The constitutional development of citizenship in the EU context: with or without the Treaty of Lisbon

Abstract

While the eventual fate of the Treaty of Lisbon, 1 following the Irish referendum ‘no vote’ in June 2008, remains unclear, its provisions none the less deserve further assessment, not least in order to ascertain what impact they could have vis-a-vis the status quo, in event of their entry into force. Moreover, in the case of citizenship – which is the focus of this paper – other general questions about the mix of Treatybased and judicially driven change in the context of the evolution of the EU’s constitutional framework arise alongside the specific question of the fate of institutional reform. Setting aside for the moment the political question why the Treaty of Lisbon has encountered difficulties during the ratification process, the paper attempts to consider the longer term evolution of a concept of citizenship for the emergent Europolity. It uses the Treaty of Lisbon as a case study illustrating the contingency of Treaty reforms in the broad constitutional arena, given the continuing role which the Court of Justice plays in the process of the constitutionalisation of the Treaties. That is not to say that the Court of Justice is an unconstrained actor in the context of the evolution of the EU legal order. Its activities increasingly come under scrutiny, and its legitimacy is challenged from time to time, both by national courts and by national governments. On the contrary, the Court is a constrained opportunist within the context of the role it has been assigned under the EU Treaties. To express this notion, the paper thus adopts the cautious definition of judicial constitutionalisation applied by Hunt when she examined the putative impact of the Constitutional Treaty upon the Court of Justice. Rejecting the portrayal of the Court’s case law as inherently integrationist, she argued that