Toothless European Citizenship / Šimon Uradnik

2. ESSENCE OF UNION CITIZENSHIP: GENUINE LINK OR DIRECT BOND

The objective of this chapter and of those consequently following is to explore whether the essence of Union citizenship is the factual relation — belonging and attachment to a society of an entity — in the form of the genuine link, and whether the essence is the legal relation — autonomous form and nonvicarious content — in the form of the subsequently developed concept of the direct bond. The author deliberately distinguishes between factual relation and legal relation on the one hand, and factual relationship and legal relationship on the other. The term relation refers to a connection between two subjects, which connection either exists or not with no gradual scale in-between. In contrast, the term relationship is utilised as a connection between two subjects, which connections may have different ranges of quality. Whence it follows that, since the European Union and citizens of the Union exist, the factual relationship and the legal relationship exist also. Nevertheless, the question is whether these relationships are of such quality that they give rise to the factual relation in the form of the genuine link or the legal relation in the form of the direct bond. The rationale behind this assessment is the premise that either the factual relation or the legal relation should provide protection for a citizen of the Union against an involuntary deprivation of his or her Union citizenship unreservedly by a Member State. If the factual relationship between the European Union and a Union citizen is of the quality of a mutual societal attachment and shared political interests, which may thus be interpreted that Union citizens are members of a shared European demos and that the genuine link is the essence of Union citizenship, the author is of the opinion that such factual relation could not be broken by any Member State. By the same logic, should the legal relationship of Union citizenship be of the quality of a true autonomous form and nonvicarious content, 104 from the author’s point of view, such legal relation as the direct bond could not be severed by any action of a Member State. 2.1 Factual Relation: Genuine Link The first one assessed is the factual relation between the European Union and a Union citizen — the Union citizen’s genuine link, existence or non-existence of which is the aim to discover in this subchapter.

104 See Figure IV. − Real and effective nationality according to the author below.

28