Developing European Citizenship or Discarding it? Multicultural Citizenship Theory in the light of the Carpenter Judgment of the European Court of Justice

The current discussion on citizenship of the European Union in political science focuses heavily on multiculturalism and identity politics as the essential analytical tools to understanding the developments, particularly since the Amsterdam Treaty. In the context of the European Union when identity rights become the field of negotiation, the framework for the definition of those rights is the economic capacity of the individual, in contrast to national constitutional regimes. In this article I want to examine this bifurcation taking the recent judgment of the European Court of Justice in Carpenter¹ as the starting place. The central point is the degree to which the inability of citizenship rights to embrace identity at the national level becomes the field of struggle at the European level between the state and the individual. The power of mediator then exceeds the national level, even where the national identity settlement was the result of a high degree of consensus in the national political scene. But the venue in which the struggle takes place, notwithstanding its fundamental nature as one of identity, is not citizenship or human rights but economic activity.

In political science there has recently been renewed interest in analysing citizenship of the European Union through the lens of multicultural citizenship.² The analytical tools of cultural citizenship and identity creation in the European Union are deployed to examine the extent to which borders remain central in the EU framework of citizenship and identity but often with a normative plea for new identity formation. "The nightmarish dream of a common identity [of EU citizenship] ought to be replaced with reliance on citizenship, human and cultural rights and constitutional principles." (Delgado-Moreira 2000: 153). Others take a colder view of the EU in light of the apparently intractable problems of feeble democratic accountability and legitimacy and suggest that citizenship as a core sovereignty question properly remain at the national level (d'Oliveira in O'Keeffe & Twomey: 1999: 410).

Following a different path but still founded in identity politics are claims of a supra national identity or a postmodern identity which replace or supersede the national one (Soysal: 1994). The mechanisms for development of new forms of identity or citizenship practices then depend on the institutions and actors acting on the concept (Weiner:1998). This is not to dismiss the importance of recent work challenging the perspective that in this field the European construction is "eroding historically constructed national collective identities" using constructivist tools which permits a deeper understanding of the inconsistencies at the heart of the concepts (Checkel: 2001). What is surprising in all this work is either the silence or the rejection of the link of economic activity to the development of identity rights in the Union. In law, however, the insertion of citizenship rights from the Union level into the national level is founded on economic criteria and justifications. The recent judgment in Carpenter is paradigmatic of this development and enlightening about the lack of legal legitimacy being given to the multicultural approach to Union citizenship.

Mr. Carpenter, from the account in the ECJ's judgment, appears to have been quite an ordinary Englishman, living in the UK. He was a self-employed businessman selling advertising space in medical and scientific journals. Mr. Carpenter had responsibility for his young children by a previous marriage. Mr. Carpenter married Mrs. Carpenter, a Philippine national who was irregularly in the UK having overstayed her permitted visit. Here the first step of the identity trail begins unwinding. The UK authorities refused, as is consistent with national law, to allow Mrs. Carpenter to remain in the UK with her husband.

Part of UK identity rights and duties is either not to marry a foreign national irregularly in the UK or if this is irresistible, not to seek to have the spouse live with the national in the UK. Where a UK national marries another UK national or a national of another EU Member State no obstacles to cohabitation are placed in their way. However, if the UK national deviates from these legally privileged choices...