¹ US constitution, Amendment XIV.

² Evans-Pritchard, Ambrose, ‘Triumph for anarchists and late-night drinkers: the Danes enjoyed defying Brussels and their own politicians yesterday,’ Daily Telegraph (London), 29 September 2000 Google Scholar (pg unavail online), 2000 WL 26929978.

³ De Tocqueville, A Democracy in America (Gryphon Editions, Delran, New Jersey 1988), 311 Google Scholar.

⁴ The Preamble to the US Constitution reads, in relevant part: ‘We the People of the United States, in Order to form a more perfect Union, … insure domestic Tranquility, provide for the common Defense, [and] promote the general Welfare do ordain and establish this Constitution for the United States of America’ [emphasis added]. Since the people created the Union, arguably the states cannot dissolve it. See McCulloch v State of Maryland, 17 US 316 (1819).

⁵ US Constitution, Amendments IX and X, state that the rights enumerated in the Constitution not be construed to deny other rights retained by the people and that the powers not delegated to the US government are reserved to the states and the people.

⁶ EC Treaty, Art 5, provides in relevant part: ‘In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore … be better achieved by the Community.’

⁷ Personally, I think Europeans make entirely too much of their heterogeneity and America’s supposed homogeneity.

⁸ Opinion of the Committee of the Regions on ‘EU Citizenship’, OJ 2000 C156/12.

⁹ Shklar, JN, American Citizenship: The Quest for Inclusion, (Harvard University Press 1991)Google Scholar.

¹⁰ S 212 of Restatement (Third) of Foreign Relations defines a US national as a citizen of the US See generally, O’Leary, S The Evolving Concept of Community Citizenship, (Kluwer Law International 1996)Google Scholar.

¹¹ Nottebohm Case (Liechtenstein v Guatemala), 1955 ICJ 4, 20.

¹² Ibid, at 23.

¹³ Professor Josephine Shaw describes citizenship as an ‘open-textured concept’ subject to the ‘milieu [in which] it is raised.’ ‘The Many Pasts and Futures of Citizenship in the European Union’, 22 European Law Review 554, 558 (1997).

¹⁴ O’Leary, above n 10 at 4–5.

¹⁵ Ibid.

¹⁶ Schauer, F, ‘Community, Citizenship and Search for National Identity’, 84 Michigan Law Review 1504 (1986)CrossRefGoogle Scholar.

¹⁷ Schuck, P, ‘Citizenship in Federal Systems,’ 48 American Journal of Comparative Law 195, 207–08 (Spring 2000)Google Scholar.

¹⁸ US Constitution, Amendment XIV provides in relevant part: ‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person … the equal protection of the laws’ [emphasis added].

¹⁹ See eg US Constitution, Art I, §2(2) and 3(2) [citizenship for Representatives and Senators]; Art II [citizenship for the President], and amendments XV and XIX [the right of citizens to vote]. The same applies to EC Treaty Art 19 [a non-national European citizen may stand for office and vote in municipal and European Parliamentary elections].

²⁰ Bosniak, L, ‘Citizenship Denationalised,’ 7 Industrial Journal of Global Legal Studies 447 (Spring 2000)Google Scholar. A state is defined in international law as a geo-political unit which has a permanent population, defined territory, government and capacity to enter into relations with other states. See for eg Montevideo Convention of 1933.

²¹ ‘Goodbye to the nation state,’ The Economist, 23 June 1990, 11.

²² Professor Shaw writes insightfully about the ‘decoupling’ of citizenship and nationality, and of European citizenship as a ‘post-national’ status and a ‘thicker concept’ of EU membership. Shaw, J, ‘Constitutional Settlements and the Citizen After the Treaty of Amsterdam’, in Neunreiter, K & Wiener, A (eds), Beyond Amsterdam: Institutional Dynamics and Prospects for Democracy in the EU (Oup 2000)Google Scholar.

²³ Case 26/62 NV Algemene Transport-en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR1.

²⁴ Technically, the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome 4 November 1950), Council of Europe (ETS No 5), cited at EU Treaty Art 6(2). Prior to this, discrimination specifically identified in the European treaties consisted mostly of nationality [for example, EC Treaty, Art 39(2)] or sex [EC Treaty, Art 141 (1)]. However, in truth, the national laws of EU Member States guaranteed many of the human rights contained in the Human Rights Treaty.

²⁵ Cf 2/94 Opinion pursuant to Art 228(6) of the EC Treaty [1996] ECR I–1759, 1789; although similar rights could be drawn by the Court from the Member States’ constitutional traditions and international treaties.

²⁶ Cases 6 & 9/90 Francovich & Bonifaci v Italian Republic [1991] ECR I–5357.

²⁷ In her Monnet paper, Professor Shaw writes of citizenship as being ‘membership’ in a group, whose members enjoy civil rights (all or nearly all of them), social rights (some, but not all), and political rights (reserved to the full citizen). [citing Marshall]. Shaw, J,’Citizenship of the Union: Towards Post-National Membership?’, Jean Monnet Papers (Harvard Law School), Part I, 1–6, available at http://www.jeanmonnetprogram.org/papers/97/97–06-html>. Other authors have made similar classifications and observations. For example, von Beyme, Klaus, ‘Citizenship and the European Union’ in Eder, K & Giesen, B (eds), European Citizenship Between National Legacies and Postnational Projects, (Oup 2001), 78–81 Google Scholar.

²⁸ US Constitution, Amendment XIV.

²⁹ Immigration and Nationality Act, §301. See also Restatement (Third) of Foreign Relations, s 212.

³⁰ The courts have consistently held that any person within the United States, citizen or alien, is protected by the guarantees of the Constitution. This includes the Bill of Rights (Constitutional amendments I–X, and the very expansive ‘due process’ and ‘equal protection’ guarantees (Amendments V and XIV). Yick Wo v Hopkins, 118 US 356 369 (1886).

³¹ Amendment XV to the US Constitution provides that the right of citizens of the US to vote shall not be denied or abridged by the US or any state on account of race, color, or previous condition of servitude.

³² Amendment XIX to the US Constitution provides that the rights of citizens of the US to vote shall not be denied or abridged by the US or by any state on account of sex.

³³ Amendment XXIV to the US Constitution ensures a right to vote regardless of ability to pay tax.

³⁴ Amendment XXVI to the US Constitution grants the right to vote to persons over 18 years of age.

³⁵ The interrelationship between the due process clause of the 14^th Amendment and the Bill of Rights has developed gradually in US Supreme Court jurisprudence. In 1908, the Court rejected the proposition that the 14^th Amendment prevented states from denying the 5^th Amendment privilege against self-incrimination. Twining v New Jersey, 211 US 78 (1908). In 1925, however, the Court held that the 14^th Amendment applied 1^st Amendment protections to the states. Gitlow v New York, 268 US 652 (1925). Palkov v Connecticut, 302 US 319 (1937), expressed the notion that those portions of the Bill of Rights that were implicit in the concept of ordered liberty would be applicable to the states through the 14^th Amendment. The process by which the Court applied particular Bill of Rights guarantees to the states using the 14^th Amendment is known as ‘selective incorporation’. See Cohen, & Varat, , Constitutional Law: Cases and materials, Foundation Press, Westbury NY (10th edn 1997), 501 Google Scholar.

³⁶ Amendment XIV to the US Constitution provides in relevant part, ‘No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life liberty, or property without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.’

³⁷ The Slaughterhouse Cases, 83 US (16 Wall) 36 (1873).

³⁸ Elkins v Moreno, 435 US 647 (1978); Toll v Moreno, 458 US 1 (1982).

³⁹ Sosna v Iowa, 419 US 393 (1975).

⁴⁰ Plyler v Doe, 457 US 202, 210–216 (1982).

⁴¹ 83 US 36 (1873).

⁴² Blackmer v United States, 284 US 421 (1932). Blackmer, an expatriate American living in France, was subject to federal criminal jurisdiction as a US citizen, although he did not appear to ‘reside’ in any state.

⁴³ Sosna v Iowa, 419 US 393 (1975); Shapiro v Thompson, 394 US 618 (1969).

⁴⁴ Scott v Sandford, 60 US 393(1857).

⁴⁵ US Constitution, Amendment XIII, states in relevant part, ‘Neither slavery nor involuntary servitude, except as a punishment for crime … shall exist within the United States, or any place subject to their jurisdiction.’

⁴⁶ Shaw above n 27 at Part V, 1–2.

⁴⁷ Case 192/99 The Queen v Secretary of State for the Home Department, ex parte Manjit Kaur [2001] ECR I–1237; Case 369/90 Micheletti v Delegación del Gobierno en Canatabria [1992] ECR I–4239.

⁴⁸ Micheletti above. However, the granting state may precondition its grant of citizenship on the relinquishment of all other claims to citizenship. See case 179/98 Belgian State v Fatna Mesbah [1999] ECR I–7955.

⁴⁹ See above n 8. The same report states that, ‘[f]rom the 1970s onwards the debate on Union citizenship was intensified with the emergence of the concept of the “Citizens’ Europe”. The aim at that time was to make the impact of the Community felt in everyday life. An initial list of “special rights” was drawn up at the 1974 summit conference. This list included: a general right of residence; the right to vote and stand for election (at least at local level); the right of access to public offices; and the passport Union. The Tindemans report of 1975 added a number of further provisions: extension of the individual personal rights (recognition of basic rights and freedoms and the granting to individuals of the right to bring actions before the European Court of Justice in the event of infringement of basic rights) and extension of freedom of movement (abolition of identity checks at frontiers and recognition of the equivalence of diplomas). The European Parliament, too, called for basic rights to be incorporated into Community law (the right to vote and stand for election, access to elected public office, right of assembly and association and the general right of residence). The term “Union citizenship” was used for the first time in the EP’s draft document on the establishment of the European Union (1984).’

⁵⁰ Shaw, above n 27, Part IV, 28–29 (citing Weiler) and Part V, 1–2; Craig, P, & DeBúrca, G, EU Law Oup (2nd edn 1998,) 723 Google Scholar.

⁵¹ Although EC Art 18 (1) allows Eurocitizens to ‘move and reside freely within the territory of the Member States’, it permits ‘limitations and conditions’. Dir 90/364 conditions this right on the ability to support oneself and one’s family, and to be covered by sickness insurance (so as not to burden the social security system of the host state). With respect to transient students, see: case 184/99 Grzelczyk v Centre public d’aide sociale d’Ottignies -Louvain - law Neuve. [2001] ECR I–6193, Particularly Point 42.

⁵² Case 48/75 The State v Royer [1976] ECR 497; case 65/81 Reina v Landeskreditbank Baden-Württemberg [1982] ECR 33. But visiting Eurocitizens are not always entitled to local treatment. Case 184/99 Grzelczyk, n51 above.

⁵³ Expressly, see EC Arts 25, 39(2), 43, 49 and 56.

⁵⁴ See generally, Fischer, TC, The Europeanization of America, ch 9, ‘Maastricht: Too Much, Too Soon; or Too Little, Too Late?’, (Carolina Academic Press 1995)Google Scholar.

⁵⁵ ‘A new treaty for Europe—Citizen’s Guide’ (Amsterdam 17 June 1997), Commission of the European Communities, 1997.

⁵⁶ Ibid, 3–9. See, eg EC Treaty, Titles VIII, XI, XIII and XIV.

⁵⁷ Eu Arts 6(2) and 46(d).

⁵⁸ See above n 55 at 2. These themes are captured briefly, and aspirationally, in EU Art 2.

⁵⁹ Preuss, U ‘Problems of a Concept of European Citizenship’, 1995 European Law Journal 267 Google Scholar 268. See also De Tocqueville, above n 3 at 376. EU Art 6(3) also pledges that the ‘Union shall respect the national identities of its Member States’, but this is hardly a frontal assault on them.

⁶⁰ Case C–369/90 Micheletti v Delegacion del Gobierno en Cantabria [1992] ECR I–4239. Cf, pending case 441/02 Commission v Germany.

⁶¹ Several EC Treaty Articles deal with the freedom of movement and residence in the Union. Art 14 established the internal market which includes the free movement of persons; Art 18(1) grants Eurocitizens the right to move and reside freely within the territory of the Member States; and Arts 43 and 49 allow them to establish themselves in the territory of another Member State and to render or receive services there, respectively.

⁶² Case 48/75 The State v Jean Noel Royer [1976] ECR 497.

⁶³ Presently EC Art 39(2).

⁶⁴ EC Treaty, Art 19. This is a unique right with the Maastricht Treaty.

⁶⁵ EC Art 20. This right is also entirely unique.

⁶⁶ EU Treaty, Arts 21 and 255. There is a similar right of petition in the US Constitution, Amendment I.

⁶⁷ Generally, EC Arts 23, 39, 43,49 and 56 et seq; Case 29/69 Stauder v City of Ulm [1969] ECR 419; C–11/70 Internationale Handels-gesellschat mbH v Einfuhr-und Vorratstelle für Getreide and Futlermitted [1970] ECR 1125. The latter legal source is now enshrined in EU Art 6(2).

⁶⁸ A good survey of recent case law will be found at: Reich, N ‘Union Citizenship—Metaphor or Source of Rights?’, European Law Journal. , Vol 7, No 1 (March 2001), 10–13 CrossRefGoogle Scholar.

⁶⁹ Case 66/85 Deborah Lawrie-Blum v Land Baden-Württenberg [1989] ECR 2121.

⁷⁰ Joined cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377.

⁷¹ Case 459/99 Mouvement contre le Racisme, l’Antisémitisme et la Xénophobie ASBL (MRAX) v Belgium [2002] ECR I–6591; Case 413/99 Bumbast v Secretary of State for the Home Department [2002] 3 CMLR 23.

⁷² Case 149/79 at [1980] ECR 3881. For obvious reasons, EC Art 39(4) has been interpreted to exclude only public service jobs that require a ‘special relationship of allegiance to the State.’

⁷³ Case 222/84 Marquerite Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651.

⁷⁴ Case 152/84 Marshall v Southampton and South-West Hampshire Health Authority (Teaching) [1986] ECR 723.

⁷⁵ Case 224/98 D’Hoop v Office National de l’emploi [2002] ECR I–6191.

⁷⁶ Joined cases 6 and 9/90 Francovich & Bonifaci v Italy [1991] ECR I–5357; Case 91/92 Dori v Recreb Srl [1994] ECR I–3325.

⁷⁷ Case 120/95 Decker v Caise de Maladie des Employes Prives [1998] 2 CMLR 879.

⁷⁸ Case 158/196 Kohll v Union des Caisses de Maladie [1998] 2 CMLR 928.

⁷⁹ Case 157/99 BSM Geraets-Smits v Stichting Ziekenfonds VGZ and HTM Peerbooms v Stichting CZ Groep Zorgverzekevingen [2001] ECR I–5473, points 60–61, 97, and 104–107.

⁸⁰ Ibid, points 69–75, 108. See also, Case 32/00 Idryma Koinonikon Asfaliseon (IKA) v Vasilios Ioanniais OJ 2003 C 101/2 (26 April 2003).

⁸¹ Castle S & Linton, L ‘EU opens borders for health treatment’, The Independent, 4 December 2002, 1; Daniel Flynn, ‘English Patients Travel abroad to get prompt medical care,’ The Seattle Times, 13 April 2002, A26.

⁸² EC Commission (Press Release) ‘First Meeting of High Level Group on Patient Mobility,’ Doc No EK 1601040 (3 February 2003); EC Commission, ‘Communication from the Commission, concerning the introduction of a European health insurance card,’ COM (2003) 73 final (17 February 2003).

⁸³ Case 65/81 Reina v Landes kreditbank Baden-Württemberg [1982] ECR 33, classifying a German ‘childbirth loan’ as a social advantage owed to a low-income Italian worker in Germany. f Case 184/99 Grzelczyk v Centre public d’aide sociale d’ Ottignies-Louvain-la-Neave [2001] ECR I–6193, where the Directive in question did not embrace a support allowance for non-nationals.

⁸⁴ ‘Social Policy—Commission Proposes Plan to Increase Worker Mobility,’ European Report, 2002 WL 13764324 (16 February 2002).

⁸⁵ Treaty of Nice, Provisional Text. (Coreper, SN 1247/1/01 REV 1) Brussels, 14 February 2001.

⁸⁶ Case 323/97 Commission of the European Communities v Kingdom of Belgium [1998] ECR I–4281.

⁸⁷ For example, EC Treaty, Arts 39, 46, and 55. Cf Case 48/75 The State v Jean Noel Royer [1976] ECR 1970 497.

⁸⁸ The wording comes from EU Art 2, fourth indent. For analysis, see: Shaw, J ‘Constitutional Settlements and the Citizen After the Treaty of Amsterdam’, in Neunreither, K, & Weiner, A (eds), Beyond Amsterdam: International Dynamics and Prospects for Democracy in the EU, (Oxford University Press 1998)Google Scholar.

⁸⁹ Shaw, above n 27 at Part IV, 8.

⁹⁰ Notably EC Arts 17–22. But note also the prohibition in Art 12 of ‘discrimination on the grounds of nationality.’ Presumably this means nationality of a EU Member State, or being a ‘Eurocitizen’. Lawrie-Blum, above n 69, Case 238/83 Caisse d’Allocations Familiales de la Region Parisienne v Mr & Mrs Richard Meade [1984] ECR 2631. Staples, H, The Legal Status of Third Country Nationals Resident in the European Union, (Kluwer 1999), 188 Google Scholar.

⁹¹ At least this is the case if the Council, acting unanimously, broadly interprets its charge under EU Art 6(2)—’respect [for] fundamental rights’—under either the European Convention or constitutional traditions common to the Member States. The European Courts can use these same two sources to increase individual protections and harmonise Community law.

⁹² EU Art 2 and EC Art 61, the latter of which expressly links this language to third-country nationals.

⁹³ Presidency Conclusions, Tampere European Council (15–16 October 1999), SI (1999) 800, point 3.

⁹⁴ Official Journal 364/00 (18 December 2000).

⁹⁵ Dick Leonard, EUROPE, December 2002/January 2003, 3.

⁹⁶ The Secretariat, The European Convention, Doc No CONV 724/03 (Brussels, 26 May 2003).

⁹⁷ ‘Social Security—MEPs Support Cover for Non-EU Nationals,’ European Report (23 November 2002), 2002 WL 13768804; ‘Fortress Europe,’ The Economist, 16 October 1999, 19.

⁹⁸ EC Arts 61–69. Art 69 gives the United Kingdom, Ireland and Denmark an opt out from this Title.

⁹⁹ EC Arts 61–63, and 67. The Council’s voting procedures are very convoluted. EC Arts 18(3) and 67. The Court’s role is set out at EC Art 68.

¹⁰⁰ Reference is variously made to EC Arts 61, 14(2), 62, 63 and 66; ‘Fortress Europe,’ n 97 above. See also, Case 86/96 Martinez Sala v Frei Staat Bayern [1998] ECR I 2691.

¹⁰¹ ‘MEPs Support Cover for Non-EU Nationals,’ see above n 97; ‘Justice and Home Affairs—Commission Proposes Directive for Non-EU Students, Trainees, Volunteers, European Report, 9 October 2002, 2002 WL 13768040; Commission of the European Communities, ‘The Commission’s Legislative and Work Programme for 2003,’ COM (2002) 590 final (Brussels, 30 October 2002), point 2.2 and Annex 3. See generally, ‘Establishing a status for long-term residents’ at http://europa.eu.int/comm/justice_ home/fsj/immigration/residents,’ (last visited 3 March 2003) and the draft directive on the status of third country nationals who are long term Community residents, COM (2001) 127 final.

¹⁰² There are 10 accession candidates: Cyprus, the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Malta, Poland, Slovakia and Slovenia.

¹⁰³ ’One Europe,’ Doc No SN 369/02, Copenhagen, 13 December 2002; ‘Presidency Conclusions,’ Copenhagen European Council, 12 and 13 December 2002, Doc No SN 400/02, point 22.

¹⁰⁴ Boeri, T & Brücker, H ‘The Impact of Eastern Enlargement on Employment and Labour Markets in the EU Member States (Final Report), Berlin & Milan, 2000. Existing Community States might also have been concerned that the candidates’ border controls were weak and that illegal immigrants might enter the EU without further controls.

¹⁰⁵ Cyprus and Malta were exempted from these provisions. Current Member States can retain present controls for two years, unless they individually decide to relax them. Then there will be a review, and controls could be extended for up to three more years if conditions warrant. Another two years could be added if ‘serious labour disturbances’ were threatened. Austria and Germany were allowed to employ the full seven years. An excellent synopsis of the acces sion in treaties generally is: Professor Steve Peters, ‘Statewatch Analysis: the EU Accession Treaty’ at www.statewatch.org/news/2003/feb/accession.pdf. The full ‘Treaty of Accession’ is at AA 2003, final (Brussels, 3 April 2003, particularly Annex II, parts 2B and 3, and Protocols 3, 5 and 6.

¹⁰⁶ Ibid, particularly the Treaty of Accession, Annex II, part 2D.

¹⁰⁷ EU Art 49 allows the existing Member States, who are in the driver’s seat to set ‘conditions of admission.’ And transition agreements were applied to Greece, Portugal and Spain. The only question is whether the acceding state will ratify the terms.

¹⁰⁸ Peters, ‘Statewatch in Analysis,’ n 105 above.

¹⁰⁹ Sosna v Iowa, 419 US 393 (1975), involving a year’s delay in divorce jurisdiction.

¹¹⁰ Shapiro v Thompson, 394 US 618 (1969), involving welfare benefits, and Plyler v Doe, 457 US 202 (1982), involving free public education for minors.

¹¹¹ Presidency Conclusions, Nice European Council Meeting 7, 8 and 9 December 2000, item IV. ‘A New Impetus for an Economic and Social Europe’, points13 and 14; point 20; point 22, and points 15–17, respectively. See also Annex I: ‘European Social Agenda’.

¹¹² Ibid, points 35–37, and point 33 respectively. See also, Annex III: ‘Council Resolution on the precautionary principle.’

¹¹³ Quentin Peel, ‘Majority voting slowly wins support of leaders, Financial Times, 12 December 2000, 10; ‘What we agreed to in Nice’, London Times, 17 December 2000, 4, 7.

¹¹⁴ Ibid.

¹¹⁵ ‘European Parliament political leaders critical of results of EU summit on reform, 17 ITR 1932 (21 December 2000).

¹¹⁶ The Federalist No 22.

¹¹⁷ All of these powers are found in the US Constitution, Art I, 8, except: duties (Art I, s 10); foreign relations and treaties (also s 10); immigration (Art I, s 9); taxation (also s 9 and Amendment XVI); and recognition of judgments (Art IV, section 1).

¹¹⁸ EU Treaty, Arts 1, 2, and 6(1).

¹¹⁹ Note, for example, the steadily increased provisions to enhance police and judicial cooperation in criminal matters (EU Title VI). Pan European crime is now a Community matter.

¹²⁰ James Madison wrote, ‘The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.’ The Federalist No 55.

¹²¹ United States v Alfonso Lopez, Jr, 514 US 549, 556 (1995).

¹²² United States v Morrison, 529 US 598 (2000).

¹²³ De Tocqueville, above n 3 at 368–69.

¹²⁴ ‘The road from Birmingham: European Community,’ The Economist, 17 October 1992, 60.

¹²⁵ Case 6/64 Flamino Costa v ENEL [1964] ECR 585. In ENEL, the European Court of Justice observed that the Community was an entity with limited powers: ‘… The Member States have limited their sovereign rights, albeit within limited fields’ [emphasis added].

¹²⁶ That is, ‘only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore … be better achieved by the Community.’ EC Treaty, Art 5.

¹²⁷ This echoes Amendment IX and X to the US Constitution: that powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

¹²⁸ US Constitution, Art I, s 8.

¹²⁹ EC Treaty Art 308 (ex 235) provides: ‘If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.’

¹³⁰ In Agenda 2000, Art 308 together with Arts 13 and 137 are proposed as a source of Community competence to deal with human rights issues and discrimination, affecting both Eurocitizens and third-country nationals.

¹³¹ Marbury v Madison, 5 US 137 (1803).

¹³² EC Treaty, Art 220 (ex 164).

¹³³ See Case 26/62 NV Algemene Tansport-en Expeditie Ondernmeing van Gend en Loos v Nederlandse Adminstratie der Belastingen [1963] ECR 1, and Case 6/64 Flamino Costa v ENEL [1964] ECR 585.

¹³⁴ Such is the case, for example, with economic and monetary policy and a collaborative immigration, and foreign and security policy. EC Titles VII, IV, and EU Title V, respectively.

¹³⁵ EC Treaty, Art 3(1)(b).

¹³⁶ EC Treaty, Arts 180, 181 and 300–04. This authority was considerably enhanced by the Nice Treaty, Title XXI, Art 181a.

¹³⁷ Case 22/70 Commission v Council [1971] ECR 263.

¹³⁸ Case 87/75 Bresciani v Amministrazione delle Finanze [1976] ECR 129.

¹³⁹ See, for example, Case 466/98 Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (5 November 2002), holding that individual Member States’ negotiations with non-EU air carriers violated the Community Treaty.

¹⁴⁰ See generally, EU Treaty, Title V, and specifically Art 24.

¹⁴¹ http://eur-lex/en/com/pdf/2000/com2000_0057en01.pdf.

¹⁴² A common economic and monetary policy for the EU was introduced by the Maastricht Treaty, and is elaborately developed in EC Treaty, Title VII, Arts 98–124. See particularly, Arts 105–08.

¹⁴³ See generally, Rainer Lepsius, M, ‘The European Union: Economic and Political Integration and Cultural Plurality’, in Eder, K, & Giesen, B, (eds), European Citizenship Between National Legacies and Postnational Projects, (Oup 2001), 211–12Google Scholar.

¹⁴⁴ ’Special Report: Everything you need to know about Europe’s new currency the euro,’ Europe, September 1997 (pg. unavail. online) <http://www.eurunion.org/magazine/eurospec.htm>.

¹⁴⁵ Peter Gwin, ‘A brief history of the dollar,’ Europe, September 1997 (pg. unavail. online), <http://www.eurunion.org/magazine/eurospec.htm>.

¹⁴⁶ Edward Luce, ‘Euro proves top currency for bonds’, Financial Times, 6 December 1999, 17; ‘The international euro’, The Economist, 14 November 1998, 89.

¹⁴⁷ See generally, EU Treaty, Arts 17, 18, and 26; Gordon, P, ‘Their own army? Making European defense work’, Foreign Affairs, July/August 2000, 12.

¹⁴⁸ Treaty of Nice, Art 17.

¹⁴⁹ Case 369/90 Micheletti v Delegation del Gobierno en Cantabria [1992] ECR I–4329.

¹⁵⁰ Tom Brady, ‘Organised crime now EU’s biggest security threat,’ The Irish Independent, 28 September 2000.

¹⁵¹ ‘A single market in crime’, The Economist, 16 October 1999.

¹⁵² See generally, EC Treaty, Arts 61–69. Staples, above n 90 at 129–52; Steiner, J and Wood, L, Textbook on EU Law 6 th edn 1998 (Blackstone), 273 Google Scholar.

¹⁵³ Staples, above n 90 at 3; EC Treaty Arts 61–63. See also, Hedemann-Robinson, M, ‘From Object to Subject?: Non-EC Nationals and the Draft Proposal of the Commission for a Council Act Establishing the Rules for Admission of Third Country Nationals to Member States’, 18 Yearbook of European Law 289 (Oup 1998)Google Scholar. See also, Shaw above n 27 at Part I V, 3–6.

¹⁵⁴ See, for example, Convention on rules for the admission of third-country nationals to Member States of the European Union, COM (97) 387 final [1997] OJ C 337/10; Presidency Conclusions, Tampere European Council, n 93 above, particularly points 13, 15, 18, 20 and 21; Proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in Member States, COM (2001) 181 final (3 April 2001).

¹⁵⁵ Authority derives from EU Arts 29–32.

¹⁵⁶ The European Police Office—Facts Sheet, available at <http://www.europol.eu.int/content.htm?facts/en.htm>.

¹⁵⁷ Europol Convention, Art 3.

¹⁵⁸ Presidency Conclusions, Tampere European Council, n 93 above, points 48–50, especially 46.

¹⁵⁹ 2000 OJ C243/8.

¹⁶⁰ EU Arts 29 and 31. Whereas Europol was created to analyse and provide data, the competence ratione materiae of Eurojust extends over crimes and offences in respect of which Europol is competent to act pursuant to the Europol Convention of 26 July 1995; trafficking in human beings; forgery of money and means of payment, as well as other forms of counterfeiting and means of payment; computer crime; the protection of the European Communities’ financial interests; and the laundering of the proceeds from crime.

¹⁶¹ US Bureau of the Census, Historical Statistics of the United States Colonial Times to 1970, Part 2, 1104.

¹⁶² CIS Statistical Services, Statistical Abstract of the US, 1999. Of this amount 55% derives from personal income tax.

¹⁶³ ’Allocation of EU Operating Expenditure by Member State’, available at <http://europa.eu.int/comm/budget/pdf/agenda2000/allocatedreport99.pdf> National contributions (in billions of ecu) have risen from 51.1 in 1993 to 68.7 in 1999 (with Germany, France, Italy and UK being the leading contributors). Payment based on GNP (own resources) increased from 16.4 billion to 37.6 billion in 1999 (45.4% of payments to EU budget). Traditional own resources (agriculture duties, customs duties, levies …) did not increase dramatically (from 12,986 million to 13,858 million) equaling 16.8% of payments to budget. VAT actually decreased 34,683 to 31,331 equaling 37.9% payments to EU budget. Total budget in 1993 was 65,673 million ecu, now 86,908 million.

¹⁶⁴ Mathijesen, PSRF, A Guide to European Union Law, 7th edn (Sweet & Maxwell 1999), ch 12 Google Scholar: ‘Financing Community Activities,’ 180–187. See also OJ C 175, 21.6.1999; Bull 3–1999, point II.3 and OJ C 138, 18.5.1999; Bull 3–1999, point II.4 in 8 July 2000, the own resources system was changed to increase GNP-based contributions (GNP being a more accurate reflection of Member States’ ability to pay) and decrease VAT contributions from 1 to 0.75% from January 2002 and to 0.5% from January 2004.

¹⁶⁵ Johan Schwartz, ‘A divide that is proving difficult to bridge’, Financial Times, 10 December 1999.

¹⁶⁶ CIS Statistical Universe, Table No 1363.

¹⁶⁷ Portions of the Bill of Rights have been applied to the States by the 14^th Amendment. For example, Gitlow v New York, 268 US 652 (1925).

¹⁶⁸ Council of Europe, ETC No 5.

¹⁶⁹ ’Draft Charter of Fundamental Rights of the European Union,’ Brussels, 28 September 2000, Charte 4487/00, [email protected]; Nice Presidency Conclusions, n111 above, point 2. 2000 OJ C 364/10.

¹⁷⁰ Peter Norman, ‘Brussels hints rights charter may become law’, Financial Times, 12 October 2000, 3. And the European Constitutional Convention seems disposed to recommend this.

¹⁷¹ The US Constitution (Art III, s 2) makes federal courts available in suits involving citizens of separate states (so-called ‘diversity’ jurisdiction).

¹⁷² To cite just a few well-known cases: Case 43/76 Defrenne v Sabena [1976] ECR 455; Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651; C–6/90, Andrea Francovich v Italian Republic [1991] ECR I–5357; and C–85/96 Martinez Sala v Freistaat Bayern [1998] ECR I–2691.

¹⁷³ Only 4% of EU citizens view themselves exclusively as Europeans while 45% view them selves exclusively as nationals of their own country. Further, 38% of EU citizens agree or slightly agree that there is a European cultural identity shared by all Europeans while 49% slightly or completely disagree. European Commission, Eurobarometer, Public Opinion in the European Union, Report Number, 10–11.

¹⁷⁴ The new Treaty of Nice gives an additional boost to Community centralisation through an extension of qualified majority voting and the co-decision process; by giving the European Parliament the same standing to bring cases before the European Court as the Council and Commission; by granting greater powers to the Commission President; and increasing the Commission’s ability to negotiate trade treaties. See, for example, Arts 214(a) and 157(3); 230; 217; and 133(5) and (7), respectively.

This is far from a comprehensive list. But a very good synopsis of the Nice changes is found at: Xenophon Yataganas, ‘The Treaty of Nice: The Sharing of Power and the Institutional Balance in the European Union—a Continental Perspective’, Jean Monnet Working Paper 01/01, Harvard Law School, Cambridge, MA 02138.

¹⁷⁵ At least unanimity is required to give the Community new treaty competencies (EC Art 313). In the case of ‘qualified majority voting’, now the majority rule when passing Community laws, a heavily-weighted majority is required (EC Art 205(2)), enhanced by a second majority (based on population), agreed at Nice. ‘What we agreed to in Nice’, London Times, 17 December 2000, 4.7. Because EC decision- making is generally consensual, Member States interests are well-protected. But too many checks and balances can bring progress to a halt.

¹⁷⁶ ‘When countries don’t count’, The Economist, 11 November 2000, 92.

¹⁷⁷ ’The Commission’s Legislative and Work Programme for 2003’, Com (2002) 590 final, point 5, ‘Conclusions’.

¹⁷⁸ Closa, C, ‘Requirements of a European Public Sphere’, in Eder, K, & Giesen, B, European Citizenship Between National Legacies and Postnational Projects, (Oup 2001), 184 Google Scholar. Closa suggests that there is no evidence that Eurocitizens reject the concept of Europe. Ibid, 194.

¹⁷⁹ Chiefly, EU Title VII, but also EU Arts 27a to 27e and 40, 40a and 40b.

¹⁸⁰ US Constitution, XIV Amendment, adopted in 1868, is the first concrete recognition of this dualism.

¹⁸¹ Weiler, JHHH, The Constitution of Europe: ‘Do The New Clothes Have an Emperor?’ And Other Essays on European Integration, ch 10, ‘To Be a European Citizen: Eros and Civilization,’ (Cambridge University Press 1999), 345 Google Scholar.

¹⁸² Shaw, above n 27 at 28.

¹⁸³ The entire US Bill of Rights refers to ‘people’ and ‘persons’ not ‘citizens’. The least important part of the US Constitution’s XIVth Amendment (‘privileges and immunities’) is limited to ‘citizens’. But the more important parts (‘due process’ and ‘equal protection’) apply to ‘any person’ in the US

¹⁸⁴ Rights such as the free movement of workers (EC Art 39(1) and (2)), the right of establishment (EC Art 43), and to deliver and receive services (EC Art 49) may be limited to EU citizens insofar as they refer to ‘nationals’. But the Rome Convention and new draft Charter of Fundamental Rights speak in terms of ‘everyone’, ‘no one’, and ‘persons’, not citizenship or nationality. Indeed, the EC Treaty expressly contemplates a legal status for non-nationals (Art 137(1)(g).