Adjunct Professor Massimo Fichera

My recent article in the Northern Ireland Legal Quarterly illustrates the implications of Brexit for the EU legal framework on free movement and citizenship. Two implications are worthy of note. First, free movement and citizenship rights are negotiable, which contradicts the claim of the Court of Justice of the EU (CJEU) that they are acquired as an ‘autonomous status’ by EU citizens. Second, ambiguities and contradictions often associated with the provision of such rights are enhanced, rather than removed, by the process of withdrawal. The potential impact on a yet undefined number of individuals and families may represent a deep blow to the European project.

As a result, while the EU proclaims to be a constitutional community, constituted for an unlimited duration and ensuring equal treatment and uniform application of its norms, the reality is that free movement itself is seriously questioned. Pointing out the contradictions inherent in the provision of citizenship and free movement rights makes it possible to outline the possibility for rights holders to exercise their claims as citizens of a transnational polity.

The article considers the problems and difficulties associated with main scenarios for Brexit by employing a theoretical analysis that relies on an original and broad notion of security. In fact, the expressions and concepts used in the negotiating directives and related documents (e.g. ‘securing the status of, and providing certainty to, EU nationals already in the UK and to UK nationals in the EU’; ‘safeguard[ing] the status and rights derived from Union law at the withdrawal date’; ‘preserving the internal market’) are more significant than may seem at first sight. The fact that both parties to the negotiation have placed emphasis on the priority of citizens’ rights epitomises the nature of the EU polity and the reasons behind it.

Put simply, the significance of the EU liberal project lies beyond the commitment to fundamental rights, the rule of law and democracy, which, of course, are all relevant values reaffirmed in the Preamble to the Treaty on European Union and the Preamble to the Charter of Fundamental Rights, as well as several provisions therein and the case law of the CJEU. The added value of the construction of the EU as a polity emerges from security, expressed by two ambiguous and contradictory discourses of power: security and fundamental rights.

As for security, the EU liberal project, as a project aiming to ensure peace and safety across the European continent, has always relied upon a powerful and pervasive security discourse, focusing on two functions, namely both securing the smooth operation of the internal market and ensuring a secure marketplace. In terms of fundamental rights, the emancipation of the individual from the moorings of the nation state is of pivotal importance to the construction of the EU polity. It is not by chance that Article 3(2) TEU is placed before Article 3(3) TEU. According to Article 3(2) TEU, ‘[t]he Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime’. Instead, Article 3(3) TEU states that ‘[t]he Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress . . .’.

However, although the provision to EU citizens of an area of freedom, security and justice, where free movement is guaranteed, is prioritised over the establishment of an internal market, in practice the proclamation of the free movement paradigm is characterised by the prevalence of economic objectives over social needs.

According to the theoretical framework adopted in the article, the importance of the first foundational cases of EU law lies not only in their ‘constitutional’ significance, but also in the contribution they gave to the development of the intertwined security and fundamental rights discourses from the perspective of autonomy and effectiveness/uniformity. In particular, Van Gend en Loos and Costa v ENEL flow from the ‘speciality’ of the EU legal order, which, on the one hand (Van Gend), empowers individuals – the rights discourse – and, on the other hand (Costa), empowers the EU legal order itself – the security discourse. Even the principles of autonomy, effectiveness/uniformity, loyalty, proportionality and subsidiarity, and the notion of common constitutional traditions, which are foundational to the EU legal order, are expressions of the security discourse, which is articulated in two directions. First, the EU project can only be secure if EU law is capable of producing effects at the domestic level which benefit EU citizens uniformly. As a result, national provisions, even having constitutional character, cannot undermine the unity and effectiveness of EU law. Second, the autonomy claimed by the EU legal order is both normative and institutional and is often the result of the robust interpretive role performed by the CJEU, which has defended it vigorously.

The negotiations over Brexit and the challenges and difficulties posed by it merely confirm the contradictions of the operation of security and fundamental rights discourses. On the one hand, despite the ‘united in diversity’ and the ‘ever closer Union’ mottos of the EU, there emerges a demand for an increasingly differentiated process of integration. This seems to be for many scholars the best way to preserve the internal market (the security discourse). On the other hand, while one of the principal aims of EU law has been that of strengthening individual rights to free movement and, more generally, fundamental rights (the rights discourse), there is an acknowledgment that free movement of persons might not be an essential feature of the internal market and its rules may be adjusted to allow third countries (including the UK as a future, albeit special, third country) to conclude flexible agreements with the EU.

Brexit should thus be considered a lesson for the future, because a self-referential form of security (i.e. pursuing the European project for its own sake – whether pushing for more unification or for more diversification) has promoted a model of integration which has not necessarily taken into account the diversified needs of the Member States. In other words, although the EU should make more effort to avoid the fragmentation of the internal market, differentiated integration should not be dismissed too easily, and future policies and regimes should take the economic and social constitution more seriously.