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9 The EU and Its Citizens: The Concept of EU Citizenship Contributes to the Legitimacy of the EU’s Role Under Article 16 TFEU

9 The EU and Its Citizens: The Concept of EU Citizenship Contributes to the Legitimacy of the EU’s Role Under Article 16 TFEU

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4.9  The EU and Its Citizens: The Concept of EU Citizenship Contributes…



155



having the nationality of a Member State.154 This book, dealing with Article 16

TFEU and Articles 7 and 8 of the Charter, normally concerns the widest group

(“individuals”), however subject to the following nuance: there is a link between the

legitimacy of the European Union as an actor in the protection of fundamental rights

on the internet and EU citizenship. EU citizens may, precisely because of their status as EU citizen, expect that the Union effectively protects their fundamental rights

to privacy and data protection.

The European Union does not only deal with natural persons, but also with companies and legal persons. Their legitimate interests necessarily play an important

role in this book, if only because the first responsibility for ensuring privacy and

data protection on the internet lies with those processing personal information, quite

often private companies or non-profit organisations. These actors are also expected

to cooperate with governmental actors on governance issues. Their role will be

addressed in several parts of this book, but not as key interlocutors for privacy and

data protection.155 The book does not address the complex doctrine on the protection

of fundamental rights of legal persons.156



4.9.1  E

 U Citizenship: EU Citizens’ Expectations That Their

Rights Are Protected

A lot has been written on EU citizenship, in particular in relation to the rights of free

movement of EU citizens within the European Union and the prohibition of discrimination on grounds of nationality, as well as on the political rights of EU citizens.157 This book does not deal with the specific rights of EU citizens and the

limitations of those rights, nor is it focused on EU citizens.

However, EU citizenship is relevant for two – closely interlinked – reasons.

Firstly, arguably, EU citizenship gives a title to the legitimate expectation of the citizens that the European Union effectively protects their fundamental rights. Secondly,

the aim of fulfilling this expectation possibly provides legitimacy to EU action on

privacy and data protection. The link between these reasons is that enjoying the

right to privacy and data protection, as guaranteed under the specific mandate of

Article 16 TFEU, gives substance to EU citizenship.

154



 EU citizenship is defined in Article 20(1) TFEU: “Every person holding the nationality of a

Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and

not replace national citizenship.”

155

 This choice is justified by the starting point of the book that the protection of fundamental

rights – as a public good – is a primary responsibility of government (on different governmental

levels).

156

 See on this: Dirk Ehlers (ed.), European Fundamental Rights and Freedoms, De Gruyter Recht

Berlin, 2007, at 385.

157

 See, e.g.: EU Law, Text, Cases and Material, Fifth Edition, Paul Craig and Grainne de Burca,

2011, Chapter 23, and Jo Shaw in: The evolution of EU Law (Second Edition) Paul Craig and

Grainne de Burca, Oxford University Press, 2011, Chapter 19.



156



4  The Mandate of the EU Under Article 16 TFEU and the Perspectives of Legitimacy…



In Grzelczyk158 the Court of Justice of the European Union defined for the first

time the notion of EU citizenship as “destined to be the fundamental status of

nationals of the Member States”. The ruling in Ruiz Zambrano159 confirmed that EU

citizenship – despite the discussions as to whether or not the Union represents a

European demos160 – is not an empty shell and has substantive meaning. The Court

ruled that “Article 20 TFEU precludes national measures which have the effect of

depriving citizens of the Union of the genuine enjoyment of the substance of the

rights conferred by virtue of their status as citizens of the Union.” Although EU citizenship is closely linked to free movement, a number of rights included in the TFEU

for EU citizens are not or not directly related to free movement.161 Moreover, EU

citizenship is widely interpreted and in Ruiz Zambrano162 it also applies to internal,

domestic situations extending the rights of the EU citizen to situations where citizens did not move between Member States.

Furthermore, there is a clear, albeit not uncontested link between EU citizenship

and the right to invoke fundamental rights. This link is based on the case law of the

European Court of Justice, although it is not explicitly confirmed by the Court.163

Von Bogdandy et al. argue that citizenship and fundamental rights are mutually

strengthening concepts, having as the same objective bringing the European Union

closer to the individual.164

These considerations support the argument that there is a relationship between

EU citizenship and the specific mandate of the EU under Article 16 TFEU. Article

16 TFEU gives the EU a mandate that must ensure that everyone’s right to data

protection is respected. We also recall that effective protection of privacy and data



 Case C-184/99 Grzelczyk, EU:C:2001:458, at 31.

 Case C-34/09, Ruiz Zambrano, EU:C:2011:124, at 42. Ruiz Zambrano extended the rights of the

EU citizen to situations where citizens did not move between Member States; see: Reverse

Solange–Protecting the essence of fundamental rights against EU Member States’, Armin Von

Bogdandy, Matthias Kottmann, Carlino Antpöhler, Johanna Dickschen, Simon Hentrei, Maja

Smrkolj, CMLR, 49, Issue 2, pp. 489–519, at 503.

160

 Shaw calls this “the fundamental demos/no demos debate”; see: Jo Shaw in: The evolution of

EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011,

Chapter 19, at 582. See also Section 11 of this chapter on social legitimacy.

161

 These are the rights to vote, to enjoy diplomatic and consular protection and to petition in Article

20(2)(b), (c) and (d) TFEU.

162

 Case C-34/09, Ruiz Zambrano, at 42. See: Reverse Solange–Protecting the essence of fundamental rights against EU Member States’, Armin Von Bogdandy, Matthias Kottmann, Carlino

Antpöhler, Johanna Dickschen, Simon Hentrei, Maja Smrkolj, CMLR, 49, Issue 2, pp. 489–519,

at 503.

163

 See on this: Armin Von Bogdandy, Matthias Kottmann, Carlino Antpöhler, Johanna Dickschen,

Simon Hentrei, Maja Smrkolj, Reverse Solange–Protecting the essence of fundamental rights

against EU Member States’, CMLR, 49, Issue 2, pp. 489–519, e.g. at 505–506 and the references

to opinions of AG Jacobs therein.

164

 Armin Von Bogdandy, Matthias Kottmann, Carlino Antpöhler, Johanna Dickschen, Simon

Hentrei, Maja Smrkolj, Reverse Solange–Protecting the essence of fundamental rights against EU

Member States’, CMLR, 49, Issue 2, pp. 489–519, e.g. at 506.

158

159



4.10  Four Arguments Relating to a Lack of Legitimacy of EU Action



157



protection cannot be provided by the Member States individually.165 The exercise of

this mandate under Article 16 TFEU contributes to the genuine enjoyment of citizenship of the Union.166 Therefore, this argument gives legitimacy to the action of

the EU under Article 16 TFEU. To avoid misunderstandings, the argument does not

exclude third country nationals from protection, nor subjects them to a lower level

of protection. They are individuals who are fully protected by Article 16 TFEU and

Articles 7 and 8 Charter.



4.10  F

 our Arguments Relating to a Lack of Legitimacy

of EU Action

Weiler explains that for him the most important constitutional moment in the history

of the European Union is not the Schuman Declaration of 1950, nor the Treaty of

Rome of 1957, but the Treaty of Maastricht of 1992.167 The reason Weiler gives is

telling. He explains that the Treaty of Maastricht led for the first time to an intense

public reaction, whereas before the political class was mostly supportive and the

general population conveniently indifferent. From 1992 on, the – supposed lack of –

democratic legitimacy became a widely recognised issue, not only in academic but

also in more popular circles.



4.10.1  The Lack of Legitimacy Captured in Four Arguments

The arguments relating to a lack of legitimacy are various. In this section we distinguish four arguments, without pretending to be exhaustive. The first argument is

that the EU – and in earlier stages of EU integration the EEC and the EC – has been

characterised as a “juristic idea”, as “constitutional law without politics”,168 a jurisdiction where the European Court of Justice plays a key role in promoting



165



 In accordance with the principle of subsidiarity, as has been explained in Sect. 4.4 above.

 Inspired by: Reverse Solange–Protecting the essence of fundamental rights against EU Member

States’, Armin Von Bogdandy, Matthias Kottmann, Carlino Antpöhler, Johanna Dickschen, Simon

Hentrei, Maja Smrkolj, CMLR, 49, Issue 2, pp. 489–519, e.g. at 507.

167

 Views extracted from The Constitution of Europe, “Do the new clothes have an emperor?” and

other essays on European integration, Joseph Weiler, Cambridge University Press 1999, at 4, also

mentioning some other important moments in EU history. This book predates the Lisbon Treaty of

2009 by 10 years and also predates the Charter being firstly adopted as a non-binding instrument

in 2000. The latter two do not change the sense of Weiler’s statement.

168

 Martin Shapiro, Comparative Law and Comparative Politics, 53 S. Cal. L. Rev. 537 (1979),

Available on: http://scholarship.law.berkeley.edu/facpubs/1170.

166



158



4  The Mandate of the EU Under Article 16 TFEU and the Perspectives of Legitimacy…



integration, putting itself in a position which in other jurisdictions is taken by legislative and executive powers. The term “judicialisation” of EU law-making is used.169

The second argument is that the Union traditionally has strong elements of a

technocracy, delegating decision-making powers to technocrats.170 The Committee

of Permanent Representatives (Coreper)171 and the various configurations of comitology172 are the most obvious examples of arrangements where civil servants play

a key role in decision making. Some theories attributed a decisive role to the

European Commission, which has elements of a technocratic body, in the integration process. These theories were especially dominant in the earlier years of the EU

(at that time the EEC).173 EU agencies also fit in this picture.174 A technocratic, elite-­

led Europe was an explicit idea of Monnet.175 Sometimes the term ‘governance’ is

used in a sense that experts should be enabled to take decisions outside territorial or

democratic frameworks. Stakeholder consultation would be enough.176 Another way

of describing this argument is by pointing at the dominance of the executive within

the EU structures.177



169



 Alec Stone Sweet, The Court of Justice, in: The evolution of EU Law, Second Edition, Paul

Craig and Grainne de Burca, Oxford University Press 2011.

170

 A somehow condescending way of describing this phenomenon was used in relation to Case

C-518/07, Commission v Germany, on the independence of data protection authorities: a “consciously democracy-repudiating expertocracy”. See annotation by Jiří Zemánek, (2012) 49 CMLR,

Issue 5, pp. 1755–1768, at 1756.

171

 Although Weiler notes that Coreper was created to make it easier for Member States to swallow

European decision-making; see: The Constitution of Europe, “Do the new clothes have an

emperor?” and other essays on European integration, Joseph Weiler, Cambridge University Press

1999, at 36. This background could also be an argument that Coreper enhances the legitimacy. See

on Coreper also Paul Craig, Institutions, Powers and Institutional Balance, in: The evolution of EU

Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, at 45–46.

He argues that Coreper strengthened the role of the Council vis-à-vis the Commission.

172

 Further read: Paul Craig, Institutions, Powers and Institutional Balance, in: The evolution of EU

Law (Second Edition) Paul Craig and Grainne de Burca, Oxford University Press, 2011, at 46–49.

173

 These theories are sometimes called “neofunctionalism”. Further read: Paul Craig, Integration,

Democracy and Legitimacy, in: The evolution of EU Law (Second Edition) Paul Craig and Grainne

de Burca, Oxford University Press, 2011.

174

 M. Shapiro states in relation to EU Agencies: “The accountability or democratic deficit problem

is almost too obvious to require comment”, M. Shapiro, Independent Agencies, in: The evolution

of EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, at

117.

175

 Paul Craig, Integration, Democracy and Legitimacy, in: The evolution of EU Law, Second

Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, pp. 15–16.

176

 Luuk van Middelaar in the Dutch version of The Passage to Europe: How a Continent Became

a Union, Historische Uitgeverij, 2009, at 25.

177

 Deirdre Curtin, Challenging executive dominance in European democracy. In C. Joerges &

C. Glinski (Eds.), The European crisis and the transformation of transnational governance: authoritarian managerialism versus democratic governance (pp. 203–226), Hart Publishing, 2014. See

also Irma Spahiu, ‘Courts: An Effective Venue to Promote Government Transparency? The Case

of the Court of Justice of the European Union’ (2015) 31(80) Utrecht Journal of International and

European Law, 5, at 6.



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