The Identity Turn in European Citizenship Law

This article argues that the recent run of identity judgments – Coman, Pancharevo, Mirin and Wojewoda Mazowiecki, and Shipova – are doctrinally considerably more novel than they seem. They reinterpret mutual recognition, redefine the U-turn, and abandon the Court’s traditional deference to constitutional values. The result nails another coffin in the idea of a wholly internal situation, moves towards giving full effect to Article 21(1) TFEU including its right of residence anywhere in the EU, and constructs a basis for widespread harmonization of family, identity, and sexual rights in the EU. The article does not argue against the cases. However, it suggests that they need to be looked at through the lens of competence as well as the lens of rights. Therefore, it tries to unpack their legal novelty, their potential consequences, and the associated risks to legitimacy and effectiveness. Understanding these is important to deciding how far the Court’s apparent programme of value harmonization should go. For while the Court is now pushing a progressive agenda onto conservative states, the majoritarian subtext of the judgments could mean that in the future the force of EU law is the other way round. Emancipatory states might find that Article 2 TEU and the Court stand in their way.