European integration shaping nationalities of the Member States: Elaboration

3. European integration shaping nationalities of the Member States: Elaboration

The Internal Market, coupled with EU citizenship thus affects the very essence of Member States‟ nationalities in the most fundamental way. This is particularly evident

in the most vital aspect of nationality regulation i.e. the rules on the acquisition and loss of nationality which determine the border line between EU citizens and third country nationals. The EU gradually came to affect the legal determination of who is an EU

citizen and who is a „real‟ foreigner in the Union. 82 As this section will demonstrate, nationality acquisition rules applicable in the Member States depend to a great extent on

whether the applicant has EU citizenship status already, which theoretically amounts to claiming that Member States enforce separate rules for the conferral of a duo of EU citizenship and the local nationality, compared with the acquisition of the local nationality alone.

81 Office national de l’emploi (n 18) para. 42 (emphasis added). McCarthy (n 53). For analysis see Kochenov (n 17). 82 Kochenov (n 11) 182 –186.

80 Gerardo Ruiz Zambrano v.

The Internal Market and EU citizenship both ensured that the possibility for one Member State to have a „better nationality‟ within the EU, as far as the scope of

rights enjoyed in connection with it is concerned, is non-existent, legally speaking at least. 83 This is especially evident once one takes into account the importance of

residence, to which the majority of practically usable rights are connected in any Member State, as well as the fact that such residence can be established through the use

of EU citizenship status, 84 or, often easier, through migrant worker status within the Internal Market. 85

In this situation the lack of any co-ordination between the Member States in terms of access to their nationality was bound to result in the mutation of the accessibility of the legal status of nationality even without any formal intervention by

83 This statement should be qualified with regard to the legal effects of possession of particular Member States‟ nationalities outside the EU, EEA and Switzerland. When EU citizens travel in third countries,

their Member State nationality, not EU citizenship, is the main status affecting the rights they enjoy. Consequently, differences exist between the attractiveness of different Member States‟ nationalities, as different visa regimes apply to different EU passports: travelling with a Slovenian passport to the US is much easier, for instance, than with a Polish one. The Commission is doing its best in order to ensure that the same visa regimes apply to all EU citizens: e.g. Lucia Kubosova, „Brussels to press for US visa free entry to EU newcomers‟, EU Observer, 24 February 2006, http://euobserver.com/?aid=20982.

84 Davies (n 23); Sandrine Maillard, L’émergence de la citoyenneté sociale européenne (Presses Universitaires d‟Aix-Marseille 2008) 353.

85 Workers, able to travel around the EU and stay in any of the Member States as long as it pleases them, enjoy much better protection than European citizens experiencing health problems and economic

hardship, since all persons not falling within the EU defi nition of a „worker‟ should according to the general rule be covered by sickness insurance and have sufficient resources in order to benefit from the right „of residence on the territory of another MS for a period of longer than three months‟: Art. 7(1), Directive 2004/38/EC OJ L 158/77 (2004). However, the Member States are not entitled to conduct strict checks of the sufficiency of resources: Case C-408/03 Commission v. Belgium [2006] ECR I- 2647. See, in general, Paul Minderhoud and Nicos Trimikliniotis (eds), Rethinking the Free Movement of Workers: The European Challenges Ahead (Wolf, Nijmegen 2009). There is a certain competition between workers‟ rights and EU citizens‟ rights under the current regime. For discussion see e.g. Alina Tryfonidou, „In Search of the Aim of the EC Free Movement of Persons Provisions: Has the Court of Justice Missed the Point?‟ (2009) 46 CMLRev 1591, 1592–1595; Oxana Golynker, „European Union as

a Single Working-Living Space: EU Law and New Forms of Intra- Community Migration‟ in Andrew Halpin and Volker Roeben (eds), Theorising the Global Legal Order (Hart, Oxford 2009) 145, 151 (embracing opposing points of view on how the scope of the two blocs of rights is to be constructed). See also Kochenov (n 1) 52 –54; Kochenov (n 17).

the EU, which is prohibited from acting in this domain. 86 Such mutations happen at two different levels. At an informal level, the change occurred without any amendments of

the Member States ‟ nationality laws in order to accommodate the special position of EU citizens; while at the formal level, the nationality laws were changed in order to reflect the reality of European integration.

As to the informal level : even when there are no formal provisions facilitating EU citizens‟ access to the nationality of the Member State of residence, it is clear that

the virtually complete transfer of the core regulation of residence of EU citizens from the level of the Member States to EU level shaped a reality where naturalisation of EU citizens in the Member State of residence became simplified. This development,

observable already in the pre-citizenship context 87 has only been intensified upon the introduction of EU citizenship, as the preceding section has demonstrated. The main

hurdle which third country nationals face and which is connected with acquiring the right of entry, work, and residence, as well as constantly prolonging the former for a required period of time in order to qualify for naturalisation, does not exist in the case of EU citizens. Consequently, at the informal level, naturalisations of EU citizens and of third country nationals parted ways of all the Member States of the Union.

The sharp distinction between EU citizens and third country nationals is also reflected in the way in which culture and language testing of newcomers is conducted in the Member States. Two points are important in this regard. First, while more and more Member States introduce such testing for those willing to apply for permanent

88 residence 89 and naturalisation, EU citizens are exempt from any such tests for the

86 The status quo is not as categorical any more after Rottmann , in which the ECJ obliged the Member States to take EU law into account and apply the principle of proportionality when ruling on nationality

issues in cases where the EU citizenship status of a person can be affected: Rottmann (n 16) para 55. 87 Evans (n 4) 193.

88 Such tests are also allowed by Art. 5(2), Directive 2003/109/EC OJ L 16/44 (2004). 89 For an overview and analysis, see Rainer Bauböck and Christian Joppke (eds ), „How Liberal Are Citizenship Tests?‟ (2010) EUI RSCAS Working Paper 2010/41

<http://eudo- citizenship.eu/docs/RSCAS_2010_41.pdf>; Ricky van Oers, Eva Ersbøll, and Dora Kostakopoulou, „Mapping the Redefinition of Belonging in Europe‟ in Ricky van Oers, Eva Ersbøll, and Dora Kostakopoulou (eds),

A Re-definition of Belonging? (Koninklijke Brill, The Hague 2010) 307; Christain A Re-definition of Belonging? (Koninklijke Brill, The Hague 2010) 307; Christain

Naturally, this exemption also undermines the legitimacy of the dubious practice of such testing espoused by the Member States: if an EU citizen, say a Dutchmen from the island of Curaçao, can permanently reside in Romania without any officially certified knowledge of the local language and culture, an argument that a Moldovan cannot do

the same becomes far less convincing. 91 It is clear to everyone that Romanian written in Cyrillic script is at least as „dangerous‟ for Romanian culture as Papiamento and salsa.

Secondly, and more importantly, given that naturalisation of a third county national in a Member State makes such a person also an EU citizen, the contents of the tests are bound to reflect this reality. An important tension arises in this context: while the tests generally aim at ensuring that all new citizens know the local realities of the Member State of naturalisation well, this is unlikely to be of much help to them should they opt for benefiting from the main right of EU citizenship – i.e. to move to another Member State of the Union, where many of the local realities and, in the majority of cases, the language will be different. Consequently, besides exposing the illogical thinking behind culture tests as such, the European integration project is also bound to

Joppke, „Beyond National Models: Civic Integration Policies for Immigrants in Western Europe‟ (2007) 30 WEP 1.

90 AG Jacobs explained the mechanics of this with admirable clarity in his Opinion in Case C-148/02 Garcia Avello [2003] ECR I-11613 para 63 (footnotes omitted):

The concept of “moving and residing freely in the territory of the Member States” is not based on the hypothesis of a single move from one Member State to another, to be followed by integration into the latter. The intention is rather to allow free, and possibly related or even continuous, movement within a single „area of freedom, security and just ice‟, in which both cultural diversity and freedom from discrimination [are] ensured.

It is impossible to agree with Weiler in this context, who seems to disapprove of this vision, speaking of the „ghettoisation‟ of migrants. In Weiler‟s view, „la Corte dissuade dall‟integrazione dei migranti nelle loro comunità ospiti‟: Weiler (n 10) 82. His presumption of the usefulness of integration tests seems too optimistic in the light of their contents. For an explanation, see e.g. Dimitry Kochenov, „ Mevrouw de Jong Gaat Eten : EU Citizenship and the Culture of Prejudice‟ (2011) EUI RSCAS Working Paper 2011/06 <http://eudo-citizenship.eu/docs/RSCAS_2011_06.pdf>.

91 Kochenov (n 90) 12 –15.

affect the tests‟ contents, whether the Member States want this or not. AG Poiares Maduro highlighted this point well in his Opinion in Nerkowska:

Citizenship of the Union must encourage Member States to no longer conceive of the legitimate link of integration only within the narrow bonds of the national community, but also within the wider context of the society

of peoples of the Union 92 .

As to the formal level , six Member States introduced formal distinctions into their legislation on the acquisition (and loss) of nationality in order to reflect the gap de facto separating EU citizens and third country nationals even in the situations when both are

branded as „foreigners‟ 93 in a particular Member State. The formal distinction between EU citizens and third country nationals for the purposes of naturalisation is made in two

interrelated respects. The first concerns providing EU citizens with a possibility to naturalise faster by applying a shorter naturalisation term to them. The second consists of applying different renunciation requirements to EU citizens, thus not requiring them

to get rid of their initial Member State nationality and facilitating their naturalisation. 94 The first approach is adopted in Austria, Hungary, Italy and Romania; the second, in

Germany and Slovenia. The approach to the naturalisation of EU citizens adopted in Austria, Hungary,

Italy and Romania goes to the core of the most important naturalisation requirement,

i.e. the time one is required to spend in the country before naturalising. A clear

92 Opinion of AG Poiares Maduro in Case C-499/06 Halina Nerkowska v. Zakład Ubezpieczeń 93 Społecznych Oddział w Koszalinie [2008] ECR 3993 para 23 (emphasis added).

EU law as it stands does not prohibit the Member States from including EU citizens into foreigners‟

registers: Case C-524/06 Huber v. Germany [2008] ECR I-9705. Analyz ed by Kay Hailbronner, „Are Union Citizens Still Foreigners? ‟, in Paul Minderhoud and Nicos Trimikliniotis (eds.) Rethinking the Free Movement of Workers: The European Challenges Ahead (Wolf Legal Publishers 2009).

94 See Dimitry Kochenov, „Double Nationality in the EU: An Argument for Tolerance‟ (2011) 17 ELJ 323.

distinction is made here between the naturalisation requirements concerned with the minimal length of residence required before an application for naturalisation can be filed applicable to EU citizens and third country nationals. So to become Austrians through the discretionary naturalisation procedure, EU citizens (and EEA nationals)

need to reside in Austria two years less than third country nationals. 95 Moreover, unlike third country nationals, EU citizens and EEA nationals enjoy „a legal entitlement to

naturalisation‟. 96

A preference being extended to EU citizens in procedures of naturalisation can also be observed in Hungary, where they may naturalise faster. 97 To

become Italians, EU citizens need to reside in Italy six years less than third country nationals. 98 In Romania, the difference between the naturalisation requirements for EU

citizens and third country nationals is equally considerable. EU citizens naturalise after

99 „half the period of regular naturalisation‟, 100 i.e. in less than four years. The inclusion of EEA nationals among those naturalising faster is very telling in this regard, as it

points to the key importance of the Internal Market rationale behind the introduction of the simplified rules, as opposed to mere EU citizenship considerations. EEA citizens are of course not EU citizens.

All of the differences between the naturalisation requirements for EU citizens and for third country nationals are relatively new: Italy was the first EU Member State to give priority to EU citizens in the process of naturalisation. The relevant legislation

entered into force in 1992, 103 in Austria in 1998, in Hungary in 2003, and in 2008 in Romania. 104

95 Dilek Çinar, „Country Report: Austria‟ (2010) EUDO EUI RSCAS Paper <http://eudo- citizenship.eu/docs/CountryReports/Austria.pdf> 8.

96 Ibid 15. 97 Mária Kovács and Judith Tóth, „Country Report: Hungary‟ (2010) EUDO EUI RSCAS Paper

<http://eudo-citizenship.eu/docs/CountryReports/Hungary.pdf>, 1, 3. 98 Zincone and Basili (n 18) 1.

99 Constantin Iordachi, „Country Report: Romania‟ (2010) EUDO EUI RSCAS Paper <http://eudo- citizenship.eu/docs/CountryReports/Romania.pdf>, 8.

100 The regular residence period for naturalisation in Romania amounts to seven years: Iordachi (n 44) 8.

101 Zincone and Basili (n 18), 1, 2. 102 Çinar (n 95) 8.

Germany is among 11 Member States of the EU where the general renunciation requirement is enforced. 105 This means that naturalisation is subjected to the

renunciation of one‟s previous citizenship. Germany does not require EU citizens to meet this requirement, 106 which leads to their easier naturalisation. Slovenia, applying

similar law, is more restrictive: „The condition of a release from current citizenship is waived for citizens of those EU Member States where reciprocity exists‟. 107 In the 8

countries where no exceptions from the renunciation requirement for EU citizens are made, the naturalisation rates of EU citizens are extremely low, which is easily explainable, given that there is no „better nationality‟ in the EU, renouncing one for acquiring another predictably makes no sense and people realise this perfectly well. 108

Without any doubt, more countries will follow the six examples provided in differentiating between EU citizens and third country nationals for the purposes of nationality regulation, reflecting the change in the status quo between EU citizenship and Member States‟ nationalities marked by the growing mutual interpenetration of the

two statuses. 111 Relevant proposals are being discussed in Lithuania and Spain. Differentiating between EU citizens and third country nationals in nationality

legislation of the Member States de facto leads to the establishment of a separate

103 Kovács and Tóth (n 97) 1. 104 Iordachi (n 99) 8. 105

These Member States are the Czech Republic, Denmark, Estonia, Germany, Hungary, Latvia, Lithuania, the Netherlands, Poland, Slovakia, Slovenia (numerous exceptions apply). See Gerard-René de Groot and Maarten Vink, Meervoudige nationaliteit in Europees perspectief: Een landenvergelijkend overzicht (Adviescommissie voor Vreemdelingenzaken, The Hague 2008). On the general context of dual nationality in the EU, see Marc Morjé Howard, „Variation in Dual Citizenship Policies in the Countries of the EU‟ (2005) 39 Int‟l Migration Rev 697, esp Table 4, at 713; Kochenov (n 94).

de Groot and Vink (n 105) 73 –75. 107 Felicita Medved, „Country Report: Slovenia‟ (2010) EUDO EUI RSCAS Paper <http://eudo-

citizenship.eu/docs/CountryReports/Slovenia.pdf> 12. 108 Kochenov (n 94) 337 –340.

109 In the Member States where the law is silent on this matter, scholars argue for amending the law. See e.g. Caroline Sawyer, „Country Report: United Kingdom‟ (2010) EUDO EUI RSCAS Paper

<http://eudo-citizenship.eu/docs/CountryReports/United%20Kingdom.pdf> 28. 110 Egidijus Kūris, „Country Report: Lithuania‟ (2010) EUDO EUI RSCAS Paper <http://eudo-

citizenship.eu/docs/CountryReports/Lithuania.pdf> 40 –41 (the law was vetoed by the President).

Ruth Rubio Marín and Irene Sobrino, „Country Report: Spain‟ (2010) EUDO EUI RSCAS Paper <http://eudo-citizenship.eu/docs/CountryReports/Spain.pdf> 17.

procedure for the acquisition of EU citizenship. Those not in possession of this status are asked to meet more stringent formal requirements in order to naturalise in the Member State of residence compared with EU citizens who are not in possession of the local nationality. This state of affairs reflects a reality that is absolutely different from the promise of a merely derivative EU citizenship status in the Treaties and demonstrates, once again, that a clear distinction needs to be made between the acquisition of EU citizenship (which is purely derivative as it follows the nationalities of the Member States) and the essence of this status, which is not. Analysis of some distinguished commentators, such as Tesauro, claiming the non-existence of

a „real‟ European citizenship based on the fact that access to it is derivative is logically

unsound: if ius soli citizenship is no better or worse that ius sanguinis citizenship, then there is no reason to claim that the same should not be valid for ius tractum (i.e.

derivative) citizenship. 112 Certain rules of access to the status have nothing to do with the existence of the status as such, let alone the rights associated therewith. 113 It is impermissible to ignore the fact that, as outlined by Poiares Maduro, „Union citizenship assumes nationality of a Member State but it is also a legal and political concept independent of that of nationality. Nationality of a Member State not only provides access to enjoyment of the rights conferred by Community law; it also makes us

citizens of the Union. 114 ‟ Application of different naturalisation procedures to EU citizens and third

country nationals at the national level is a sign of the maturing nature of EU citizenship. The prospects of acquisition of nationalities of specific Member States directly depend on the possession (or not) of the status of EU citizenship in EU law. Even in the Member States where this connection is not formally adopted as part of nationality

112 For an analysis of EU citizenship as a ius tractum citizenship, see Kochenov (n 11). 113 Tesauro submits that: „non esiste, né potrebbe allo stato ippotizzarsi, una nozione communitaria di

cittadinanza, sì che le norme che ne prescrivono il possesso come presupposto soggettivo per la loro applicazione in realtà rinviano alla legge nazionale dello Stato la cui cittadinanza viene posta a

fondame th nto del diritto invocato‟: Giuseppe Tesauro, Diritto comunitario (5 edn CEDAM (Wolters Kluwer Italia) 2008) 480. See also Leonard Besselink and Jan H. Reestman, „Dynamics of European

and National Citizenship: Inclusive or Exclusive? (editorial) ‟ (2007) 3 EuConst . 1, 2. 114 Opinion of AG Poiares Maduro in Rottmann (n 14) para 23 (emphasis added).

legislation, the Internal Market coupled with EU citizenship provides an easier access to the nationalities of such states in practice through the lifting of residence and immigration controls for EU citizens.