Member State Nationalities and the Inter
Member State Nationalities and the Internal Market: Illusions and Reality
Dimitry Kochenov *
Forthcoming in Niamh Nic Shuibhne and Laurence W. Gormley (eds.), From Single Market to Economic Union: Essays in Memory of John A. Usher, Oxford: Oxford University Press, May 2012. This is merely a draft. Please consult the OUP book for the final version.
Abstract
This paper looks at the profound influence of EU citizenship and the Internal Market on the legal regulation of the areas where EU Member States retain full competence, using Member State nationalities as a case-study. In the context of a constant rise in the importance of the EU, and unavoidable growth in economic interdependence in Europe, the array of fields of law which come to
be subjected to the indirect influence of the Internal Market is only likely to grow, presenting the division of competences between the Member States and the Union in a somewhat different light compared with what can be read in the Treaties. In a way, as long as the importance of European integration is growing it becomes much less important whether the Union actually has competence in regulating a certain area, since the national regulation by the Member States will necessarily take the changing reality into account, adapting national law to the Internal Market.
* University of Groningen. A draft of the argument presented in this paper first appeared as part of a longer Working Paper of the European U niversity Institute in Florence („Rounding up the Circle‟,
RSCAS 2010/23 <http://eudo-citizenship.eu/docs/RSCAS_2010_23.pdf>). The final draft was presented in its present form at the W.G. Hart Workshop of the Institute of Advanced Legal Studies, School of Advanced Study, University of London in June 2011. I am grateful to Niamh Nic Shuibhne and Rainer Bauböck for helpful suggestions. The assistance of Martijn van den Brink is kindly acknowledged.
Introduction
The breadth of Professor Usher‟s scholarship is overwhelming, dealing with virtually all the key issues of Internal Market regulation, including the profound constitutional
questions arising in the course of the development of the European integration project. He conceived of the Internal Market in the broadest possible sense, addressing economic regulation in the context of other, at times competing, objectives of the Treaties, as well as highlighting some unexpected consequences of the economic project‟s development. Such approach, marked by not shying away from complexity and viewing economic integration in its broader socio-constitutional context, is more and more adopted by the leading scholars of European integration. Building on this tradition, this chapter aims to look behind the façade of the Internal Market and even the Treaties as such in an attempt to discover important unforeseen consequences that the articulation of the Internal Market had for the Member States on the constitutional scale. Relying on the mutation of Member States‟ laws on nationality as an example, it is demonstrated that the move from a single market to an economic Union has been accompanied by some fundamental mutations at the Member State level which would not necessarily be connected to economic regulation at the first glance, showing how far beyond the objectives stated in the Treaties the deeper consequences of economic integration actually stretch, discovering constitutional questions raised by the Internal Market on a plane far removed from economic regulation sensu stricto.
That the European integration project will affect all spheres of the law of the Member States could be anticipated from the very beginning. All the history of European integration can in fact be read as a constant restatement by the Court of Justice of the European Union (ECJ) of a simple fact that domains that would be exclusively reserved for the Member States to regulate are unknown to EU law: any That the European integration project will affect all spheres of the law of the Member States could be anticipated from the very beginning. All the history of European integration can in fact be read as a constant restatement by the Court of Justice of the European Union (ECJ) of a simple fact that domains that would be exclusively reserved for the Member States to regulate are unknown to EU law: any
those fields of national law which are not in any way covered by the acquis and lie outside of the scope of EU competences are nonetheless bound to be adapted to the
realities of the Internal Market. 3 In the context of such adaptation, it is of no relevance whether the Union has competence in the related fields or not: required by the basic
considerations of mere coherence and functionality of the law, if the EU is powerless, suc h adaptation will stem from the Member States‟ own initiative.
This contribution focuses on the analysis of such an adaptation that is taking place in the field of nationality law of the Member States 4 under the influence of the
Internal Market in unison with the maturing of EU citizenship. 5 Analysis of the law of the Member States demonstrates that it is already possible to decipher a trend in the
accommodation of the Member States‟ nationalities to the new reality, which is likely
1 Armin von Bogdandy and Jürgen Bast, „The European Union‟s Vertical Order of Competences: The Current Law and Proposals for Reform‟ (2002) 39 CMLRev 227. See also Eleanor Spaventa, „Seeing
the Wood despite the Trees? On the Scope of Union Citizenship and its Constitutional Effects‟ (2008) 45 CMLRev 13; Dimitry Koc henov, „Citizenship without Respect: The EU‟s Troubled Equality Ideal‟ (2010)
School) 08/10 <http://centers.law.nyu.edu/jeanmonnet/papers/10/100801.pdf>.
Jean Monnet
2 See e.g. H.U. Jessurun d‟Oliveira, „Ontkoppeling van nationaliteit en Unieburgerschap?‟ (2010) 85 NJb 1028; H.U. Jessurun d‟Oliveira, „Nationaliteit en de Europese Unie‟ in J.D.M. Steenbergen (ed),
Ongebogen recht: Opstellen aangeboden aan Prof. Dr. H. Meijers (Jongbloed, The Hague 1998) 80 –81 (arguing for reserved domains shielded from the effects of EU law).
3 Art. 26(2) TFEU. 4 It is surprising that this important topic has never enjoyed sufficient scholarly attention. For one of the
best early contributions, see Andrew Evans, „Nationality Law and European Integration‟ (1991) 16 ELRev 190. See also Gerard- René de Groot, „The Relationship between Nationality Legislation of the Member States of the European Union and European Citizenship‟ in Massimo la Torre (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International, The Hague 1998) 115; Gerard-René
de Groot, „Towards a European Nationality Law‟ (2004) 8 Electronic J Comp L (pagination not available); Karolina Rostek and Gareth Davies, „The Impact of Union Citizenship on National Citizenship Policies‟ (2007) 22 Tul. Eur. & Civ. L.F. 89.
5 In fact, it seems somewhat half-hearted to divide the two: EU citizenship has been profoundly affected by the Internal Market since its inception and still remains, to a large extent, a market citizenship:
Niamh Nic Shuibhne, „The Resilience of EU Market Citizenship‟ (2010) 47 CMLRev 1597. In fact, successful EU integration clearly presupposes, to agree with Poiares Maduro, the need „to reconcile the principle of respect for state competences and the safeguarding of the objective of establishing an internal market in which the rights of citizens are protected‟: AG‟s Opinion in Case C-446/03 Marks & Spenser plc v. Halsley (Her Maj esty’s Inspector of Taxes) [2005] ECR I-10837 para 37. In this context, EU citizenship and the Internal Market are two sides of the same coin.
to have far-reaching consequences for the very essence of the concept of nationality as such, as well as, potentially, having the ability to affect the core relationship between statehood, sovereignty and nationality through a profound reinterpretation of the notion of the „people‟ of each Member State.
Such adaptation, this chapter argues, takes place on two levels: formal, and informal. The formal level represents amendments of nationality laws which can be clearly linked to the European integration project, while the informal reflects the de facto influence of European integration on the essence of nationality of the Member
States, which does not necessarily find direct reflection in the nationality laws. 6 This chapter argues that the nationalities of EU Member States are affected beyond
adaptation to the technicalities of the European integration project, as their very essence necessarily undergoes a profound transformation, shaping a distinct legal reality which is profoundly different from that of non EU countries. This is thus just one more in an array of examples of how the European integration project, mostly through its citizenship and the Internal Market, affects the essence of the State in Europe in ways
not necessarily envisaged by the drafters of the Treaties. 7 This contribution is structured as follows. After a brief overview of the trend in
the development of Member States‟ nationality laws under the influence of the Internal Market, which this chapter deciphers (1.), the meaning of Member State nationalities is analyzed in terms of shaping the legal environment in which the lives of those in
6 The realisation of the profound influence of the Internal Market on the nationalities of the Member States by far predates the introduction of EU citizenship: G. Cansacchi, „La cittadinanza comunitaria e i
diritti fondamentali dell‟uomo‟ in A.M. Calamia (ed), Studi in onore di G. Sperduti (Gioffrè, Milano 1984) 435; Andrew C. Evans, „European Citizenship‟ (1982) 45 MLR 497; Guido van den Berghe and Christian H. Huber, „European Citizenship‟ in Roland Bieber and Dietmar Nickel (eds), Das Europa der zweiten Generation: Gedächtnisschrift für Christoph Sasse , Vol. II (N.P. Engel Verlag, Kehl am Rhein 1981) 755; Mario Sica, Verso la cittadinanza europea (Le Monnier, Florence 1979); Richard Plender, „An Incipient Form of European Citizenship‟ in Francis G. Jacobs (ed), European Law and the Individual (North Holland Publishing, Amsterdam 1979) 39; Lord Mackenzie Stuart, „Recent Trends in the Decisions of the European Court: Towards the Creation of a Community Citizenship‟ (1976) 21 J L Soc Scotland 40.
7 See, for different aspects of this relationship, Gareth Davies, „The Humiliation of the State as a Constitutional Tactic‟ in Fabian Amtenbrink and Peter van den Berg (eds), The Constitutional Integrity
of the European Union (T.M.C. Asser Press, The Hague 2010) 147.
possession of this status are lived, comparing Member State nationalities with EU citizenship: two different legal statuses conferred simultaneously on the same people (2.). The argument then proceeds towards a brief assessment of the formal and informal levels, outlined in the context of the influence of EU citizenship and the Internal Market on the nationality laws of the Member States. The gradual revision of the legal essence of nationalities, which is a natural immediate consequence of the process of maturation of the economic Union in Europe as well as EU citizenship, provides a new context for the assessment of the viability of the current rules making the enjoyment of the status of EU citizenship derivative from the nationalities of the Member States (3.). The last section focuses on the positive and negative sides of this arrangement for the citizens themselves, as well as the likely impact of EU integration on Member State nationalities in the near- to mid-term future (4.). The conclusion sketches some wider implications of the new trend in the regulation of nationalities by the Member States in the context of EU integration for the essence of statehood and sovereignty in Europe. The profound nature of the indirect effects of the Internal Market is highlighted, opening up a possibility to approach the EU from a new angle: that of necessary adaptation of national law to the new reality shaped by a maturing project of European integration in all the fields of national law, with no regard to the formal division of competences between the EU and the Member States and the presence or absence of the legal pressure from the EU side. Rather, the Internal Market shapes its own environment.
1. Member State nationalities and the Internal Market: The Trend
The successful development of the Internal Market was bound to diminish the legal effects of particular Member St ates‟ nationalities due to four key factors, all striking at the core of the essence of nationality. EU law prohibits the Member States from favouring their own nationals in a growing array of situations; it seriously limits any The successful development of the Internal Market was bound to diminish the legal effects of particular Member St ates‟ nationalities due to four key factors, all striking at the core of the essence of nationality. EU law prohibits the Member States from favouring their own nationals in a growing array of situations; it seriously limits any
of nationality by providing for a simple escape route for evading such duties through free movement; and it makes it impossible for the Member States to claim that equality among their citizens is safeguarded, since the situation of some of them is covered by
EU law, while others are not. 8 Member States are thus severely limited in what they can and can not do: their nationality now comes with virtually no „bonus‟ and is just as good
as any other EU nationality. This is an important part of what Davies characterized as „humiliation of the State‟, 9 when describing the constitutional essence of the Union.
I mportantly, such „humiliation‟ is not a specific consequence of the introduction of EU citizenship or any other particular development of the acquis: it flows directly from the very essence of the Union rooted in the Internal Market, where internal borders are abolished and discrimination on the basis of nationality is outlawed.
Humiliating the State is not necessarily a bad thing, as it can simultaneously empower individuals in their quest for better lives. 10 So on the positive side of the same
coin, European citizens residing in a Member State other than their Member State of nationality are not simply „foreigners‟. 11 The ECJ acting together with other institutions
of the Union shaped a legal reality where citizenship of the EU acquired clear and
8 See section 2 below. 9 Davies (n 7).
10 But see Joseph H.H. Weiler, „Europa: “Nous coalisons des Etats nous n‟unissons pas des hommes”‟
in Marta Cartabia and Andrea Simoncini (eds), La Sostenibilità della democrazia nel XXI secolo (Il Mulino, Bologna 2009) 51.
11 EU law thus questions the foreigner- citizen dichotomy: the lines between „us‟ and „them‟ are necessarily blurred in the borderless Internal Market. This blurring of the lines of belonging is not
unique to the EU, however, and is a general trend, observable in a number of jurisdictions around the world: Tanja Brøndsted Sejersen, „“I Vow to Thee My Countries” – The Expansion of Dual Citizenship in the 21st Century‟ (2008) 42 Int‟l Migration Rev 523, 524. The signs of this erosion are not only seen in the equality of legally resident foreigners with citizens in the majority of spheres ranging from non- discrimination at work to social security. Recent decisions of international tribunals have also demonstrated that the international human rights protection regime can stand in the way of the use by states of the previously unconditional right to deport an alien. See
e.g. Beldjoudi v. France (App no 12083/86) ECHR 26 March 1992; Stewart v. Canada , U.N. Doc. CCPR/C/58D/538/1993. See also Dimitry Kochenov, ‘Ius Tractum of Many Faces: European Citizenship and the Difficult Relation Between Status and Rights ’ (2009) 15 CJEL 169, 175–181; Linda Bosniak, „Citizenship Denationalized‟ (2000) 7 Ind J Global Legal Stud 447.
identifiable scope and a direct ability to shape the rights of those in possession of this status, enlarging their horizon of opportunities. 12 To pretend that EU citizens are not,
potentially at least, quasi-nationals of any of the Member States where they choose to reside 13 would thus amount to closing one‟s eyes to the current level of development of
EU law. Consequently, although acquisition and loss of nationality are not among the
issues which the Union is empowered to regulate, 14 the very functioning of the Internal Market amplified by the notion of EU citizenship makes the retention of the pre-
existing modes of regulation of such de jure extra-acquis issues by the Member States unsustainable. The Internal Market and EU citizenship work together to transform nationality policies of the Member States, not by empowering the Union to act in the
field of the conferral of nationalities by the Member States 15 – even though there are some limitations here too, on what the Member States can do 16 – but simply by bringing
a profound change to the whole meaning of Member States‟ nationalities in contemporary Europe through the four avenues outlined.
12 For a ve ry informative analysis of this process, see Dora Kostakopoulou, „Ideas, Norms and European Citizenship: Explaining Institutional Change‟ (2005) 68 MLR 233, 244–261. See also
Ferdinand Wollenschläger, „A New Fundamental Freedom beyond Market Integration‟ (2011) 17 ELJ 1; Matthew J. Elsmore and Peter Starup, „Union Citizenship – Background, Jurisprudence, and Perspective: The Past, Present, and Future of Law and Policy‟ (2007) 26 YEL 57; Francis G. Jacobs, „Citizenship of the European Union – A Legal Analysis‟ (2007) 13 ELJ 591; Willem Maas, Creating European Citizens (Lanham et al .: Rowman and Littlefield, Plymouth 2007).
13 This is notwithstanding the limitations in secondary law, briefly discussed in section 2 below. 14 E.g. Opinion of AG Poiares Maduro in Case C-135/08 Janko Rottmann v. Freistaat Bayern [2010]
ECR I- 1449 para 17: „the determination of conditions for the acquisition and loss of nationality, – and therefore of Union citizenship –, falls within the exclusive competence of the Member States.‟ (also see the references cited therein). This notwithstanding the famous obiter dictum in Micheletti that decisions on nationality should be taken by the Member States with „due regard of Community law‟: Case C- 369/90 Mario Vicente Micheletti et al. v. Delegación del Gobierno en Cantabria [1992] ECR I-4239, para 10.
15 In practice, the Union took part in the framing of state nationality laws on several occasions, all during the pre-accession process, when dealing with the Member States-to-be. For analysis, see Dimitry
Kochenov, „Pre-accession, Naturalization, and “Due Regard to Community Law”: The European Union's 'Steering' of Citizenship Policies in Candidate Countries during the Fifth Enlargement‟ (2004) 4 Romanian J Pol Sci 71.
16 As expressed by the ECJ in Rottmann and Micheletti , for instance: Micheletti (n 14); Rottmann (n 14). See also Dimitry Kochenov, „Annotation of Case C-135/08 Rottmann ‟ (2010) 47 CMLRev 1831;
Stephen Hall, „Loss of Union Citizenship in Breach of Fundamental Rights‟ (1996) 21 ELRev 129.
It takes the Member States a long time to awaken to the realization of this state of affairs. However the reaction of the Member States to the recent developments, which put their nationalities into a broader context of the Internal Market, EU
citizenship and the territory of the Union, 17 is already clearly decipherable, forming a trend to treat EU citizens and third country nationals differently also in the context of
acquisition and loss of nationality, thus providing for a de jure recognition of the reality that has been affecting Member States‟ nationalities de facto for quite a while.
Already, six Member States – Austria, Germany, Hungary, Italy, Romania and Slovenia – formally differentiate between EU citizens and third-country nationals in their naturalization procedures. These differences are not minor at all. In Italy, in one example, the length of minimal legal residence in order to qualify for naturalization is drastically different for the two categories in question: while EU citizens naturalize in
four years, third country nationals have to wait six (!) years longer. 18 In the near future, the number of Member States to introduce such differences as well as the reach of the
differences themselves is likely to proliferate, simply reflecting the existing reality on the ground and thereby amplifying the importance of EU citizenship, which is now capable of providing the holder with easy access to the nationalities of other EU Member States even at the formal level of the naturalization procedure, not only by
providing virtually unlimited access to residence, 19 thus infinitely simplifying the meeting of any standard naturalization requirements too.
Ultimately, the establishment of diverging naturalization requirements for EU citizens in the new Member States of residence, compared with third-country nationals, means that a distinction is made between the acquisition of EU citizenship (necessarily coupled with a Member State‟s nationality) and merely the acquisition of another
17 Case C-34/09 Gerardo Ruiz Zambrano v. Office national de l’emploi [2011] judgment of 8 March 2011, nyr, para.
44. For analysis, see Dimitry Kochenov, „A Real European Citizenship: A New Jurisdiction Test: A Novel Chapter in the Development of the Union in Europe ‟ (2011) 18 CJEL 56.
18 Legge N. 91/1992; Giovanna Zincone and Marzia Basili, „Country Report: Italy‟ (2010) EUDO EUI
RSCAS Paper <http://eudo-citizenship.eu/docs/CountryReports/Italy.pdf> 13.
19 To say nothing about access to the majority of rights which were previously exclusively associated with nationality.
Member State nationality. This is a fundamental development. It is bound to have far- reaching consequences for the legal essence of both legal statuses in question. In other words: although the Treaties do not empower the Union to regulate the nationality law of the Member States, the influence of the European integration project is such that the Member States are bound to adapt their nationality legislation to the changing reality. That this process is not formally initiated by the EU changes little: the Internal Market, which removed borders and outlawed nationality discrimination, having also supplied the general context where EU law takes precedence vis-à-vis national rules, is responsible for a tectonic shift in the understanding of the whole context in which nationalities operate, as well as of the whole context of what they do (and do not do). Responding to this change is not a luxury, but a pure necessity; and all the Member States are expected to follow the six frontrunners sooner rather than later.
The situation of EU citizens and third country nationals in any Member State is categorically different, 20 permitting us to speak of an „unfulfilled promise of European
citizenship‟. 21 Naturalization in the Member State of residence is already far less important for EU citizens than for the third country nationals. This is so since a number
of key rights formerly associated with state nationality are granted to EU citizens directly by the EU legal order and do not per se depend on the law of the new Member State of residence. Among these are virtually unconditional rights of entry, residence,
20 The EU and the Member States announced on a number of occasions that this difference is bound to
be reduced, the third country nationals gradually coming to be treated as EU citizens. However, as Directive 2003/109/EC (OJ L 16/44 (2004)) overwhelmingly demonstrates, the differences are there to stay. For an assessment of the legal position of third country nationals in the EU see e.g. Kochenov (n
11) 225 –229; Martin Hedemann-Robinson, „An Overview of Recent Legal Developments at Community Level in Relation to Third country Nationals Resident within the European Union, with Particular Reference to the Case- law of the European Court of Justice‟ (2001) 38 CMLRev 525; Helen Staples, The Legal Status of Third-country Nationals Resident in the European Union (Kluwer Law International, The Hague 1999); Ian Ward, „Law and the Other Europeans‟ (1997) 35 JCMS 79; Steve Peers, „Towards Equality: Actual and Potential Rights of Third-Country Nationals in the European Union‟ (1996) 33 CMLRev 8.
21 Willem Maas, „Migrants, States, and EU Citizenship‟s Unfulfilled Promise‟ (2008) 12 Citizenship Stud 583.
taking up employment, and, crucially, non-discrimination on the basis of nationality. 22 It is evidently so that not so much is left of Member States‟ nationalities in the EU in
terms of the ability to generate unique legal consequences that would not be matched by those attached to any other legal status for their bearers. An oft-cited phrase coined by Davies attributes to Article 18 TFEU the abolition of the nationalities of the Member
States. 23 In the context of the completion of the Internal Market, it seems that it is not a Member State nationality, but EU citizenship, which provides Europeans with the most
considerable array of rights, as long as, by virtue of this status, rights in 27 States instead of only one are guaranteed and any discrimination on the basis of nationality is prohibited.
These developments, which are supported by the ECJ case law on the free movement of persons and EU citizenship, are bound to have two main consequences. The first is the widening of the gap between EU citizens and third country nationals in the EU even further. The second is the obvious need to adapt the Member States‟ nationalities to the new reality, constructing legal statuses more aware of their limitations. The diminishing in importance of the nationalities of the Member States as legally meaningful statuses naturally reaffirms the rise of EU citizenship to the most prominent regulatory source for the rights of EU citizens.
2. Member States’ nationalities: The legal essence in the EU context
At present, European citizenship in the context of the Internal Market grants individuals in possession of this status a constantly growing amount of rights, the majority of which were previously associated with state nationalities only. These rights touch upon the
22 For critical analysis, see Kochenov (n 11) 206 (and the literature cited therein). See also Niamh Nic
Shuibhne, „Derogating from the Free Movement of Persons: When Can EU Citizens Be Deported?‟ (2006) 8 Cam. YB Eur. L. 187.
23 Gareth Davies, „“Any Place I Hang My Hat?” or: Residence is the New Nationality‟ (2005) 11 ELJ
43, 55. Evans (n 4) put it slightly differently: „possession of the nationality of one Member State rather than that of another loses all real significance‟ (at. 195).
core understanding of nationality, moving a number of areas of regulation previously considered as belonging to vital components of national sovereignty away from the jurisdiction of the Member States, handing them over to the EU.
These rights include, first of all, the right to enter state territory and the right to remain, accompanied by the right to work, open a business, and bring in your family of
any nationality. 24 Another, equally important, right concerns non-discrimination on the basis of nationality within the material scope of application of EU law established by
lex generalis 25 Article 18 TFEU and a number of lex specialis provisions. Just as in the case of the previous example, a classical understanding of nationality would make these
rights available uniquely to the home state nationals. 26 Article 22 TFEU establishes the application of the logic of non-discrimination on the basis of nationality also within the
sphere of political participation rights, providing for rights to vote and run for office for all EU citizens legally resident in the Member States other than their own on an equal
basis with locals. 28 Two levels of political representation are covered: local elections
24 Case C-127/08 Metock v. Minister for Justice, Equality and Law Reform [2008] ECR I-6241. For a
very concise overview, see Kochenov (n 11) 194 –197 (and the literature cited therein). For a recent important development, see Ruiz Zambrano (n 17) (on the right of third country nationals to stay in the country of EU nationality of their minor children under EU law). For analysis, see Kochenov (n 17); Peter Van Elsuwege, „Shifting Boundaries? European Union Citizenship and the Scope of Application of EU Law‟ (2011) 38 LIEI 263; Peter Van Elsuwege and Dimitry Kochenov, „On the Limits of Ju dicial Intervention: EU Citizenship and Family Reunification Rights‟ (2011) 13 Eur. J. Migr. & L. 443.
25 E.g. Art. 45 TFEU; Art. 49 TFEU. For assessment see e.g. Gareth Davies, Nationality Discrimination in the European Internal Market (Kluwer Law International, The Hague 2003).
26 In line with the traditionalist reading of the scope of EU law entitlements, the ECJ refuses to apply Art. 18 TFEU to third country nationals notwithstanding the non-restrictive wording of the provision.
For criticism, see Kochenov (n 11) 206 –209; P. Boeles, „Europese burgers en derdelanders: Wat betekent het verbod van discriminatie naar nationaliteit sinds Amsterdam?‟ (2005) 53 SEW 502; Astrid Epiney, „The Scope of Article 12 EC: Some Remarks on the Influence of European Citizenship‟ (2007)
13 ELJ 611, esp n 4 at 612, listing the recent case law of the ECJ most relevant for the interpretation of Art. 18 TFEU. See also Chloé Hublet, „The Scope of Article 12 of the Treaty of the European Communities vis-à-vis Third-Country Nationals: Evolution at Last? ‟ (2009) 15 ELJ 757.
27 Jo Shaw, The Transformation of Citizenship in the European Union (CUP, Cambridge, 2007). See also Kochenov (n 11) 197 –205; Giovanna Zincone and Simona Ardovino, „I diritti elttorali dei migranti
nello spazio politico e giuridico europeo‟ (2004) 5 Le istituzioni del federalismo 741; Stephen Day and Jo Shaw, „European Union Electoral Rights and the Political Participation of Migrants in Host Policies‟ (2002) 8 Int J Popul Geogr 183.
28 Art. 22(1) TFEU; Council Directive (EC) 94/80 of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by 28 Art. 22(1) TFEU; Council Directive (EC) 94/80 of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by
The possible limitations of the rights mentioned above are interpreted by the ECJ very narrowly. 31 Practically speaking, the Member States are not given any
possibility to abuse the grounds for derogations provided for in the Treaty. 32 Moreover, even in the situations where the Member States do not rely on derogations, the
possibility to undermine the rights of EU citizens is minimised by the ECJ. 33 The Court made it clear that Article 21 TFEU, granting EU citizens a general free movement right,
although allowing for derogations, 34 cannot give rise to secondary legislation which would, if applied strictly, undermine the provision itself. 35 In practice, it means that the Court is bound to interpret the relevant secondary law 36 constantly keeping in mind the
principles established by Part II TFEU dealing with European citizenship. This approach has resulted in the substantial growth in importance of the status of EU
citizens of the Union residing in a Member State of which they are not nationals [1994] OJ L368/38, as
amended. Analyzed by Shaw (n 27) 142 –153.
29 Council Directive (EC) 93/109 of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens
of the Union residing in a Member State of which they are not nationals [1993] OJ L329/34. 30 For analysis, see Dimitry Kochenov, „Free Movement and Participation in the Parliamentary
Elections in the Member State of Nationality: An Ignored Link?‟ (2009) 16 MJ 197. Evans (n 4) has rightly underlined that this state of affairs is not entirely logical, as the national level elections are the most consequential also for the EU legal order, affecting the formation of the Council (at 194).
31 E.g. Joined cases C-482 and 493/01 Georgios Orfanopoulos et al. and Raffaele Oliveri v. Land Baden-Württemberg [2004] ECR I-5257; Case 149/79 Commission v. Belgium [1981] ECR 3881.
32 Arts. 45(3) and (4), 52(1) and 62 TFEU, and the relevant secondary law. Among the grounds are public policy, security, health and employment in the public sphere.
33 For a detailed analysis of the recent case-law, see e.g. Kochenov (n 17). 34 Art. 20(1) TFEU. For an assessment of the clause of Art. 20 TFEU that allows for the limitations of
the right, see Davies (n 25) 188. 35 E.g. Case C-456/02 Michel Trojani v. Centre publique de l’aide sociale de Bruxelles (CPAS) [2004]
ECR I-7573; Case C-209/03 R. (on the application of Danny Bidar) v. London Borough of Ealing, Secretary of State for Education and Skills [2005] ECR I-2119; Case C-413/99 Baumbast and R. [2002] ECR I-7091; Case C-184/99 Rudy Grzelczyk v. le Centre public d’aide sociale d’Ottignies -Louvain-la- Neuve [2001] ECR I-6193. See also inter alia Silvia Gastaldi, „L‟égalité de traitement au service de la citoyenneté européenne‟ in Christine Chappuis, Bénédict Foëx and Thomas Kadner Graziano (eds), L’harmonisat ion internationale du droit (Schulthess, Zürich 2007) 326, 342 –344. 36
Esp. Council Directive (EC) 2004/38 of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77.
citizenship 37 and limited the Member States‟ ability to act in cases where they seemingly just 38 „enforce the law‟. Consequently, EU citizens cannot be automatically
deported from their new Member State of residence upon failing to demonstrate compliance with the provisions of secondary law; 39 the requirement to have sufficient
resources is interpreted in such a way that the Member States are not permitted to actually check how much money EU citizens have; 40 and permanent banishment of an
EU citizen from a particular Member State is prohibited. 41 What is even more important, once residence in a new Member State is established, 42 is that non-
discrimination on the basis of nationality applies to EU citizens even in the cases when they objectively fail to meet the minimal requirements of secondary law necessary to
establish residence at the moment of the dispute. 43 The pro-citizenship position embraced by the Court ensured that the Member
States are not able, legally, 44 to deprive EU citizens of their rights using either Treaty derogations or „strict application‟ of secondary EU law as a pretext. The EU citizenship
status can also be used against one‟s own Member State of nationality as the introduction of obstacles to the free movement of persons, even non-discriminatory
37 Jacobs (n 12); Elsmore and Starup (n 12); Juliane Kokott, „EU Citizenship – citoyens sans
Lecture (2005) <http://www.dur.ac.uk/resources/deli/annuallecture/2005 _DELI_Lecture.pdf>.
frontières ?‟,
38 As happened in Bidar , for instance: Bidar (n 67). This consideration holds also when no discrimination on the basis of nationality can be observed: e.g. Case C-353/06 Stefan Grunkin and
Dorothee Regina Paul [2009] ECR I-7639. 39 Commission v. Belgium (n 31) para 72; Nic Shuibhne (n 22).
40 Art. 8(4) Directive 2004/38 (n 68); Commission v. Belgium (n 31). 41 Case C-348/96 Criminal proceedings against Donatella Calfa [1999] ECR I-11. Obviously, it would
have been a clear violation of Art. 18 TFEU to allow the banishment, as the Member States are not free to banish their own citizens from their territory.
42 To which end a residence permit is issued, which is not strictly necessary as the right emerges from the Treaties directly: Case 157/79 R. v . Stanislaus Pieck [1980] ECR 2171; Joined Cases 389 and
390/87 G.B.C. Echternach and A. Moritz v . Minister van Onderwijs en Wetenschappen [1990] ECR 723.
43 E.g. Trojani (n 35). The Court underlined that to rely on Art. 12 EC [18 TFEU] a residence permit is enough (para 43).
44 The Member States sometimes deviate from the norms of the law. See e.g. European Roma Rights Centre, Security a la Italiana: Fingerprinting, Extreme Violence and Harassment of Roma in Italy
(ERRC, Budapest 2008) <http://www.errc.org/db/03/4D/m0000034D.pdf>.
ones, is prohibited in EU law. 45
A similar prohibition extends also to national regulation capable of making the use of EU citizenship rights difficult or impossible. 46 This recent
development has profound implications for the scope of EU law, 47 as the array of situations where EU law potentially applies thereby grows exponentially.
All of this has deprived the Member States of the ability to decide who will reside and work in their territory, who needs to be sent away, and – probably more painful for some – means that they find themselves in a situation where privileging their own nationals vis-à-vis other EU citizens is illegal.
Moreover, as far as „duties of nationality‟ are concerned, Member States are powerless in front of the EU, as virtually any duties they might wish to attach to their
nationalities are by definition unable to undermine EU citizens‟ ability to make use of the fundamental freedoms associated with the Internal Market in the Treaties: EU law prevails, in its sphere of competence, above national law. Since Member States cannot attach duties to their nationalities by way of applying EU law, whatever citizenship duties they invent, the application of such duties is not absolute any more, diminishing
states‟ grip on their own nationals even further. Practically speaking, it means that any Greek not willing to serve in the army (which is one of the duties of male Greek
nationals) should simply move to a different Member State, using EU citizenship rights. 48 The same applies to a Belgian not willing to vote (voting is a citizenship duty
in that Kingdom). EU citizens falling within the scope of EU law are thus protected by
45 Case C-192/05 K. Tas-Hagen en R.A. Tas v. Raadskamer WUBO van de Pensioen- en Uitkeringsraad [2006] ECR I-10451. Besides, turning EU citizenship against your Member State of nationality is also
possible for EU citizens falling within the scope of EU law: Case C-224/98 Marie- Nathalie D’Hoop v.
46 Office national d’emploi [2002] ECR I-1691; Ruiz Zambrano (n 17). Van Elsuwege (n 24); Kochenov (n 17). See also in this context, Ankersmit
Grunkin and Paul (n 38).
and Geursen, who make an interesting parallel between the recent citizenship case law and the principles of equivalence and effectiveness governing the Member S tates‟ procedural autonomy: Laurens Ankersmit and Wessel Geursen, „ Ruiz Zambrano : De interne situatie voobij‟ (2011) 4 Asiel en migrantenrecht 156.
47 Van Elsuwege (n 24); Kochenov (n 17); Kay Hailbronner and Daniel Thym, „Annotation of Case C- 34/09 Ruiz Zambrano ‟ (2011) 48 CMLRev 1253.
48 For indirect confirmation, see Case C-376/89 Panagiotis Giagounidis v. Stadt Reutlingen [1991] ECR I-1069.
the EU from the irrational demands of their Member States, sold by the official propaganda as sacred attributes of nationality. 49 Consequently, an answer to the
question „what will happen if allegiance to the Union comes into conflict with allegiance to our country?‟, once raised in the House of Lords, 50 is clear.
All of these developments notwithstanding, to pretend that Member State nationalities are legally meaningless would be unwise. Besides opening the way to the status of EU citizenship in the first place, the possession of a particula r Member State‟s nationality has positive legal consequences for European citizens in mostly three cases. First, and most importantly, it brings an entitlement to vote and stand for election at the national level of political representation. Secondly, it enables qualification for certain
jobs in public service 51 in derogation from the non-discrimination principle of Article
45 TFEU. 52 Thirdly, the nationality of a particular Member State theoretically provides the owner of this status with an unconditional access to the territory of the Member
State in question. 53 Note moreover that this list only concerns the legal attributes of nationality and does not touch upon the sociologically important factors, such as „the
49 Kochenov (n 11) 215. 50 As reported by Maas (n 12) 58. 51 Art. 45(4) TFEU. The ECJ interprets this derogation narrowly, meaning that the majority of jobs in
the state administration at different levels are not reserved to EU citizens possessing particular nationalities. See e.g. Case 149/79 Commission v. Belgium [1980] ECR 3881 (interim judgement) and [1982] ECR 1845; Case C-473/93 Commission v. Luxembourg [1996] ECR I-3207; Case C-173/94 Commission v. Belgium [1996] ECR I-3265; Case C-290/94 Commission v. Greece [1996] ECR I-3285; Case 307/84 Commission v. France [1986] ECR 1725; Case 225/85 Commission v. Italy [1987] ECR 2625. For analysis, see Nanda Beenen, Citizenship, Nationality and Access to Public Service Employment (Europa Law, Groningen 2001).
52 Art. 45(2) TFEU. 53 This is so since the Member States cannot apply TFEU derogations referring to public health, security
and policy to their own citizens exercising free movement rights. The ECJ clarified that own nationals have an absolute right to enter and to stay under international law: Case C-434/09, McCarthy [2011] judgment of 5 May 2011, nyr, para 29.
feeling of belonging‟, 54 which can have implications for the functioning of democracy. 55
There is also a possible negative side to possessing a particular Member State‟s nationality. This paradoxical situation is a direct consequence of one of the main functions of Member State nationality in EU law: Member State nationality has a
potential to activate reverse discrimination. 56 Only those in possession of the nationality of the Member State of residence can legally be discriminated against in the EU, as
possession of the status of EU citizen alone is not enough, according to the ECJ, in order to fall within the scope ratione materiae of EU law, 57 unless the very status of EU
citizenship is in jeopardy 58 or the ability to exercise EU citizenship rights is made de facto 59 impossible by Member State rules. Consequently, while discrimination on the
54 For discussion of the broad implications of the recent developments for the legitimacy of the Union,
see Gianluigi Palombella, „Whose Europe? After the Constitution: A Goal-Based Citizenship‟ (2005) 3 I-CON 357, 367.
55 Joseph H.H. Weiler, „Fundamental Rights and Fundamental Boundaries: Common Standards and Conflicting Values in the Protection of Human Rights in the European Legal Space‟, in Riva
Kastoryano and Susan Emmanuel (eds.), An Identity for Europe: The Relevance of Multiculturalism in EU Constitution (Palgrave Macmillan, New York 2009), 73
56 Peter Van Elsuwege and Stanislas Adam, „Situtations purement internes, discriminations à rebours et
collectivités autonomes après l‟arrêt sur l‟Assurances soins flamande‟ (2008) 44 CDE 655; Alina Tryfonidou, „Reverse Discrimination in Purely Internal Situations: An Incongruity in a Citizens‟ Europe‟ (2008) 35 LIEI 43; Niamh Nic Shuibhne, „Free Movement of Persons and the Wholly Internal Rule: Time to Move on?‟ (2002) 39 CMLRev 731; Miguel Poiares Maduro, „The Scope of European Remedies: The Case of Purely Internal Situations and Reverse Discrimination‟ in Calire Kilpatrick, Tonia Novitz, and Paul Skidmore (eds), The Future of Remedies in Europe (Hart, Oxford 2000) 117; Giorgio G aja, „Les discriminations à rebours: Un revirement souhaitable‟ in Mélanges en Hommage de Michel Waelbroeck (Bruylant, Brussels 1999) 993, 997 –998. For an impressive overview, see Alina Tryfonidou, Reverse Discrimination in EC Law (Kluwer Law International, The Hague 2009).
57 Joined Cases C-64/96 and C-65/96 Uecker and Jacquet [1997] ECR I-3171 para 23; Case C-148/02 Garcia Avello [2003] ECR I-11613 : „citizenship of the Union, established by Article 17 EC [20 TFEU],
is not intended to extend the material scope of the Treaty to internal situations which have no link with Community law‟ (para 26).
58 Rottmann (n 14); Jo Shaw (ed.), Has the European Court of Justice Challenged the Member State Sovereignty in Nationality Law? (2011) EUI RSCAS paper (forthcoming); Kochenov (n 16).
59 Ruiz Zambrano (n 17); Van Elsuwege (n 24); Kochenov (n 17); Hailbronner and Thym (n 47).
basis of nationality is outlawed in the situations covered by the Treaty, 60 it is legal outside the Treaty‟s scope even when EU citizens suffer from it. 61
The Court has done a lot in order to remedy this drawback inherent in the law in force. 62 At present, it is not necessary to cross borders any more, for instance, in
order to fall within the scope of EU law and thus benefit from the non-discrimination
principle. 64 Possession of a second Member State‟s nationality helps, but not always, as McCarthy has demonstrated. 65 It seems that the very logic of market integration in the EU contradicts the ideal of equality inherent in the notion of citizenship, 66 as the
non-discrimination principle of Article 18 TFEU does not have a self-standing value in connection with the status of EU citizenship and has to be „activated‟ separately from it. 67 Davies made a compelling demonstration of the clash between equality and market
68 freedoms using the Services Directive 69 as a case study. Regrettably, this clash covers
60 Art. 18 TFEU. 61 Case C-212/06 E. g. Government of the French Community and Walloon Government [2008] ECR I-
1683. See also the Opinion of AG Sharpston in this case, esp paras 117 –118.
62 It has not done enough, however, as the problem seems to be only growing: Kochenov (n 1) 34 –58
(and the literature cited therein). 63 E.g. Case C-403/03 Egon Schempp v. Finanzamt München V [2005] ECR I- 6421 para 22: „the
situation of a national of a Member State who … has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation‟; Case C-60/00 Carpenter [2002] ECR I-6279.
64 Garcia Avello (n 57). 65 McCarthy (n 53) para. 41. 66 See Kochenov (n 1). In general on equality, see Erwin Chemerinsky, „In Defence of Equality: A Reply to Professor Westen‟ (1983) 81 Mich L Rev 575 (and the literature cited therein). For a US perspective: Kenneth L. Karst, „The Supreme Court 1976 Term Foreword: Equal Citizenship under the Fourteenth Amendment‟ (1977) 91 Harv L Rev 1; Sir Isaiah Berlin, „Equality‟ (1955–1956) 56 Proceedings of the Aristotelian Society 301.
67 Kochenov (n 11) 234. 68 Council Directive (EC) 2006/123 of the European Parliament and of the Council of
12 December 2006 on services in the internal market [2006] OJ L376/36. For analysis, see Catherine Barnard, „Unravelling the Services Directive‟ (2008) 45 CMLRev 323.