Europe (and its Union) has famously been described as a ‘constitutional mosaic’.1 Perhaps now it might be better described as an unconstitutional mess full of controversies, asymmetries and multiple fissures right at the heart of one its core concepts: EU Citizenship. This book has focussed for the most part on areas of law in the form of the pre-Maastricht case law on free movement of persons because, as was outlined in the Introduction, Plender and Evans famously claimed that citizenship existed in ‘incipient’ and ‘embryonic’ form because of these early cases.

This book has attempted to, in effect, go right back to where it all began and examine the case law on free movement in a genealogical sense to expose fissures: latent defects in the project that appear to have come to light fifty years later. Prior to Brexit, such latent defects were never even thought of as such, with the emphasis being, if anything, upon closer integration at all costs. Chapters 1 and 2 outlined a specific way in which the worker was outlined in a (then) Community context, leading to a further set of legal developments in how to conceptualize and legally protect those that did not count as workers.

If Chapter 1 can be understood as the incipient citizen being partially seen through the social construction of the worker, then, because its ‘final form’ was well defined in a discursive sense, understanding it is relatively straightforward. This chapter, by contrast, focusses on the complex, the contingent and, ultimately, the controversial. More specifically, it constitutes a nuanced and qualitative attempt to examine strands which, weaved together, partially constitute Union citizenship n a contemporary and contextual sense but yet is also a chapter that further illustrates a series of fissures within its very foundations. What was outlined in Chapter 1 was a rather large fissure that had formed in relation to the very essence of the ‘Community worker’ from the outset. What remained unresolved (particularly after the development in Levin/Lawrie-Blum) was where those who simply could not be classified as workers conceptually fit within the framework of free movement of persons law. Today, EU Citizens derive protection whether explicitly economically active or within socially excluded categories of individuals or not.

Citizenship is clearly considered to be integral to free movement of persons law within the European Union, but yet it technically did not legally exist until 1992. This chapter asserts that mere utterances of the phrase prior to the Citizen’s legal creation are not only worthy of analysis in their own right but that such utterances provided one of at least two vital discursive pillars upon which to situate the ‘roof’ of citizenship when it eventually emerged. This book began by examining in effect two key moments in the development of Community (now Union) law. First, as has been repeatedly mentioned, there was clearly significance in the formal inclusion of Union Citizenship into the Treaty on European Union (TEU) at Maastricht, even if it was initially dismissed as a merely symbolic plaything.

It is possible that had a vote by one of the largest Member States of the European Union on the very membership upon which Citizenship is predicated not taken place in June 2016 during an era of Pan-European populism, a critical deconstructivist approach to the evolution of free movement of persons law might have had purely academic relevance. Whilst European Union Citizenship was ‘born’ in 1992 after the original Treaty of Rome was amended to include Articles 17 and 18, its roots can be excavated to a much earlier period and this book, in a sense, seeks to replicate the Greek Temple façade envisioned by the Maastricht Treaty and examine the structure from its foundations upwards. As early as 1976, Plender famously stated that European Citizenship was ‘incipient’.

The reform to the Treaty structure at Maastricht was frequently likened to that of a temple façade with pillars. This book has likened the core tenets of free movement of persons law (upon which the later Citizenship specific law was based) to that of an edifice built upon foundations of sand. Chapters 1 and 2 were akin to describing inherent fissures within the foundations of such a temple. Chapters 4 and 5 constitute an inspection of inherent problems within the pillars upon which the roof of Citizenship was ultimately laid. This chapter will focus specifically on utterances of equal treatment, making the inherent point that such points are worthy of assessment in and of themselves.

A fundamental tenet of Plender’s contention that the ‘incipient’ citizen can be seen to have emerged from the early case law on free movement is that the ‘worker’ can be construed as the early prototype of the citizen. This ties in particularly with the linkages made between market citizenship and EU Citizenship.1 The legal evolution of the ‘worker’ has arguably been the foundation stone of all free movement of persons law upon which the later temple of citizenship was built. This is particularly so as the concept of the ‘worker’ has been incorporated to include large parts of the law or, in the alternative, has been used as a counterpoint to either dovetail with or juxtapose against other aspects of free movement law (such as on establishment).