Freedom, solidarity and citizenship

Abstract

This paper proposes to evaluate the heart of the concept of citizenship of the European Union: namely, freedom of movement and residence. The evolution of citizenship, from its inception in the Maastricht Treaty, as a political concept will be treated. Freedom of movement and residence, with its rights and limitations, historically and legally accrued to economically active persons. Non‐economically ac tive per sons have been given rights in secondary legislation to move and to reside subject to specified conditions and limitations. The jurisprudence of the European Court of Justice, in accordance with which the link with economic in dependence and the freedom to move and reside has been broken, will be critically appraised. Resort to the principle of non discrimination on grounds of nationality in Article 12 of the European Community Treaty, read in conjunction with the citizenship provisions in Articles 17 and 18 EC, has resulted in legal rights for nationals of European Union Member States who are lawfully resident in, and who do not become an unreasonable burden on, the host Member State. Enforceable at the suit of individuals, EU citizenship has given rise to social advantages for non‐economic actors. Citizenship has become a legal source of rights be yond those agreed to by the Member States, the legitimacy for which lies with the degree of financial solidarity accorded under the principle of non‐discrimination and the level of integration of a particular EU citizen into the society of the host Member State. The need to establish a real link and the proportionate legitimate interests of the Member State are limits to citizenship as a source of rights. Nevertheless, it is the intention of this paper to examine the potential for citizenship to transform the polity of the European Union, from one based on economic and social rights, to one based on fundamental rights.