Lars-Erik Cederman

Home and justice affairs:

Citizenship:

As opposed to the earlier stages of integration, which primarily focused on economic harmonization, the Maastricht Treaty engages in explicit "polity building". The third pillar, often referred to as Title VI, represents a major conceptual leap forward by clearing the ground for legal integration in terms of immigration policy, policing, and customs cooperation. This expansion of the integration process’ scope can be seen as an example of functional spillover from the Single European Act (SEA). Yet, conceptual advances do not necessarily imply far-reaching institutional integration. Indeed, the third pillar has been seen as a failure, which is why the Amsterdam Treaty attempts to rectify the weaknesses.

Historically, Interpol represents an early precursor. The Title VI, however, stems from intergovernmentalist ad-hoc arrangements such as Trevi in the 1970s, and Schengen in the 1980s. An exclusive and secretive club of "wining and dining", the Trevi group responded to terrorist threats by promoting transnational police cooperation. While originally a more narrow group of countries (France, Germany and Benelux), Schengen is a much more ambitious attempt to promote personal mobility through the dismantling of border controls. This adds immigration and visa policies to the core of police cooperation, thus creating a full-fledged zone of law enforcement.

The problems of implementing Schengen have been considerable. When it came to it, many of the member states dragged their while feet fretting about the other states’ alleged (or actually) sloppy border controls and policing. It is particularly problematic to abandon existing national policies before a European-level framework is in operation, but hesitating to join the club delays a common solution. Attempting to converge the member states’ widely diverging legal systems has also presented considerable legal complications.

The Title VI framework of the Maastricht Treaty integrates Trevi cooperation and opens the door for further spillover along the lines of Schengen. Because of the issues’ sensitivities, the third pillar is overwhelmingly intergovernmentalist in that decision-making remains subject to the national veto and the supranational branches of the EU play subordinate (Commission) or even non-existent roles (EP and ECJ).

Because of its intergovernmentalist quality, the third pillar of the Maastricht Treaty thus suffers from both inefficiency and illegitimacy. It is inefficient because of its decisional weakness and its remaining legal inconsistencies. The lack of legitimacy stems from insufficient popular or judicial control in areas concerning basic rights.

While many aspects of the Amsterdam Treaty were disappointing in the eyes of many an integrationist, it does represent a major step forward in home and justice affairs. Modeled on the 1992 market initiative, the treaty outlines a new plan for the creation of an area of "freedom, security and justice." Among other things, this means that within five years major transfers of authority from the weak third pillar to the first "EC" pillar will have to be completed with respect to issues of personal mobility, including visa, asylum and immigration as well as judicial cooperation in civil matters. Although the price that had to be paid was unanimity voting in the Council, this development will improve both for efficiency and democratic control, not the least since the issues come under the ECJ’s jurisdiction. A reduced but institutionally strengthened third pillar continues to operate in order to handle police and criminal law matters.

While formally codified in the first pillar, the actual exercise of citizenship rights hinges directly upon third-pillar provisions, especially with respect to the European citizen’s right of free movement within the EU. The fact that the Maastricht Treaty formally introduces European citizenship is of great symbolic importance. While the Rome Treaty secured certain rights of movement, these rights were limited to "workers" and other economically active individuals. As the CFSP, the extension of these freedoms to all citizens through the inclusion of citizenship into the EU treaty framework thus mirrors the explicitly political nature of the Maastricht Treaty.

It is necessary to consider the development of national-level citizenship in order to evaluate the importance of the Maastricht reform. According to Marshall’s classical theory of citizenship, the rights associated with this concept emerged as a three-step process, starting with civic rights in the 18th century, followed by political citizenship in the 19th century, and finally, at least to some degree, social citizenship as a consequence of the welfare state in the 20th century. By the beginning of the European integration process, the core countries within Western Europe offered three-dimensional citizenship rights along these lines.

Compared to this impressive development on the national level, European citizenship represents something much less ambitious:

• First, it does not replace its national counterpart; rather, it is a derivative of the national-level concept, since you have to be a national citizen to enjoy the European-level rights.
• Second, the actual provisions are quite limited: rights of circulation and establishment (though not just for economically active individuals), individual recourse to the EP and the EU Ombudsman, consular protection by other EU states’ embassies, as well as rights to vote and stand in local and EP elections.

This is a rather thin soup, especially since it excludes the most important political right, namely an EU citizens’ right to participate in the national elections of the country of residence.

Beyond these narrowly defined rights, citizenship also crops up in the social sphere. For example, the Social Charter consolidates comparatively generous rights for women. Although outside the strict scope of European citizenship, non-European residents in the member states also enjoy wide-ranging social protection. This has led some observers to suggest that EU citizenship reverses Marshall’s sequence in that social rights precede political ones, an observation which seems to square with the historical trajectory of European integration. After all, the process started as economic cooperation rather than as a full-fledged political project. The reason that European-level political rights are lagging behind obviously depends on the issue’s sensitivity. Although many scholars deny it, in practice, citizenship remains directly linked to national identity, which is why nationalists strongly oppose a further deepening of citizenship rights within the EU framework