Whose Citizenship to Empower in the Area of Freedom, Security and Justice? The Act of Mobility and Litigation in the Enactment of European Citizenship

The Stockholm Programme and the European Commission’s Action Plan implementing it have positioned the freedom, security and justice of ‘European citizens’ at the heart of the EU’s political agenda for the next five years. Yet, who are the ‘citizens’ about whom the Council and the European Commission are so interested? At first sight it would appear as if only those individuals holding the nationality of a member state would fall within this category. This paper challenges this assumption, however, and argues that as a consequence of litigation by individuals before EU courts and of the growing importance given to the act of mobility in citizenship and immigration law, the personal scope of the freedoms accorded to European citizenship already covers certain categories of third-country nationals (TCNs).

Through an examination of selected landmark rulings of the Court of Justice in Luxembourg, the paper demonstrates how the requirement of being a national of an EU member state is progressively becoming less important when defining the boundaries of the European citizenry. TCNs already enjoy and benefit from a number of European citizenship-related and citizenship-like freedoms, rights, benefits and general principles, which are subject to protection and scrutiny at the EU level. This development, we argue, is not only an indication of a continuing loss of discretionary power by the nation-state with respect to European citizenship, but may also constitute a clear signal that a new European citizenship of TCNs is in the making in the Union. This citizenship places the freedom to move and non-discrimination on the basis of nationality at the core of its identity.