Citizenship without Respect: The EU's Troubled Equality Ideal

Abstract

The European Union suffers from an empty formalistic reading of the principle of equality when dealing with situations where different legal orders legitimately compete, aspiring to regulate the condition of the same persons in the same circumstances. Consequently, equality before the law is not safeguarded in the Union, and a radical reform of the procedural reading of the principle of equality is required. Most importantly, to live up to being a true principle of EU law, equality in the EU needs to acquire a substantive component which is entirely missing at the moment. This paper looks at the procedural vistas informing the ECJ’s attempts to address the EU’s fundamental problems through the redefinition of the scope ratione materiae of EU law following the introduction of Union citizenship, only to find the outcomes of such efforts inadequate and potentially dangerous for the rule of law in Europe. It is suggested that a substantive approach to equality could be employed instead, and that the idea of respect, lying just as equality itself, at the core of the notion of citizenship – and the law as such – could supply the missing core of the equality principle, providing the much-needed cure for some crucial deficiencies of EU law as it currently stands.

Keywords: EU Law, Citizenship, Equality, Wholly internal situations, discrimination, competence, respect, sovereignty, ECJ, Nationality, BVerfG, Constitutionalism, Justice