The Institutional Context

The political struggles related to the creation, interpretation and implementation of EU citizenship rights are closely related to the EU’s institutional context and the ways of EU lawmaking and policymaking, and they are to be interpreted against this background. There are, however, different ways in which the laws in question have come about.

First, there are EU treaties. EU treaties are concluded between the member states but have a constitution-like function: the treaties rule the organisation of the EU as a polity. The treaties have changed over the years. The first treaty was on the European Coal and Steel Community (ECSC), concluded in 1951. It was followed by the Treaties establishing the European Economic Community EEC (the Treaty of Rome) discussed below. The first big reform treaty, the Single European Act (SEA), was concluded in 1987. The SEA laid the basis for a series of reform treaties in the 1990s and 2000s: the Maastricht Treaty in 1993, the Amsterdam Treaty in 1999, the Nice Treaty in 2001 and the Lisbon Treaty in 2009. The Lisbon Treaty contains most of the contents of the draft Constitutional Treaty, which never was ratified after negative referenda in the Netherlands and France in 2005. In the cases prior to the Lisbon Treaty, new treaties were voted upon by the European Council, which consists of the EU’s heads of state and government. The European Parliament did not have much of a say in treaty changes. Only in the convention that drafted the Constitutional Treaty before 2005 (the Constitutional Treaty being in most parts identical to the Lisbon Treaty) were delegates from both the European Parliament and the national parliaments present for the first time.

Secondly, EU laws are based on the treaties. Formally, EU legislative initiatives can only be issued by the European Commission. In practice, both the Council, consisting of the Ministers of the member states, and the European Parliament can exercise some influence on the Commission— the Parliament can even cause it to propose laws. In the early days of integration, EU laws were voted upon only by the Council, as it was the sole legislative body. With the adoption of the Treaty of Maastricht, the European Parliament obtained a few co-decision rights (meaning that both Council and Parliament now had to vote upon legislation), which were, however, only valid in a limited range of policy fields. Since the Treaty of Lisbon, however, most laws are adopted via a co-decision by both the Council and the Parliament. Apart from such laws, which are called ‘directives’, the European Commission may issue directly binding laws (‘regulations’).

Most of the legal acts discussed in the following did not come about in co-decision procedures, except for one case. Hence, most of the relevant laws were suggested by the European Commission and voted upon by the Council. During most of the periods discussed here, meetings of the Council were not even public (they are, however, public today when they concern legislation). The last legal acts discussed in the following were decided upon in 2004 in the co-decision of European Parliament and Council.

To understand the political struggles related to EU laws, it also has to be taken into account that they are put into practice by national laws, and then executed by the member states’ governments as well as regional and local institutions. Accordingly, there is some margin for different interpretation of the laws as well as for political manoeuvring in their realisation. The European Commission at this stage functions as the ‘guardian of the treaties’, which means that it controls the correct implementation of the law and can start infringement procedures against member states before the Court of Justice of the European Union in case of noncompliance.

EU documents can be read as indicators of the interrelations and the power struggles between the different EU institutions, as well as between EU institutions and the member states, as will be outlined in the following. Creating and implementing EU citizenship rights has been crucially linked to these power struggles, and it also has been linked to a battle over the interpretation and the implementation of the concept of citizenship. This battle of EU ‘citizenship politics’ (Wiesner 2007, 23) has been carried out by declarations, policy documents and laws.

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