History, Politics and Law
Edited by Jan van der Harst, Gerhard Hoogers and Gerrit Voerman
Chapter 5: EU citizenship from the cross-border link to the genuine enjoyment test: understanding the ‘stone-by-stone’ approach of the Court of Justice
The progressive idea in academic circles is that of EU citizenship as a constitutional and political status. This chapter favours a more cautious approach. In this view, most commentators fail to take into account sufficiently the so-called ‘stone-by- stone’ approach of the Court of Justice. In essence, a landmark decision by the Court of Justice is built upon another earlier decision and is then incrementally developed in future cases based on new questions referred to the Court within the framework of the preliminary reference procedure of Article 267 TFEU. Against this background, this chapter argues that the Court has created case law providing a workable set of criteria, but also that not all constitutional and political aspirations articulated in the doctrine will be fulfilled. Instead, it is shown that EU citizenship is a ‘right to have rights’ and a concept that prevents these from being taken away, but not, for good reasons, a ‘right that creates (new) rights’.
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