, had often been suppressed.102 Deciding who by law was to be considered a Russian, a Pole, a Czech, or a Slovak meant recurring to a national statehood born in the wake of the First World War. This vital question was among the core issues of the constitutionalization process and had to find expression in constitutions. However, unlike in the post-1918 period, the grievous experience of an age of extreme nationalism, racism, and authoritarian statehood lent new forms and legal guarantees to the new constitutionalism. This led to frequent departures from constitutional tradition. The new constitutions provided much more detailed rules on citizenship than after 1918. One the one hand, they obeyed a rule-of-law, anti-totalitarian impulse by banning the forced deprivation of citizenship. And they confirmed the right of all citizens to reside in their home country and their right to protection against expulsion and extradition.103 Furthermore, all constitutions now contained rules on national minority rights, which—unlike the situation after 1918—had not been imposed by international treaty and under the pressure of protectorate powers. Constitution-making in the post-socialist states was autonomous. Adaptation to international legal standards of minority protection met the need for states to integrate into an international legal community—but not under pressure from this community.104

Ultimately, the new constitutions avoided the entrenchment of ethnically restrictive concepts of citizenship. The political and demographic situation in many new constitutional states either forbade such closure or rendered it superfluous. Thus, given its ethnic diversity, the Russian Federation could not avoid commitment to a “multinational” state citizenry.105 By contrast, the Czech and Slovak Republics, as well as Poland, after half a century of ethnic cleansing and forced migration were incomparably more hom*ogeneous from an ethno-cultural point of view than the republics of the interwar years. This was the background against which the preamble to the 1992 Czech constitution defined the national citizenry in terms of a political membership construct: “We, the citizens of the Czech Republic (in Bohemia, Moravia, and in Silesia).” And the constitution of Poland, the only country under study to constitutionally confirm the descent principle,106 hesitated between an ethnic and a political position on citizenship without opting for an ethnically closed conception: The constitution explicitly allowed the statutory introduction of other modes of acquisition. On the other hand, whether and to what extent ethnic criteria were favoured depended essentially on the naturalization procedure.107 Only Slovakia, which in 1992 parted ways with the Czech Republic and which, given its large Hungarian minority, was much more heterogeneous than the latter, chose a different path: Whereas the Czech constitution spoke of “We, the citizens,” the Slovakian constitution invoked “We, the Slovakian people.”108 On the whole, constitutions remained conceptually open to a spectrum of variants between ethno-culturally and politically defined membership in the state. On the other hand—and with the exception of Russia’s confirmation of a “multinational people”109—they did not exclude reversion to an ethnically restrictive principle. Ultimately, everything depended on the implementing legislation and on naturalization practice.

Migration and Conational Minorities

After 1989, citizenship policy in the new Central and Eastern European constitutional states faced a completely novel migration situation. With the opening of the borders in Europe, there were no longer any barriers to emigration from the East of the continent. Furthermore, for the first time since the Second World War, there was movement in the opposite direction: The post-communist states attracted immigrants. Particularly in the first, transitional decade after 1989, this brought change to hitherto hermetically closed post-Soviet societies and called for a quite new public debate on how growing mobility and heterogeneity were affecting local communities. In Poland, for example, entries of foreigners between 1988 and 1998 jumped tenfold and departures fivefold. In the Czech Republic, more and more foreign labour migrants arrived.110 Over the same period, immigration as a whole increased, whereas emigration, after peaking in around 1989, fell.111

These migration flows were caused and driven by many factors. Over time and in numbers, the migration of ethnic minorities topped the list, peaking in the mid-1990s. Ethnic Germans constituted the largest group of emigrants from Eastern and Central Europe. Most of them left the former Soviet Union, Poland, Romania, and Czechoslovakia for Germany, which afforded Volksdeutsche immigrants preferential treatment in acquiring German citizenship.112 Meanwhile, the Russian Federation and Ukraine, emerging from the demise of the Soviet Union, attracted mass immigration by conationals—ethnic Russians and Ukrainians—from the former Soviet republics. Russia and Ukraine, which constituted the Slav core of the former Soviet Union, were the destinations for one of the greatest mass migration movements in recent European history. By 2009, 8 million ethnic Russians—out of a total 70 million Soviet citizens living beyond the borders of their ethnic country of origin when the Soviet Union was dissolved in 1991—had emigrated to the Russian Federation. Initially, a high proportion of emigrants from Ukraine went to Russia. This changed when the secession conflict in Eastern Ukraine escalated from 2017. Whereas the vast majority of Ukrainian emigrants now headed for the European Union, notably Poland, most of those going to the Russian Federation were refugees from Eastern Ukraine, which Russia supported politically, granting the new arrivals asylum.113

This “ethnic remigration”114 was joined by likewise ethnically connotated Jewish remigration from Eastern Europe to the West and Israel. The cause was political instability and the economic situation in successor states to the Soviet Union, but also the fear of anti-Semitism whipped up by new nationalistic movements and conflicts. As in the case of ethnic Germans, the long fought-for free departure of Jews from Eastern Europe had been aided by their full inclusion as citizens and the law of return confirmed by the State of Israel in 1952.115 These migrations of minorities included Roma moving to Central Europe—especially from Romania, Yugoslavia, and Bulgaria. After the fall of the Iron Curtain, the Roma, almost wiped out by genocide under German occupation, streamed from their areas of settlement in South-East Europe primarily to Austria and Germany, where they hoped for economic prosperity and greater security against persecution than in their countries of origin. Given their cultural distinctiveness, low level of education, and low social status, the group stood out much more strongly in host societies than ethnic Germans and Jews—and accordingly suffered serious discrimination. The Roma met with a mix of social and economic denigration and traditional prejudice. Regarded, moreover, as a nomadic group that frequently eluded clear classification under citizenship law, they were to become a perennial social and legal problem for the migration society of post-1989 Europe.116

Furthermore, with the fall of the Iron Curtain, Eastern and Central European states became involved in international refugee flows. Unlike in Soviet times, these emigrants were no longer pawns in official state control policy but sought refuge spontaneously and in great numbers in the post-socialist societies now the focus of refugee flows in Europe.117

Citizenship policy in Central and Eastern Europe after the Peaceful Revolution of 1989 found itself exposed to a constellation of conflict unprecedented since the upheavals of the Second World War. With a lapse of half a century, change swamped the long politically and economically “immobilized,” closed half of Europe under twofold pressure. On the one hand there were the political and societal trends that had marked and shaped Western Europe for decades: high population fluctuation and social change in the context of open borders and steadily growing migration flows; the development of the law in the direction of liberalization, constitutionalization, and the rule-of-law; and its gradual “Europeanization” in the framework of a (Western) European legal community.

On the other hand, we find a return to a past of injustice, political oppression, and national demarcation strife that had merely been lost to view, put out of mind, itself immobilized. The citizenship law of the new states reflected these old conflicts. The authoritarian, anti-freedom structures of the socialist citizenship concept had to be overcome, which in the name of community attachment had left individuals no choice in matters of membership. Furthermore, the consequences of this law of forced membership in the societies of Eastern Europe had to be compensated:118 The expellees, emigrants, and forcibly denaturalized had to have their rights restored as independent and free citizens of new states that were done with the dictatorial heritage. With the disintegration of the Soviet Empire, finally, conflicts on nationality policy broke out in two regards as the peoples formerly under imperial rule demanded self-determination. At the centre were, first, old conflicts on national demarcations and memberships frozen under Soviet dictatorship. Second, there were new conflicts arising from the demise and renationalization of the Soviet Empire. New nation-states developed new political and legal relationships with their conationals in other newly independent nation-states. They either claimed the role of diplomatic protective power for their members in the diaspora, or they intensified or constructed ethnic community ties with conationals in foreign states even if they were citizens of those states. In both cases, friction and conflict developed between the national homeland and the country of residence of the diaspora. Disputes about people’s membership in state and nation produced conflicts of loyalty and claims to protection that could even provoke the use of force between states.119

At this point, the dispute about the membership of persons turned into a conflict about the ascription of territories to states. The conflict about state protection for people became an international source of dissension. The Russian Federation, which since the demise of the Soviet Empire had come to see itself as the home country and protecting power of all Russians, played a prominent and dominant role in this nationalization process. Some 70 million Soviet citizens lived outside the borders of the Federation in the successor states to the Soviet Union—including no fewer than 25 million Russian citizens, concentrated particularly in the Baltic republics. This meant that the military and political dominance of mighty post-Soviet Russia in Eastern Europe could easily escalate into military confrontation. In this field of tension, citizenship policy became a highly political breeding ground for conflict.

As imperial structures came apart, the constitution of new states in post-Soviet Europe was not only a power problem. This process included legal redefinition of the national citizenry and a new policy of citizenship. Different points of departure in each state led to different political solutions. The division of Czechoslovakia in 1992, for example, meant that the unitary citizenship that had existed since 1918, and had been interrupted only during the German occupation from 1938 to 1945, was abandoned. The problem of the national diaspora in this case arose from the division of the state into separate national/cultural halves, raising the urgent issue of who and what territory belonged to each of the two new republics. The main purpose of the hurried citizenship legislation in 1992/1993 in both countries was to define the citizenry of each and to find a solution for membership in the large diaspora groups in each. In an effort to demarcate the two national citizenries fast and clearly, this early legislation rejected dual nationality. But the comparatively large number of people from each half of the former Czechoslovakia seeking naturalization in the other half and the evident difficulties caused by having to decide between the two induced the Czech and Slovakian Republics to back-pedal. In both, lawmakers began—not least under the influence of constitutional courts and the United Nations Human Rights Committee—gradually to relax the ban on dual citizenship for citizens of the other state.120In 2013, the Czech Nationality Act of 2013 finally explicitly permitted multiple citizenship.121

This was in line with the general trend in post-1989 citizenship law in Eastern and Central Europe. The traditional rule on avoiding multiple citizenship, tightened under the Soviet Empire, lost its hold in the course of a twofold development in international law and national policy. One the one hand, the “European Convention of Nationality” concluded in 1997 under the aegis of the Council of Europe required member states throughout Europe to permit multiple citizenship in a range of cases, and in the event of naturalization not to demand that applicants relinquish their earlier citizenship if this could not be enforced vis-à-vis the country of origin.122 Poland and the Czech and Slovak Republics, which were seeking accession to the EU community of law, made haste to harmonize their national law with these principles. The three states rescinded the treaties concluded with the Soviet Union and other socialist states before 1989 that required the automatic loss of a person’s original citizenship upon acquisition of another. There were two aspects to this move. First, it was an act of cleansing and liberation from the citizenship law of dictatorship: Many former Poles and Czechoslovakians who, mostly against their will, had migrated to other socialist states and who now wished to regain their former citizenship or that of their forebears were to be supported in this endeavour by granting them dual citizenship. This was particularly the case for emigrants and deportees of Polish origin among the citizens of the former Soviet Union who constituted the majority of immigrants arriving in Poland after 2000. From the very beginning, Ukrainian immigrants played a major role, and military escalation of the Ukraine conflict drove up their numbers even further.123

Second, this breakthrough for dual citizenship in Poland, as in the majority of the new Central and Eastern European states, had a nationality policy thrust.124 The intention was to strengthen links with the ethnic diaspora and promote remigration. Dual nationality was often asymmetrical: It was allowed for a country’s own emigrant citizens but not for immigrant aliens.125 This shows the immanent ambivalence of promoting dual citizenship. While such a policy could be pursued to attract multi-ethnic immigration, it could also serve to control emigration and strengthen ethnic cohesion between diaspora and homeland.126 This had been why the nationalistic right in late nineteenth century Germany had propagated dual citizenship.127 What post-1989 states in Central and Eastern Europe chiefly had in mind was to boost national identity formation and consolidation by applying ethno-cultural criteria. The simultaneous adaptation to liberalized, pan-European dual citizenship standards in the context of the Council of Europe usually applied only for emigrants.128 This was particularly the case for Poland, which had a much larger diaspora around the world than most countries: some 20 million.129

This was in keeping with the primacy of the descent principle, to which the new states continued to adhere. Regardless of a person’s place of birth—and especially if they lived abroad—membership of the national community was to be established and confirmed by descent from citizens.130 Although citizenship law in the new states of Eastern and Central Europe construed a person’s primary membership as a politico-legal commitment by declaring citizens of past states to be citizens of the new one, citizens of the former socialist people’s republics of Poland and Czechoslovakia became citizens of the successor states; and the Russian Federation, under the influence of liberal reformers around Yeltsin, made those resident in the territory in 1991 into citizens of the federation on a strictly territorial basis.131 However, this transfer in terms of politico-legal or territorial criteria was based on quite different ethno-cultural circ*mstances than at the period when states had been founded in the wake of the First World War. In 1989, as we have seen, Poland and Czechoslovakia were ethno-culturally much more hom*ogeneous than their predecessor regimes following the expulsion and annihilation of German and Jewish minorities. The successor states to the Soviet Union, too—despite their continued national heterogeneity—were more hom*ogeneous than under the multinational Soviet Empire.132 Things were different only in the Russian Federation, where the proportion of ethnic Russians fell slightly. With this exception, the descent principle as primary basis for acquiring citizenship in most successor states to the Soviet Empire thus perpetuated a much more hom*ogeneous state citizenry than in 1917 and 1919.

However, the preference for ethno-cultural criteria in the new states did not obey a purely ethno-national logic as had been the case in the interwar years. It was a particularity of the new citizenship rules after 1989 that preferential treatment for ethnic conationals was often paired with compensation for injustice suffered under socialist rule. The ethno-national and the post-socialist logic of measures often complemented and reinforced one another. Not only was the deprivation of citizenship forbidden for the future: Earlier denaturalizations were also reversed. Political emigrants who had lost their citizenship were offered preferential reinstatement.133

Then there were arrangements for the selective reintegration of groups of former citizens who had lost their connection to the mother country through coercive measures in the course or aftermath of the war. In 2000, Poland adopted a Repatriation Act, which allowed exiles of Polish origin in the Asian republics of the former Soviet Union to regain Polish citizenship if they returned to Poland. The measure was in belated compensation for the hundreds of thousands whom the Hitler-Stalin Pact of 1939/1940 had placed in the Soviet sphere of power and forcibly abducted.134 In a combination of ethnic and cultural criteria, former Polish citizens and ethnic Poles, especially if their command of the Polish language proved their affiliation to Polish culture, were offered access to Poland and restoration of their membership in the citizenry of the country.135 This explicit privileging of ethnic Poles was understood as an exceptional arrangement and kept apart from general citizenship law.136 The Repatriation Act proved controversial and was rejected by influential political circles, which feared Poland would be overtaxed and swamped by masses of diaspora returnees. But these fears proved unfounded; after briefly peaking, the number of repatriates soon fell to the level pertaining before the Act had come into force.137 Thus, despite persistent political opposition, a new tool had been created to promote the diaspora. Overall, the front in the political conflict on citizenship and repatriation ran between post-Solidarność groups who were keen on processing the past and backed the interests of “Polonia” and post-socialist groupings.138 To combat their resistance, Poland established a legal institution that proved prototypical for privileging the ethnic diaspora in the new states of Central and Eastern Europe. The creation of a Polish ethnicity card, the “Karta Polaka” (Polish Card), was originally designed139 to permit people of Polish descent from fifteen Soviet successor republics—so-called “Poles in the East”—to reside in Poland and obtain free access to the labour market on the same terms as Polish citizens, and to guarantee them other economic, cultural, and social advantages over aliens. What counted was not Polish citizenship but an amalgam of cultural and ethnic connections with Poland. The Repatriation Act had required that returnees be of Polish descent. The decisive conditions for obtaining a Polish Card were cultural: Having Polish as a mother tongue; an intimate acquaintance with Polish customs and traditions.140 The Repatriation Act established a claim to naturalization; the card did not, but among a now more broadly defined Polish diaspora in Eastern Europe, it nurtured a sense of “Polonity” and a preferential relationship with the ethno-cultural homeland.141 Despite fierce controversy about the Polish Card—and apart from protests by the White Russian government, which itself discriminated against the Polish minority—there was no negative international reaction to these measures, even though they entailed political interference with the citizens of other states. This was not self-evident, especially since, after Poland’s accession to the European Union in 2004, the ethnic card granted citizens of third states who were of Polish descent partial equality with EU citizens. The plus in life opportunities for Polish conationals afforded by the Polish Card grew considerably when a nationalistic identity policy—which systematically sought to generate, arouse, concentrate, and politically exploit notions of a national Polish “identity”—extended the reach of the card to the worldwide diaspora. The aim was to encourage the emigration of diaspora conationals to the mother country and to reward them with the rapid acquisition of Polish citizenship.142

In contrast to Polish policy, which was more concerned with protecting and repatriating conationals, another case of ethnic preferential treatment some years earlier had led to serious diplomatic disputes in Central Europe, evoking national conflicts, affronts, and aggression from the beginning of the twentieth century: The so-called “Status Act” adopted by Hungary in 2001 to strengthen the Hungarian diaspora. It addressed above all the Hungarian minorities in Slovakia and Romania, to which the vast majority of former Hungarian citizens had been ascribed in 1919 with the cessions of territory under the Versailles treaties: A third of the citizens that Hungary had called its own at the end of the First World War. This “amputation” of Hungary, which sought to revise the fascist Horthy regime, which had collaborated with the Nazis, and to consign the communist regime to oblivion, had never been forgotten, especially not by nationalist circles in Hungary. With the 1989 turning point in Europe and the renationalization of the Eastern European world of states, the memory of these old territorial conflicts revived. However, since in the new Europe borders could be revised only by force under flagrant violation of international law and at a high political price, the politics of national revision concentrated on the diaspora and conational minorities abroad and their legal status. Between 2001 and 2004, the nationalistic Hungarian government offered ethnic Hungarians outside the country scholarships and a Hungarian “identity card” that would allow them to claim social and cultural advantages in Hungary. This inflated legal status for Hungarians provoked a serious diplomatic conflict with the Slovakian government, whose nationalist leadership in turn mobilized the collective fable of a thousand years of oppression by the Magyar Empire. In fact, the Hungarian Status Act had been preceded towards the end of the 1990s by a series of legislative measures in Slovakia that had privileged “ethnic Slovaks” and discriminated against the Hungarian minority, in particular.143 At the same time, measures were taken by the state between 1995 and 1997 to encourage ethnic Slovakian expatriates to return to their country of origin, for example to study and find employment, which in intent and effect anticipated the Hungarian Status Act. In response to the Hungarian Status Act, the Slovakian government intensified its ethnic diaspora policy in 2005 after nationalistic Hungarian circles had sought a referendum on the state promotion of dual nationality for ethnic Hungarians abroad. The Hungarian referendum failed, but the reproaches of “betrayal” that were addressed to protagonists of the Hungarian minority in Slovakia and the demands on the Hungarian side for revision of the “injustice of Trianon” reinforced one another and stoked up emotions fired by nationalism and populism all round—finally spreading to Romania, as well. A policy of ethnic belonging thus exploited citizenship and citizenship rights in many ways to legitimize and strengthen notions of national identity. In all the repatriation and promotion measures taken by Poland, Slovakia, and Hungary for their diasporas, ethno-cultural belonging was a legal precondition. In conflicts on nationality policy and in efforts to further the national identity, it was more than a symbol of citizenship. Ultimately it could become just as important. In 2011, for instance, the rightwing/extreme right nationalist Hungarian government confirmed with constitutional force that Hungarians living abroad were fully entitled members of the Hungarian nation and offered them full voting rights.144 Like Poland, Hungary used the conational diaspora as a tool in national identity policy but deployed it more offensively as outposts of Magyarity in the cause of territorial revision.145

The escalating conflict between Slovakia and Hungary was finally damped down in anticipation of the two countries’ accession to the EU legal community in 2004. With regard to Russia, any such integration into a transnational legal community imposing a balance between extreme national positions was lacking. With the disintegration of the Soviet Union, this imperial power with the greatest political, demographic, and military potential in Eastern Europe appeared not only to have lost but also to have politically waived its hegemonic position. After a spell of weakness in foreign and domestic policy in the 1990s, however, Russia returned to a policy of national strength and imperial intrusion. One of its most effective tools was the new Russian policy on national belonging, which made Russians abroad and their protection the central issue in securing spheres of influence even by means of military intervention. In this post-Soviet policy, the categories of formal citizenship and ethnic Russianness were ordered on a sliding scale in whose application political intentions and interests transgressed legal boundaries. Unlike the control mechanisms and sanctions within the European Union, the legal standards of the Council of Europe, which Russia had joined in 1996, set no effective limits to the actions of the Russian state. No state was sued more often than Russia before the European Court of Human Rights.146

This development and the political instrumentalization of citizenship policy were not preordained. During early constitutionalization at the conclusion of perestroika, when Russian law liberalized and opened up to Western influences, the Soviet Union and the Russian Federation adopted citizenship legislation in 1990 and 1991 that reversed the principles of traditional Soviet citizenship law: It reduced citizenship to a purely legal relationship, placed it at the service of human rights, proclaimed the primacy of international law, and stressed the responsibility of the state for the people—and not vice versa, which had been an axiom of Soviet law. Post-Soviet law was also largely in line with the legal standards of the Council of Europe, the 1997 European Convention on Citizenship.147

The Russian Federation, the core of “Russianness” and legal successor to the Soviet Union, was caught since its foundation in 1991 between two options or constraints in political action. On the one hand, Russia was legally obliged to protect its citizens abroad, particularly in the successor states to the former Soviet Union. This constitutionally-confirmed obligation148 applied to “citizens,” that is to say members of the Russian Federation. But was it also the intention of the Russian state to limit this formulation to citizens in the formal sense of the term? The potential catchment area for “Russians” outside the Russian Federation went far beyond the membership of the Russian state. In all, there were about 25 million ethnic Russians outside Russia who identified with Russia, spread across the post-Soviet Commonwealth of Independent States (CIS) and the Baltic countries. They had or claimed special ethnic and cultural ties with Russia, which under the umbrella of common Soviet citizenship had previously been irrelevant from a citizenship law point of view. After 1991, however, with the splintering of the Soviet Union into sovereign, demarcated nation-states, these approximately 25 million members of the ethno-cultural Russian diaspora became potential immigrants to and candidates for citizenship in the Russian Federation. The 1991 Citizenship Act of the Russian Federation offered former Soviet citizens preferential and facilitated naturalization by simple registration. Just fewer than 2.7 million people, most of them ethnic Russians, took up this offer between 1994 and 2001. However, naturalizations from the Central Asian republics, above all Kazakhstan, exceeded those from directly neighbouring republics and the Baltic region. This mass influx of conationals, augmented by a high immigration rate—more than 13 million between 1993 and 2011—not only ensured protection for repatriates but also countered the decline in population. For this reason, leading Russian demographers at the turn of the twenty-first century pleaded constantly for the promotion of immigration.149150

Economic and geostrategic arguments, which since the end of the 1990s also found political resonance, were advanced against the repatriation of ethnic Russians. In an economically weakened and socially fractured post-Soviet Russia, there was growing opposition to the mass influx of immigrants. Thus, the main purpose of the new Russian citizenship law of 2002 was to drastically restrict the broad possibilities for the automatic naturalization of former Soviet citizens in favour of discretionary decisions—to permit selection in terms of economic and ethnic criteria. The intention was to keep out non-Slav members of the former Soviet Union—mostly from the Asian republics—and other “undesirables.”151 To this was added a motive that had already arisen in the 1990s but which at the beginning of the twenty-first century gained greater weight as Russian foreign policy regained clout: the geostrategic importance and instrumentalization of ethnic Russian minorities in the former Soviet republics. If they stayed in their countries of residence and were encouraged to do so by Russia, they could provide key leverage in the exercise of geo-political influence. The concomitant legal tools had already been developing in the 1990s. Still without geo-strategic thrust or system, individual intergovernmental treaties allowing dual citizenship and strengthening minorities’ protection had provided the wherewithal for political protective measures for Russian citizens abroad.152 Particularly fierce conflicts falling just short of military intervention arose in the three Baltic republics. These states, where more than twenty per cent of the populations were Russian citizens, were also intent on reinforcing their liberation from the Russo-Soviet hegemon through strict ethno-cultural rules of exclusion.153

But the new, decisive political step was to expand the claim to state protection from its own citizens to include members of the ethno-cultural minority that belonged to other states, thus bringing foreign citizens into a relationship of loyalty to Russia. This step was taken by the 1999 Federal Act on the “State Policy of the Russian Federation concerning compatriots abroad.” The momentous new legal category of “compatriot” included present and former citizens of the Russian Federation, as well as former Soviet citizens who had become citizens of successor states or were stateless. This concept of “compatriot” was, to go by the terminology, delineated both legally and territorially.154 The contours of the community of “expatriates,” of “Russians abroad,” which the act traced out were therefore defined in terms of persons, their present or former citizenship and geographically in terms of the territory of the former Soviet Union.

The “Compatriots Act” established a national connection between Russians beyond the borders of the Russian Federation. Even though, by the wording of the Act, the Russian nation was a nation of citizens in a given territory,155 this politico-legal definition said nothing about the political intentions behind it. Neither the offensive or defensive aspect nor the possibly underlying notions about a different, ethnic conception of nation were clarified. This requires a closer look at the genesis and operation of the Act.

Since the concept of “compatriot,” taking the territory of the former Soviet Union as point of reference, was never intended to apply only within the Russian Federation, breached current territorial borders and thus adopted a potentially invasive, imperial, and irredentist stance towards other states.156 There are a number of reasons for this assumption, which demonstrated the immanent ambivalence of the Russian concept of nation and the development of Russian foreign policy since the demise of the Soviet Union, especially in the Putin era. This ambivalence was grounded in the polarity of two conceptions of nation: The concept of a political, civic Russian nation (“rossijskaja”) and an ethnic conception of the nation (“russkij”).

The political concept of a nation of citizens, which inspired the formulation of the Compatriots Act, was attacked in Russian intellectual debate and politics. Among other things, it was criticized as lacking historical roots in a traditionally multinational community like the erstwhile Tsarist Empire or the Soviet Union.157

The argument that it was a patriotic duty to protect Russianness was even more persuasive because the advocates of an ethnic conception of the Russian nation enjoyed strong support among the Russian public and political class, not least in the post-communist camp. Their main line of reasoning was that the Russian people had been divided and disadvantaged in the multinational Soviet Union, and now had to have the right to unite with their hereditary mother country—where they constituted a vast ethnic majority. This view found backing in the formulation of the 1999 Act, which defined “compatriots” in quite general terms as “persons … in the same State … who share a language, religion, cultural heritage, traditions and customs, as well as their direct descendants.” This reversion to seminal cultural commonalities was further reinforced when the Act was amended in 2010 to extend the definition of “compatriots” to people who, “beyond the borders of the Russian Federation have freely opted for an intellectual and cultural connection with Russia and who are in general members of peoples [narody] who historically resided in the territory of the Russian Federation.”158

Within a decade, the 1999 Act, which had attracted little attention, had in the Putin/Medvedev era become a key Russian policy tool in the post-Soviet region, and, furthermore, a rallying point in defining the Russian nation.159 The conceptual dilution and politically desirable flexibilization of the legal definition of “compatriots” added to the ambivalence between a political and ethno-cultural conception of nation, opening up the Act to a broad range of political uses. It could serve for a narrow ethnic definition of the Russian compatriot and for broad application to all former Soviet citizens. In the diplomatic and military conflict with Georgia from 2006 onwards, the former conception played a role when a political campaign in Russia targeted ethnic Georgians. The broad concept that President Putin repeatedly propagated in his public statements160 sought to cast off legal constraints and to further subjective loyalty and spiritual attachment to Russia. This deterritorialization and subjectivization of the “compatriot” could be interpreted as a rejection of objectivized ethno-cultural criteria and a commitment to a civic, political conception of the Russian nation.161 But the decisive consequence was that dissolving personal boundaries entailed a potential for the territorial, geo-strategic elimination of borders. If we assume that all former Soviet citizens were able and potentially willing to enter into this intellectual affiliation with Russia, the concept of compatriot threw open the gates to an imperial, Eurasian mission for Russia. An essential political function of the Compatriots Act was to legitimize this imperial option by leaving it open to all former Soviet citizens rather than making it mandatory.

The Compatriots Act became the hinge piece in a triad of laws, linking legislation on the status of aliens with that of citizens. In conjunction with amendments to the 2002 Act on the Legal Status of the Alien and the 2008 Act on Russian Citizenship,162 the category of “compatriot” as redefined and expanded in 2010 created an intermediate legal category open to both aliens and citizens and which, when politically expedient, could be manoeuvred towards one status or the other. For example, the introduction of a resettlement programme for “compatriots” after a change in political course by Putin in 2006 and the strengthening of the diaspora163 led to changes in both the Aliens Act and the Citizenship Act of 2002. As a result, aliens from post-Soviet states could once again more easily take their abode in Russia or acquire Russian citizenship.164 The political aim was to edge them closer to the legal status of compatriot.

Depending on what the Russian leadership decided, namely to promote the remigration of “compatriots” to Russia—as after 2006—or to keep them in place in their areas of settlement outside Russia for geo-strategic reasons, various legal instruments came into play. One example was the targeted promotion of dual citizenship on the basis of ethno-cultural criteria in areas such as Abkhazia, Ossetia, and Transnistria, where Russians had not settled in compact groups.165 In the conflict with Georgia on separatism in the Georgian regions of Abkhazia and South Ossetia, local inhabitants were granted Russian citizenship and issued with Russian passports by the Russian authorities in violation of Georgian sovereignty. In the Ukraine conflict, too, Russia extended its influence in secessionist Eastern Ukraine from 2019 by issuing Russian passports in mass naturalizations.166 A second example was the facilitation of immigration and naturalization where remigration to Russia was to be promoted for demographic or other reasons.167 Thirdly, the subjectivization of the category “compatriot” reinforced the position of Russian expatriates as outposts of Russian influence. Addressing a fundamental Russian interest, Konstantin Zatulin, director of the “Institute for the Commonwealth of Independent States” pointed in 2005 to the impact that policy tools could have on geo-political options: “If Russians leave Ukraine, it will turn to the West for good.”168 In March 2014, Russia annexed the Crimea from Ukraine and added the majority of the population to the community of the Russian state by systematically issuing passports. The instrumentalization of citizenship in the pursuit of geo-political objectives thus attained a new level. No longer did it serve solely to obtain the loyalty of conationals in other states but also to annex the territory of a foreign state in violation of international law.

Passing in review policy on membership of the state and citizenship in Central and Eastern Europe since the Peaceful Revolution of 1989/1990, we find not only policy concerned with reconstituting states but also with national identity formation. The focus was not on immigration and hence on the diversification of national identity (as in Western European countries). The chief concern was to break with dictatorship by consolidating liberal, rule-of-law procedures. Furthermore, the focus shifted to determining the relationship between homelands and minorities living outside their borders. It was sought to compensate for injustices suffered under dictatorship, but, above all, to construct membership under law in groups that had been deprived of their territorial sovereignty against the political will of the nation-state. In all the states of the post-Soviet era, the legal tools of citizenship played a key political role in this domain. They served one main goal: To construct or strengthen ethnic and cultural cohesion between home country and diaspora. To this end, the traditional ban on dual citizenship was eased or raised in all states. Ethnic and cultural characteristics were given legal shape to define diaspora groups and were sometimes certified by an official document such as the Polish ethnicity card. In the country of residence, recognized membership of conational groups conferred the right to the protection of the home country. When residing in the territory of the homeland, members of the diaspora enjoyed social, economic, and cultural privileges over other foreigners, as well as preferential treatment in naturalization. All the rights granted diaspora groups by national homelands did not cancel conationals’ foreign citizenship. But they did weaken it by creating and encouraging competing loyalties, which could—and were often intended to—induce people to add the citizenship of their country of origin to their existing status. This web of measures obfuscating membership in the state of residence to produce “fuzzy” or “quasi-citizenship,” and which privileged membership of the conational homeland, necessarily provoked friction and conflict.169

In early twenty-first century Central and Eastern Europe, citizenship policy not only probed national conflicts but also helped exacerbate them. Commitment to international standards of conflict resolution and containment was certainly much stronger than prior to 1945 and 1989. But the partial (re-)ethnicization of citizenship drew not only its motivation but also its methods from the interwar period. The “overwhelming importance of history”170 in reconstructing the citizenship law of Central and Eastern Europe after 1989, as Russian neo-imperial methods demonstrate, also held potential for violence. Decisive for the reconstitution of citizenship policy in the new, post-Soviet Europe was how the past was treated and dealt with: In eliminating the consequences of dictatorship and oppression, in mending and restoring broken or seemingly lost ethno-cultural ties within the nation or empire. The new citizenship law was marked by the emigration and the remigration of conational groups. Not yet a decisive factor was the emerging ethno-cultural diversity generated by foreign immigration. The new labour migration to Central and Eastern Europe that set in after 1989, gradually introducing ethno-cultural diversity to the hom*ogenized societies of state socialism,171 had not yet systematically shaped the law pertaining to aliens and citizenship at the beginning of the twenty-first century.

Post-Colonial Migration: Integration and Inequality

In Western Europe after 1989, citizenship policy developed quite differently. Even though Europe was no longer split down the middle politically and the borders were open, differences between the two hemispheres that had grown over half a century—in migration flows, economic development, and legal institutional traditions—continued to make themselves felt. The economic situation in the major Western European industrial economies, now recovering from depression in the 1970s, attracted streams of migration until well into the twenty-first century, making Western Europe one of the most important immigration destinations in the world.172 Immigration flows from post-colonial countries outside Europe continued to dominate, increasing the ethno-cultural heterogeneity of host societies. Russia, at most, which attracted immigrants from the Asian successor states to the Soviet Empire,173 could compare with the major overseas colonial empires of Britain and France in the complexity of the immigration situation. The chief challenge for Western European immigration societies was not to re-establish post-socialist or post-imperial nation-statehood but to reconstruct traditional national hom*ogeneity criteria. Western Europe was more concerned with the legal form and the societal processing of growing heterogeneity. In contrast to post-socialist societies, these challenges could be met by Western immigration countries without breaching the political system and under a tried and tested migration regime.

The lasting impact of the post-war constellation in Western Europe borne by economic and social stability and liberal, rule-of-law structures was particularly evident in the country with the seemingly poorest preconditions. After reunification, Germany experienced an about-turn in migration and citizenship policy that put paid to the traditional, legally institutionalized rejection of constant immigration and civic integration. After 1989, the Federal Republic of Germany had faced greater social fracturing and economic challenges than any other country in Western Europe. Constitutional reunification with post-socialist East Germany had proved a heavy burden to bear. The country initially appeared to seal itself off more than before. In the early 1990s, revolutionary upheaval and massive East-West immigration, which brought radical social change to host regions of the economically highly developed West Germany and a loss of social ties and security in East Germany, triggered societal earthquakes and a massive wave of public rejection and violence against “strangers.” The mobility and change brought by a drastic increase in the arrival of ethnic German immigrants from Eastern Europe and asylum seekers from political hotspots beyond European shores put unified Germany under great pressure that some sections of society were unable to handle by peaceful means. The propensity to violence grew, notably on the radicalized right, which espoused racist hom*ogeneity ideologies that found acceptance reaching far into mainstream society. A series of severe criminal attacks on “foreigners” and their homes, some pogrom like, which between 1991 and 1993 cost a number of lives, provided the political backdrop in 1993/1994 to an institutional change that placed far-reaching restrictions on the constitutionally guaranteed right of asylum in Germany, which had been particularly liberal by international standards.174 However, the future was heralded not by this restrictive reaction but by the political countermovement that set in at the same time. The parliamentary majority required to amend the constitution that was needed to restrict the right of asylum was reached only because of a liberal, integration-friendly immigration policy that had already become influential before 1989 pushed through a fundamental change in citizenship law. For the first time since the end of the nineteenth century, the territorial principle returned to German citizenship law: Descendants of aliens long established in Germany could, under certain circ*mstances, claim a right to naturalization.175 When in 1997 this migration-friendly course of Social Democrats and Greens found a government majority, a reform of German citizenship law was achieved that brought a fundamental break with the monopoly of the 1913 descent principle. The new “Nationality Act,” which came into force in 2000176 enabled the children of foreign parents to acquire German citizenship if born on German soil. Finally, the lowering of the barriers to naturalization and the long-opposed introduction in 2014 of dual citizenship177 for children from immigrant families who had grown up in Germany changed—within a decade—the entire tectonics of a long established and seemingly impregnable immigration regime. Germany moved from the system of potential closure that had been laid down in the 1913 Nationality Act178 to controlled opening. This surge in reform was borne above all by the German political elite, against widespread popular opposition. This led, for example, to delays in the introduction of dual citizenship.179Over two decades, however, a new majority position developed: For the first time, Germany committed itself politically and de jure to the status of “immigration country,” which it had been de facto for decades. The political revolution and opening up of Europe in 1989 together with strong economic stability and demographic structures in Germany, whose population was falling, established a new constellation that changed the politico-institutional system. Political settlement of the national issue and the guarantee of the territorial borders of the German nation-state at international law, together with the rejection of irredentism brought a fundamental shift in national priorities and values. The privileged constitutional position of ethnic German “resettlers” from Eastern Europe had, with the unification of Germany and freedom of movement in a united Europe, fulfilled its primary political purpose. For the first time since the Second World War, the cultural integrability and economic utility of resettlers were no longer to be subordinated to ethnicity. Resettlers often had a poor command of the German language, casting increasing doubt on their cultural affiliation to Germany, which nurtured criticism of the growing cost of assimilation.180 Thus, in the decade following reunification, a number of legal measures were taken to reduce or prevent the admission of resettlers despite the fact that citizenship law generally embraced the integration of immigrants.181 The special legal status of ethnic German immigrants, Volksdeutsche, thus diminished more and more. They became part of an immigration society in which the co-ethnicity of immigrants brought fewer and fewer advantages.182

While the political upheaval in Europe made Germany a migration hub between East and West and led to far-reaching changes in the German migration regime, Britain and France experienced no comparable disruption in development. Overall, the two countries preserved their systems of migration and citizenship policy, which were liberal by European standards. But this course brought political tensions and challenges, at times destabilizing liberal migration regimes and causing strong fluctuations. Ongoing post-colonial immigration provoked serious cultural and social conflicts and struggles for recognition in both France and Britain, which at times escalated into violent confrontation. Frequent changes of government in France during the 1990s led to abrupt shifts in citizenship policy. In 1993, a conservative reform initially limited application of the territorial principle for second and third generation immigrants, and erected barriers to naturalization to the serious detriment of the fundamental territorial concept of citizenship.183 However, this restrictive turnabout—unique for a liberal citizenship system in post-war history—was reversed only five years later by a socialist government and not restored under a 2003 act introduced by a conservative one. Also in response to a wave of serious terrorist attacks that claimed hundreds of lives from 2016 onwards, political demands for restrictions in French citizenship law, included the loss of citizenship for terrorists, did not lead to changes in the law.184

In Britain, the 1981 “British Nationality Act” initially remained the basis for regulating the growing flows of immigrants and refugees even during the period of upheaval in Europe. Even earlier than Germany, which in the post-1989 phase had attracted by far the greatest number of asylum seekers in Europe, Britain became the main destination for these refugees between 1999 and 2005185. Faced by the close link between migration, refugee, and citizenship policy, the British government introduced new, restrictive legislation, the “Nationality, Immigration and Asylum Act.” It tightened the conditions for immigration and asylum and introduced more demanding linguistic and civic conditions for naturalization. Finally, under the impression of 9/11, the British government introduced the drastic possibility of depriving people of their British citizenship if they did serious injury to the vital interests of the United Kingdom.186 The underlying sentiment that British citizenship could no longer guarantee the fundamental loyalty of citizens anticipated the London bombings of the 7 July 2005, when four young Britons, Muslims from Pakistani and Jamaican backgrounds, self-declared soldiers in a jihad against Western civilization, killed fifty-two people.

Developments in France and Britain show that the two post-imperial states reacted with restrictions and vacillation in citizenship policy to fundamental societal changes and upheavals, which, as belated consequences of the imperial epoch, sorely tested the integrative power of traditional citizenship models. Immigrants, most of them former French or British colonies, were often French or British nationals or Commonwealth citizens and had often been long resident in the former parent country.187 Their legal integration was often in stark contrast to their cultural isolation and social marginalization. In the eyes of the majority population—and of immigrants—existing differences in ethnic origin and cultural background were still further intensified. This difference was not seen as neutral in the sense of equal respect for plurality. Instead, it passed into the social practice of discrimination, often against a backdrop of racial assumptions about an essential hierarchy of races.188 And it was precisely as racial discrimination that it was perceived by immigrants. For immigrants’ life opportunities in education and upward social mobility in French, British, and German host societies were distinctly poorer across the generations than those of the majority society. This discrimination often remained below the threshold of unequal treatment under citizenship law, particularly where immigrants had French, British, or German passports.189 Alongside discrimination in state institutions, it impacted opportunities for education, appropriate health care, and career advancement.190 Such discrimination affected the very core of the claim to equality, a modern, welfare-state concept of citizenship in Marshall’s sense.191 At issue was a promise of equity that was not met by the granting of formal equality through integration in the legal status of citizenship. What was called for was comprehensive equality in citizenship that satisfied the claim to participation and social equity in Marshall’s sense—without discrimination for all citizens. But research and political realities at the turn of the twenty-first century pointed in the opposite direction: For certain groups of the population “inclusion of the other”192 was not realized or only inadequately. This challenge confronted the republican conception of citizenship in France based on equality and assimilation as it did the British concept grounded in the fundamental recognition of difference and multiculturality.193 Sudden light was thrown on the full extent of the simmering integration crisis by periodic conflicts, which in urban Britain and France triggered violence that at times reached almost civil-war dimensions. The 2001 protests in the industrial North of England and in the French banlieues in 2005 were not essentially directed against citizenship as a tool of integration. They demanded that its promise of equality be honoured.194

Overall, it transpired that, under the influence of the new European departure after 1989 and growing immigration, the three largest Western European industrial and immigration countries upheld, or in the case of Germany established, liberal migration and citizenship systems: Systems that recognized civic-territorial and cultural difference.195 The fundamental acceptance of ethno-cultural heterogeneity in the country and in the community of citizens was by no means a matter of course and met with sometimes fierce, violent opposition. It was also fragile: Witness the restrictive permutations in migration and citizenship regimes and the occasional espousal of racist ideas and radical countercurrents by some sections of the population.196 They evoked historical traditions of national identity and hom*ogeneity that proponents were determined to uphold with all the means at their disposal. On the whole, so far, history has so far failed to prove a politically decisive argument or model for preserving and sealing off national societies. Although colonial racism, for example, which had shaped citizenship policy in France and Britain until well into the post-colonial epoch, was still around at the turn of the twenty-first century, it was no longer hegemonic, and came under lasting and fierce public justificatory pressure in the light of a dense legal regime—also entrenched in international law—directed towards equality and against discrimination. This situation was further strengthened by an anti-racism movement carried by civil-society organizations, which had grown in strength since the beginning of the twentieth century.197 Ethnocentrism, which had marked German citizenship law for a century, accordingly lost historical legitimacy, giving way to cautious but fundamental opening. The history of exclusion and inequity thus remained an essential experiential backdrop to the policy of citizenship in the present day, but it no longer set the pattern or course of development.

3 European Citizenship: The Europeanization of Political Belonging?

At the turn of the twenty-first century, Europe became an intensive and concerted domain of protection for the individual unprecedented in the history of the continent. Only in North America and Australia was there anything comparable. Two factors contributed to this development. First, a regulatory regime devoted to protecting individuals and safeguarding their freedom now transcended the border that, prior to 1989, had divided the liberal from the socialist hemisphere of law. Second, the quality of legal standards had consolidated and blended under the banner of Europe and legal integration, producing genuinely European law beyond the limits of the nation-state. With the advent of a new era after 1989, the Europeanization of law accelerated, expanded territorially, and intensified in substance to a degree fundamentally new to European history.

Europeanization through the Law

Europeanization in and through the law had, as we have seen, set in in Western Europe before the events of 1989.198 It began with the growing enforcement of human rights standards in Europe by the European Court of Human Rights in Strasbourg. The 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms—with an anti-totalitarian and specifically anti-communist thrust—had now been joined between 1991 and 1996 by the new Central and Eastern European members of the Council of Europe, including Poland, the Czech and Slovak Republics, and Russia.199,200 Almost all European states201 had thus accepted the jurisdiction of the European Court of Human Rights. The Strasbourg Court thus became the decisive driving force at the pan-European level for the Europeanization of human rights standards.202 In keeping with the burgeoning importance of the ECHR after 1989, it became a true standing court of justice with full-time judges, which could now hear individual-rights cases from all member states. It was precisely this comprehensive protection for individual rights that made the Strasbourg Court the supreme guardian of human rights in Europe. This was in parallel and analogy with the boom in national constitutional courts after 1989, which for their part became the supreme guardians of citizenship rights within their various states. This parallel national and supra-national development showed the extent to which the judicialization of the constitution was a driving force in Europeanization at all levels. This comprehensive, more and more intensively deployed European individual rights protection203 was even more revolutionary because, with member states Russia and Turkey, it extended far into non-European territory. Integrating a politically dominant member state with a hegemonic tradition like Russia in an obligatory community of European legal values became even more significant with the return of Russia from about 2000 to authoritarian and imperial forms of political dominion after the relatively liberal Yeltsin era oriented on the European West:204 Far more cases were brought before the Court of Human Rights by Russian citizens seeking redress for violation of their human rights by the Russian state than anyone else.205

Through its jurisdiction, the Strasbourg Court represented the pan-European claim to a human rights culture that reached far beyond the internal space of legal integration in the European Union, including countries that—like Russia, above all—were on the fringe of a European legal culture of individual-rights protection from the point of view of geographical location, legal tradition, and political disposition. For the first time in the history of the continent, European human rights standards were equally binding on countries such as France, Britain, Germany, the Czech Republic, Slovakia, Poland, and Russia, which in the course of the twentieth century had been entangled with one another through violence, acts of subjection, and massive human rights violations.

Nevertheless, in relation to the protection of individual rights under national constitutions, the primacy of the European human rights order did not mean that national fundamental and citizenship rights were superseded. They often presented a highly developed rule-of-law standard, which in broad fields of law were at least equal to the protection afforded by the Human Rights Convention and thus for their part retained their significance as primary guarantees of individual rights protection in the given country. Anyway, the constitutional organs of a state are required by virtue of national law to implement national basic and citizenship rights, especially where their protective reach is greater than that of human rights under European law.206 But also where, vice versa, the protection afforded by European human rights reaches further than national citizenship rights, a specific form of judicial Europeanization is to be observed that differs from national legal traditions. European and national rules on protecting individual rights influence one another in a far from conflict-free “dialogue,” pointing to the beginnings of a new “rule-of-law state of European provenance” grounded more in processes of mutual consideration and pervasion than in the hierarchical principles of legal primacy and cassation.207

Whereas the human rights norms of the European Convention of 1950 represent a common European minimum standard in a contractual alliance between independent states, the protection of individual rights is far more substantial in the more closely-knit, integrative EU legal community. With the far-reaching transition of powers to the European Union, member states also surrender part of their sovereignty. The former core element of state sovereignty, closely associated with the protection of a country’s citizens and the safeguarding of their rights, namely control over the state’s territory, is to a certain extent taken from the nation-state and “Europeanized.” It is jointly exercised in unified form for a common European territory by the states in the European Union. Opening internal borders and lifting border controls for citizens of the European Union at internal and external EU borders therefore amounts to establishing a common European border regime controlling migration from third states at the external borders of the Union. For the first time in the history of European nation-states, borders have since the 1990s been lifted over much of the continent. This is a momentous leap in development. Citizens of European states, European citizens, now no longer experience the other states of the Union as territorially sealed off and strictly guarded entities but as open, accessible spaces. This is in marked contrast to the intensely nationalized, armed, and violence-prone border regimes of the twentieth century.208

But eliminating the logic of the nation-state did not eliminate the border-drawing logic of the territorial state. There are already signs that this logic is being transferred from the national borders to the external borders of the European Union. The European border control agency FRONTEX,209 set up in 2004, coordinates and supports national border control measures in critical zones of European external borders, especially in the areas of Southern and South-East Europe where undesirable mass immigration from states outside the Union is feared.210 The duties of the agency, which include coordinating the use of arms by national border police, recall in their objectives and instruments the border control regimes that European nation-states had installed in the twentieth century to fend off destitute, ill, and otherwise undesirable immigrants. However, at least two circ*mstances have changed fundamentally since the twentieth century. First, refugees no longer seek access to a specific European state but to the continent itself and its affluent core, the European Union. Refugees fleeing economic and political plight in Africa and Asia therefore no longer cross the comparatively secure land borders between states but take the dangerous sea route to the European continent traced out by mass death. In 2014, more than 3,400 people died in the attempt to reach European shores, and in 2016 a total of 5,096 were reported dead or missing.211 Furthermore, the purpose and reach of the border control system are different than in the twentieth century. Today, FRONTEX does not protect the citizens of a single nation-state but all citizens of the European Union. After considerable expansion of FRONTEX competences and personnel following the 2015/2016 refugee crisis,212 a European border protection system was fully established, even though the exercise of executive powers of control and security initially remained essentially in the hands of the member states.213 With a dash of polemics this could be characterized as the construction of “Fortress Europe.”214 But even if the new European border regime clearly lacks the self-containment of a fortress, there is no denying the historical analogy with a national border protection system: Citizens protected within the borders of their state are superseded by European citizens to be protected by the borders of Europe.

The erection of border protection against illegal or undesirable migration into the European Union is in keeping with the constitutionalization and development of an EU policy on migration. This began with the Treaty of Maastricht in 1992, leading eventually to the European Union gaining comprehensive competence to regulate immigration under the Lisbon Treaty in 2007.215 The latter empowered the European Union to adopt a common immigration policy for “the effective control of legal and illegal migration flows.”216 This was an essential step towards Europeanizing a policy of belonging with which the European Union gradually acquired the traditional regulatory tools of a state. Even the complementarity of citizenship and migration policy on the nation-state model at the service of a comprehensive policy of belonging seemed at times to be within reach. There were signs that the common citizenship policy complementary to migration policy called for by the EU217 could be attained by the “organic” harmonization of citizenship policies in the various member states. Immigration to Europe having stabilized in the 1980s, many observers noted a convergence between national citizenship systems that seemed to have triggered “bottom-up” Europeanization.218

The enlargement of the European Union and concomitant heterogenization together with economic and political crises in Europe in the new millennium set strict limits to any perspective of “self-propelled” Europeanization. The prospect of convergence in citizenship policies in Europe, which had still been considered realistic in 2000, diminished with the eastward enlargement of the EU. Fault lines in the convergence thesis have been laid bare and deepened by persisting nationalism and (re-)ethnicization trends, especially in Eastern European accession countries.219 What is more, the “European Convention on Nationality and European Nationality Laws,” adopted in the framework of the Council of Europe in 1997—the most important document on the harmonization and liberalization of citizenship law in Europe—did not generate the hoped-for binding effect on member states.220

From 2009, the internal EU crisis following the global financial crisis together with the poverty gap between Western and Eastern member states221 resuscitated a dissociative perspective that the spirit of optimism engendered by the 1992 Treaty of Maastricht had seemed to have banished constitutionally. The influx of citizens from poorer eastern member states into western member states was increasingly perceived by the latter not as the natural exercise by European citizens of their right to free movement but as “immigration.” This influx was increasingly equated in Europe with immigration from extra-European states—not only terminologically but also in public concern about the social burdens it generated.222 This development came to a head not least in the United Kingdom. British scepticism towards the European Union, deeply rooted in both conservative elites and the general public, was compounded by objections to the influx of EU citizens, which had grown even more strongly after 2010 since the European financial crisis. The campaign against “European immigrants” was the decisive factor in the success of the 2016 Brexit referendum and the withdrawal of the United Kingdom from the European Union in 2020.223

Throughout the European Union, migration both from outside the continent and from poorer EU countries has nurtured scepticism and hostility towards immigration—a close cousin of so-called Euroscepticism. This phenomenon is not new and is so fundamental that it has not been affected even by current troubles such as the 2015/16 “refugee crisis.” However, anti-migration attitudes, which have contributed considerably to the rise of extreme right-wing and populist parties across Europe over the past decade, have been only one of many reasons for their upsurge.224

European Citizenship: Constitutionalization and Interpretation Practices

Since the turning point of 1989, Europeanization—welcomed politically and the subject of much scholarly comment—had proved an inherently contradictory process braving powerful countercurrents. It is therefore no surprise that a key institution of European law became symbol, goal, and yardstick of Europeanization: the “Unionsbürger,” “European citizen,” or citoyen européen. Terminologically, the concept constituted a bridge between the common European notion of citizen and a new form of political membership in Europe. The adoption of the Treaty of Maastricht in 1992 was the “constitutional moment”225 when the legal figure “European citizenship” made its entry into European constitutional law. Even though the political rhetoric that accompanied the treaty stressed the goal of integrating Europe, this constitutional innovation was not the brainchild of a political decision-making body. It was fed by two converging historical sources. The first was the traditional model of membership under the constitutional law of federative unions. The models for such a “federation”—as opposed to a unitary state—included the United States of America, the Swiss Confederation, and the Federation of the German Empire after 1871.226 All these entities were unions of states with their own citizenship but were not nation-states. Such citizenships were therefore not yet shaped by notions of belonging to a nation and therefore did not lend the new membership in the union a specifically national character. This anational or pre-national type of union was a second historical source of inspiration for citizenship of the European Union: The European Movement, which rejected the nation-state principle. In the aftermath of the Second World War and under the impression of the aporia of the nation-state, its overreach and embrace of radical, racist exclusion, the European Movement sought to overcome national particular interests and membership in favour of a bridging, common European citizenship. In the mid-twentieth century, a broad wave of federalist/integrationist European projects had produced an abundance of legal designs for a united Europe grounded in the individual, in individual rights, and in political membership in a European federation. In anti-totalitarian projects of resistance and personalistic federalism, the focus was on establishing a “bottom-up” federal order for Europe, that is to say one based on the citizens of Europe and/or small political entities. The draft constitutions of European unification movements presented the legal concept of a “European citizenship” or “federal citizenship.” It provided for fundamental rights such as freedom of movement for all federal citizens, as well as a common indigenate in the federal territory.227

When this federalist/integrationist project was thwarted by national reservations and interests, the rationale of the European integration project changed in the early 1950s. The 1950 treaties on the European Coal and Steel Community and the 1957 Treaties of Rome, which founded the European Economic Community, narrowed European integration down to certain functions and sectors. The treaties no longer mentioned the “European citizen,” adopting as a tacit point of departure the concept of “market citizen,”228 an economically active and mobile individual whose economic freedom was to be protected in the European internal market. Nevertheless, these constitutional principles in the treaty law of the 1950s, which initially served to protect the freedom of movement and economic activity of European market citizens, also prefigured fundamental general structures of individual protection. The Maastricht Treaty of 1992 developed, concentrated, and supplemented them, creating the new legal figure of “European citizenship.” This constitutionalized fundamental legal rules on equality and freedom: The right to free movement and residence in all member states of the Union, the right to vote in elections to the European Parliament and in local elections in every EU state; the right to diplomatic and consular protection in states outside the EU, and the right to petition European institutions.229 The neologisms “Unionsbürgerschaft,” “European citizenship,” and “citoyenneté européenne” deliberately drew on the legal stock and symbolism of the concepts “citizen” and “citizenship” in the long constitutional law tradition of jus publicum europaeum. This lifted the concept of citizen, closely associated with nationality in the sense of membership in a nation-state, out of its national constitutional context and placed it firmly within European constitutional law.230

The concept of “citizen” is now subject to controversial interpretations that have serious consequences for the development of the Union. If we take the standard German term “Staatsbürgerschaft,” literally “state citizenship” as our point of departure, this raises the entire legal problem of national citizenship to the level of the European Union—in the question of the relationship between membership in the state and citizenship rights, of the content of citizenship rights, and the exclusion of non-members from these rights. What speaks against such a semantic analogy is that it does not capture the specific relationship between state and European Union and the underlying political interests. If we consult the will of the partners in this union, namely the European states that constitute it, the European Union is not intended to be a state but a confederation. From the perspective of a confederal interpretation, European citizenship embodies membership in a confederation and not membership in a state.

On the other hand, the legal figure of European citizenship offers, by virtue of its federative conceptual tradition, an evocative potential that can be used politically to set the European Union on the path to integration. According to this interpretation, the European project draws its legitimacy more and more strongly from the will and rights of “European citizens” and less and less from the will and rights of the member states.

Thus, from the many interpretations of European citizenship two variants emerge that make it a driving force in the future European integration process. The first sees citizenship of the European Union as a tool forged by member states to transform the European Union institutionally into a European state embracing the territory within the borders of the Union. The second uncouples European citizenship more and more from the state and from member-state citizenship to make of it a legitimate source of rights over and beyond member states. To date, the proponents of these two conceptual developments in European citizenship have failed to attract a political majority among decision-makers at the member-state and EU levels. At any rate, they can count on support from progressive pro-European civil society, especially among immigration-friendly groups on the fringes of power in European politics.231 Just how much interest there is in EU citizenship not tied to member-state citizenship among stateless or disadvantaged minorities has been stressed by the president of the International Romani Union: for the Roma, he asserts: “the only really suitable citizenship in Europe is EU citizenship.”232 In all, the citizenship of the European Union introduced at a political turning point in Europe in 1992 proved to be far more than a new legal institution. It became the premise and rallying point for an ongoing debate on fundamentals—on the path, limits, and goals of European integration as such.233

Turning from these progressive, integration-friendly interpretations, the confederate reading of European citizenship as confederate citizenship can find affirmation in the history and wording of the European treaties. The will of the contracting parties to establish a confederate entity but not a state or union partially independent of member states was central to the foundational conception of the European Community under the Treaties of Rome in 1957, and, by the explicit will of member states, did not change with the founding of the European Union under the Treaty of Maastricht in 1992.234 The conceptual and political distinction between national citizenships and citizenship of the European Union was almost programmatically constitutive for the constitution of the European Union in the key clauses of the Maastricht Treaty as amended in 1997 by the Treaty of Amsterdam: “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.”235 This makes three fundamental constructive points: first, national citizenship precedes Union citizenship and remains its constitutive premise. Second, the status of EU citizen derives from the preceding status of citizenship of an EU member state. And, third, the Treaty accordingly concluded that citizenship of the Union complements national citizenships without replacing them. Precisely this formulation, which lays down the independent existence of national citizenships alongside Union citizenship, was the outcome of political debates and national reservations that threw light on the political explosiveness of co-existence between two concepts of political belonging: to Europe and to a nation-state. When, in June 1992, Denmark had voted in a referendum against adopting the Treaty on European Union, the assembled governments declared that citizenship of the Union would not replace national citizenship but only complement it. In a second vote, the Danes thereupon reversed their decision. This formulation was inserted in the 1997 Treaty of Amsterdam.236 Thus, from the moment of its constitutionalization on, European citizenship was at the heart of a debate on the future shape of the European Union. At the same time, this constitutional shaping of European Union citizenship was a fundamental decision in favour of a “duplex regimen” for citizenship status in the European Union, splitting public authority between member states and the Union.237

It was in keeping with this confederal logic that the European Union has never been given competence under Community law to regulate citizenship in member states.238 They have preserved their freedom to shape citizenship law as a core area of their state sovereignty and tradition.239 Just how far this claim to sovereignty reached was demonstrated by the power which member states had had since the beginning of the European Economic Community to define their citizenry “for the purposes of Community law.” They had always been able to declare persons who did not possess their citizenship to be EU citizens, and, vice versa, to exclude citizens of their own from the status of European citizen.240 This required only a unilateral declaration by the member state.241 Already with the founding of the European Economic Community in 1957, the Federal Republic of Germany had, for instance, declared that, in the interest of maintaining the unity of the German nation-state, it wished to treat citizens of the GDR, as well as so-called “status Germans”—citizens of an Eastern European state who were refugees or expellees within the meaning of Article 116(1) of the Basic Law and therefore had no more than a claim to German citizenship—as citizens of the Federal Republic for the purposes of Community law. While the Federal Republic thus extended the rights of the European Community and European citizenship to a wider circle of people outside the territory of the state, this national decision could also have a contrary—that is to say restrictive—effect.242,243 The United Kingdom, for instance, repeatedly declared that it did not wish to see entitlements under Community law applied to British citizens who had no right to permanent residence in the United Kingdom.244 This shows the extent to which member states sought to keep control over powers relating to their specific national traditions, post-colonial interrelationships, and ethnic preferences, and therefore over their national citizenry and national territory even if they were members of a European community.245

The dual pattern of citizenship status in a “Bund”—a union of states between a confederation and a federal state—thus seemed to have been constitutionally woven firmly into the constitutional fabric of the European Union. However, it goes against the grain of legal history to essentialize and perpetuate political decisions in this manner and thus to underestimate the constitutional moment and the possibilities for developing and interpreting constitutional texts under the influence of shifting political and institutional dynamics. In confederal unions of states, history has shown that, in the long term, federal citizenship gains primacy over member-state citizenship.246 Even if this historical experience allows no principle of development to be postulated, political actors have always kept in mind the process of European integration. It served as a point of reference for competing interpretations of European citizenship on the basis of the Maastricht Treaty: As writing on the wall for “confederalists” defending the primacy of member-state sovereignty, as political goal for “integrationists” striving to strengthen an autonomous citizenship of the European Union.

Community Ties in Citizenship Policy?

Setting out from the bipolar tectonics of EU citizenship, where do we find political and legal signals for a latent shift from the national to the community side? Does the trajectory of political belonging take us from the citizen of the state in Europe to citizen of the European Union? We turn above all to the institutional dynamics operating in the internal constitutional space of the EU. We focus on two key debates on this subject. The first addresses the commitment of national citizenship policy to the community of the European Union in the light of the dispute about “bad faith” in admission to Union citizenship and the second is concerned with the impact of the influential European Court of Justice case law on EU citizenship.

The strong duality of citizenship law in the EU constitution has repeatedly come up against the problem of the limits Community law places on the regulation of national citizenship in the multinational union. Over and over again, scholars, EU institutions, the European Parliament, and civil society organizations have demanded that member-state sovereignty be restricted with regard to defining their national citizenries “for the purposes of Community law.” Criticism has been directed against both national declarations unilaterally determining the circle of citizens entitled to European citizenship, and against naturalization policy as a whole being entirely in the hands of member states.247 This critique points towards a concept of tying national citizenship policy more strongly to the EU community. Was this in line with a systemic logic of unitarization on the assumption of federal membership? If there is such a logic it will manifest itself where member states of a confederation themselves oppose out-of-line naturalization policy in a fellow member. This occurred in 1992, the year of the Treaty on European Union, when the Dutch government announced that the entire population of the Republic of Surinam, a former Dutch colony, were to be granted Dutch citizenship;248 a step which they later renounced. Given the size of the population group involved and probably also because of their Asian origins, this project met with political resistance in other member states. It proved to be a starting point for an increasingly popular interpretation of EU citizenship, which postulated the duty of member states to “Community loyalty” and therefore to prior consultation of member states and/or their approval in the event of collective naturalization of a major population group.249

Gradually, this brought realization of the political need to coordinate citizenship policy in order to avoid “bad faith.” What constituted “bad faith” was the issue at the heart of the discussion after the Maltese parliament had in October 2013 debated a bill offering naturalization candidates Maltese citizenship and concomitant citizenship of the European Union at a price of 650,000 euros.250 The background to this was the desire to attract potent investors from countries outside the EU, providing them in return with both citizenship of the island state and the right to move freely and engage in economic activity throughout the European Union. Malta was not alone. Other states in the European Union particularly badly hit by the global economic crisis after 2010 also had plans to sell the right to permanent residence in their countries and/or citizenship at prices in excess of half a million euros or upon promises of investment: They included Cyprus, Portugal, and Spain.251

Never before in the history of citizenship had it been so blatantly and aggressively reduced to the economic relevance and market value of a commodity. In the course of globalization, the mobility of transnational financial transfers appeared to depend less and less on the political membership of the actors. In times of economic crisis, however, when worldwide shortages and falls in capital flows once again made their territorial and personal ascription market relevant, citizenship, too, seemed to become more interesting as a key to important market advantages. The decisive advantage of these “cash for passport” programmes did not make it possible to acquire the citizenship of impecunious member states in crisis. The real value added was gaining citizenship of the European Union, which provided free access to the territory and rights of a much larger economic area, the second most important in the world. This situation could be said to place the fundamental economic and integration-policy problems of the European Union under a microscope. Did the sovereign scope of member states for political action allow them to market their citizenships to the advantage of an affluent clientele? Or did the crass social inequity involved in the purchase of citizenship and hence access to democratic participation not compromise the essence of equal citizenship so severely that the very foundations of both national and European law were under attack?

The intellectual and political debate stirred up by Malta’s initiative reflected the whole spectrum of standpoints that EU member states could adopt,252 from support for market liberal positions to demands for European law to set harmonizing limits. In the end, general agreement was reached that constitutional law as presently in force in the European Union did not tie the citizenship policy of member states to particular community principles. The European Parliament was alone in passing a resolution recalling the principles of equal EU citizenship253 and “mutual trust” between member states and warning that the concept of Union citizenship was imperilled.254 In the light of this political appeal, the Directorate-General for Freedom, Security and Justice considered taking legal steps against Malta for violating treaty law. Under the pressure of public opinion, Malta, along with Bulgaria and Cyprus, the three EU member states with investor citizenship programmes,255 introduced additional residency requirements for investors who wished to acquire the citizenship of these states. Overall, however, the debate on the “market value” of European citizenship obliged both the EU Commission and member states to observe new contours of “Community loyalty” in national citizenship policy and undertake their legal implementation.256

A key weakness in the argument for politically strengthening Union citizenship and institutionally autonomizing it was that the European Union lacked the legislative competence to give political shape to a common federal citizenship. Things were different with the judiciary. The European Court of Justice lent important impetus to the “Europeanization” of EU citizenship.

It is well worth taking a detailed look at the development of ECJ case law on European citizenship. If the widespread and plausible thesis holds true that European integration progresses above all “through the law,”257 the rulings of the highest EU court will provide a measure and object of study in this regard. This suggests that Europeanization and thus progress in the European integration process is being achieved less in highly symbolic public political acts than through the gradual development of law by legal experts in their bodies and institutions. If in this sense, European integration is being juridified, the Court of Justice of the European Union is one if not the chief protagonist.

In a number of seminal decisions two decades after constitutionalization of EU citizenship in the 1992 Maastricht Treaty, the Court of Justice of the European Union addressed a number of far-reaching problems arising from the common indigenate in the union of European states. There were three main questions: first, the general position and development of Union citizenship in the confederal structure of the European Union, second the treatment among member states of their respective citizens: the fundamental guarantee of freedom of movement between member states essential for the structure of belonging in a confederation raised elemental questions about the scope and limits of the right of abode and about participation in the social system of the host country. The third and final point was the inclusion of third-country nationals in the legal guarantees of Union citizenship. At issue were thus the internal solidarity community of the European Union and its external openness as an association of persons.

Already a decade after the Treaty on European Union, the European Court of Justice had established consistent case law that recognized Union citizenship as “the fundamental status of nationals of the Member States.”258 This formulation, in parallel with the fundamental status of citizenship rights in a state was relativized by the fact that Union citizenship was intended to be more than a complementary legal status to the citizenship of member states. However, in the interpretation of the European Court of Justice, Union citizenship increasingly opened up the area of application for European treaty law to many circ*mstances that had previously been understood as “internal affairs” of member states. Accordingly, EU citizenship and the closely associated freedom of movement, for example, are affected even if citizens make no actual use of this freedom. With this broad interpretation of European citizenship, the ECJ narrowed the scope for political action outside EU law and lent impetus to a “federal integration dynamic” that led to the “Europeanization and supranational justiciability of member-state competences.”259

To a certain degree, this case law amounts to the universalization of European citizenship rights when extending the guarantees of Union citizenship to nationals of third countries. Although, in the light of clear treaty rules, the Court does not assume that third-countries nationals have direct access to EU citizenship, it increasingly invokes the human rights basis of the EU legal order, which permits rights accorded citizens of the European Union to be granted to non-EU citizens, as well. The case law of the Court accordingly opens the legal space of the Union to the outside world. Thus the spouses and parents of Union citizens, even if they are nationals of third countries, may enter the territory of a member state and from this base, claim the right to freedom of movement through a family member resident there who is an EU citizen.260

Building on the legal figure of Union citizenship, the ECJ established case law that cancels out the binary structure of traditional national alien law: the opposition between nationals and aliens. This has been furthered by the far-reaching equality between member-state nationals in the territory of the EU, even though they are citizens of sovereign member states within the Union. In relation to one another, nationals of EU member states—overcoming the borders between nation-states that had developed over two centuries—are no longer aliens but share “European citizenship.” The inclusion of “nationals of third countries” under the legal protection of Union citizenship has helped considerably to blur a once solid exclusionary border. This has been reinforced, for example, by the stabilization of residency rights for third-country nationals who have resided for a longer period of time in the territory of the EU. Determining legal status in terms of duration and considerations of proportionality and of whether the persons involved are EU citizens, holders of two citizenships within the EU, or nationals of third countries, or whether they enjoy privileges on account of family membership or international rights leads to the status of individuals being defined and ranked less and less on the basis of their citizenship of a state than on their place and duration of residence.261 Even if this does not provide the legal, permanent residence in the territory of the European Union that Union citizenship ensures—this would require a constitutional decision by member states—the legal development of the Union up to the second decade of the twenty-first century was moving increasingly in this direction thanks to ECJ case law.262

More recently, however the ECJ has distanced itself clearly from this “residence model” (Thym). Instead, rulings in the fields of migration, social rights, and the treatment of third-country nationals have moved more markedly towards an “integration model” that places greater emphasis on the qualitative factors attaching individuals to a political community and which nurture expectations of active integration in society.263 There are many reasons for this shift in the course in ECJ case law, mostly to be found in fundamental crises in European unification and in changing political framework conditions. They include the failure of European constitution-making, the profound crisis of the European currency, and Brexit, the process whereby, for the first time in the history of the European Union, a member state—and an economically and politically extremely important one, the United Kingdom—withdrew from the Union.

This development towards anchoring EU citizenship rights more firmly in the integration model manifested itself in the decisions of the European Court of Justice on extending the protection of Union citizenship to third-country nationals. This legal problem marks, as it were, the front line for protecting individual rights under the present constitutional law of the European Union. In the judicial domain, an institution directly legitimated by the European treaties and independent of member states—the Court of Justice of the European Union—establishes subjective rights in a field directly concerning the external boundaries of the EU legal space. Member states regard this field as their national domain. At the external borders, interpretational conflicts about the reach of European citizenship—a supra-national legal institution—become fundamental disputes about interpretational sovereignty in the constitutional construction of the European Union as such. In concrete terms, this means that the more the European Court of Justice, an institution of European constitutional law, determines the scope of Union citizenship, the more the Court comes under pressure from member states to justify its position and respond to their political apprehensions; after all, they consider themselves the “lords of the treaties.”264 In this context, legal debates mask fundamental political conflicts, which manifest themselves time and again in often fierce criticism of ECJ rulings. This is apparent in the line of development of the case law, which, despite constitutionalization of Union citizenship in 1992 by the Maastricht Treaty, cautiously abided for almost two decades by the standardized safeguards in place since the pre-Maastricht embryonic phase of European citizenship. The case law of the European Court of Justice broke with these underlying assumptions shortly after Union citizenship had been constitutionally boosted with the consolidation of European constitutional law under the Treaty of Lisbon in 2007. In a rapid sequence of rulings from 2010 onwards, the ECJ changed direction.265 It now drew a fundamentally new conclusion from the earlier formulation that “the citizenship of the Union is destined to be the fundamental status of nationals of the Member States.”266 For example, member states had at an earlier stage confirmed that the rules on the acquisition and loss of citizenship—and hence on naturalization and denaturalization—would fall within their field of competence alone. The ECJ objected that denaturalizing a citizen of a member state directly affected that person’s status as citizen of the European Union along with all the associated rights and duties, and that European law was therefore to be complied with.

This formulation, at first glance unassuming and seemingly technical, subsequently gave the ECJ far-reaching scope for judicial control in a field that member states had always claimed to fall within the traditional ambit of state sovereignty. This signalled a turning point in European legal history. In the Europe of the World War period, when demarcation of the nation-state was at its height, and during the subsequent face-off between blocs, millions of citizens had been stripped of their citizenship by the sovereign authority of the state. Now this sovereign authority was constrained by the contractual, legal community of the European Union in the “person” of the European Court of Justice. At the same time, ECJ case law abandoned the model of the “mobile market citizen” that had been developed in the 1970s. Citizens of the European Union could now invoke the rights of European citizenship even if they did not cross the borders of the member state of which they were nationals.267 For the first time, these judicial decisions lent the status of Union citizenship clear independent, “fundamental” substance not tied to the Union citizen’s place of residence or grounds for residence in the territory of the European Union. This meant that people’s rights as Union citizens took precedence even in their country of origin over their rights as nationals of that state and could, if necessary, be used against the latter.

The full implications of this new interpretation of EU citizenship status, initially developed with respect to nationals of a member state of the Union, became clear when third-country nationals were taken under the protection of European citizenship. The original intention had been to protect the integrity of the family. In itself, this was not new in ECJ case law. Under the influence of human rights guarantees under the European Convention on Human Rights, the legal status of EU citizens and third-country nationals had come somewhat closer even before the Luxembourg court had changed course on Union citizenship. This development was also in parallel with national developments in the immigration states of Western Europe from the 1970s: Family reunification, grounded in the human rights protection of the family, had already reduced differences in residency law between aliens with rights of residence and family members coming to join them.268 What was new was that the European Court of Justice now based the recharging of EU citizenship status no longer on human rights but on specifically European, EU law. In a far-reaching decision in 2011, the Court argued that the EU citizenship of two under-age and dependent children gave the Colombian father the right to reside and work in the children’s home country, member state Belgium. This constituted significant, indirect preferential treatment for a non-EU citizen. The logic behind this decision suggests that not only Union citizens in need of protection but also members of their families responsible for their welfare—no matter what their nationality—had a right to secure residence in the EU.

This ruling had far-reaching implications for social and migration law, which attracted political attention as well as politically motivated criticism.269 However, delving deeper shows that this ECJ ruling was a seminal decision in European policy. It can be placed in the context of the legal policy discussion after the constitutionalization of EU citizenship in 2007 about the future development of the European Union—not least because those involved in the process did so. In her opinion, the Advocate-General had called for citizenship of the European Union to be seen as more than the “non-economic version of the same generic kind of free movement rights as have long existed for the economically active and for persons of independent means.” She pleaded for a “more radical” concept. This would treat citizenship of the European Union as “true citizenship, carrying with it a uniform set of rights and obligations, in a Union under the rule of law in which respect for fundamental rights must necessarily play an integral part.” This far-reaching basic status placed the European Union under obligation to provide European citizens with the comprehensive protection of the basic rights that are part and parcel of European citizenship. In the opinion of the Advocate-General, this was the direction in which Europe was developing constitutionally. She suggested, however, “that (sooner rather than later) the Court will have to choose between keeping pace with an evolving situation or lagging behind legislative and political developments that have already taken place.”270 In line with this opinion, the ECJ in 2011 accepted the “more radical” version of “true citizenship,” thus keeping the way open for making Union citizenship, an institution of individual rights protection in European constitutional law, into a key tool for intensifying European integration through legal communitization in a “Union of law.” In this decision, at any rate, the ECJ did not reject the role offered it of protagonist in the intensification of European constitutionalization.271

However, the case law of the ECJ following on from the succinct judgment in the Ruiz-Zambrano case did not indicate that the Court had adopted the vision of Union citizenship as a tool for the far-reaching federalization of the European Union. The growing crisis in European integration—bringing stronger recurrence to the preconditions for member-state integration and to existing legislation, as well as changes on the bench—contributed to changes in the thrust of ECJ rulings.272 Economic circ*mstances and the limits to European integration, as well gaps between member states in social development loomed larger in decisions, reducing the role of the ECJ as an engine of “integration through the law.” However, the ECJ upheld the view that the protection afforded by Union citizenship included nationals of third countries and thus reinforced the inclusive tendency of EU citizenship status. This concerned not only rights of residence and equal treatment, especially in gaining access to the labour market: It included access to social rights.273 In the immanent logic of the construction of the European Union as a community of solidarity, the nationals of member states, wherever they might be in the territory of the EU, can participate in the member-state solidarity community in the given host country. This follows directly from the fundamental principle of freedom of movement in the EU, which is absolutely constitutive for citizenship of the European Union.274 Basically, Union citizens migrating within the European Union thus have a right to be included in the basic social security provided by the state of residence.275

To what extent can a social EU citizenship derive from this? It is in the very nature of the European Union as a common social area that it faces criticism from member states, which see social security within their national borders threatened by the burden of socially needy Union citizens arriving from elsewhere. The reservations expressed and curbs placed on free movement in the interest of protecting the national solidarity community bear witness to this. The European Court of Justice, too, recognizes that the stay of Union citizens in a member state other than their own without adequate social welfare provision can be ended.276 To this extent, limits are set to immigration into the basic social security system of another member state. The full benefits of social rights continue to be the preserve of citizens of the given member state.277 In view of this politically opportune fastness for national communities of solidarity, European citizenship as interpreted by the European Court of Justice cannot itself establish an independent European social citizenship. Although this has often been demanded by the media and integration-friendly public opinion, it has found no support in the rulings of the European Court of Justice. Over and above equal social participation in exercising the individual right of the European citizen to free movement, the Court construes no social citizenship of the European Union. To this extent, EU citizenship does not serve as a legal basis for developing the European legal community further as a social community of citizens. Recent ECJ case law since 2014 has stressed this by explicitly granting member states the power to restrict the social security rights of foreign EU citizens, particularly in unemployment benefits.278 Marshall’s social citizenship, conceived in terms of the nation-state, is therefore no model for EU social citizenship.279 In the framework of the European legal order, too, the social rights of a state’s citizens—historically decisive in implementing and legitimating national citizenship—thus took first place over the social rights of Union citizens. Under European law, these rights are indeed an extension of social citizenship rights at the national level. But they will not establish new legitimation for Union citizenship as European social citizenship unless this is the explicit political will of the contracting states.280

Taking Marshall’s development triad of citizenship rights as the yardstick, the citizenship of the European Union has not established independent social citizenship at the EU level. With respect to political rights, however, it seems to have achieved a major breakthrough towards Europeanization. Above all, the right to vote in elections to the European Parliament, which since 1979 had been firmly entrenched in European constitutional law as direct suffrage, produced an additional, genuinely European level of democratic participation in European politics, especially because it could be exercised by Union citizens in their EU state of residence and not necessarily in the territory of their home country. While the political right of participation that had existed since the 1970s was concerned with European institutions and European politics, an innovation introduced by the Treaty of Maastricht appeared to lend a new political quality to Union citizenship: the introduction of the right to vote and stand for election at the local level for EU citizens wherever they reside in a member state.281 This uncoupling of suffrage—the key political right of national citizenship—from membership in a state appeared at first sight to sever a hallowed constitutional link characteristic of the nation-state since the French Revolution. The fundamental link between democratic suffrage and membership in the nation-state was at the historical heart of national political citizenship. It favoured nationals over non-nationals, over foreigners. The historical power of this traditional constitutional coupling, not least in debates on political principles, had already become apparent in a number of European states in the 1980s.282 Initiatives taking cognizance of foreigners long established in the community and which sought to obtain voting rights for them at the local level met with fierce political resistance from people intent on defending the indissoluble link between the democratic right to vote and national citizenship as a fundamental principle that allowed no exception. With precisely this argument, for example, the German Federal Constitutional Court had in 1990 forbidden a number of states in Germany to grant local suffrage to foreigners.283 The introduction of local suffrage for Union citizens under the Treaty on European Union broke this traditional link. For the first time, supra-national—European—law laid down with binding effect that members of European nation-states, who over the centuries had been foreigners to one another, now had the right to participate in political will-formation at the local level in states whose citizenship they did not hold but where they had a right of residence. Not least because of this breach with tradition, jurists widely greeted the local suffrage for Union citizens introduced by the Maastricht Treaty as the real “core” of the new legal institution Union citizenship.284 And indeed, the historical novelty of local Union-citizen suffrage lay in the fact that, after an epoch when citizenship rights had been nationalized and segregated in closed nation-states, these same states now accepted the partial denationalization and transformation of their core democratic rights.285 This distinguishes the Europeanization of local suffrage in the twenty-first century from its federalization in such unions as the USA, Switzerland, and the German Empire in the eighteenth and nineteenth centuries, which at the time of their unification had not been nation-states.

On closer inspection, however, this was only a partial denationalization of political citizenship rights for the purpose of intensifying the union of European states, but which remained within the limits of the project. The Treaty of Maastricht did not establish universal suffrage for foreigners but only voting rights for foreign Union citizens. What is more, suffrage was limited to the local level, thus underlining the greater importance of suffrage at the national level. Member states agreed that national suffrage was not affected by Union citizenship law and was reserved for nationals of the given member state. Thus, Union citizenship enabled only the partial opening and denationalization of political citizenship rights. But this tells us nothing about future developments. To some degree, for example, the increased transnational possibilities of participation offered by Union citizenship balanced out existing democratic deficits at the national level.286 What is more: Even if member states defend their grip on national suffrage as a key element of their sovereignty, political developments could override them. The more EU citizens exercise their right to move freely and to change their permanent place of residence, the more important a true indigenate becomes for the European Union:287 If more and more Union citizens live permanently on the soil of a member state whose citizenship they do not hold and are affected by the political decisions of that state, the more obviously the fundamental principle of non-discrimination suggests that these Union citizens ought to be mutually granted full political rights in their state of residence.288

After all, Union citizenship brings more rights for the individual EU citizen in a field traditionally reserved for states: namely diplomatic protection. In European constitutional law, this cardinal duty of the state towards its citizens—which had been repeatedly called into question in the European history of the twentieth century—has been expanded in the form of a duty of the European Union and given the form of an individual right of the Union citizen, namely to be treated like the citizens of the member state appealed to. “Every citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State.”289 This protection is, of course, subsidiary, territorially limited, limited to emergencies, and not to be compared with the comprehensive diplomatic protection provided by states in the classical sense of the term.290 But it provides Union citizens with more diplomatic protection than their home countries can offer. The mutual solidarity that prevails within the union of European states thus also operates protectively outside its borders. Where the bilateral diplomatic relations of one member state have been broken off or disrupted, another can step in. The need for this arrangement becomes clear when one considers that, when the Treaty on European Union was concluded, there were only five countries in the world where all EU member states were represented and only three after the enlargement of the Union to 27 in 2004.291 In view of the number of EU members states and the broad political and cultural spectrum they cover, the number of situations in the world in which a Union citizen finds no diplomatic protection at all in another country has thus been reduced to a minimum.292 The citizenship of the European Union thus provides an individual right that leaves hardly any corner on the world map of diplomatic protection unaccounted for. In comparison with the period in the twentieth century when statelessness and the deprivations of citizenship peaked, when European states often deliberately abandoned their duty to protect their own citizens with the intent of causing mutual damage, the duty of protection that member states exercise in common in third countries is a leap in development for the protection of individual rights.

All in all, what more in the way of protection and freedom does Union citizenship offer the nationals of European states than their national citizenship can provide? Since the Treaty on European Union in 1992 and the turn of the twenty-first century, the two legal institutions have stood face to face in European constitutional law. Their historical development embodies two phases in the construction of political belonging in European history. National citizenship became the dominant category of political membership in Europe during the twentieth century. In the twenty-first century, Union citizenship stands for a new supra-national and post-national category arising directly from the will of the vast majority of European states to achieve not only economic but also political integration in Europe. Nevertheless, EU citizenship has not rendered national citizenship obsolete in Europe. While the two categories of political belonging exist in their own right, they are nonetheless interlinked. Directly or indirectly, the body of member-state nationals is the bearer of the European constitutional treaties that gave birth to the new legal institution of Union citizenship. Since then, national citizenship and Union citizenship in Europe have stood side by side, legally and politically. They are complementary not alternative. The status of Union citizenship gives nationals of European member states more individual rights. Within the territory of the European Union they enjoy freedom of movement, freedom and protection against discrimination in the exercise of all essential economic rights, and a number of important social and political rights across the borders of EU member states. Furthermore, EU citizens enjoy the right to elect a European Parliament independent of member states, and the diplomatic protection of EU states outside the Union. However, they do not have to fulfil obligations to the Union as national citizens have to towards their states. Since its constitutionalization in 1992, Union citizenship has gained in legal substance and political dynamism. In relative terms, it has therefore gained in importance vis-à-vis national citizenships. But this development is not a zero-sum game. The expansion of Union citizenship involves an increase in individual rights that is not at the cost of national citizenship rights. On the contrary, national citizenship rights are still vehicles for the most important political and social rights of European citizens. They are the primary point of reference for political participation and mark out the social space in which the fundamental social needs of the individual can find protection. The power vested in member states to decide on admissions to national citizenship and on its configuration makes them gatekeepers to European citizenship. National citizenship, as the decisive status for gaining admission to Union citizenship, has in effect increased in importance while appearing to lose relevance at the national level.293 The naturalization policy of member states, primarily pursued in the national interest, continues to decide on the status of Union citizens and their full rights. Even if this national competence is no longer free of Community law constraints and immigrants from third states meanwhile enjoy many rights that bring them closer to the status of member-state citizenship, member states continue to hold the key to European citizenship.294 While membership in the state and citizenship rights are historically and legally still linked—albeit less and less intensively—Union citizenship remains a “right to rights” without conveying membership in Europe analogous to membership in a state. There is much to suggest that this asymmetry or structural discrepancy between the legal status of national citizenship and Union citizenship contributes to asymmetry in the political and emotional ties of citizens in Europe. Surveys among European citizens show that respondents’ attitudes and sentiments of loyalty, of enjoying protection and freedom relate primarily to the state whose citizenship they held.295 This tallies with the growing recognition that transnational mobility and activity favours the subjective development of a “European identity” above all among mobile, well-educated, and young elites. The majority of less mobile, less educated, and less affluent EU citizens, by contrast, see themselves as the losers of transnationalization and globalization, and consequently develop more strongly Eurosceptical attitudes.296

The Crisis of European Citizenship

Brexit, the withdrawal of the United Kingdom from the European Union in 2020 obtruded into the development of Union citizenship. By a national act of self-determination in open opposition to the finality of the European unification process, a member-state for the first time diminished the substance and reach of Union citizenship. The steady, albeit uneven development of Union citizenship as the fundamental personal status in the European Union was not only brought to a halt but in one essential aspect reversed. Since the beginning of 2021, United Europe and United Kingdom are once again foreign territory to each another as they had been before 1973 when the United Kingdom had joined the supra-national European Economic Community. Nowhere in the European Union and the United Kingdom do Britons and Union citizens still have the same rights.297 The freedom of movement, the core right of Union citizenship,298 no longer applies for mobility between these two territories, and for the free movement of goods and services. Border and customs controls have been reintroduced. Previously secure rights of residence for Union citizens on both sides of the English Channel have become precarious and require complicated renegotiation.299 Economic and private planning relying on the freedoms afforded by Union citizenship has become precarious, plunging those affected into crisis. The political ties between Union citizens fostered by participation in the local elections of host countries and in common elections to the European Parliament have been severed, along with the legal ties arising from ECJ case law. The loss of a common Union citizenship has had a particularly deleterious impact on Britons with close family and professional ties to the European continent. British applications for naturalization or the recognition of dual nationality in EU member states have multiplied.300

This termination of personal relations of belonging on the geographical periphery of the European Union has struck at the very heart of Union citizenship. Brexit has cast elemental doubt on the conception of Union citizenship as “the fundamental status of nationals of the Member States.”301 The notion, to be found in ECJ case law and among certain scholars and politicians, that Union citizenship could become a pillar of the Union underpinning and increasingly independent of national politics was thwarted by national self-interest. Brexit threw a spotlight on the conditioning relation between the two status levels: Under European constitutional law, Union citizenship presupposes citizenship of a member state—and is terminated when member-state citizenship ceases to apply. The withdrawal of the United Kingdom from the European Union has had two consequences for the Union. First, the personal status of European citizen has been cancelled for nationals of the United Kingdom, who are now confined to UK citizenship. Second, Brexit has breathed new life into the territorial borders transcended by Union citizenship. For all parties, the departure of the United Kingdom from the European Union fundamentally reduced freedom of movement: for European citizens to the reduced territory of the EU, for British nationals to the territory of the United Kingdom. Although in political practice “deal Brexit” mitigated the severity of these consequences,302 above all by safeguarding existing rights of residence, employment, and social security rights, the deal achieved did not change the fact that European Union citizenship was conditional on national member-state citizenship. On the contrary, it confirmed the primacy of the national level in deciding membership and citizenship: There were neither legal nor political hurdles to the British withdrawing from the European Union without a deal. And they did indeed threaten to do so—showing that such departures are possible at any time. Brexit may well prove a model for EU member states that place greater value on “taking back control” over their national affairs than on the advantages that Union citizenship can offer their nationals.303

However, Brexit is only an institutional expression of more deep-seated and multiple political crises facing Union citizenship. The pruning back of Union citizenship as a social status set in well before Brexit. The European Court of Justice encouraged member states to make the deciding criterion for granting Union citizens social rights not residence in the national territory but integration in the national welfare state. In this regard, ECJ rulings reflected—without necessarily embracing—a shift in political attitudes towards European integration as a whole, which found expression in growing rejection of immigration. The rapid and strong rise of populist movements—especially in Britain, but also in many other EU member states—fed on scepticism about migration and joined forces with Euroscepticism. Populist indifference towards, indeed, rejection of legal commitments in national policy was diametrically opposed to the idea of Union citizenship, namely granting individual rights regardless of nationality. To this extent, the massive rise in immigration from outside Europe in 2015/2016, widely perceived as a “refugee crisis,” boosted the Eurosceptic movement, which won the day in the 2016 Brexit referendum.

Similarly, sharp political setbacks in the second decade of the twenty-first century called into question decades of EU expansion, which had steadily extended the individual freedom of Union citizens and the territorial reach of their activities. Terrorist attacks planned and executed across the borders of EU member states with a new intensity of violence led to border controls between member states, largely lifted under the Schengen Agreement, being reintroduced in the interests of public security. Finally, the outbreak of the Covid pandemic in the spring of 2020 shook the very foundations of a seemingly assured system of free movement within the EU. Within a few days, the majority of EU member states closed their borders not only to extra-European countries but also to one another. This national emergency border regime, which from a legal point of view was inadequately grounded in provisions of existing treaties, demonstrated the vulnerability of free movement as a pillar of Union citizenship.304 This shows how much this central legal institution of European integration is exposed to the vagaries of the concerted will of member states.

Does, however, this highly critical juncture in the development of Union citizenship mean a systematic break with the legal institution and its political atrophy? Is the citizenship of the European Union regressing to the minimum consensus of economically advantageous market citizenship as in the early days of the European Community? Such a dire prognosis shows a lack of historical imagination. Persisting in the status quo of Union citizenship, let alone its regression, is neither germane nor legally required. Politically, the future lies in the hands of the member states and is open—despite the multiplication of critical symptoms. It is therefore necessary to consider the fundamental future development of the European Union and European citizenship. It could take two paths. First, member states as a federation could decide to give primacy to federal citizenship over member state nationality or to replace the latter by the former. This would be a revolutionary act that would bring the epoch of the nation-state to an end in Europe. Second, this process could prove evolutionary: It could unfold by strengthening the existing, politically efficacious dynamics for enhancing and enriching Union citizenship innate to the legal structure of the European Union. Whether and how the transition from national citizenship to a comprehensive political membership status of Union citizenship will develop remains to be seen. If, however, it can be achieved, the nation-state, a type of polity developed in Europe, will be a thing of the past on the continent of its birth.

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