Failing backward? EU citizenship, the Court of Justice, and Brexit

ABSTRACT

Developments in European Union (EU) citizenship rights meet expectations of the ‘failing forward’ framework that fuses insights from liberal intergovernmentalist and neofunctionalist integration theories, whereby member state disagreements produce an incomplete form of EU citizenship that fails to treat individuals equally. Legal challenges to discriminatory treatment fit neofunctionalist expectations, with the European Court of Justice (ECJ) extending social rights for EU citizens incrementally. Resulting tensions between the evolution of rights and intergovernmental contestation fuels ‘failing forward’ in the form of the de-coupling of law and practice. Despite their limited impact, expanding rights sparked politicization that suggests postfunctionalist failures of European solidarity and declining trust in the ECJ. Most damaging to integration, however, is the lack of voting rights in national elections for mobile EU citizens, which (1) enabled the British exit (Brexit) crisis, an outcome of ‘failing backward’ and (2) persists as a serious EU democratic deficit.

KEYWORDS:

• Failing forward
• European Court of Justice
• EU citizenship
• Brexit
• European Court of Human Rights

Acknowledgements

For detailed feedback that led to improvements in this article, the author thanks Dan Kelemen, three anonymous referees and participants in the Failing Forward workshop at Princeton University in September 2019.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Yet he excluded ‘Great Britain and the British Commonwealth of nations’ from Europe (Churchill, 1994 speech in Nelsen & Stubb, 1994).

2 Disenfranchisement from national elections for mobile Europeans is rarely acknowledged as a democratic deficit but see Bauböck (2019) and Kelemen (2020).

3 This is a partial illustrative account of judicial rule invention, focusing on judgments widely recognized to expand EU citizens’ rights. For further cases, see Schmidt (2018). Similar interpretations for workers preceded the TEU (Conant, 2002; Conant et al., 2019; Larsson & Naurin, 2016).

4 2004/38/EC.

5 See literature on pervasive implementation failures reviewed in Conant (2021).

6 This victory was short-lived, however, because the Grand Chamber reversed it in a unanimous ruling in favor of Greece’s continuing discretion to limit citizens living abroad from voting in national elections (ECtHR, 2012).

7 The reasoning, citing social security variations, reflects little understanding of ‘social democracy,’ where ‘co-determination’ confers rights to participate in governance.

8 Expecting mobile EU nationals to naturalize before voting in ‘host’ national elections when ‘home’ countries disenfranchised them (e.g., Shindler) is excessive because naturalization requires fees and tests that no national citizens must pass before they vote. It can require renunciation of existing nationality, which runs counter to the EU’s proclaimed respect for diverse and inclusive identities.

9 Unless they were Irish (331,000), Cypriot, or Maltese.

10 Approximately 1.2 million UK citizens live in another EU state, but only 264,000 overseas voters registered in December 2016 (BBC, 2016a; Johnston & White, 2017).

11 Aussenministerium Österreich (Austria) (2019), Bundesministerium des Innern (Germany) 2019, EESTI (Estonia) (2019), Immigration and Naturalisation Service (Netherlands) (2019), Ministry of Justice (Spain) (2015).

12 Exceptions include Belgians, who trust the ECJ more than their national system and Czechs, Estonians, and Greeks, who trust their national justice system more than the ECJ (Figure 1).

Additional information

Notes on contributors

Lisa Conant

Lisa Conant is Professor of Political Science at the University of Denver. She specializes in the politics of European legal integration, exploring the impact of judgments by the European Court of Justice (ECJ) and European Court of Human Rights (ECtHR), EU citizenship, the Europeanization of national courts, and the relationship between legal mobilization and human rights protection in Europe.