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IUS TRACTUM OF MANY FACES: EUROPEAN CITIZENSHIP AND THE DIFFICULT RELATIONSHIP BETWEEN STATUS AND RIGHTS Dimitry Kochenov* The citizenship of the European Union is a rare example of a “fundamental status” which is entirely dependent on the specific features of the bearer, instead of vice versa, making any appeal to equality between European citizens impossible. Based on an overview of the legal essence and functioning of European citizenship both as a legal status and a bundle of rights, this paper provides a critical analysis of the current development of the European citizenship concept vis-à-vis both citizens and thirdcountry nationals in the EU and addresses key issues which will have to be resolved to create a truly meaningful citizenship in Europe. The deficiencies of European citizenship are too important to resolve them rhetorically by appeals to the interplay between different legal orders in Europe. Sooner or later the outstanding problems will have to be addressed in a constructive way. The EU does not need a citizenship of unequals by law. I. II. III.

INTRODUCTION AND STRUCTURE OF THE ARGUMENT ................................171 LEGAL STATUS, RIGHTS, AND CITIZENSHIP ................................................175 IUS TRACTUM: THE NATURE OF EUROPEAN CITIZENSHIP ............................181 A. Should the EU Decide who its Citizens are?....................................182 B. Diverging Scopes of ratione personae of European Citizenship and Nationalities of the Member States ...........................................186

* LL.M. (CEU, Budapest), LL.D. (Groningen). Assistant Professor of European Law, Department of Corporate and European Law, and Fellow of the Graduate School of Law, University of Groningen. Oude Kijk in ‘t Jatstraat 26, 9712EK Groningen, The Netherlands. Parts of this article have been presented at the UACES annual conferences in Portsmouth (September 2007) and Edinburgh (September 2008), at a conference at the Birmingham School of Law (July 2008), and made the core of my Byrd Lecture at James Madison University (October 2008). I am grateful to Prof. Dr. Laurence W. Gormley, Prof. Dr. Jan H. Jans, Dr. John Morijn, Dr. Claudia Mure an, Laura Nistor, Dr. John Scherpereel, Jacob van de Velden, and Spencer Wolff. Assistance of Harry Panagopulos is kindly acknowledged. Cara Eleonora, grazie.

The Columbia Journal of European Law (CJEL), V 15/no 2, 169-237, copyright 2009 ©Juris Publishing, Inc.

Electronic copy available at: http://ssrn.com/abstract=1352734

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C. EC Law Limits on the Member States’ Competence to Define who their Nationals Are ...................................................................190 D. Citizenship Rights in the EC Treaty.................................................193 1. Free Movement..........................................................................194 2. Political Participation.................................................................197 3. Diplomatic Protection ................................................................205 4. Communication with the Institutions; Ombudsman ..................206 5. Non-discrimination on the Basis of Nationality: a Citizenship Right?.........................................................................................206 E. A Sketch of the ECJ’s Role in the Development of European Citizenship .......................................................................................209 F. The Issue of Reverse Discrimination ...............................................212 THE CITIZENSHIP RIGHTS OF THOSE IN POSSESSION OF EUROPEAN CITIZENSHIP STATUS ..................................................................................214 A. Full Citizens .....................................................................................214 B. Temporary Second-class Citizens ex lege........................................215 C. Permanent Second-class Citizens ex lege ........................................217 D. De facto Second-class Citizens ........................................................219 THE “CITIZENSHIP” RIGHTS OF THOSE NOT IN POSSESSION OF EUROPEAN CITIZENSHIP STATUS ..................................................................................222 A. Third-country Nationals and the Scope of Article 39 EC ................223 B. Third-country Nationals and European Citizenship Rights..............225 1. Any Person ................................................................................225 2. Third-country Nationals who are Long-term Residents.............225 3. Commonwealth Citizens Residing in the U.K. ..........................229 4. Third-country Nationals’ Rights under International Agreements ................................................................................231 C. Third-country Nationals’ European “Citizenship” Rights: a Collection of Inconsistencies ...........................................................233 REFORMING IUS TRACTUM...........................................................................234

IV.

V.

VI.

“Un homme qui se respecte n'a pas de patrie. Une patrie, c'est de la glu.” E. M. Cioran1 “Liberal democratic justice, properly understood, greatly constrains the distinctions that can be made between citizens and non-citizen residents.” J. Carens2

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EMIL M. CIORAN, ŒUVRES 1456 (1995). Joseph H. Carens, Citizenship and Civil Society: What Rights for Residents?, in DUAL NATIONALITY, SOCIAL RIGHTS AND FEDERAL CITIZENSHIP IN THE U.S. AND EUROPE: THE REINVENTION OF CITIZENSHIP 100, 101 (Randall Hansen & Patrick Weil eds., 2002). 2

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INTRODUCTION AND STRUCTURE OF THE ARGUMENT

Part II of the EC Treaty,3 coupled with the proactive position of the European Court of Justice (ECJ),4 is responsible for a true revolution in the modern understanding of citizenship.5 Citizenship beyond the nation-state—an idea marked by deep skepticism only a quarter of a century ago6—is a reality. The European Community (EC)7 is the first and so far the only supranational8 entity in the world to extend citizenship status to some of the persons within its jurisdiction.9 According to the Preamble of the EU Treaty as amended by the Treaty of Lisbon,10 the High Contracting Parties are “resolved to establish a citizenship common to nationals of their countries.”11 Being a derivative, or “parasitic,”12 status, European citizenship13 is linked to the nationality of the Member States, making it impossible to become a citizen of the

3 For the latest consolidated version, see Consolidated Version of the Treaty Establishing the European Community, Dec. 29, 2006, 2006 O.J. (C 321) 49 [hereinafter EC Treaty]. 4 See infra Part III(E). 5 This article approaches citizenship as a legal concept, not focusing expressly on the linkages between citizenship and identity and the feeling of belonging. On the analysis of European citizenship from the latter perspective, see, for example, ENIK! HORVÁTH, MANDATING IDENTITY: CITIZENSHIP, KINSHIP LAWS AND PLURAL NATIONALITY IN THE EUROPEAN UNION (2008); Ulrich K. Preuß, Citizenship and Identity: Aspects of a Political Theory of Citizenship, in DEMOCRACY AND CONSTITUTIONAL CULTURE IN THE UNION OF EUROPE 107 (Richard Bellamy et al. eds., 1995); and Constantin A. Stephanou, Identité et citoyenneté européennes, REVUE DU MARCHÉ COMMUN ET DE L’UNION EUROPÉENNE 30 (1991). For a very brief history of the concept of citizenship, see DEREK HEATER, A BRIEF HISTORY OF CITIZENSHIP (2004). 6 See Raymond Aron, Is Multinational Citizenship Possible?, 41 SOC. RES. 638 (1974). For a very informative analysis of the connection existing between the concepts of citizenship and the nation-state, see Ulrich K. Preuß, Problems of a Concept of European Citizenship, 1 EUR. L.J. 267, 271–73 (1995). 7 Since the EC is part of the First Pillar of the European Union (EU), which is, according to Art. 1 of the Treaty on European Union, “founded on the European Communities,” the term “European Union” is used on several occasions in this article as a reference to the technicalities of the EC legal order. See PAUL CRAIG & GRÁINNE DE BÚRCA, EU LAW: TEXT, CASES, AND MATERIALS 14–18 (4th ed. 2007); C.W.A. Timmermans, Europese Unie en Europese Gemeenschappen—Algemene Aspecten, in HET RECHT VAN DE EUROPESE UNIE EN VAN DE EUROPESE GEMEENSCHAPPEN 37, 37–46 (P.J.G. Kapteyn & P. VerLoren van Themaat eds., 6th ed. 2003) (discussing the pillar structure of the Union). 8 Alexander Somek, On Supranationality, 5 EUR. INTEGRATION ONLINE PAPERS [EIOP] 3 (2001), http://eiop.or.at/eiop/pdf/2001–003.pdf (last visited Feb. 3, 2009). See generally Dimitry Kochenov, The Case of the EC: Peaceful Coexistence of an Ever Powerful Community and Sovereign Member States?, in L’UNION EUROPÉENNE ET LA GOUVERNANCE 243 (Francis Snyder ed., 2003) (discussing the interrelation between the principle of supranationality and the sovereignty of the Member States in the EC). 9 On EC jurisdiction and the overlapping scopes ratione personae and ratione loci of Community law, see Dimitry Kochenov, Europeesrechtelijke aspecten, in SCHURENDE RECHTSORDERS: OVER DE EUROPESE UNIE, HET KONINKRIJK EN ZIJN CARIBISCHE GEBIEDEN 65–90, 109–19 (Herman E. Bröring et al. eds., 2008) [hereinafter Kochenov, Europeesrechtelijke aspecten], translated in Dimitry Kochenov, Substantive and Procedural Issues of Application of European Law in the Overseas Possessions of the Member States of the European Union, 17 MICH. ST. J. INT’L L. 193 (2008). 10 Consolidated Version of the Treaty on European Union, May 9, 2008, 2008 O.J. (C 115) 15 (not yet in force). 11 Id. pmbl., rec. 10. 12 Karolina Rostek & Gareth Davies, The Impact of Union Citizenship on National Citizenship Policies, 10 EIOP 5 (2006), http://eiop.or.at/eiop/index.php/eiop/article/view/2006_005a/22 (last visited Feb. 3, 2009), reprinted in 22 TUL. EUR. & CIV. L.F. 89 (2007).

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Union without being a Member State national.14 However, although bound to the nationality of the Member States, European citizenship grants those holding such status a number of rights originating in the European legal order15 and thus is inconceivable in the context of a pure nation-state. As Closa confirms, the “citizenship of the Union adds new rights to those enjoyed by nationals from Member States without this implying currently any meaningful derogation of nationality.”16 Initially, European citizenship was treated with considerable caution by the ECJ and scholars alike, ranging from parallels with a “flag which fails to cover its cargo”17 and a “pie in the sky”18 to criticisms of this “cynical exercise in public relations on the part of the High Contracting Parties.”19 Recent ECJ case-law has demonstrated, however, that European citizenship is destined to play a more prominent role in the Community legal system and is much less “minimalist” than scholars initially supposed.20 There is a growing body of literature analyzing the process of the historical formation of the idea of supranational citizenship that started at the 1973 Copenhagen summit21 and was formalized by the inclusion of this 13 European citizenship is used as a synonym for “the citizenship of the European Union”—the official term established by Article 17 EC. 14 See infra Part III. Although the terminological difference between “citizen” and “national” in EC law is of crucial importance—“citizenship” belonging to the supranational and “nationality” to the national level—not all of the twenty-three official languages of the EU know this distinction (inter alia, Slovenian-, Italian-, and Danish-language versions of the EC Treaty use the same term for “citizen” and “national”). See Gerard-René de Groot, Towards a European Nationality Law, 8 ELECTRONIC J. COMP. L. (2004), http://www.ejcl.org/83/art83-4.html (last visited Feb. 3, 2009). 15 On the notion of the European legal order, see Bruno de Witte, Direct Effect, Supremacy, and the Nature of the Legal Order, in THE EVOLUTION OF EU LAW 177 (Paul Craig & Gráinne de Búrca eds., 1999); GORDON SLYNN, INTRODUCING A EUROPEAN LEGAL ORDER (1992). 16 Carlos Closa, Citizenship of the Union and Nationality of Member States, 32 COMMON MKT. L. REV. 487, 487 (1995). 17 P.J.G. KAPTEYN ET AL., INTRODUCTION TO THE LAW OF THE EUROPEAN COMMUNITIES 174 (Laurence W. Gormley ed., 3d ed. 1998). 18 Hans U. Jessurun d’Oliveira, Union Citizenship: Pie in the Sky?, in A CITIZENS’ EUROPE: IN SEARCH OF A NEW ORDER 58 (A. Rosas & E. Antola eds., 1995). 19 Joseph H.H. Weiler, European Citizenship and Human Rights, in REFORMING THE TREATY ON EUROPEAN UNION—THE LEGAL DEBATE 65, 68 (Jan A. Winter et al. eds., 1996). 20 See infra Part III(E). 21 Antje Wiener, Assessing the Constructive Potential of Union Citizenship—A Socio-Historical Perspective, 1 EIOP 17 (1997), http://eiop.or.at/eiop/pdf/1997-017.pdf (last visited Feb. 3, 2009) [hereinafter Wiener, Constructive Potential]; see also ANTJE WIENER, “EUROPEAN” CITIZENSHIP PRACTICE—BUILDING INSTITUTIONS OF A NON-STATE (1997) [hereinafter WIENER, CITIZENSHIP PRACTICE]; Matthew J. Elsmore & Peter Starup, Union Citizenship—Background, Jurisprudence, and Perspective: The Past, Present, and Future of Law and Policy, 26 Y.B. EUR. L. 57 (2007); LINDA COTESTA, LA CITTADINANZA EUROPEA: EVOLUZIONE, STRUTTURA E PROSPETTIVE NUOVE PER I DIRITTI SOGGETTIVI (2002); THEODORA KOSTAKOPOULOU, CITIZENSHIP, IDENTITY AND IMMIGRATION IN THE EUROPEAN UNION: BETWEEN PAST AND FUTURE 44–53 (2001) (describing the long history of European citizenship before its formal inclusion in the EC Treaty in Maastricht); PAUL MAGNETTE, LA CITOYENNETÉ EUROPÉENNE: DROITS, POLITIQUES, INSTITUTIONS 13–122 (1999); see generally VINCENZO LIPPOLIS, LA CITTADINANZA EUROPEA 18 (1994). The term “European citizenship” was used by scholars long before its formal incorporation into the EC Treaty. See, e.g., Andrew C. Evans, European Citizenship: A Novel Concept in EEC Law, 32 AM. J. COMP. L. 679 (1984); G. Cansacchi, La cittadinanza comunitaria e i diritti fondamentali dell’uomo, in STUDI IN ONORE DI G. SPERDUTI 435 (1984); Andrew C. Evans, European Citizenship, 45 MOD. L. REV. 497 (1982) [hereinafter Evans, European Citizenship]; Guido van den Berghe & Christian H. Huber, European Citizenship, in 2 DAS EUROPA DER ZWEITEN GENERATION: GEDÄCHTNISSCHRIFT FÜR

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concept into the EC Treaty in Maastricht, followed by a glorious march of European citizenship from a “meaningless addition” to the Treaties to one of the key concepts of EC law. The development of European citizenship has been well-documented elsewhere.22 Building off the existing literature, this article focuses on the correlation between the status of European citizenship and the rights associated with it, analyzing the complicated relationship between the two. As this article will demonstrate, while citizenship generally can be viewed as a monolithic concept, guaranteeing those on whom it is conferred equal enjoyment of particular rights, while being linked to a number of duties, the same is not yet entirely true with European citizenship. The emphasis on equality is particularly important in the citizenship context.23 Equality contributes to forging a body of citizens out of a random collective of individuals.24 By virtue of simply being a citizen, any individual can expect to be regarded as being as valuable a member of the community as any other individual possessing the same status.25 In practice this means that the laws apply to all the citizens equally and no action on the part of the citizen is required in order to be entitled to treatment equal with others.26 In contrast with this civic ideal, the enjoyment of European citizenship rights is dependent on a number of factors not related to the possession of the formal status of a citizen. These range from the financial situation of a particular citizen, her Member State of residence, and even her sexual orientation or her past employment and residence. In other words, a huge gap exists between European citizenship and the CHRISTOPH SASSE 755 (Roland Bieber & Dietmar Nickel eds., 1981); MARIO SICA, VERSO LA CITTADINANZA EUROPEA (1979); Lord Mackenzie Stuart, Recent Trends in the Decisions of the European Court: Towards the Creation of a Community Citizenship, 21 J. L. SOC’Y OF SCOTLAND 40 (1976). 22 See generally JO SHAW, THE TRANSFORMATION OF CITIZENSHIP IN THE EUROPEAN UNION: ELECTORAL RIGHTS AND THE RESTRUCTURING OF POLITICAL SPACE (2007); EUROPEES BURGERSCHAP (Wouter F.W. van Ballegooij ed., 2004); MAGNETTE, supra note 21; MARIE JOSÉ GAROT, LA CITOYENNETÉ DE L’UNION (L’Harmattan 1999); EUROPEAN CITIZENSHIP: AN INSTITUTIONAL CHALLENGE (Massimo La Torre ed., 1998); CATHERINE WITHOL DE WENDEN, LA CITOYENNETÉ EUROPÉENNE (1997); SÍOFRA O’LEARY, THE EVOLVING CONCEPT OF COMMUNITY CITIZENSHIP: FROM FREE MOVEMENT OF PERSONS TO UNION CITIZENSHIP (1996); LIPPOLIS, supra note 21; YASEMIN N. SOYSAL, LIMITS OF CITIZENSHIP: MIGRANTS AND POSTNATIONAL MEMBERSHIP IN EUROPE (Chicago Univ. Press 1994); Theodora Kostakopoulou, Ideas, Norms and European Citizenship: Explaining Institutional Change, 68 MOD. L. REV. 233 (2005) [hereinafter Kostakopoulou, Ideas]; Theodora Kostakopoulou, The European Citizenship Menu: Modes and Options, 7 J. EUR. PUB. POL’Y 477 (2000). 23 See, e.g., Erwin Chemerinsky, In Defence of Equality: A Reply to Professor Westen, 81 MICH. L. REV. 575, 577 (1983) (analyzing generally the principle of equality; refer also to the literature cited therein). 24 “Equality” here does not refer to equality in fact (as the Communist societies were trying to achieve) but the equality of opportunity. See generally Ediberto Román, The Citizenship Dialectic, 20 GEO. IMMIGR. L.J. 557 (2007) (discussing the deviations from this ideal in the citizenship context). 25 Using the U.S. example, this is what the Fourteenth Amendment provides. See Kenneth L. Karst, The Supreme Court 1976 Term—Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1 (1977). According to Karst: The [American] principle of equal citizenship presumptively insists that the organized society treat each individual as a person, one who is worthy of respect, one who “belongs.” Stated negatively, the principle presumptively forbids the organized society to treat an individual either as a member of an inferior or dependent caste or as a nonparticipant. Id. at 6. 26 The general principle of equality has been recognized by the ECJ as one of the general principles of law. See TAKIS TRIDIMAS, THE GENERAL PRINCIPLES OF EU LAW 59–135 (Oxford Univ. Press 2006).

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equality ideal; possessing the status is not enough to know for sure what kind of rights one has. At the same time, certain citizenship rights guaranteed by the EC Treaty are often granted to those classes of EU residents and other persons who are not de jure in possession of a citizenship status. Thus, crucially, while “[t]he status of citizenship and the rights we associate with citizenship are not always coextensive,”27 in the EU this discrepancy is particularly visible, making it different from the most common model of citizenship which is “internally inclusive [and] externally exclusive.”28 The distinction between European citizens and those not in possession of such a status is so blurred at times that it verges on nonexistence. The peculiarities of the Community legal order allowing for reverse discrimination between EU citizens and for the legally mandated suspension of European citizenship rights blurs this picture further.29 These conditions, this article argues, endanger the development of European citizenship as a single legal status enjoyed by the citizens vis-à-vis the Community. To say “civis europæus sum”30 is neither a necessary precondition nor a sufficient guarantee of enjoyment of citizenship rights in the EU. If citizenship rights can be enjoyed without de jure becoming a citizen, and becoming a citizen does not per se guarantee the enjoyment of citizenship rights, the critical need for reform either of the personal scope of the concept or of the rights associated with it is obvious. Bringing consistency into the relationship between citizenship status and citizenship rights in the EU is thus a pressing need at the present stage of European integration. Building on the work of Bosniak,31 this article starts by outlining two main visions of citizenship, citizenship as a legal status and citizenship as rights, and provides an overview of the legal arenas responsible for the conferral of the citizenship status, mostly focusing on the tension between the national and international legal orders’ evolution in terms of competence to decide who is a citizen, as well as the changing scope of obligations to recognize such a decision taken by a different jurisdiction or within a different legal order.32 The article proceeds by outlining the main characteristic features of European citizenship and the rights associated with it as reflected in the EC Treaty. Particular emphasis is put on the disparities between the scope ratione personae of the nationalities of the Member States and of European citizenship, clarifying that, although overlapping, they are not necessarily identical.33 The section that follows analyzes all the main groups of European citizens outlined in the context of enjoyment of citizenship

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Linda Bosniak, Constitutional Citizenship Through the Prism of Alienage, 63 OHIO ST. L.J. 1285, 1285 (2002). 28 ROGERS BRUBAKER, CITIZENSHIP AND NATIONHOOD IN FRANCE AND GERMANY 21 (Harv. Univ. Press 1992). 29 See infra Part III(F). 30 Case C-168/91, Christos Konstantinidis v. Stadt Altensteig, 1993 E.C.R. I-1191, ¶ 46 (paraphrasing the opinion of Advocate General Jacobs). 31 Linda Bosniak, Citizenship Denationalized, 7 IND. J. GLOBAL LEGAL STUD. 477 (2000). 32 See infra Part II. 33 See infra Part III.

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rights in order to illustrate a looming gap between the citizenship rights guaranteed by the EC Treaty and European citizenship status. Four main groups of European citizens will be dealt with: European citizens able to enjoy their Treaty citizenship rights in full; European citizens temporary deprived by law of the possibility of enjoying some of their EC Treaty citizenship rights; European citizens permanently left outside the scope of certain Treaty citizenship rights by law; and lastly, the European citizens de facto unable to enjoy their rights.34 To provide a competing view on the relationship between European citizenship status and Treaty citizenship rights, the article will build on the works of Constantinesco35 and Davis,36 analyzing the groups of non-citizens enjoying the rights listed in the EC Treaty as “citizenship rights” only to discover that the absolute majority of EU citizens’ rights can be enjoyed by those not possessing such status.37 Having compared the interrelation between citizenship status and citizenship rights, on the one hand, and citizenship rights enjoyed by those not in possession of the formal legal status of European citizenship, on the other, this article will draw conclusions regarding the future dynamics of European citizenship development, outlining the areas where reform is particularly needed. Agreeing with Shaw that “[t]he study of governance in the EU . . . is a constructive rather than a deductive process,”38 the conclusions this article offers are not so much aimed at throwing yet another glance at the citizenship developments in the EU context, but rather they look into the future and offer some remedies for the problems brought to light.39 II. LEGAL STATUS, RIGHTS, AND CITIZENSHIP Citizenship is one of the essentially contested concepts;40 its meaning is inherently far from clear, and its necessary elements are uncertain.41 Preuß is right in stating that “there may be as many concepts of citizenship as there are distinct political communities, or even as there are distinct political tendencies within these political communities.”42 However, in a somewhat simplified sense, citizenship is frequently represented in the legal literature as a unity of two elements.43 The first

34

See infra Part IV. Vlad Constantinesco, La cittadinanza dell’Unione: Una “vera” cittadinanza?, in IL PROGETTO DI TRATTATO-COSTITUZIONE: VERSO UNA NUOVA ARCHITETTURA DELL’UNIONE EUROPEA 227 (Lucia S. Rossi ed., Giuffrè 2004) (explaining the context of the European citizenship rights in the Treaty Establishing a Constitution for Europe). 36 Roy W. Davis, Citizenship of the Union . . . Rights for All?, 27 EUR. L. REV. 121 (2002). 37 See infra Part V. 38 Jo Shaw, Constitutional Settlements and the Citizen After the Treaty of Amsterdam, in EUROPEAN INTEGRATION AFTER AMSTERDAM: INSTITUTIONAL DYNAMICS AND PROSPECTS FOR DEMOCRACY 297 (Karlheinz Neunreither & Antje Wiener eds., 2000). 39 See infra Part VI. 40 William B. Gallie, Essentially Contested Concepts, 56 PROC. OF THE ARISTOTELIAN SOC’Y 167 (1956). 41 See Will Kymlicka & Wayne Norman, Return of the Citizen: A Survey of Recent Work on Citizenship Theory, 104 ETHICS 352 (1994) (providing a survey of post-WWII citizenship literature). 42 Preuß, supra note 6, at 271. 43 For different approaches, see, e.g., N.W. Barber, Citizenship, Nationalism and the European Union, 27 EUR. L. REV. 242 (2002) (distinguishing—following Joseph Carens—the legal, psychological, and political component dimensions of citizenship); Michael A. Becker, Managing Diversity in the 35

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one is citizenship as a status, building on the formal legal link existing between any state or other entity—the EU, for instance—and its citizens.44 The second is citizenship as rights, viewed through the prism of the rights enjoyed by the members of a community.45 Since T.H. Marshall’s influential essay,46 the latter approach has played a key role in citizenship studies. In the majority of cases, citizenship is viewed as a necessary precondition for the enjoyment of rights. Yet the formal status of a citizen is not always necessary to enjoy certain citizenship rights, resulting in the creation of the groups of de facto citizens enjoying citizenship rights without possessing the status. A different type of relationship between the status and rights is also possible: citizenship status is not always sufficient to provide all those in possession of such a status with citizenship rights.47 As a consequence of such developments, a distinction can be drawn between “formal” citizenship, resting on the status, and “informal” citizenship, emphasising the importance of the possibility of enjoying citizenship rights as opposed to the importance of possessing the formal legal status of a citizen. Given the importance of each of the components of citizenship, only those in possession of both formal citizenship status and capable of enjoying citizenship rights can be characterized as fully-fledged citizens.48 However, the development of national and international jurisprudence on the link between “formal” and “informal” nationality permits interesting conclusions. Most importantly, the possession of the formal status as a national is decreasing in importance as a requisite to the enjoyment of certain key citizenship rights, including the right to remain in a territory of a particular state. This can be illustrated by the position taken by the European Court of Human Rights (ECt.HR) in Beldjoudi v. France.49 In Beldjoudi the ECt.HR found that an Algerian national who had spent his whole life in France could not be deported from France because he was in possession of an “effective nationality” of the country, meaning that all his friends and immediate family resided there and he was clearly connected to French, not Algerian, society. Even the fact that Monsieur Beldjoudi lacked the formal status of a French citizen was unable to convince the Strasbourg Court that he could be deported without violating of Article 8 of the European European Union: Inclusive European Citizenship and Third-Country Nationals, 7 YALE HUM. RTS. & DEV. L.J. 132, 139–45 (2004) (distinguishing “the legal participatory approach,” the “identity-based approach,” and “constructive citizenship”); Bosniak, supra note 31; Kim Rubinstein & Daniel Adler, International Citizenship: The Future of Nationality in a Globalized World, 7 IND. J. GLOBAL LEGAL STUD. 519, 522 (2000). See also Ayelet Shachar & Ran Hirschl, Citizenship as Inherited Property, 35 POL. THEORY 253 (2007) (promoting a very stimulating conception of citizenship as property). 44 See Bosniak, supra note 31, at 456–64. 45 Id. at 464–70. 46 See generally T.H. MARSHALL, CITIZENSHIP AND SOCIAL CLASS AND OTHER ESSAYS (Cambridge Univ. Press 1950). 47 The range of persons enjoying citizenship rights when in possession of the status has been growing constantly in the majority of “Western” states resulting, for instance, in the enfranchisement of women and minorities. A recent judgment of the European Court of Human Rights made it clear that banning convicted criminals from voting, thus depriving them of an important citizenship right, can also be illegal according to the law of the Strasbourg human rights protection system. See, e.g., Hirst v. United Kingdom (No.2), App. No. 74025/01, 681 Eur. Ct. H.R. (2005). 48 See Bosniak, supra note 27, at 1307. 49 Beldjoudi v. France, App. No. 12083/86, 234 Eur. Ct. H.R. (ser. A) (1992).

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Convention on Human Rights50 (ECHR).51 A right to remain in the country and not to be deported can thus belong both to persons in possession of a formal citizenship status and to those possessing “effective nationality.” In other words, as Judge Martens wrote, concurring in Beldjoudi, “mere nationality does not constitute an objective and reasonable justification for the existence of a difference as regards the admissibility of expelling someone from what, in both cases, may be called his ‘own country.’”52 The UN Human Rights Committee under the Covenant of Civil and Political Rights took a position largely similar to that of the ECt.HR in Beldjoudi in Stewart v. Canada,53 illustrating that the ECt.HR Beldjoudi case-law is not the only example of the recognition of the growing importance of “effective nationality” in international law.54 Often appearing to apply to the same group of people, both “formal” and “informal” citizenships can easily part ways. Such a split notwithstanding, citizenship (ex officio, not merely de facto) is generally viewed, following Arendt,55 as a “right to have rights,”56 since it is presumed (and thus often occurs in practice) that citizenship rights follow citizenship status. The importance of this connection is so overwhelming that scholars, eager to deprive states of the possibility of acting arbitrarily in this domain, speak of the right to a nationality in international law.57 Yet the “right to nationality” stated in Article 15 of the Universal Declaration of

50 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, E.T.S. No. 5. 51 See generally HORVÁTH, supra note 5, at 225–28 (analyzing the ECt.HR’s case-law on expulsion measures). 52 Beldjoudi, 234 Eur. Ct. H.R. (ser. A), ¶ 2 (1992) (Martens, J., concurring). For another ECt.HR case with similar facts and outcome, see Moustaquim v. Belgium, App. No. 12313/86, 13 Eur. H.R. Rep. 802 (1991) (especially at ¶ 46). These cases are still largely exceptional because of particular facts; the law of the Strasbourg human rights protection system does not normally regard as discriminatory differentiated treatment of nationals and non-nationals residing in the same state. This allows for deportations of non-citizens bringing claims on the basis of the same provision as in the Beldjoudi case. See also Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 50, art. 8. 53 Stewart v. Canada, U.N. Doc. CCPR/C/58D/538/1993 (1996) (“no one shall be arbitrarily deprived of the right to enter his own country” (quoting International Covenant on Civil and Political Rights art. 12 ¶ 4, G.A. Res. 2200A (XXI), U.N. Doc. A/6316 (March 23, 1976)). See also U.N. Comm. on Human Rights, General Comment 27, Freedom of Movement (Article 12), U.N. Doc. CCPR/C/21/Rev.1/Add.9 (Nov. 2, 1999). According to the Committee, the scope of “his own country” in the sense of Article 12 ICCPR is broader than “his country of nationality.” Id. ¶ 20. 54 See Rubinstein & Adler, supra note 43, at 538–43 (discussing both cases). 55 HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM 226 (Harcourt Brace & Co. 1979) (first published in 1951). 56 Perez v. Brownell, 356 U.S. 44, 64 (1958) (Warren, C.J., dissenting); see also Trop v. Dulles, 356 U.S. 86, 101–02 (1958) (“[T]he use of denationalization as a punishment is barred by the Eighth Amendment . . . . In short, the expatriate has lost the right to have rights.”). 57 See HORVÁTH, supra note 5, at 18–20; Johannes M.M. Chan, The Right to a Nationality as a Human Right: The Current Trend Towards Recognition, 12 HUM. RTS. L.J. 1, 1–2 (1991); Ko Swan Sik, Nationaliteit in het Volkenrecht, 83 MEDEDEELINGEN VAN DE NEDERLANDSCHE VEREENIGING VOOR INTERNATIONAAL RECHT 1 (1981).

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Human Rights58 has not found consistent implementation in binding international instruments so far.59 In Europe, the ECHR is silent about such a right.60 What is crucial about citizenship is that, mostly because of its importance to the legal status of every individual, it is generally viewed as a key element of State sovereignty. As a consequence, international law mandates that States themselves clarify who their citizens are. The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws is unequivocally clear on this issue: “[i]t is for each State to determine under its own law who are its nationals.”61 Thus nationality can only be conferred by national law—international law as it stands today can only hypothetically influence such State decisions.62 It certainly cannot separately confer nationality on individuals. The famous dictum of the Permanent Court of International Justice (PCIJ) in the Tunis and Morocco Nationality Decrees case, where the PCIJ predicted that in the future the role played by international law in the sphere of conferral of citizenship rights will increase,63 did not alter the reality of national dominance in the citizenship domain. The picture becomes more complicated once the rules on the recognition of nationality under international law are taken into account. Following the controversial International Court of Justice (ICJ) decision in the Nottebohm case,64 states are not obliged to recognize the nationality conferred on an individual by another state. The approach to the definition of citizenship adopted in the international legal documents thus begs for an extremely cautious reading. While States are free to determine who their citizens are, this determination does not

58 Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) [Hereinafter UDHR]. 59 Article 15 UDHR has been used in the national courts of a number of States. See Chan, supra note 58, at 3 & n.20. 60 According to the ECt.HR, “the right to acquire a particular nationality is not granted by the Convention or its Protocols.” See Karassev v. Finland, App. No. 31414/96, 1999–II Eur. Ct. H.R., ¶ 1(a); see also X. v. Austria, App. No. 5212/71 (Eur. Comm’n Human Rts., Oct. 5, 1972). However, numerous examples exist where applicants relied on the ECHR in the cases of loss of, or refusal to grant, nationality. See Karassev, 1999–II Eur. Ct. H.R.; Kafkasli v. Turkey, App. No. 21106/92 (Eur. Ct. H.R. 1995); Salahddin Galip v. Greece, App. No. 17309/90 (Eur. Ct. H.R. 1995). 61 Hague Convention Governing Certain Questions Relating to the Conflict of Nationalities art. 1, Apr. 12, 1930, 179 L.N.T.S. 89; see also id. art. 2 (“Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State.”). 62 See Advisory Opinion of the Inter-American Court of Human Rights, Re Amendments to the Naturalization Provisions of the Constitution of Costa Rica, OC-4/84 (1984), available at http://www.unhcr.org/refworld/docid/44e492b74.html. 63 Tunis and Morocco Nationality Decrees, 1923 P.C.I.J. (ser. B) No. 4, at 24. 64 Nottebohm (Liech. v. Guat.), 1955 I.C.J. 4 (Apr. 6). The citizenship of Lichtenstein held by Mr. Nottebohm, who used to be a German national prior to acquiring the nationality of Liechtenstein, was not recognized by Guatemala, the latter state treating Mr. Nottebohm as a German citizen. The ICJ agreed with such a restrictive vision, ruling that nationality is a “legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.” Id. at 23. In so doing, the ICJ simply ignored the fact that Mr. Nottebohm was not a German national any more at the time when the dispute arose. See id. at 29–30 (Klaestad, J., dissenting); id. at 41–42 (Read, J., dissenting). For recommended literature on the Nottebohm case, see Albert Bleckmann, The Personal Jurisdiction of the European Community, 17 COMMON MKT. L. REV. 467, 477 n.16 (1980). For a representative list of international documents regulating citizenship status and the obligations of citizens, see Rubinstein & Adler, supra note 43, at 525 n.32.

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always work at the international plane and, as a consequence, can have a purely internal effect. Many of the international legal instruments aimed at regulating citizenship issues engaged in ghost-hunting. Instead of effectively addressing issues of vital importance, such as the imminent need for the reduction of statelessness,65 they concentrated on combating double nationality,66 an obviously irrelevant quest in today’s globalizing world where identities overlap67 and where increasing numbers of people choose to change their States of residence. The EU aside, at present all attempts to regulate citizenship issues at the international level have been far from successful. Instead of the initial idea of belonging to an imagined community68 and ethnocentrism, citizenship is gradually becoming more and more an issue of individual choice69 and is no longer overwhelmingly dominated by racial, religious, gender, or other considerations.70 Open discrimination amongst citizens on ethnic

65 See Protocol Relating to a Certain Case of Statelessness, July 1, 1937, 179 L.N.T.S. 115; Special Protocol Concerning Statelessness, Apr. 12, 1930, U.K.T.S. No. 112; Convention on the Reduction of Statelessness, Dec. 13, 1975, 989 U.N.T.S. 175. The document is only ratified by a handful of states. See Chan, supra note 58, at 2 (critiquing international legal developments in this area). 66 Convention on Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multuple Nationality, May 6, 1963, E.T.S. No. 43 (entered into force in 1968); Additional Protocol to the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, Nov. 24, 1977, E.T.S. No. 96. Many commentators have analyzed the arguments supporting and criticizing dual nationality. See David A. Martin, New Rules on Dual Nationality for a Democratizing Globe: Between Rejection and Embrace, 14 GEO. IMMIGR. L.J. 1 (1999); Peter J. Spiro, Dual Nationality and the Meaning of Citizenship, 46 EMORY L.J. 1411 (1997); Linda Bosniak, Multiple Nationality and the Postnational Transformation of Citizenship, 42 VA. J. INT’L L. 979 (2002). The legal attitudes toward dual nationality are becoming less hostile. See, e.g., European Convention on Nationality, Nov. 6, 1997, E.T.S. No. 166 (Article 14 of the Convention allows double nationality in some cases). In the U.S., dual nationality became possible de jure after the Supreme Court ruling in Afroyim v. Rusk, 387 U.S. 253 (1967). Also in the EU a majority of the Member States does not prohibit double nationality. See HORVÁTH, supra note 5, at 240 tbl.1; see also Elisa Pérez Vera, Citoyenneté de l’Union européenne, nationalité et condition des étrangers, in RECUEIL DES COURS: COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAW 243, 309–16 (1996). 67 See generally WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS (1995). 68 BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD OF NATIONALISM (1991). 69 The times of the reign of the doctrine of insoluble allegiance establishing, in the words of Sir Blackstone, “a debt of gratitude which cannot be forfeited, cancelled or altered by any change of time, place or circumstance” and thus making either acquiring a new nationality or changing the original nationality virtually impossible, are long gone—naturalization and the change of nationality are both legally recognized reality. See 1 THOMAS M. COOLEY, BLACKSTONE’S COMMENTARIES ON THE LAWS OF ENGLAND 117 (3d ed. 2003) (on insoluble allegiance), cited in Rubinstein & Adler, supra note 43, at 519, 530. See also Spiro, supra note 66, at 1419–30. This doctrinal change notwithstanding, as Shachar and Hirschl note, “[t]he vast majority of today’s global population—97 out of every 100 people—have acquired their political membership status by virtue of birthplace or ‘pedigree.’” Shachar & Hirschl, supra note 43, at 254. 70 See Aristide R. Zolberg, The Dawn of Cosmopolitan Denizenship, 7 IND. J. GLOBAL LEGAL STUD. 511 (2000) (providing an account of this transformation). European citizenship itself, in not repealing but complementing national citizenship as specified in Article 17(1) of the Treaty Establishing the European Community and in the Danish Declaration appended to the Maastricht Treaty (1994 O.J. (C 348) 4), is also a definitive step in the direction of the legal affirmation of the reality of multiple identities and numerous overlapping allegiances. However, the combination of European citizenship with the

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grounds similar to the one that gave rise to the Korematsu case of the Supreme Court is difficult to imagine in today’s world,71 just as is exclusion from naturalization on purely racial or ethnic grounds.72 Deprivation of citizenship based on ethnicity is simply prohibited by international law.73 Making citizenship potentially an issue of personal choice, as opposed to a purely pre-destined status determined at birth, resulted in a permutation of the scopes of the notions of citizenship and nationality.74 Meaning different things in the past, now they have come to signify the same thing. Nationality is a legal category demarcating nationals from aliens that does not necessarily imply the enjoyment of rights, while citizenship, on the contrary, is a set of entitlements conferred or denied often irrespective of nationality.75 This came about through the gradual extension of citizenship rights to wider categories of nationals.76

nationality of a Member State clearly does not amount to dual nationality. Hans U. Jessurun d’Oliveira, Europees burgerschap: Dubbele nationaliteit?, in EUROPEES BURGERSCHAP 91 (Wouter F.W. van Ballegooij ed., 2004). 71 Korematsu v. U.S., 323 U.S. 214 (1944). The case concerned the internment of all persons of Japanese ethnicity residing on the West Coast of the U.S. in the “relocation centers” on military order during the Second World War. It did not matter whether these persons held U.S. citizenship. No matter how exotic the facts of the case might sound today, a number of openly discriminatory policies targeting people of particular ethnic backgrounds or skin colors can be found in the recent past, not to mention in the present. Consider, for instance, the British African Indians’ case, when many U.K. citizens of Indian origin formerly residing in Africa were de facto deprived of all citizenship rights, including the right to enter their State of citizenship. See Anthony Lester, Lord Lester of Herne Hill QC, Lecture, East African Asians Versus the United Kingdom: The Inside Story (Oct. 23, 2003), available at http://www.blackstonechambers.com/document.rm?id=73. Also consider the Czech Republic’s attempt to deprive large numbers of permanent residents of Roma ethnicity of the possibility to obtain Czech citizenship upon the split of the Czech and Slovak Federation in 1993. See Dimitry Kochenov, EU Influence on the Citizenship Policies of the Candidate Countries: The Case of the Roma Exclusion in the Czech Republic, 3 J. CONTEMP. EUR. RES. 124 (2007); R. Linde, Statelessness and Roma Communities in the Czech Republic: Competing Theories of State Compliance, 13 INT’L J. MINORITY AND GROUP RTS. 341, 342 (2006). Further, consider the deprivation of citizenship of persons of “foreign” origin in the Baltic States of Latvia and Estonia upon the split of the U.S.S.R. in 1991. See Dimitry Kochenov, PreAccession, Naturalization, and “Due Regard to Community Law”: The European Union’s “Steering” of Citizenship Policies in Candidate Countries during the Fifth Enlargement, 4 ROM. J. POL. SCI. 71, 71 (2004) [hereinafter Kochenov, Pre-Accession]; Alfred Stepan, Kogda logika demokratii protivorechit logike natzional’nogo gosudarstva, 4 ROSSIJSKIJ BJULLETEN’ PO PRAVAM CHELOVEKA 100 (1995). 72 This used to be regarded as “normal.” In the U.S., to give one example, the ability to naturalize directly depended on skin color. See, e.g., Deenesh Sohoni, Unsuitable Suitors: Anti-Miscegenation Laws, Naturalisation Laws, and the Construction of Asian Identities, 41 L. & SOC’Y REV. 587, 602–08 (2007). 73 See Council of Europe Convention on Nationality art. 5(1), Dec. 6, 1997, E.T.S. No.166. 74 See HORVÁTH, supra note 5, at 3; Preuß, supra note 5, at 269. 75 So, for example, women or religious minorities, although possessing nationality, were often denied citizenship entitlements. Elizabeth Meehan, Citizenship and the European Union, C 63 ZEI DISCUSSION PAPER 4 (2000). For a different view on the interrelation between the two notions, see Rubinstein & Adler, supra note 43, at 521; Spiro, supra note 66, at 1417 n.20. 76 This process has been described as leading to the loss of the meaning of citizenship—with which it is difficult to agree. On the contrary, it can be submitted that nationality became far less significant as citizenship rose to prominence. See Roel de Lange, Paradoxen van Europees burgerschap, 21 RECHT EN KRITIEK 278, 281 (1995) (“Wanneer elk individu met een bepaalde nationaliteit . . . dezelfde rechten bezit, en daarmee ‘burger’ is, heeft het begrip burgerschap niet langer een specifieke en precies afgebakende betekenis.”).

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It can be argued that not only the ECt.HR and the UN Human Rights Committee’s jurisprudence but also the European integration within the EU77 may in fact have the consequences predicted by the PCIJ in its obiter dictum in Tunis and Morocco nationality decrees decision eighty-six years ago. In today’s Europe, the national sovereign component in the field of nationality regulation is slowly beginning to give way, both directly and indirectly, to an international/supranational approach. The EU is becoming the first polity where citizenship both as a legal status and as a bundle of rights has moved beyond the boundaries of a nation-state.78 III. IUS TRACTUM: THE NATURE OF EUROPEAN CITIZENSHIP Contrary to ius sanguinis or ius soli used by nation-states,79 in the context of the European legal order it would be more reasonable to talk about ius tractum,80 since the European citizenship status is purely derivative.81 Article 17 EC is clear on this issue: “Every person holding the nationality of a Member State shall be a citizen of the Union.”82 Unlike other key concepts of European law, such as that of a “worker,”83 the European citizenship is largely left within the virtually exclusive domain of the

77 As opposed to other European integration projects, such as the European Economic Area (EEA) or the Council of Europe. 78 See generally Bosniak, supra note 31 (providing the best analysis available so far of the theoretical approaches to citizenship outside the framework of a state). 79 See generally JACQUELINE STEVENS, REPRODUCING THE STATE (1999); see also Maarten P. Vink, Paper, Citizenship Attribution in the European Union: A Comparative Configurational Analysis (1980–2008), Presentation to the Fourth Pan-European Conference on EU Politics, ECPR Standing Group on the European Union (Sept. 2008) (on file with the author) (attempting to explain the factors affecting the citizenship policy of some Member States of the EU). 80 From the Latin trahere—“derive,” “get.” 81 This is also clarified in the Danish Declaration on citizenship appended to the Treaty of Maastricht, supra note 70. Note that the first draft of the Treaty Establishing a Constitution for Europe prepared by the Praesidium of the Constitutional Convention in October 2002 referred to a “dual citizenship,” potentially deviating from the ius tractum logic. Draft Treaty Establishing a Constitution for Europe art. 5, Oct. 28 2002, CONV 369/02. Such reference was later dropped—the Treaty of the Functioning of the European Union (FEU) will contain a provision stating that EU citizenship is “additional” to Member States’ nationalities. Treaty on the Functioning of the European Union art. 20(1), May 9, 2008, 2008 O.J. (C 115) 47, 53 [hereinafter FEU Treaty]. The idea of a derivative supranational citizenship was much less revolutionary at the time that the Maastricht Treaty was drafted than can be imagined today. In fact, Article 17 EC borrows almost all its content from Article 3 of the European Union Treaty proposed by the European Parliament in 1984. Compare EC Treaty art. 17, with Proposed European Union Treaty, Feb. 14, 1984, 1984 O.J. (C 77) 33. Article 3 reads as follows: “The citizens of the Member States shall ipso facto be citizens of the Union. Citizenship of the Union shall be dependent upon citizenship of a Member State; it may not be independently acquired or forfeited.” The commentary of this article is available. See FRANCESCO CAPOTORTI ET AL., LE TRAITÉ D’UNION EUROPÉENNE: COMMENTAIRE DU PROJET ADOPTÉ PAR LE PARLEMENT EUROPÉEN, LE 14 FÉVRIER 1984, 33 (1985). 82 EC Treaty art. 17. In full this article reads as follows: 1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby. 83 Community law alone can determine the scope of the notion. Case 75/63, Mrs. M.K.H. Hoekstra (née Unger) v. Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten, 1964 E.C.R. 177; Case 61/65, G. Vaassen-Göbbels (a widow) v. Mgmt. of the Beambtenfonds voor het Mijnbedrijf, 1966 E.C.R.

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Member States. It means that the Member States themselves decide who their nationals for Community legal purposes are, thereby automatically conferring on them European citizenship. Such practice is not without limitations, however. As spelled out by the ECJ in Micheletti, any decision of a Member State related to that state’s nationality should be taken with “due regard to Community law.”84 At the same time, the Member States are not given any discretion as far as the recognition of the nationality of any other Member State is concerned.85 Thus, in its ruling in Micheletti the ECJ refused to accept the “genuine link” rule of the ICJ Nottebohm case.86 In fact, the whole logic of free movement within the area of freedom, security, and justice is antithetical to the “genuine link” idea, leaving the ECJ no choice in this regard.87 Allowing the Member States not to recognize nationalities of European citizens using their free movement rights would introduce uncertainty in the application of Community law, making its uniform application throughout all the Member States impossible. A. Should the EU Decide who its Citizens are? The freedom enjoyed by the Member States in the domain of conferring their nationality and, consequently, European citizenship, is becoming increasingly elusive; the interplay of different nationality rules of the Member States affects each of them in a number of very important respects.88 Even if not acknowledging this openly, EU Member States are certainly influenced by the opinions voiced by other Member States regarding what are “desirable” and “non-desirable” nationality and naturalization policies. Ireland is an example of a Member State that changed its strict ius soli principle following peer pressure from other EU nations.89 Spain, with 261; Case 44/65, Hessische Knappschaft v. Singer, 1965 E.C.R. 965; Case 66/85, Deborah Lawrie-Blum v. Land Baden-Württemberg, 1986 E.C.R. 2121. See discussion infra Part V(A). 84 Case C-369/90, Mario Vicente Micheletti et al. v. Delegación del Gobierno en Cantabria, 1992 E.C.R. I-4239, ¶ 10. Jessurun d’Oliveira opined that this obiter dictum in Micheletti is now “overruled by the Treaties of Maastricht and Amsterdam.” The reasoning he provides is however not convincing, since the “overruling” comes down to the fact that the dictum is not included in the EC Treaty text. Hans U. Jessurun d’Oliveira, Nationaliteit en de Europese Unie, in ONGEBOGEN RECHT: OPSTELLEN AANGEBODEN AAN PROF. DR. H. MEIJERS 71, 80–81 (1998). 85 Micheletti, 1992 E.C.R. I-4239, ¶ 10. This finding of the Court is in line with the earlier caselaw. In Auer, for instance, the ECJ found that “[t]here is no provision of the Treaty which, within the field of application of the Treaty, makes it possible to treat nationals of a Member State differently according to the time at which or the manner in which they acquired the nationality of that State.” Case 136/78, Ministère Public v. Auer, 1979 E.C.R. 437, ¶ 28. 86 Early commentators expected that the “genuine link” rule of the Nottebohm case (1955 I.C.J. 4 (Apr. 6)) would also be applied in European law, leaving the Member States free not to accept the nationality of all persons coming from other Member States. Bleckmann, supra note 64, at 477. In Micheletti the Court agreed with Advocate General Tesauro, who argued against the Nottebohm logic. Micheletti, 1992 E.C.R. I-4239. 87 This is probably why the ECJ has also not given the European citizenship the twist that would allow its comparison with the ECt.HR concept of “effective nationality” as formulated in Beldjoudi. The ECJ’s approach to European citizenship is thus highly formalistic and firmly rooted in the need to enjoy the formal status of a citizen in order to benefit from the citizenship rights; the emphasis is always on the possession of a formal legal status. See, e.g., id.; Case C-200/02, Kunqian Catherine Zhu & Man Lavette Chen v. Sec’y of State for the Home Dep’t, 2004 E.C.R. I-9925. 88 See Rostek & Davies, supra note 12; de Groot, supra note 14, § 4; TOWARDS A EUROPEAN NATIONALITY: CITIZENSHIP, IMMIGRATION AND NATIONALITY LAW IN THE EU (Randall Hansen & Patrick Weil eds., 2001). 89 Rostek & Davies, supra note 12, at 16–21.

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its recent pardon of illegal immigrants provides an example of another approach.90 The reasons why such pressure comes about are very simple: by conferring nationality on a person, a Member State also makes this person a European citizen and, by virtue of the latter status, a beneficiary of the EC Treaty citizenship rights. Given that one of the key rights associated with the status of a European citizen is the right of free movement, which encompasses the rights to move to any Member State of the Union and to reside and take up employment there,91 the naturalization policy of any EU Member State has clear bearing on all the EU partners.92 In such a setting, the process of integration will inevitably result in a certain harmonization of nationality legislation of all the twenty-seven Member States.93 This can happen even without an express intervention of the Union, not empowered to act in this sphere.94 The question “how can [twenty-seven] different procedures of admission lead to a single and common status of membership?”95 has an obvious answer in this context. It is especially acute given that, once a third-country national has obtained one of the Member States’ nationalities, it is irrelevant which one. Nationality as such, in the words of Davies, is effectively “abolished” within the EU by Article 12 EC.96 Why would anyone wait eighteen years to naturalize in Finland if it is possible to do the same in Belgium in three years, or in Spain in one, and acquire the same European citizenship rights, including the right to move to Finland with your new Belgian, Spanish, or Bulgarian passport, and, thanks to Article 12 EC, to be treated there exactly like any Finn would be treated? For third-country nationals residing in the EU it is becoming increasingly irrelevant in which Member State to naturalize.97 The choice of a particular Member State for naturalization 90 See María Pabón López, Immigration Law Spanish-Style: A Study of Spain’s Normalización of Undocumented Workers, 21 GEO. IMMIGR. L.J. 571 (2007) (providing a detailed analysis). 91 See infra Part III(D)(1). 92 The current situation in the field of naturalization regulation, where naturalization rules— different from Member State to Member State—lead to the admission to the same status of European citizenship, can be compared with establishing free movement of goods without putting a common customs tariff in place. This is nonsensical, and the Member States are well aware of it. 93 Andrew C. Evans, Nationality Law and the Free Movement of Persons in the EEC: With Special Reference to the British Nationality Act 1981, 2 Y.B. EUR. L. 173, 189 (1982) (acknowledging, as early as 1983, that “harmonisation of the nationality laws of the Member States may ultimately prove necessary”). See also Claude Blumann, La citoyenneté de l’Union européenne (bientôt dix ans)—Espoir et désillusion, in BRÜCKEN BAUEN UND BEGEHEN: FESTSCHRIFT FÜR KNUT IPSEN ZUM 65 GEBURTSTAG 16 (Volker Epping et al. eds., 2000); Becker, supra note 43, at 159 (suggesting “harmonisation—or even standardization—of national citizenship across the European Union”); Resolution on the British Nationality Bill, 1981 O.J. (C 260) 100 (Oct. 12, 1981) (offering the European Parliament’s view on this issue). 94 According to Article 5 EC, the Community can only act “within the limits of the powers conferred upon it by [the EC Treaty] and of the objectives assigned to it therein.” Article 17 EC is clearly unable to confer on the Community a power to regulate the acquisition of the Member States’ nationalities. 95 Rainer Bauböck, Citizenship and National Identities in the European Union, in INTEGRATION DURCH DEMOKRATIE. NEUE IMPULSE FÜR DIE EUROPÄISCHE UNION 313 (Eugen Antalovsky et al. eds., 1997), available at http://www.jeanmonnetprogram.org/papers/97/97-04-.html (last visited Feb. 3, 2009). 96 Gareth Davies, “Any Place I Hang My Hat?” or: Residence is the New Nationality, 11 EUR. L.J. 1, 43, 55 (2005). 97 These observations notwithstanding, at present the nationality rules of the Member States differ to a great degree. See Rainer Bauböck, Introduction, in 1 ACQUISITION AND LOSS OF NATIONALITY: POLICIES AND TRENDS IN 15 EUROPEAN STATES: COMPARATIVE ANALYSES 20 (Rainer Bauböck et al. eds., 2006).

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purposes can only marginally affect their rights in Member States other than that of naturalization.98 The diverse naturalization regimes in the Member States have come to be an anachronism. The Member States maintaining harsher naturalization requirements in force cannot thereby limit immigration flows.99 The ECJ has expressis verbis prohibited automatic deportations of Union citizens when they fail to provide necessary documents to the national authorities of the Member State of residence in order to be issued with a residence permit.100 In a situation when the diversity of Member States’ naturalization rules serves no goal, granting the Community an exclusive competence to decide who EU citizens are seems to be a necessary logical step.101 At present, dangerously, the whole functioning of European law becomes, through its scope ratione personae, de facto dependent on poorly-articulated customary international law on nationality.102

98 The most important consequence of naturalizing in a state other than the one where a new European citizen plans to reside after naturalization is the lack of the right to vote for the national Parliament in the Member State of residence. This is due to European citizens’ inability, by virtue of the EC Treaty, to enjoy a right to vote in the national Parliamentary elections in Member States other than their own. The Member States are reluctant to grant them this right notwithstanding the open legal possibility for such a development. See infra Part III(D)(2). 99 Ironically, before subparts (3) and (4) of Article 63 were included in the EC Treaty, the Member States considered the residence of third-country nationals as a subject falling within exclusive national competence (with only certain exceptions). See Joined Cases 281, 283, 284 & 287/85, Germany, France, Netherlands, Denmark, & U.K. v. Comm’n, 1987 E.C.R. 3245. 100 Case C-408/03, Comm’n v. Belgium, 2006 E.C.R. I-2647, ¶ 72: [B]y making provision for automatic service of an order to leave Belgian territory on citizens of the Union who do not produce within the prescribed period the documents required to obtain a residence permit, the Kingdom of Belgium has failed to fulfill its obligations under Article 2 of Directive 90/364, Article 4 of Directive 68/360, Article 4 of Directive 73/148, Article 2 of Directive 93/96 and Article 2 of Directive 90/365. The ultimate effect of obtaining a residence permit is not to be exaggerated. According to established ECJ case-law, a residence permit itself does not create a right for a European citizen to reside in a different Member State, serving only to demonstrate that a given citizen chose to use such a right, which stems directly from the EC Treaty and relevant secondary law adopted to give it effect. See, e.g., Case 48/75, Jean Noël Royer, 1976 E.C.R. 497, ¶ 31. 101 See also Jessurun d’Oliveira, supra note 84, at 72. “Het is duidelijk dat er een groot belang bestaat bij stroomlijning van het nationaliteitsrecht van de lidstaten, en dat het in termen van efficiency voor de hand zou liggen om aan de Europese Unie of de Europese Gemeenschap competentie toe te dichten of toe te kennen op dit terrein.” 102 See generally Stephen Hall, Determining the Scope Ratione Personae of European Citizenship: Customary International Law Prevails for Now, 28 LEGAL ISSUES OF ECON. INTEGRATION 355 (2001). By requiring the Member States to accept the Community definition of a “worker,” a loophole in Community law remains open as long as they are free to play with the definitions of nationality “for Community law purposes,” rendering futile the efforts to create a consistent Community definition of a “worker,” which is ultimately dependent on the Member States’ definitions of nationality. See Jessurun d’Oliveira, supra note 84, at 627; see also generally Evans, supra note 93. An analogy to the Community approach to the definition of the “workers of the Member States” has oftentimes been applied in the literature to make an argument for a purely Community definition of Member States’ nationals for the purposes of Community law and, consequently, European citizens. See, e.g., D.F. Edens & S. Patijn, The Scope of the EEC System of Free Movement of Workers, 9 COMMON MKT. L. REV. 322, 323 (1972).

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One of the key features of European citizenship, namely its very derivative nature, thus became one of its weakest points in the face of criticism.103 Ultimately, given that the derivative essence of European citizenship (which builds on the diversity of the national naturalization and citizenship rules of the Member States) fails to solve any of the outstanding problems and creates an illusion that the Member States are in control of “access” to their territory, it is difficult to explain logically why only Member State nationals, and not all those permanently residing in the EU, should become European citizens.104 In practical terms, the illusory ius tractum solution is easily explainable by Member States’ fear that they will lose their grip on one of the most important aspects of their “sovereignty.” In reality, however, in a Community without internal borders, the sovereignty in immigration matters that has not been already lost has largely become an illusion. The Member States’ fears rooted in the willingness to ignore this reality resulted in the formulation of European citizenship exclusively in terms of exclusion, creating, in the words of Balibar, “apartheid européen.”105 While Article 17 EC is clear on who is not European a citizen, pointing at all those who are not nationals of one of the Member States, it is apparently helpless in outlining with clarity who is in possession of such a status, leaving it entirely to the Member States. Once the reality of the borderless community is put aside, the motivation of the Member States to remain in control of their nationality regulation might seem justifiable, even logical. Yet there is an obvious contradiction between the logic used by the Member States and the very essence of European integration. This is especially so outside the domain of immigration regulation. Today, the States mean so much to their citizens partly because of their monopoly on certain key services. Once, as European integration continues, other States and private actors become free to compete with them in these areas—be it educational, health care, or social security schemes—the attractiveness of nationality, no matter who defines it, will be fading. This is one of the likely side effects of the internal market in the long run. A State monopoly in the “citizens-shaping” fields is unlikely to hold. From a long-term perspective, it can be foreseen that, once all the nationals of all the twenty-seven Member States are given the freedom to choose between the offers made by all the Member States and an infinite amount of private actors, maintaining each particular imagined community becomes particularly difficult. It is likely that the emergence of new affiliations will not follow the already nonexistent (in their physical emanation) borderlines between the Member States. To this end, if the internal market is a success, nationality,106 as such, will be more and more difficult to justify.107 Thus, necessarily, “European integration is a process of loss.”108

103

(1995).

See, e.g., Roel de Lange, Paradoxen van Europees burgerschap, 12 RECHT EN KRITIEK 278

104 Such proposals were made during the 1996 Intergovernmental Council (IGC) by the Migrants’ Forum. See Theodora Kostakopoulou, Nested “Old” and “New” Citizenships in the European Union: Bringing out the Complexity, 5 COLUM. J. EUR. L., 389, 406 (1999). A number of European public intellectuals also supported this idea. See, e.g., ÉTIENNE BALIBAR, NOUS, CITOYENS D’EUROPE? LES FRONTIÈRES L’ÉTAT, LE PEUPLE 243, n. 1, 242–56 (2001). 105 BALIBAR, supra note 104, at 190–91. 106 And especially a nationality having legal consequences for the bearer, as opposed to purely nominal meanings of nationality, which, although deprived of any legal meaning, are likely to stay.

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B. Diverging Scopes of ratione personae of European Citizenship and Nationalities of the Member States The notion of “derivative” citizenship is further complicated by the fact that, unlike what a reading of the text of Article 17 EC would presuppose, the scope ratione personae of Member State nationals does not in all cases coincide with that of European citizens. Not all the nationals of the Member States are European citizens. Such discrepancies existed even before the entry into force of the Maastricht Treaty and have not been eliminated. Before European citizenship became part of the primary law of the Community, a distinction existed between Member State nationals for the purposes of Community law, who could benefit from the rights stemming from the Community legal order, and those nationals of the Member States who found themselves outside the scope ratione personae of Community law. The Maastricht Treaty, at least as interpreted at present,109 appears to have built on this discrepancy instead of introducing European citizenship to cover all the nationals of the Member States.110 In other words, European citizenship is a status which is conferred solely on those nationals of the Member States who are recognized as nationals for the purposes of Community law. The decisions on whether a Member State national or a group of Member State nationals are also recognized as nationals for the purposes of Community law could 107

In the words of Davies, The capacity to choose the institutions which govern and provide our welfare and our economic activity means that individuals, certainly those who are selfemployed and who migrate, will create voluntary networks that provide much of the content that was formerly associated with citizenship. Indeed, it is not obvious that the residual link represented by a passport and a right to vote has more depth or importance than the personal “regulation-world” governing social and economic aspects of life. Services and establishment therefore contribute usefully or importantly to the hollowing out of national citizenship begun with Article 12 EC. Gareth Davies, Services, Citizenship and the Country of Origin Principle 21 (Europa Institute, Edinburgh Law School, Mitchell Working Paper No. 2, 2007); see generally Anne Pieter Van der Mei, Union Citizenship and the “De-Nationalisation” of the Territorial Welfare State, 7 EUR. J. MIGRATION & L. 203, 210 (2005). 108 Gareth T. Davies, A Time to Mourn—How I Learned to Stop Worrying and Quite Like the European Union, Inaugural Lecture as Professor of European Law at the Faculty of Law of the VU University Amsterdam (June 26, 2008), at 9, available at http://ssrn.com/abstract=1314696. 109 Case C-192/99, The Queen v. Sec’y of State for the Home Dep’t ex parte Manjit Kaur, 2001 E.C.R. I-1237. 110 The present interpretation is in line with Declaration No. 2 (On Nationality of a Member) annexed to the Final Act of the Treaty of Maastricht, which clarified the link between the nationality of the Member States for Community purposes and “the nationality of a Member State” in the sense of Article 17(1) EC. The declaration reads as follows: The Conference declares that, wherever in the Treaty establishing the European Community reference is made to nationals of the Member States, the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned. Member States may declare, for information, who are to be considered their nationals for Community purposes by way of a declaration lodged with the Presidency and may amend any such declaration when necessary. Final Act to Treaty on European Union, Declaration (No. 2) on Nationality of a Member State, Feb. 7, 1992, 1992 O.J. (C 191) 98. For a critical analysis of the Declaration, see de Groot, supra note 14, § 4.

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theoretically be taken in three settings. Out of these three, only one option is legally usable in the present, with two others being total anachronisms, albeit interesting ones. The first anachronism consists in the theoretical possibility of defining the scope of nationality for Community purposes by all the Member States unanimously. This could be done by concluding an agreement with an overseas country or territory associated with the Community under Article 186 EC.111 The effects of such decisions are limited since they only affect the free movement rights of those residents of the countries or territories in question who do not hold passports of one of the Member States, or are not nationals of that Member State for the purposes of Community law.112 Since the majority of the residents of the overseas possessions are actually nationals of the Member States, making any agreement to the effect of granting them free movement rights is inherently deprived of any effet utile,113 which explains why such agreements have never been concluded.114

111 Thus the possibility of distinguishing between the nationals of a Member State sensu lato and nationals for Community law purposes was initially built in the text of the EC Treaty. Under “countries and territories” the Treaty clearly refers to the entities enjoying a special connection with Denmark, France, the Kingdom of the Netherlands, or the United Kingdom. See EC Treaty art. 182 (the list of such territories is reproduced in Annex II to the EC Treaty). The special regime of association applies to such territories. See id. art. 299(3) and Pt. IV. These should not be confused with the French overseas departments (DOM), the Azores, Madeira and the Canary Islands, to which the provisions of the EC Treaty apply in full but with possible derogations. See id. art. 299(2). For a detailed analysis of the differences in application of EC law to the territories mentioned in Annex II EC and those enjoying a special status under Article 299(2) EC, see Kochenov, Europeesrechtelijke aspecten, supra note 9. 112 Indeed, given that the majority of the inhabitants of such countries and territories are nationals of one of the Member States, they are able to benefit from the free movement rights in any event, simply as “workers of the Member States” by virtue of inclusive interpretation of Article 39 EC by the ECJ. Therefore, although no agreement under Article 186 EC has been concluded, for instance, with Aruba or the Netherlands Antilles, free movement applies to the inhabitants of these countries simply because the citizens of Aruba and the Netherlands Antilles are issued with Dutch Passports. See Gerard-René de Groot, Visumplicht Antillianen/Arubanen en het Europese burgerschap, 15 MIGRANTENRECHT 51, 51–52 (2000). Edens and Patijn demonstrate that there existed an intention to conclude Article 186 EC agreements. Edens & Patijn, supra note 102. Deciding on Regulation 1612/68, the Council adopted the following declaration: “Les représentants des Gouvernements des États-Membres, réunis au sein du Conseil, experiment leur volonté de conclure une convention visant à appliquer les règles concernant la libre circulation des travailleurs aux ressortissants du Surinam et des Antilles Néerlandaises si ces parties du Royaume des Pays-Bas le souhaitent. ” Edens & Patijn, supra note 102, at 325 n.10. 113 Though excluded from the territorial scope of application of the Treaty as “countries and territories” mentioned in Annex II to the EC Treaty, these territories are inhabited by European citizens, effectively enabling certain provisions of Community law to work there through the European citizenship status of the inhabitants of these territories. In a recent case, the ECJ clarified this issue ruling that “[p]ersons who possess the nationality of a Member State and who reside or live in a territory which is one of the overseas countries and territories referred to in Article 299(3) EC may rely on the rights conferred on citizens of the Union in Part Two of the EC Treaty.” Case C-300/04, M.G. Eman & O.B. Sevinger v. College van Burgemeester en Wethouders van Den Haag, 2006 E.C.R. I-8055, ¶ 72.1. 114 The EC Treaty clearly points to the fact that the Treaty was initially allowing for the theoretical possibility of distinguishing worker nationals of the Member States based on their residence. EC Treaty art. 186. Evans insisted on such a possibility. See Evans, supra note 93, at 190. The Council has made a clear distinction between Member-State nationals residing in the territory of non-European countries and territories and those residing elsewhere. Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on Freedom of Movement for Workers Within the Community, Oct. 10, 1968, 1968 O.J. (L 257) 2. “Workers from such countries or territories who, in accordance with this provision, are pursuing activities as employed persons in the territory of one of those

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According to the second anachronism, such issues can be decided by the ECJ, albeit in a very narrow range of situations, such as the refusal to recognize the European implications of compulsory acquisition of a Member State’s nationality, which cannot be denounced.115 However, with the change of the nationality laws in Europe, this means of (re)defining the scope of nationality of a Member State for Community law purposes is not acute anymore, since at present the Member States’ nationality laws do not contain provisions on compulsory acquisition of nationality.116 The last, and the only, usable option left for the Member States is to define the scope of their nationality for the Community law purposes unilaterally, where such definition concerns their own nationals. This is done by way of attaching a Declaration to this effect to the Treaties. The German and UK approaches are of particular interest here. Germany defined the scope of nationals for the purposes of Community law by reference to the notion of “Germans” expressed in the Grundgesetz. Given the wording of Article 116(1) of the Grundgesetz this effectively came down to a possibility of considering the GDR and some Polish citizens (especially in the OrderNeisse territories) as well as citizens of several other Eastern European countries as “Germans” for the purposes of Community law.117 However, due to the strict bipolar division of Europe at that time no particular legal complications arose from the Declaration. The GDR citizens, for example, only acquired the practical possibility to use their Community law rights as “Germans” upon the accession of the GDR to the Federal Republic of Germany.118

Member States may not invoke the benefit of the provisions of this Regulation in the territory of the other Member States.” Id. art. 42(3). This provision, although falling well within the logic of Article 186 EC is in clear contradiction with Article 39 EC as well as Article 1 of Regulation 1612, since it seems to suggest that additional residency requirements can be imposed on the workers of the Member States. See also W.R. Bohring, The Scope of the EEC System of Free Movement of Workers: A Rejoinder, 10 C OMMON MKT . L. R EV . 81, 82 (1973). However, the ECJ opted for a totally different reading of the scope of the notion of the “worker,” leaving no room for such purely territorial logic. Now, after the introduction of the citizenship of the EU, any distinction between different classes of citizens based solely of the place of their former residence is clearly contrary to the letter and the spirit of the EC Treaty, since Article 17 EC only makes the acquisition of European citizenship status dependent on the possession of a nationality of a Member State and not the place of residence of the Member States’ nationals. Although some Member States apply the place of residence as a ground for denying European citizens some of their rights, the ECJ’s approach in Eman and Sevinger leaves no doubt that such practices are contrary to Community law. See infra Part III(C). 115 See, e.g., Case 21/74, Jeanne Airola v. Comm’n, 1975 E.C.R. 221. Even where a denunciation of the second nationality is possible, the Court refuses to disregard it. Case 37/74, Chantal Van den Broeck v. Comm’n, 1975 E.C.R. 235; Case 257/78, Evelyn Devred, née Kenny-Levick v. Comm’n, 1979 E.C.R. 3767. 116 This is not to say that the Court cannot have a say on nationality issues in other situations falling within the scope of Community law. 117 See Ryszard W. Piotrowicz, The Status of Germany in International Law: Deutschland über Deutschland?, 38 INT’L & COMP. L.Q. 609 (1989) (discussing the legal controversies surrounding the post-war definition of “German” and “Germany”). 118 See Treaty on the Establishment of German Unity art. 1, F.R.G.-G.D.R., Aug. 31, 1990, I.L.M. 457 (1991). The whole process was regulated by the Grundgesetz, not the enlargement articles in the Treaties. See Michael Bothe, The German Experience to Meet the Challenges of Reunification, in EU ENLARGEMENT : THE C ONSTITUTIONAL I MPACT AT EU AND NATIONAL LEVEL 435 (Alfred E.

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While the German Declaration was de facto left unused, the U.K. declarations play an important role in outlining the scope of European citizenship. Unlike its continental counterparts, the U.K. did not have an articulated doctrine of “citizenship” per se until the birth of the Commonwealth and the dissolution of the Empire.119 All inhabitants of the Empire were connected by way of owing allegiance to the Crown, which “although acting through separate instrumentalities in respect to its many territories, was one and indivisible throughout the Commonwealth.”120 Consequently, not all those who possessed a British passport of some kind could enter the U.K. without formalities and legally settle there.121 In the words of the Home Secretary at the time, “citizenship and the right of abode, which ought to be related, have over the years parted company with each other.”122 Thus, the problem of outlining with clarity the scope of those U.K. residents who should be entitled to benefit from the free movement rights under the Treaty arose long before the Maastricht Treaty entered into force. This issue had to be regulated before the U.K.’s entry into the Community.123 The initial position of the U.K. was that anyone holding Commonwealth citizenship, the status of a British Protected Person, or a British Subject without Citizenship coupled with the right of abode in the U.K. had to be entitled to benefit from the Treaty’s free movement provisions.124 Such an inclusive approach, which can only be applauded when regarded from the point of view of achieving integration goals, seemed suspicious to some of the initial six Member States, especially the Netherlands.125 Dutch representatives demanded that a special declaration limiting the scope of U.K. nationality for the purposes of the EC (then EEC) Treaty be drafted by the U.K. and appended to the Accession Treaty. Such a declaration was drafted.126 As a result, some individuals in possession of the right of abode in the UK, as well as the right to vote and stand as candidates in the elections of all levels

Kellerman et al. eds., 2001); see also Eberhard Grabitz, L’unité allemande et l’intégration européenne, in CAHIERS DE DROIT EUROPÉEN 421 (1991). 119 See J. Fischer Williams, Nationality in Relation to the British Commonwealth of Nations, 1 J. OF THE BRIT. INST. OF INT’L AFF. 90, 93 (1922). 120 S.A. de Smith, The Royal Style and Titles, 2 INT’L & COMP. L.Q. 263, 264 (1953). 121 Equally, not all those who had the right of abode in the U.K. had a single citizenship status that could be used for Community purposes as a ground for the conferral of European rights and, eventually, European citizenship. 122 Evans, supra note 93, at 173 n.1; see also Charles Blake, Citizenship, Law and the State: The British Nationality Act 1981, 45 MOD. L. REV 179, 179 (1982) (“The chief problem about existing nationality law [before the 1981 Act] was that it provided no clear statement as to who had the right of unrestricted entry.”). 123 See generally Evans, supra note 93. 124 Edens & Patijn, supra note 102, at 326; K.R. Simmonds, The British Nationality Act 1981 and the Definition of the Term “National” for Community Purposes, 21 C OMMON M KT . L. R EV . 675 (1984). For a critical analysis of the act, see Ann Dummett, The New British Nationality Act, 8 B RIT . J. L. & S OC ’Y 233, 233 (1981); see generally Blake, supra note 122. 125 Edens & Patijn, supra note 102, at 326. 126 Treaty of Accession to the European Communities of the Kingdom of Denmark, Ireland, and the United Kingdom of Great Britain and Northern Ireland, 1st U.K. Declaration, Jan. 22, 1972, 1972 O.J. (L 73) 196. It was later updated upon the entry into force of the 1981 British Nationality Act. See Simmonds, supra note 124, at 679. For critical analyses of the Act, see Dummett, supra note 124; and Blake, supra note 122. De Groot noted the need to update the Declaration yet again, as it does not any more correspond to the terminology of the British nationality legislation. De Groot, supra note 14, § 3.

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(including the European Parliament (EP))127 were deprived of free movement rights and, upon the entry into force of the Treaty of Maastricht, of the status as European citizens.128 Equally, not all those granted free movement rights were actually British citizens sensu stricto.129 Out of such a parting of the scopes of de facto Member State nationality and European citizenship,130 a number of legal issues arose.131 C. EC Law Limits on the Member States’ Competence to Define who their Nationals Are Probably the most problematic of these is the issue of the legality of the Declarations similar to the British ones.132 It is especially unclear how far the Member States can go in redefining the scope of their nationality for Community law purposes. Given that their nationals so defined become European citizens and enjoy the EC Treaty rights, can these persons be deprived both of these rights and the status by a simple decision of the Member State on their nationalities for Community purposes? Evans has convincingly argued that this should not be the case,133 as it results in a violation of the duty of loyalty.134 Following Micheletti, a decision on nationality cannot be taken by a Member State in breach of Community law.135 Consequently, European citizens cannot be deprived of their nationality and

127

See infra Part V(B)(3). Following the connection made between the status of European citizenship and that of a Member State national for the purposes of Community law made by the ECJ. See Case C-192/99, The Queen v. Sec’y of State for the Home Dep’t ex parte Manjit Kaur, 2001 E.C.R. I-1237, ¶ 27. It is interesting to note that Advocate General Léger refused to restate such connection clearly in his opinion in Kaur, considering this issue irrelevant in a situation when the case concerned a wholly internal situation. See id. (opinion of Advocate General Léger), ¶ 38. It can be argued that the learned Advocate General thus invited the Court to do the same, without automatically fusing the scopes of Member State nationals for the purposes of Community Law and European citizens. 129 For instance, the Treaty rights also applied to certain categories of “British Subjects without Citizenship.” 1st U.K. Declaration, supra note 126, point (a). Also, the first Declaration made Gibraltarians U.K. nationals for Community purposes, although they did not enjoy the right of abode in the U.K. Id. point (b). 130 De facto, since the British nationality was not covered by a single status but by a plurality of statuses. 131 The picture became much simpler with the grant of the British citizenship to all the citizens of the British Overseas Territories as of May 21, 2002. See British Overseas Territories Act, 2002, c. 8, § 3, sched. 1, available at http://www.bailii.org/uk/legis/num_act/2002/ukpga_20020008_en_1.html#pb2– l1g3 (last visited Feb. 3, 2009). The act in question did not abolish the British Overseas Territories Citizenship, however, as the British Citizenship is a status that does not replace that of the British Overseas Territories Citizenship. Consequently, the personal scope of the two can diverge. See de Groot, supra note 14, § 3. 132 See generally Akos G. Toth, The Legal Status of the Declarations Attached to the Single European Act, 23 C OMMON M KT . L. R EV . 803 (1986) (on the legal effect of declarations in Community law). 133 Evans, supra note 93, at 177–78. De Groot made a similar point arguing in a different direction—the grant of Member-State nationality to considerable groups of third-country nationals without informing the twenty-six other Member States. De Groot, supra note 14, text accompanying n.54. 134 See EC Treaty art. 10. See generally John Temple Lang, Developments, Issues, and New Remedies—The Duties of National Authorities and Courts under Article 10 of the EC Treaty, 27 F ORDHAM INT ’ L L.J. 1904 (2004); Laurence Gormley, The Development of General Principles of Law Within Article 10 (ex Article 5) EC, in GENERAL P RINCIPLES OF EUROPEAN C OMMUNITY LAW 113 (Ulf Bernitz et al. eds., 2000) (discussing duty of loyalty). 135 Case C-369/90, Micheletti v. Delegación del Gobierno en Cantabria, 1992 E.C.R. I-4239, ¶ 10. 128

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hence of the European citizenship status with no regard to Community law.136 However, if they, although in possession of a British Overseas Citizen’s passport, have never been covered by any of the Declarations, they fall outside the scope ratione personae of European law,137 as the ECJ’s ruling in Manjit Kaur has demonstrated.138 Also the nationality legislation of the Member States can result in a breach of Community law. Three possible situations can be outlined in this regard. First, the loss of nationality and consequently of European citizenship by those exercising their European citizenship rights not related to the exercise of such rights. Second, the loss of the nationality of a Member State and consequently of European citizenship by those exercising their citizenship rights, which comes as a direct consequence of such exercise. Last, non-conferral of a Member State’s nationality can also be regarded as a failure to act with due regard to Community law and thus as a breach of the duty of loyalty on the part of the Member State concerned. That the first of the situations outlined is not purely hypothetical is shown by the British example. The U.K. is not the only Member State to provide an incident of divergence between the scopes of Member State nationality and European citizenship. Denmark made it clear that Danish nationals residing on the Færœ Islands are not Danish nationals for Community law purposes.139 Article 4 of the Protocol refers to “Danish nationals in the Færœ Islands.” It can be concluded from such wording that, according to the Protocol, European citizenship can be lost by a Danish national as a consequence of simply moving to the Islands in question. In the light of Eman and Sevinger and given the wording of Article 17 EC, which does not know any purely territorial logic, this construct is clearly contrary to Community law.140 The same can be said about the Danish nationals residing in Greenland: although the island lies outside the scope of Community law, merely enjoying the status of an associated country or territory in the sense of Article 299(3) EC and Part Four EC, no valid legal argument can be made to limit the application of European citizenship provisions of the EC Treaty to the inhabitants of Greenland as long as they hold Danish nationality.141 Thus it seems that the introduction of Article 17 into the EC Treaty narrowed down the scope of possibilities enjoyed by the Member 136 The ECJ is soon to decide the first case in this regard: Case C-135/08 Janko Rottmann v. Freistaat Bayern, lodged on Apr. 3, 2008 (regarding the annulment of a naturalization of an Austrian citizen in Germany, leaving him stateless and thus deprived of the status of a European citizen). 137 See Bleckmann, supra note 64 (offering a pioneer assessment of the concept of personal jurisdiction of the Communities). 138 See Kaur, 2001 E.C.R. I-1237; see also Hall, supra note 102, at 357–58. 139 Protocol No. 2 to the Act of Accession, Relating to Færœ Islands, art. 4, 1972 O.J. (L 73) 163. 140 For a detailed discussion of this issue, see infra Part IV(C). But see de Groot, supra note 14, n.36. Note that de Groot’s position precedes Eman & Sevinger (Case C-300/04, M.G. Eman & O.B. Sevinger v. College van Burgemeester en Wethouders van Den Haag, 2006 E.C.R. I-8055). 141 Greenland left the Community upon the introduction of the home rule and is outside the territorial scope of the Treaties. See Treaty Amending, With Regard to Greenland, the Treaties Establishing the European Communities, Jan. 2, 1985, 1985 O.J. (L 29) 1; cf. Friendl Weiss, Greenland’s Withdrawal from the European Communities, 10 EUR . L. R EV . 173 (1985). The possibility of Greenland’s Association status was discussed in the academic literature even before the actual joining of Denmark to the European Communities. See Christen Boye Jacobsen, The Færœ Islands and Greenland and the European Communities, in L EGAL P ROBLEMS OF AN E NLARGED EUROPEAN C OMMUNITY 170 (M.E. Bathurst et al. eds., 1972).

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States to limit the scope of their nationalities for Community law purposes.142 Article 17 EC made any purely territorial logic in defining who the European citizens are illegal. Secondly, Member State nationality and consequently European citizenship can be lost as a consequence of the exercise of European citizenship rights. Although no cases to this end have so far been decided by the ECJ, the national laws of several Member States leave open the possibility of the loss of nationality as a consequence of prolonged stays abroad. The direct consequence of this is the possibility of losing Member State nationality because of the exercise of European citizenship rights, namely the right to free movement. The recently repealed Greek legislation was particularly acute in this regard. Tackling the formal legal status of alloyenis (that is, Greeks of non-Greek descent), Article 19 of the Greek Nationality Code provided the possibility of depriving such persons of Greek nationality and, consequently, of European citizenship if they “left Greece with no intent to return.”143 The practical effect of this provision, only repealed in 1998, was that 60,004 alloyenis became stateless upon leaving Greece.144 A clear argument can be made in European law at least against the deprivation of nationality as a consequence of using free movement right and moving to another Member State as opposed to third countries.145 Depriving a person of the status of European citizen as a consequence of this person’s exercise of the rights associated with European citizenship is in obvious contradiction not only with the spirit of the Treaty, but also with common sense. Those deprived of a Member State’s nationality through the breach or disregard of Community law should not lose their European citizenship status, since such a loss of nationality will be null and void from the point of view of Community law, resulting not only in the preservation of European citizenship status, but also the restoration of Member State national status.146

142 This is especially clear in the light of the subsequent (literal) interpretation of Article 17 EC by the ECJ in Eman & Sevinger, 2006 E.C.R. I-8055, ¶¶ 27–29. 143 The interpretation of this vague provision was extremely broad. Even leaving Greece in order to pursue university studies abroad could be used by the authorities as a proof of “no intention to return.” The provision was used to deprive of Greek nationality the members of ethnic and religious minorities. See Nicholas Sitaropoulos, Freedom of Movement and the Right to a Nationality v. Ethnic Minorities: The Case of ex Art. 19 of the Greek Nationality Code, 6 EUR. J. MIGRATION & L. 205, 205 (2004); see generally Konstantinos Tsitselikis, Citizenship in Greece: Present Challenges for Future Changes, Antigone Project Paper (2005), available at http://www.antigone.gr/project_deliverables/ Citizenship_in_Greece___Present_challenges_for_future_changes.doc (analyzing Greek nationality laws from a historical perspective) (last visited Jan. 27, 2009). 144 Sitaropoulos, supra note 143, at 214; see also id. at 211 (referencing the perception of the application of Article 19 of the Greek Nationality Code as a continuation of the “ethnic cleansing policy through denationalisation of ethnic minorities that Greece pursued before the Second World War”). The repeal of Article 19 of the Greek Nationality Code did not have any retroactive effect, perpetuating the deprivation of nationality on purely ethnic and religious grounds (the article mostly targeted “Slavomacedonian” and ethnic Turkish minorities). 145 Greece is not the only country providing for the deprivation of nationality as a result of continuous residence abroad. French nationality law also contains similar provisions. See de Groot, supra note 14, § 4. 146 But see Claude Blumann, Citoyenneté européene et droits fondamentaux en droit de l’Union européenne: Entre concurrence et complémentarité, in LIBERTÉS, JUSTICE, TOLÉRANCE: MÉLANGES EN HOMMAGE AU DOYEN GÉRARD COHEN-JONATHAN 265, 268 (2004).

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The failure to confer nationality can also manifest a breach of Community law. A simple example is the children of a European citizen born in a Member State other than that of the nationality of their parents. Disqualifying such children from the acquisition of the nationality of their parents has a potential of resulting in a nonconferral of nationality with a breach of Community law,147 clearly deterring the parents from exercising their European citizenship rights.148 D. Citizenship Rights in the EC Treaty The EC Treaty includes several groups of rights to be enjoyed by European citizens. These rights are concentrated in Part II EC and elsewhere in the Treaty, and include free movement rights,149 rights related to political representation and voting,150 rights to diplomatic protection in the territory of states where the citizen’s Member State of nationality is not represented,151 rights related to the communication with the European institutions,152 and the general prohibition of discrimination on the basis of nationality.153 This list does not cover all citizenship rights. In the words of Article 17(2) EC, “[c]itizens of the Union shall enjoy rights conferred by this Treaty.”154 This means that any right to be found in the EC Treaty is potentially a citizenship right; the text of the article does not limit the citizenship rights to those included in Part II EC.155

147 Catherine Jacqueson, Union Citizenship and the Court of Justice: Something New Under the Sun? Towards Social Citizenship, 27 EUR. L. R EV . 260, 262 (2002); see also de Groot, supra note 14, n.84 and accompanying text. 148 See, e.g., de Groot, supra note 14, n.90 (mentioning French, Italian, Greek, German, and Spanish nationality codes). According to de Groot, problems arise not so much with regard to the acquisition of Member-State nationality by the children of nationals born in another Member State, but mostly in relation to the terms under which such nationality is acquired, for example short periods of registration of a child (one year in Germany). Failure to meet such requirements can result in the nonacquisition of Community nationality and subsequently of Union citizenship, arguably in breach of Community law. 149 EC Treaty art. 18. 150 Id. art. 19. 151 Id. art. 20. 152 Id. art. 21. 153 Id. art. 12. 154 Id. art. 17(2). The entry into force of the Treaty of Lisbon will not change this situation; the list of citizenship rights contained in Article 20(2) FEU is preceded by “inter alia,” thus giving a clear indication that the list remains open. FEU Treaty art. 20(2). New Article 11 EU will introduce a new right: the citizens’ right of legislative initiative (“[N]ot less than one million citizens who are nationals of a significant number of Member States” will be able to invite the Commission to submit a legislative proposal). EU Treaty art. 11. See generally Miguel Sousa Ferro, Popular Legislative Initiative in the EU: Alea Iacta Est, 26 OXFORD Y.B. EUR. L. 355 (2007) (for analysis of the process). 155 Moreover, the list of European citizenship rights contained in Part II of the EC Treaty is potentially not exclusive. Article 22 EC allows for the introduction of new rights to the list without resorting to the Treaty amendment procedure of Article 48 EU, thus making convening an IGC unnecessary in such cases. While the idea of avoiding the complicated procedure of Article 48 EU can only be greeted with optimism, a look at the procedural requirements contained in Article 22 EC raises doubts as to the practical applicability of this provision. The article not only requires unanimity in the Council and downplays the role that could potentially be granted to the EP, the only Community institution elected directly by the citizens, to play in such a procedure; it also contains a requirement for ratification of the newly-established rights by all the Member States “in accordance with their respective constitutional requirements.” Id. The Commission’s right of initiative normally found in the First Pillar is left intact. The ratification requirement, taken together with a mere consultation of the EP, means that in

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Free Movement

The free movement right of Article 18(1) EC grants every citizen of the Union the opportunity to “move and reside freely within the territory of the Member States.”156 Read in conjunction with the principle of non-discrimination on the basis of nationality,157 the free movement right means full “home treatment” in any of the Member States where a European citizen chooses to reside. This right is not absolute, however, and can even be described as “halfhearted,”158 since it is “subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.”159 Davies is right to wonder how the possibility of exercising a right included in the Primary law of the Community became dependent on the secondary legislation aimed at giving this right practical effect.160 Free movement in the Community is multi-layered: Article 18 EC, covering all European citizens (so-called citoyens purs), provides them with a right that can be contrasted with the free movement rights for economic reasons, established by other provisions of the EC Treaty and related to the free movement of workers161 and services,162 as well as the freedom of establishment,163 thus covering economic free movement (that is, all so-called bourgeois).164 Given the scope of “activity-oriented” free movement provisions in EC law, Article 18 EC could directly apply only to those categories of European citizens which were not subject to the regulation by lex specialis, that is, the directives and other EC Treaty provisions. At present, although free movement of all categories of citizens is regulated by a single directive,165 the heritage of separate regulation of the past is very strong. Although the right is proclaimed in the directive as applying to all citizens, its scope depends very much on the particular class of those wishing to use it—workers’ free movement is, for instance, far easier to use in practice than that of single mothers without independent means. In fact, the latter will simply not enjoy such a right

practice Article 22 EC is not only unusable, but also undermines the role of the EP, putting citizenship rights entirely into the hands of the Member States. It is no wonder that this provision has never been used. 156 EC Treaty art. 18(1); see generally Eddy De Smijter, Het Europees recht omtrent het verblijfsrecht in de Europese Unie, 51 SOCIAAL-ECONOMISCHE WETGEVING 154, 154–62 (2003). 157 EC Treaty art. 12; see also infra Part III(D)(5). 158 GARETH DAVIES, NATIONALITY DISCRIMINATION IN THE EUROPEAN INTERNAL MARKET 188 (2003). 159 EC Treaty art. 18(1). 160 Davies, supra note 158, at 188. 161 EC Treaty art. 39. 162 Id. art. 49. 163 Id. art. 43. 164 Also other categories of nationals of the Member States used to be covered by independent free movement provisions, including students (Council Directive 93/96, 1993 O.J. (L 317) 59 (EC)), retirees (Council Directive 90/365, 1990 O.J. (L 180) 28 (EC)), and “playboys” or persons of independent means (Council Directive 90/364, 1990 O.J. (L 180) 26 (EC)). 165 Council Directive 2004/38, 2004 O.J. (L 158) 77 (EC); see generally Elsmore & Starup, supra note 21, at 96–100; Sergio Carrera, What Does Free Movement Mean in Theory and Practice in an Enlarged EU?, 11 EUR. L.J. 699, 711–18 (2005) (for analaysis of the directive).

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based on the directive in question.166 Although collected in one directive, free movement rights of the different categories of citizens differ to a great extent. While the free movement right granted to European citizens can generally be described as a success story, much work still has to be done in order to turn it into a genuinely universal right enjoyed equally by all European citizens without regard to their occupation and financial status.167 It is very unfortunate that a key citizenship right in the EC Treaty depends, first of all, on the citizen’s wallet and not merely on the possession of citizenship status. This makes citizenship status itself illusory and somewhat artificial. The first positive steps in the direction of remedying this situation have been taken by the ECJ. Not only has it prohibited automatic deportations of Union citizens failing to provide the documents necessary to obtain a residence permit in a Member State other than that of their nationality,168 but it also treats any Union citizen already in possession of a residence permit in a Member State other than her own as a legal resident of that Member State notwithstanding the fact that the requirements of the directive for the issuing of a residence permit can demonstrably not be met at the moment when the case is decided.169 In other words, the Court is dealing with the 166 Workers who are 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 the European citizens experiencing health problems and economic hardship. The latter set, not falling within the Community definition of a worker, should (according to the general rule) be covered by sickness (health) insurance and have sufficient resources in order to benefit from the right “of residence on the territory of another Member State for a period of longer than three months.” Council Directive 2004/38, supra note 165, art. 7(1). 167 In this respect, the EU has a lot to learn from the United States, where citizens can easily move from one state to another and are not restrained in their choice of place of residence by the states’ collective economic considerations. See, e.g., Baldwin v. Seelig, 294 U.S. 511, 523 (1935) (Justice Cardozo famously writing that “[t]he Constitution . . . was framed upon the theory that the peoples of several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” On the parallels between the U.S. and EU citizenships, see Francesca Strumia, Citizenship and Free Movement: European and American Features of a Judicial Formula for Increased Comity, 12 COLUM. J. EUR. L. 714 (2006); Christiaan Timmermans, Lifting the Veil of Union Citizens’ Rights, in UNE COMMUNAUTÉ DE DROIT: FESTSCHRIFT FÜR GIL CARLOS RODGRÍGUEZ IGLESIAS 195 (N. Colneric et al. eds., 2003); Anne Pieter van der Mei, Freedom of Movement for Indigents: A Comparative Analysis of American Constitutional Law and European Community Law, 19 ARIZ. J. INT’L & COMP. L. 803 (2002); Elizabeth M. Meehan, European Integration and Citizens’ Rights: A Comparative Perspective, 26 PUBLIUS 99 (1996). Although individual EU Member States cannot rely on economic considerations as a justification for acting against the four freedoms (e.g., Case 288/83, Comm’n v. Ireland, 1985 E.C.R. 1761, ¶ 28), when they are gathered together in an IGC, the picture changes, allowing them to put any restrictions they see fit into the texts of the Treaties. No steps have been taken during the recent IGCs in the direction of remedying the disparities plaguing the access of European citizens of different categories to the free movement right. The same can be observed at the level of secondary legislation. See Council Directive 2004/38, supra note 165 (failing to introduce true free movement and essentially providing a summary of pre-citizenship practices). 168 Case C-408/03, Comm’n v. Belgium, 2006 E.C.R. I-2647, ¶ 72. As the recent Italian example shows, de facto the European citizens are not only immune from unlawful deportations by the Member State of residence; Europe knows collective prosecution of European citizens on the basis of ethnicity. See European Roma Rights Centre, Security a la Italiana: Fingerprinting, Extreme Violence and Harassment of Roma in Italy (ERRC 2008), http://www.errc.org/db/03/4D/m0000034D.pdf (last visited Feb. 3, 2009). The Commission is expected to react to the newly-introduced Italian racist policies documented therein. 169 See, e.g., Case C-456/02, Michel Trojani v. Centre publique de l’aide sociale de Bruxelles (CPAS), 2004 E.C.R. I-7573. Consequently, reliance on social assistance in the Member State other than one’s Member State of nationality does not automatically lead to deportation either. See generally Silvia

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logical inconsistencies of Article 18 EC, making sure that the requirements spelled out in the secondary law do not stand in the way of enjoyment of the EC Treaty rights by European citizens. Free movement numbers first on the citizenship rights list in the EC Treaty, which demonstrates its importance. This also illustrates the continuity existing between the rights of nationals of the Member States for Community purposes before Maastricht and the rights of the European citizens after the latter concept was introduced into the Treaty.170 From the first decades of integration the free movement right has been viewed, in the words of the Commission’s Vice-President Levi-Sandri, as “an incipient form of European citizenship.”171 Often undermined by the national bureaucracies of the Member States, the right is fiercely protected by the Court.172 The Treaty exceptions to free movement173 are usually construed very strictly.174 Although the possible exceptions (especially when narrowly construed) are unable to deprive free movement of its essence, to shape a full-fledged European citizenship status, such limitations will have to be abolished. The ECJ cannot do this job alone—the Member States will have to amend the Treaties in order to achieve this.175 Although benefiting a substantial number of Europeans, the free movement right as framed at present teaches us two particular lessons about the imperfection of the European citizenship. Firstly, it is still not a universal status, applying equally to all, since the possibility of using the main right associated with it is connected to citizens’ wallets and occupations. Secondly, the exercise of the main citizenship right can still be legally limited by the Member States on numerous grounds, which is nothing but legalization of de factode facto discrimination on the basis of nationality.176 Therefore, being a European citizen is not enough in order to benefit from the free movement right; one also needs enough money, a job, or both, in a new Member State of residence.177 Moreover, one can still be sent back, on the numerous grounds allowing the Member States to limit this right, or not be given a job, if it

Gastaldi, L’égalité de traitement au service de la citoyenneté européenne, in L’HARMONISATION 326, 342–44 (C. Chappuis et al. eds., 2007). 170 Jean-Denis Mouton, La citoyenneté Européenne, illustration de la méthode communautaire, in DE SCHENGEN Á MONDORF-LES-BAINS: LES CITOYENS AU CŒUR DE L’EUROPE ÉLARGIE 47, 51 (2005). 171 Bull. EC 11-1968, 5, 9 (cited in Evans, European Citizenship, supra note 21, at 501 & n.27). 172 Gareth Davies, Bureaucracy and Free Movement: A Conflict of Form and Substance, 4 NEDERLANDS TIJDSCHRIFT VOOR EUROPEES RECHT 81 (2003). 173 See EC Treaty arts. 39(3)–(4), 46(1), 55 (and the relevant secondary law). Among the grounds are public policy, security, health, and employment in the public sphere. See generally Nanda Beenen, CITIZENSHIP, NATIONALITY AND ACCESS TO PUBLIC SERVICE EMPLOYMENT (2001) (providing a detailed study of employment exception to free movement). 174 See, e.g., Joined Cases C-482 & C-493/01, Georgios Orfanopoulos & Raffaele Oliveri v. Land Baden-Württemberg, 2004 E.C.R. I-5257; see also Case C-149/79, Comm’n v. Belgium, 1981 E.C.R. 3881. 175 No steps have been made in this direction during the last amendment round, resulting in the signature of the Treaty of Lisbon. 176 See, e.g., EC Treaty arts. 39(3), 46, 55. 177 Job-seekers are also covered by the limited free movement right. See Case C-292/89, The Queen v. Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen, 1991 E.C.R. I-741, ¶ 21.

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concerns employment in the public sector, thus dealing a heavy blow to the idea of equality between EU citizens.178 2.

Political Participation

When assessing the political rights of European citizens, the rules concerning three different levels of political representation—municipal, national, and European—need be taken into account. Article 19 EC guarantees European citizens the enjoyment of two main political rights:179 non-discrimination on the basis of nationality in voting and standing as a candidate at municipal elections180 and nondiscrimination in EP elections181 in a Member State other than her Member State of nationality.182

178 As becomes clear upon a critical overview of the first European citizenship right, any direct analogy with T.H. Marshall’s concept of citizenship as a right is quite problematic when European citizenship is considered. De Búrca has demonstrated how T.H. Marshall’s rights’ elements, regarded as classical steps towards modern citizenship at the level of a nation-state get shifted and tossed once applied to citizenship at the supranational level. Indeed, unlike T.H. Marshall’s steps in citizenship evolution that started with the basic negative liberties from state interference, such as the right of habeas corpus, European citizenship is clearly growing from market freedoms: “. . . [The] citizenship rights of the European Union . . . do not in any sense track the historical development traced by Marshall in a statist context.” Gráinne de Búrca, Report on the Further Development of Citizenship in the European Union, ZEITSCHRIFT FÜR SCHWEIZERISCHES RECHT 39, 50 (2001); see also Jo Shaw, Constitutional Settlements and the Citizen after the Treaty of Amsterdam, in EUROPEAN INTEGRATION AFTER AMSTERDAM: INSTITUATIONAL DYNAMICS AND PROSPECTS FOR DEMOCRACY 290, 294 (K. Neunreither & A. Wiener eds., 2000); Michelle C. Everson & Ulrich K. Preuß, Concept Foundations and Limits of European Citizenship (ZERP Discussion Paper 2/95) (1995). 179 See generally SHAW, supra note 22; Stephen Day & Jo Shaw, Implementing Union Citizenship: The Case of Alien Suffrage and the European Union, undated conference paper (2007) [hereinafter Day & Shaw, Implementing Union Citizenship]; Giovanna Zincone & Simona Ardovino, I diritti elettorali dei migranti nello spazio politico e giuridico europeo, 5 LE ISTITUZIONI DEL FEDERALISMO 741 (2004); Jo Shaw, Alien Suffrage in the European Union, 12 THE GOOD SOC’Y 29 (2003) [hereinafter Shaw, Alien Suffrage]; Stephen Day & Jo Shaw, European Union Electoral Rights and the Political Participation of Migrants in Host Policies, 8 INT’L J. OF POPULATION GEOGRAPHY 183 (2002). 180 EC Treaty art. 19(1). 181 Id. art. 19(2). 182 Given that Article 19 EC is firmly placed among the European citizenship rights, it is doubtful whether the rights it brings can be viewed merely as cases of alien suffrage, an approach taken by scholars. See SHAW, supra note 22 (passim); Day & Shaw, Implementing Union Citizenship, supra note 179, at 2. Speaking about “alien suffrage” potentially undermines the rationale behind Part II EC as a whole and Article 17(1) EC in particular. There is another important aspect to such characterization, however. When viewed as an example of alien suffrage, the political participation rights granted to the European citizens by Article 19 EC can be presented as an example of discrimination between European citizens residing in Member States other than their Member States of nationality and third-country nationals residing in those same Member States. While the enfranchisement of the third-country nationals is desirable (see infra Part V(B)(2)) presenting the current situation as discriminatory is incorrect. Differentiated treatment is in direct relation with the possession (or not) of European citizenship status. Consequently, European citizens residing within the EU outside of their Member States of nationality are not simply aliens, as is clear from the text of Article 17 EC. Instead of embracing the “alien suffrage approach,” the reading of the EC Treaty à la lettre is preferred, resulting in the treatment of the political participation rights of Part II EC as European citizenship rights realized by the Member States within the national context but on the whole exercised within the entirety of the territorial scope of the acquis communautaire. This is how the Community works in the majority of other fields too, as a well-tuned system of fédéralisme d’exécution. See Bernard Dubey, Administration indirecte et fédéralisme d’exécution en Europe, in CAHIERS DE DROIT EUROPÉEN 87 (2003).

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At the national level, the European citizens’ participation in politics in Member States where they reside but are not nationals has only been marked by certain legal guarantees to be applied against the Member States of residence. To provide an example, European citizens cannot be expelled on the grounds of failing to maintain neutralité politique,183 and the Member States are deprived of an ability legally to limit European citizens’ political rights stemming from Articles 10, 11, and 14 ECHR.184 While they are not obliged to be politically neutral, European citizens enjoy neither passive nor active voting rights at the national level in the Member States where they reside but are not nationals, thus being unable fully to integrate in the political life of their Member States of residence. There is nothing in the EC Treaty that would prohibit enfranchising European citizens in Member States where they reside but are not nationals. Moreover, European citizens already have some political rights in the Member States other than their own, such as the right to fund or to join a political party.185 The Member States themselves are free to decide to introduce national voting rights for all EU citizens. The U.K., where resident Irishmen, Cypriots, and Maltese vote and can stand as candidates in all elections, and Ireland, where U.K. nationals vote in the Dáil elections, can serve as examples of this.186 Moreover, besides the obvious ways of either acting alone187 or changing the Treaty by introducing a new citizenship right that would allow European citizens to vote in national elections in the Member States of residence,188 the Member States would even be able to use the legal framework of enhanced cooperation189 in order to do this within the auspices of the Treaty.190 The ban on using the enhanced cooperation framework to build on the

183 See, e.g., Case 36/75, Roland Rutili v. Ministre de l'intérieur, 1975 E.C.R. 1219. On European practice regarding foreign citizens’ political neutrality in the host state at the time when the case was decided, see P. Mascagni, Le restrizioni delle attività politiche degli stranieri sonsentite dalla Convenzione europea dei diritti dell’uomo, 1977 RIVISTA DI DIRITTO INTERNAZIONALE 526. 184 See Piermont v. France (ECt.HR), App. Nos. 15773/89 & 15774/89, Annotated by Juliane Kokott & Beate Rudolf, 90 AM. J. INT’L L. 456 (1996). 185 Stemming from Arts. 12 and 19 EC, read together with the fundamental principles of law referred to in Article 6(1) EU. See generally SHAW, supra note 22, at 153–56. 186 Irish citizens residing in the U.K. can both vote for and be elected to the national legislature by virtue of “not being foreigners.” See Electoral Administration Act, 2006, c. 22, § 18(1)(b) (Eng.); Representation of People Act, 2000, c. 2, § 6(3)(e) (Eng.). To reciprocate this right, Ireland allowed U.K. nationals residing there to vote for the lower house of parliament (Dáil). See SHAW, supra note 22, at 202–06 (recounting the story of the Irish law, which required an amendment of the Constitution). Maltese and Cypriot nationals residing in the U.K. participate in the national elections there by virtue of being Commonwealth citizens. See infra Part V(B)(3). 187 Like the U.K. and Ireland, for example. 188 Introduction of this right could occur through Article 22(2) EC or Article 48 EU. 189 As set out in Articles 11 EC and 43 EU. Given that enhanced cooperation should occur within the scope of the Treaties, Articles 41 or 308 EC could be used to justify the adoption of such rules. On the possibilities offered by enhanced cooperation, see, inter alia, D.T. Murphy, Closer or Enhanced Cooperation: Amsterdam or Nice, 31 GA. J. INT’L & COMP. L. 265 (2003); ASSER INSTITUUT, FLEXIBILITEIT EN HET VERDRAG VAN AMSTERDAM (T.M.C. Asser Press 1998). 190 According to Article 43(g) EU (to which Article 11(2) EC refers), enhanced cooperation has to involve a minimum of eight Member States, which means that if not all Member States join, de facto unequal enfranchisement rules can potentially apply across the Member States. Following the principle of openness of enhanced cooperation to all the Member States outlined in Article 43(b) EU, more Member States can join later, diminishing the enfranchisement gap. See id. art. 43(b). See F. Amtenbrink & D. Kochenov, Towards a More Flexible Approach to Enhanced Co-operation, in 50 YEARS OF EUROPEAN

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citizenship of the Union was removed from Article 11 EC by the Treaty of Nice.191 In other words, despite the lack of a specific legal basis for the Commission to propose the enfranchisement of European citizens in the national elections in the Member States of which they are not nationals,192 a number of legal possibilities exist in practice that would enable the enfranchisement of European citizens at the national level in their Member States of residence. Unfortunately, no moves in this direction have been made so far. Consequently, a gap exists between the borderless economic space and the fragmented political space of the EU. The inability to participate in the national elections in Member States of residence other than the Member State of nationality would look slightly less problematic if only participation in the national elections in the Member State of nationality were guaranteed to the expatriate European citizens. This, however, is not always the case, since the practices of “external citizenship”193 are severely restricted in a number of the Member States.194 Although at odds with the idea of democratic representation, especially in the cases where the expatriates are not granted representation rights in the state of residence, such restrictions are not per se illegal.195 In other words, as a consequence of using free movement rights some European citizens are de facto totally excluded from participation in the democratic process at the level where it is arguably most important—that of the Member

INTEGRATION: FOUNDATIONS AND PERSPECTIVES (A. Ott & E. Vos eds., forthcoming 2009) (on the legal analysis of access to enhanced cooperation). 191 It can be argued that even when the old Article 11(1)(c) EC was still in force, broadening the citizenship rights de facto was still theoretically possible based on the enhanced cooperation provisions, as long as the changes did not go to the core of the European citizenship status. 192 See The Reply of Mr. Vitorino on behalf of the Commission to Written Question E-1301/02 by Michael Cashman (PSE) to the Commission on Voting Rights of EU Citizens, 2004 O.J. (C 33 E) 105. 193 See Kim Barry, Home and Away: The Construction of Citizenship in an Emigration Context, 81 N.Y.U. L. REV. 11, 26–34 (2006) (on the concept of “external citizenship”); see also Ruth Rubio-Marín, Transnational Politics and the Democratic Nation-State: Normative Challenges of Expatriate Voting and Nationality Retention of Emigrants, 81 N.Y.U. L. REV. 117, 126 (2006). 194 This restriction manifests itself in several ways: (1) No expatriate voting right is granted at all (i.e., Denmark (in some cases absentee voting is possible) and Ireland); (2) The right is conditional on voting in the state of nationality in person (i.e., Greece); (3) The right disappears after a number of years of residence abroad (i.e., U.K.). See Jeremy Grace, External and Absentee Voting, in Challenging the Norms and Standards of Election Administration 35–56 (International Foundation for Electoral Systems 2007), available at http://www.ifes.org/research.html (search for “Challenging the Norms,” then follow links to report). 195 See generally Rainer Bauböck, Towards Political Theory of Migrant Transnationalism, 37 INT’L MIGRATION REV. 700 (2003) (discussing the right to absentee voting). That right is absent in the law of the ECHR. See, e.g., X. v. United Kingdom, App. No. 7566/76, 9 Eur. Comm’n H.R. Dec. & Rep. 121 (1976); X v. United Kingdom, App. No. 7730/76, 15 Eur. Comm’n H.R. Dec. & Rep. 137 (1979). But see Council of Europe, Committee of Ministers, Recommendation To Member States on the Exercise in the State of Residence by Nationals of Other Member States of the Right to Vote in Elections of the State of Origin, Recommendation No. R (86) 8 (1986), available at http://www.coe.int/T/CM/WCD/advSearch_en.asp# (search “Rec(86)8E”); Eur. Parl. Ass., Links Between Europeans Living Abroad and Their Countries of Origin, Doc. No. 8339, pt. 5(v)(d)(iv) (1999) (calling on the Council of Europe’s Member States to institute expatriate voting).

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States.196 In other words, the exercise of free movement rights can lead to disenfranchisement.197 But even without focusing on the full disenfranchisement of a number of European citizens at the level of national elections, it is clear that the gap in voting rights put in place by Article 19 EC is difficult to justify, especially in a polity such as the EU, which is, by its very design, “determined to lay the foundations of an ever closer union among the peoples of Europe.”198 Shaw is absolutely right in stating that “[t]hose seeking to defend national sovereignty as they see it by excluding certain groups of residents from the franchise should also have to justify the damage to democracy done by excluding those residents in terms of limiting the scope and compass of democratic self-government.”199 As far as the right to participate in the municipal elections in the Member State of residence framed by Article 19(1) EC200 is concerned,201 it mirrors the practices adopted in several Member States 202 before the signing of the Maastricht Treaty, allowing foreigners permanently residing in those states to take part in the elections at the local level.203 This does not remove the innovative nature of the Article 19(1) EC right, which enfranchised European citizens in local elections in all the Member States. It is the only precedent of local election rights granted by supranational legal instruments.204 Notably, the right stems from the European legal order, not from the legal orders of the Member States. Although it can be argued that a political right of this kind is not a “citizenship right” stricto sensu,205 the fact that granting such a right was regarded in several 196 A number of third countries also limit the political participation of expatriate citizens. Among them are Mexico, India, and Turkey. Barry, supra note 193, at 54. 197 See generally Dimitry Kochenov, Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality: An Ignored Link?,16 MAASTRICHT J. EUR. & COMP. L. (forthcoming 2009). 198 EC Treaty pmbl., rec. 1. 199 SHAW, supra note 22, at 194. 200 A proposal regarding the granting of voting rights in local elections to all the eligible Community nationals resident in Member States other than their own was first tabled by the Commission as early as 1986. See A People’s Europe, COM (1986) 371 final (June 20, 1986). See also Shaw, Alien Suffrage, supra note 179, at 29, 31. 201 Council Directive 94/80, art. 19(1), 1994 O.J. (L 368) 38, as amended. The directive is in line with the wording of PACE Recommendation 1082 (1988). Eur. Parl. Ass., Recommendation R (1988) 1082 on the Right of Permanent Residence for Migrant Workers and Members of Their Families, 9(b)(v) (1988), available at http://assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta88/ EREC1082.htm (last visited Feb. 3, 2009). The directive now in force is not the first attempt to regulate this issue. See SHAW, supra note 22, at 142–153 (analyzing Directive 94/80 and its application). 202 These states included the Netherlands, Denmark, Ireland, Finland, and Sweden. 203 This practice is in line with the law of the Strasbourg human rights protection system. Convention on the Political Participation of Foreigners in Local Life, Feb. 5, 1992, E.T.S. No. 144. See SHAW, supra note 22, at 65–66 (analysing the instrument). 204 The Commission made proposals for the introduction of such a right even before Maastricht. See Commission Report on Voting Rights in Local Elections for Community Nationals, COM (1986) 487 final (Oct. 7, 1986); Commission Proposal for a Council Directive on Voting Rights for Community Nationals in Local Elections in Their Member State of Residence, COM (1988) 371 final (July 11, 1988). See also SHAW, supra note 22, at 108–13. 205 E.g., SHAW, supra note 22, at 49; Hans U. Jessurun d’Oliveira, European Citizenship: Its Meaning, Its Potential, in EUROPE AFTER MAASTRICHT: AN EVER CLOSER UNION? 126, 139 (Renaud Dehousse ed., 1994).

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Member States as a move requiring the amendment of the national constitution demonstrates quite clearly how sensitive the terrain of political participation still is in Europe. “Singing the swan song to a vanishing ideology of nationhood,”206 the German Bundesverfassungsgericht found, for instance, that granting voting rights to foreigners in local elections would be unconstitutional—this is shortly before the entry into force of the Maastricht Treaty,207 making the amendment of the Grundgesetz necessary to make Part II EC work. Belgium also had to amend its constitution.208 It was found in breach of its Community law obligations,209 failing to transpose Directive 94/80/EC on time.210 The fact that European citizens are granted this right is difficult to see as a step towards full enfranchisement, that is, eligibility to vote and stand as candidates at the national elections in the Member State of residence, which should logically be the ultimate goal of the development of European citizenship. What is progressive about Article 19(1) EC, however, is that it does not contain any qualifications related to the minimal length of residence.211 This makes the eligibility for voting under Article 19(1) EC radically different from the rules adopted in several Member States before European citizenship rights entered the Treaty, since aliens, whether they were from within or from outside the Community, usually had to reside in a particular Member State for five years or longer before becoming eligible for voting at the local level.212 The removal of minimum residence requirements is a direct consequence of the application of the non-discrimination right contained in the same Article 19(1) EC. This provision establishes the right of European citizens to vote and stand as candidates in the municipal elections in Member States other than their own “under the same conditions as nationals of that state.”213 While writing on the subject of municipal elections, it is difficult not to notice that, in the twenty-seven Member States, the notions of what is municipal and what

206 SEYLA BENHABIB, THE RIGHTS OF OTHERS: ALIENS, RESIDENTS AND CITIZENS 207 (2004) (as quoted in SHAW, supra note 22, at 76). 207 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Oct. 31, 1990, 63 Entscheidungen des Bundesverfassungsgerichts in Schleswig-Holstein [BVerfGE] 37 (F.R.G.); BVerfG Oct. 31, 1990, BVerfGE 63, 60. See Bauböck, supra note 95, § 3. The BVerfG is not the only guardian of the old-fashioned concept of Volk. Dealing with the amendment introduced to enfranchise U.K. nationals residing in Ireland at the level of national elections, the Supreme Court of the Republic of Ireland adopted a similar stance, which ultimately required Ireland to hold a referendum on amending the Constitution to grant U.K. citizens residing there electoral rights. In re Article 26 of the Constitution, [1984] I.R. 268 (Ir.). See generally SHAW, supra note 22, at 198–208. 208 The new Member States of Central and Eastern Europe also needed to do the same in the context of the pre-accession reforms. See generally ANNELI ALBI, EU ENLARGEMENT AND THE CONSTITUTIONS OF CENTRAL AND EASTERN EUROPE (2005) (providing a detailed account of this process). 209 See Case C-323/97, Comm’n v. Belgium, 1998 E.C.R. I-4281. 210 Belgium made an attempt to explain the delay by the need to amend Article. 8 of its national Constitution—an argument unusable in front of the ECJ, as follows from established case-law. E.g., Case C-107/96, Comm’n v. Spain, 1997 E.C.R. I-3193, ¶ 10. 211 Exceptions are possible, however. See Council Directive 94/80, art. 12, 1994 O.J. (L 368) 38. The possible exceptions are framed identically to those applicable to the voting and standing as candidates in the EP elections on the basis of Directive 93/109 and will be discussed infra. 212 See Dirk Jacobs, Kiesrecht en de Schaduwkant van het Europees Burgerschap, 12 MIGRANTENRECHT 13 (1997); see also Shaw, Alien Suffrage, supra note 179, at 29–30. 213 EC Treaty art. 19(1).

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is not differ considerably, which has far-reaching implications for the operability of Article 19(1) EC in the absence of a Community notion of “municipal elections.” At present it is up to the Member States to decide which elections to classify as municipal in the sense of Article 19(1) EC, resulting in notable discrepancies. While in the continental Member States even the elections at the level of the Länder are regarded as state elections, thus not falling within the scope of Article 19(1) EC, in the U.K. elections to the assemblies in Northern Ireland, Scotland, and Wales are classified as “municipal,” resulting in enfranchisement of all the European citizens resident there.214 Needless to say, such a situation results in notable discrepancies between the rights enjoyed by European citizens in different Member States, harming the idea of equality among citizens. While those European citizens who reside in Scotland without having U.K. nationality can vote for the Scottish Parliament, those European citizens who reside in Vienna without having Austrian nationality cannot even vote in city-level elections because the city of Vienna is a Land according to the Austrian federal structure.215 It becomes clear in this context that, in order to fully enfranchise European citizens in municipal elections, a Community legal notion of the municipal level of representation is desirable. Voting and standing as a candidate at the EP elections in a Member State of residence other than one’s own is a progressive step taken by Article 19(2) EC.216 Although the EP has been elected by the citizens directly since June 1979,217 the use of this right in a Member State other than one’s own was connected to a number of practical difficulties, such as the need to satisfy the minimum residence requirement before being eligible to vote. Similarly to Article 19(1) EC, Article 19(2) EC grants a European citizen residing in a Member State other than that of her nationality, this right notwithstanding the length of her residence in that Member State, thereby making political participation easily accessible to all the eligible voters. It should be noted, however, that the right contained in Article 19(2) EC is by no way unconditional and operates, as is clear from the text of the article, as a nondiscrimination right rather than as a simple conferral of the right to vote on Union 214 SHAW, supra note 22, at 202–03; see generally NATIONAL AND REGIONAL PARLIAMENTS IN THE EUROPEAN CONSTITUTIONAL ORDER (Philipp Kiiver ed., 2006) (discussing the role of the local parliaments in the process of European integration). 215 For an attempt to challenge the disenfranchisement of European citizens who are not in possession of Austrian nationality residing in Vienna, see Verfassungsgerichtshof [VfGH] [constitutional court] Dec. 12, 1997, B3113/96, B3760/96 (Austria) (the Constitutional Court did not refer any questions to the ECJ in this regard). 216 See also Council Directive 93/109, 1993 O.J. (L 329) 34; SHAW, supra note 22, 131–42 (analyzing this instrument and its application). 217 This date refers to the first election held under the Act concerning the election of the representatives of the Assembly by direct universal suffrage, annexed to Council Decision 76/787, 1976 O.J. (L 278) 5. The legal nature of the Act is debated, opinions varying from recognising it as a “Treaty within the Community legal order” to a “Council decision to which Member States adhere.” The European Court of Human Rights considered it to be part of the primary EC law in Matthews v. U.K., App. No. 24833/94, 28 Eur. Ct. H.R. 361 (1999), thus agreeing with Advocate General Darmon, who stated in his opinion in Case C-41/92, The Liberal Democrats v. Eur. Parl., 1993 E.C.R. I-3153, that the Act is a sui generis measure of primary law complementing the Treaty. See also Koen Muylle, Is the European Parliament a “Legislator”?, 6 EUR. PUB. L. 243, 247 (2000). Unilateral changes by the U.K. to election law resulting in a derogation from the provisions of the annex to the Act are legal according to the ECJ. See Case C-145/04, Spain v. U.K., 2006 E.C.R. I-7917. See SHAW, supra note 22, at 175 (analyzing this specific point).

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citizens residing in Member States other than their Member States of nationality.218 The provision prescribes that the right be enjoyed by European citizens residing in their host Member States “under the same conditions as the nationals of that State.”219 As will be discussed below, this right is not as such limited to European citizens.220 An interesting aspect of the right to vote and to stand as a candidate at the EP elections in the Member State of residence rather than one’s own is that, although it can generally be characterized as a positive development, it falls short of being in line with citizenship ideology, since the principle of equality is not safeguarded. Stemming from the fact that the possibility to hold vrai European elections included in Article 190(4) EC has not so far materialized,221 the weight of each vote cast for each particular MEP depends heavily on where that vote is cast.222 In practice, this means that by moving from one Member State to another the weight of the European citizen’s vote also changes, which is problematic given that the idea of equality lies at the heart of citizenship. Such a situation is justified in the EC Treaty by the fact that instead of the European citizens themselves, according to Article 189 EC the “peoples of the States united in the Community”223 are represented in the EP, making this Institution a guarantor of d moi-cracy rather than of democratic representation per se.224 The political scene at the EU level is equally undermined by the de facto dormant position of Article 191 EC, which proclaims the importance of transnational political parties. Allowing any Union citizen to vote in a new Member State of residence somewhat simplifies the notion of “peoples of the Member States.” In order to belong to the “people of a Member State” other than one’s own it is enough for a Union citizen to change residence. In other words, it is clear that the Article 19 EC right affects the very essence of the meaning of the “peoples of the Member States,” which Article 189 EC aimed at safeguarding. The inequalities that remain part of the system only make sense as long as one believes that there is something more behind the notion of a “people” than a place of residence. In this regard, the logic of Article

218 In fact, as Shaw states, “Article 19(2) EC does not expressly create such a right.” SHAW, supra note 22, at 173 (emphasis added). But see Cases C-145/04, Spain v. U.K., and C-300/04, M.G. Eman & O.B. Sevinger v. College van Burgemeester en Wethouders van Den Haag, 2006 E.C.R. I-7917 (Opinion of Advocate General Tizzano), ¶¶ 67–68 (also discussed in SHAW, supra note 22, at 178–89). 219 EC Treaty art. 19(2). 220 See infra Part V(B)(3). 221 This is notwithstanding the fact that the EP made numerous proposals to this effect, the first submitted in the 1960s. Assembly Resolution of 17 May 1960, 1960 J.O. (834); see SHAW, supra note 22, at 101–08 (analyzing these proposals). 222 A system is described as “degressively proportionate” in the new Article 14(2) EU, as amended by the Treaty of Lisbon. The same text could be found in the Treaty Establishing a Constitution for Europe (TCE). See Treaty Establishing a Constitution for Europe art. I-20(2), Oct. 29, 2004, 2004 O.J. (C 310) 1, 19 (never entered into force). In the words of Amtenbrink this is just “an elegant way of stating that the EP [is] based on a disproportionate representation of the citizens of the Union.” Fabian Amtenbrink, Towards a More Democratic Union? Comments on the Treaty Establishing a Constitution for Europe, in THE CONSTITUTION FOR EUROPE AND AN ENLARGING UNION: UNITY IN DIVERSITY? 50, 50 (Kirstyn Inglis & Andrea Ott eds., 2005). 223 EC Treaty art. 189. 224 See also Kalypso Nicolaïdes, The New Constitution as European Demoi-cracy? (The Fed. Trust for Educ. and Research No. 38/03, 2003).

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189 EC and that of Article 19(2) EC are clearly contradictory. Consistency can only be brought by introducing the equal representation of all Union citizens in the EP and acknowledging that equality ultimately requires that the vote of each citizen, no matter what her Member State of nationality and where she resides, is weighted equally with the vote of any other EU citizen. Once nationality of a Member State becomes irrelevant for the purposes of participation in the EP elections, the idea of representing the “peoples” loses its meaning—Article 189 EC will have to be reformulated accordingly. The amendments brought by the Treaty of Lisbon will introduce an important change in this regard. From the entry of this Treaty into force, “the European Parliament shall be composed of representatives of the Union’s citizens.”225 However, since the system of allocation of EP seats by Member States remains unchanged, this facelift for the Treaty will not result in remedying the existing inequality.226 The differences in how the votes are weighed are not the only obvious breach of the equality principle related to the exercise of the Article 19(2) EC right. Secondary legislation adopted to give Article 19(2) EC practical effect allows for the establishment of qualifying residence periods for Union citizens who are not nationals of a state in those states where the share of the Union citizen non-nationals is larger than twenty percent.227 In other words, Article 19(2) EC, which allows for such limitations, does not always work in strict accordance with its own text, resulting in situations where Union citizens cannot vote in their new Member States of residence. If the possibility to vote for the EP in the Member States of nationality was also denied to this group of people,228 the provisions of secondary Community law would lead to their total disenfranchisement at the level of EP elections.229 Criticized both by scholars230 and the EP,231 this provision is in force, preventing numerous non-nationals of Luxembourg who are Union citizens from voting in EP elections in the Grand Duchy where they reside.232 The secondary law which introduced the possibility of deviating from the principle of equality found in Article 19(2) EC can be viewed as a clumsy attempt to reconcile the citizenship ideal and enfranchisement of those who exercised their free movement rights with the nationalist logic behind the rules of formation of the EP

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EU Treaty art. 24(2) (amended by the Treaty of Lisbon). See generally Annette Schrauwen, European Citizenship in the Treaty of Lisbon: Any Change at All?, 15 MAASTRICHT J. OF EUR. & COMP. L. 55 (2008) (enumerating the provisions of the Lisbon Treaty relevant to European citizenship). 227 Council Directive 93/109, supra note 216, art. 14(1). 228 Id. art. 1(2). Voting and standing as a candidate is only allowed in one Member State. Id. art. 4(1)–(2). 229 Problems can still arise in this respect, as Shaw reports, since not all the Member States allow expatriate voting in EP elections. Moreover, Article 1(2) of Directive 93/109 explicitly allows for such difference in approaches. See SHAW, supra note 22, at 132, 178. 230 E.g., SHAW, supra note 22, at 189. 231 Parliament Resolution of 17 November 1993, 1993 O.J. (C 329) 129. 232 The Treaty of Lisbon, when in force, will leave this derogation possibility intact. FEU Treaty art. 22(1). 226

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found in Article 189 EC. Not really helping the latter, it harms the former, ultimately going against both the principle of equality and democratic representation.233 All in all, the political rights of European citizens in the Treaty seem to be weakened by three main considerations: structural neglect of the principle of equality, the non-applicability of enfranchisement to the most important (that is, national) elections, and the blurred borderline between what is “national” and what is “municipal” de facto used by the reluctant Member States to limit the enfranchisement of European citizens who are not in possession of their nationalities.234 3.

Diplomatic Protection

The right to diplomatic protection of Article 20 EC235 is not as new. It was established in the European legal doctrine many years before the right actually appeared in the Treaty and mostly applied to Community officials (a parallel being drawn with the UN, providing diplomatic protection for its own officials) in the spheres covered by the Community competence.236 The practical side of the right is, for example, the possibility of obtaining a travel document from another Member State’s consular mission if there is no diplomatic or consular representation of one’s own Member State in the state where the document was lost or stolen.237 Undermining this otherwise progressive right is the recognition also included in the text of Article 20 EC that the Union will have to enter into negotiations with the third countries in order to ensure that this right is actually workable and is recognised all over the world. The right creates a very peculiar legal reality, since “no other polity depends upon other polities in order to be able to confer citizenship rights.”238 The ius tractum logic works in the context of this right in a particularly unfortunate way. Since not all the residents of the EU travelling abroad are European citizens, it is difficult to understand why the right to consular protection is construed in such way that it excludes persons without any nationality residing in the EU. After the recent Eastern enlargement of the EU to accommodate, inter alia, the Baltic states of Latvia and Estonia, the population of permanent residents without any 233 A question can be asked, whether the participation in the EP elections empowers EU citizens enough at the European level of representation. Should they play a bigger role in the formation of other institutions? See Carlos Closa Montero, Constitutional Prospects of European Citizenship and New Forms of Democracy, in GENÈSE ET DESTINÉE DE LA CONSTITUTION EUROPÉENNE 1037 (Guiliano Amato et al. eds., 2007). 234 See, e.g., Shaw, supra note 38, at 7 (criticizing Article 19 EC with respect to its limited application to European citizens only). See also infra Part V(B)(2) (discussing the problem of disenfranchisement of third-country nationals in the EU and demonstrating that criticizing Article 19 EC on this ground is logically unsound because it is an article related to one of the citizenship rights, and the third-country nationals are simply not granted this status). 235 See, e.g., Decision 95/553, 1995 O.J. (L314) 73 (EC); Decision 96/409, 1996 O.J. (L168) 4 (CSFP). 236 See Albert Bleckmann, supra note 64, at 480–83. 237 The right is well-rooted in international law and practice. See Vienna Convention on Diplomatic Relations art. 6, Apr. 18, 1961, 500 U.N.T.S. 95; Vienna Convention on Consular Relations art. 8, Apr. 24, 1963, 596 U.N.T.S. 261. 238 Davis, supra note 36, at 132.

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nationality rose in the Union considerably.239 Why should a person permanently residing in the EU and traveling on a Latvian or Estonian “non-citizen’s passport”240 be refused protection under Article 20 EC? Such exclusion looks particularly inhumane in those situations when recourse to Article 20 EC rights is most likely to occur, such as the South-East Asian tsunami and other natural disasters or military conflicts.241 4.

Communication with the Institutions; Ombudsman

This group of citizenship rights, outlined in Article 21 EC, includes the rights to petition the EP,242 apply to the Ombudsman and write to the institutions in any of the twenty-three official languages of the EU, which also includes the right to an answer in the same language.243 All these rights besides the last one mirror the provisions to be found elsewhere in the Treaties, namely in Articles 194 and 195 EC. Their classification as “citizenship rights” is questionable, since both Articles 194 and 195 EC do not connect the possibilities of enjoyment of the rights mentioned with possession of the status of European citizen and are applicable to “any natural or legal person residing or having its registered office in a Member State.”244 5.

Non-discrimination on the Basis of Nationality: a Citizenship Right?

The non-discrimination right of Article 12 EC, although not expressly mentioned among citizenship rights in the EC Treaty,245 has been interpreted by the ECJ as applying uniquely to the nationals of the Member States.246 In other words, it 239 See, e.g., Kyriaki Topidi, Zashchita men’shinstv i chlenstvo v ES stran Baltii: mify i real’nost’, in PRODVIZHENIJE DEMOKRATICHESKIKH TZENNOSTEJ V RASSHIRIAJUSHCHEJSIA JEVROPE: IZMENIAJUSHCHIAJASIA ROL’ BALTIJSKIKH GOSUDARSTV OT IMPORTËROV K ÈKSPORTËRAM 31 (A. Kasecamp & H. Pääbo eds., 2006) (discussing the problems related to the naturalisation of the Russian minorities in Latvia and Estonia); Peter Van Elsuwege, ‘Russian-speaking’ Minorities in Estonia and Latvia: Problems of Integration at the Threshold of the European Union (Eur. Ctr. for Minority Issues Working Paper No. 20, 2004), available at http://www.ecmi.de/download/working_paper_20.pdf (last visisted Feb. 3, 2009); Kochenov, Pre-Accession, supra note 71. See also Dimitry Kochenov, The Summary of Contradictions: Outline of the EU’s Numerous Approaches to Minority Protection, 31 B.C. INT’L & COMP. L. REV. 1, 22 (2008) (discussing the EU’s pre-accession approach to minority protection, which did little to resolve the outstanding problems of the minority population of Latvia and Estonia compared with the approach taken by the EU vis-à-vis the minorities in other candidate countries). 240 Such a document specifies that the bearer is not under protection of the issuing state. 241 See Shaw, supra note 38, at 8 (demonstrating that the drafters had, in particular, the First Iraq War in mind when including Article 20 EC in the Treaty). 242 See Epaminondas Marias, The Right to Petition the European Parliament after Maastricht, 19 EUR. L. REV. 169 (1994). See also Hélène Surrel, Le “droit de pétition” au Parlement européen, 335 REVUE DU MARCHÉ COMMUN 219 (1990) (analyzing the existence of a similar right prior to the introduction of European citizenship in the EC Treaty). Sousa Ferro argued for the existence of the general petition right in the EC legal system, which would not be limited to the EP. Sousa Ferro, supra note 154, at 371. 243 The right to be answered in the same language is apparently not granted to non-European citizens who rely on the parallel right of Article 194 EC. At the same time, not answering in the same language as the language of the question clearly undermines the whole idea of addressing the Institutions. 244 EC Treaty art. 194. 245 Upon the entry into force of the Treaty of Lisbon, Article 12(1) EC, renamed Article 18(1) FEU, will be included in the section “Non-Discrimination and Citizenship of the Union,” altering the present situation. The text of the article will not change. 246 See, e.g., Davies, supra note 158; Gastaldi, supra note 169.

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does not protect third-country nationals residing in the Union247 and is one of the most important rights enjoyed exclusively by European citizens.248 When one takes into account the recent case-law of the ECJ, non-discrimination seems to be working excellently in tandem with the European citizenship provisions, since, according to the ECJ in Martínez Sala, “a citizen of the Union . . . lawfully residing in the territory of the host Member State, can rely on Article 12 EC in all situations which fall within the scope ratione materiae of Community law.”249 Citizenship articles of the EC Treaty have thus successfully taken the place of the free movement of services provisions,250 as the tool used by the ECJ to bring a particular situation within the scope of the application of Community law, turning citizenship into the key element of the functioning of the non-discrimination provisions in Community law.251 At least two drawbacks related to the practical application of this provision can be outlined. Firstly, although it is to be expected that by choosing to benefit from their free movement right, European citizens can also eventually see the change in their status in their Member States of nationality, at present non-discrimination on the basis of nationality still does not result in “treating the émigré national like a foreigner.”252 Thus the scope of application of this article to European citizens is still somewhat limited by nationality considerations. The second drawback of Article 12 EC as interpreted by the ECJ is the exclusion of those not in possession of the status of EU citizens from the scope of application of this provision.253 The article reads as follows: “within the scope of application of this Treaty . . . any discrimination on grounds of nationality shall be prohibited.”254 Although it obviously applies to European citizens in a number of situations, the wording seems to suggest that the scope of the non-discrimination right contained in this provision is much broader than that. To agree with de Witte,

247 The ECJ has been clear on the issue that third-country nationals are not covered by Article 12 EC. Case C-230/97, Criminal proceedings against Ibiyinka Awoyemi, 1998 E.C.R. I-6781, ¶ 29. 248 Similar non-discrimination provisions are included in the agreements concluded by the Community and the Member States with certain third countries (esp. the EEA Agreement and the Swiss Agreement on free movement). See infra Part V(B)(4); see also Council Directive 2003/109, Concerning the Status of Third-Country Nationals Who Are Long-Term Residents, art. 11, 2004 O.J. (L16) 44 (EC) (protecting the right, as applied to third-country nationals). 249 Case C-85/96, María Martínez Sala v. Freistaat Bayern, 1998 E.C.R. I-2691, ¶ 63. 250 Case 186/87, Ian William Cowan v. Trésor Public, 1989 E.C.R. 195; Case 293/83, Françoise Gravier v. City of Liège, 1985 E.C.R. 593. 251 Even after the introduction of the concept of European citizenship into the EC Treaty, the ECJ was still using Article 49 EC to protect citizens’ rights instead of the new Article 18 EC. See Case C193/94, Criminal proceedings against Sofia Skanavi & Konstantin Chryssanthakopoulos, 1996 E.C.R. I929; Joined Cases C-4 & 5/95, Fritz Stöber & José Manuel Piosa Pereira v. Bundesanstalt für Arbeit, 1997 E.C.R. I-511. But see Case C-60/00, Mary Carpenter v. Sec’y of State for the Home Dep’t, 2002 E.C.R. I6279 (putting an accent on the free movement of services). See also Elspeth Guild, Developing European Citizenship or Discarding It? Multicultural Citizenship Theory in Light of the Carpenter Judgement of the European Court of Justice, 12 THE GOOD SOC’Y 2, 22 (2003). 252 Davies, supra note 96, at 43. 253 See Astrid Epiney, The Scope of Article 12 EC: Some Remarks on the Influence of European Citizenship, 13 EUR. L.J. 611 (2007) (especially note 4 at 612, listing the recent case-law of the ECJ most relevant for the interpretation of Article 12 EC). 254 EC Treaty art. 12.

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Article 12 EC “could also be read as prohibiting discrimination against third-country nationals.”255 In a way, the narrow interpretation of Article 12 EC by the ECJ is clearly related to the narrow interpretation of Article 39 EC by the Court.256 If the meaning of “the workers of the Member States” were not confined to those workers in possession of the nationality of a Member State, the meaning of “nationality” for the purposes of Article 12 EC clearly would be different. As interpreted at present, all nonCommunity nationalities are excluded from the scope of the article, which often leads to cases of differentiated treatment which are not logically explainable.257 A number of arguments have been made in the literature for the reassessment of the scope of the article.258 An obvious problem in this respect is to make sure that the cases to which the article is to apply, when involving non-nationals of the Member States, really fall within the scope of Community law. Undoubtedly, “if the Community legislator decides to concede rights to nationals of a non-member country, the concerned situations fall under the scope of application of the Treaty, since facts regulated by Community law are involved.”259 In other words, as Boeles has also argued, the problem of bringing third-country nationals within the scope of the article is solvable: Article 12 EC can apply, for instance, to the cases where the Community is empowered to act to regulate the legal situation of third-country nationals.260 As long as a fundamental distinction between nationals and nonnationals of the Member States exists in the interpretation of Article 39 EC, however, it is difficult to speak of a serious extension of the scope of application of

255 Bruno de Witte, The Past and Future of the European Court of Justice in the Protection of Human Rights, in THE EU AND HUMAN RIGHTS 859, 860 (Philip Alston ed., 1999) (emphasis added). 256 See infra Part V(A) (discussing the interpretation of Article 39 EC). Just as the EC Treaty provisions on the free movement of workers do not apply to third-country nationals, the provisions of the EC Treaty on the free movement of services equally do not cover them. Case C-147/91, Criminal proceedings against Michelle Ferrer Laderer, 1992 E.C.R. I-4097, ¶ 7. 257 See, e.g., Ibiyinka Awoyemi, 1998 E.C.R. I-6781 (Mr. Awoyemi, a third-country national having moved from one Member State to another, failed to exchange his Community-model driving licence and could not question the proportionality of the criminal penalty imposed on him by the Belgian state since provisions on free movement in the EC Treaty did not apply to him.). Community nationals in the same situation are indeed treated differently. Skanavi & Chryssanthakopoulos, 1996 E.C.R. I-929. 258 See, e.g., Pieter Boeles, Europese burgers en derdelanders: Wat betekent het verbod van discriminatie naar nationaliteit sinds Amsterdam?, 12 SOCIAAL-ECONOMISCHE WETGEVING 502 (2005); Tamara Hervey, Migrant Workers and Their Families in the European Union: The Pervasive Market Ideology of Community Law, in NEW LEGAL DYNAMICS OF THE EUROPEAN UNION 91, 97 (Jo Shaw & Gillian More eds., 1995); Richard Plender, Competence, European Community Law and Nationals of Non-member States, 39 INT’L & COMP. L. Q. 599, 605 (1990). 259 Epiney, supra note 253, at 614. 260 Boeles, supra note 258, at 509–13 (discussing especially Title IV EC and its regulation of immigration and asylum issues). A very interesting example used by Boeles concerns the possible application of Article 12 EC with a view to ensuring non-discrimination among third-country nationals benefiting from the right of family reunification under Directive 2003/86, 2003 O.J. (L251) 12 (EC). While this directive allows the Member States, in Article 7(2), to establish conditions for integration of third-country nationals into the societies of the Member States where they are going to reside, Article 12 EC can be invoked by those third-country nationals who are in possession of a nationality for which stricter integration rules apply (in practice the integration requirements for some nationalities, such as, inter alia, U.S., Japan, New Zealand, and Canada, are much milder than for other nationalities, resulting in de facto differentiated treatment solely on the basis of nationality). Id.

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Article 12 EC.261 Bringing third-country nationals within the scope of Community law became infinitely easier with the entry into force of Directive 109/2003/EC, which allows for limited free movement of third-country nationals in the Community.262 At present, it is impossible to state, as the ECJ did in Awoyemi,263 that free movement cannot apply to third-country nationals.264 In other words, notwithstanding the fact that Article 12 EC, although not placed in Part II EC, can at present be regarded as an exclusive EU citizenship right, the future development of Community law is likely to result in the broadening of the scope of this article also to include those not in possession of the legal status of European citizens. E. A Sketch of the ECJ’s Role in the Development of European Citizenship Contrary to the claims that the concept of citizenship is ill-suited to the legal and political reality of European integration, and that it brings about numerous paradoxes instead of advancing integration,265 analysis of the recent history of European citizenship and the way it came about266 allows the conclusion that this view is somewhat too pessimistic. This pessimism is due mostly to the fact that scholars did not expect the truly pro-active stance the ECJ took in shaping the substance of European citizenship. De Búrca is perfectly right in stating that the initial concept of European citizenship introduced by the Treaty of Maastricht contained almost no novelties as far as the rights enjoyed by European citizens were concerned.267 In fact, all but two of them (voting in local elections and consular protection) could be found elsewhere in the text of the Treaty or other Community legal norms before the European citizenship idea materialized in the EC Treaty text. However, the ECJ managed to fill these seemingly old rights with new substance.268

261 In this sense, the Article is clearly different from the Fourteenth Amendment of the U.S. Constitution. The Equal Protection clause applies to every individual under U.S. jurisdiction. In other words, the citizen status, which is potentially irrelevant for the application of the non-discrimination provision of the U.S. Constitution, is of extreme importance in the EC legal context. Keeping in mind the history of American constitutional evolution, where this state of play is a result of a long line of developments, the reassessment of the scope of application of Article 12 EC is predictable. See, e.g., Graham v. Richardson, 403 U.S. 365 (1971); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886); see also Elise Brozovich, Prospects for Democratic Change: Non-citizen Suffrage in America, 23 HAMLINE J. PUB. L. & POL’Y 403, 416–19 (2002). 262 See infra Part V(B)(2). 263 Ibiyinka Awoyemi, 1998 E.C.R. I-6781, ¶ 29. 264 Notwithstanding that the directive contains its own non-discrimination provision, Article 11 (which however falls short of containing a general requirement of non-discrimination on the basis of nationality), it is difficult to see why those benefiting from the free movement rights under this instrument should not be entitled to rely on a more general provision of primary Community law, namely Article 12 EC. The directive thus largely removed the difficulty of bringing third-country nationals within the scope of Community law; all those in possession of a Community residence permit are potential beneficiaries of Article 12 EC. 265 De Lange, supra note 76, at 278. 266 See Wiener, Constructive Potential, supra note 21; WIENER, CITIZENSHIP PRACTICE, supra note 21. 267 De Búrca, supra note 178, at 43. 268 Using the typology elaborated by Kostakopoulou, the development of European citizenship can be divided into three periods: judicial minimalism (1993–1997), signaling intentions (1998–2000), and engineering institutional change (2001–2003). Kostakopoulou, Ideas, supra note 22, at 244–61 (2005).

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At the close of the last century the ECJ embarked on a long but successful journey towards reshaping the European citizenship promise contained in the EC Treaty to ensure that “every citizen of the Union . . . whatever his nationality, enjoy[s] exactly the same rights and [is] subject to the same obligations.”269 Having done a promising job, the ECJ was unable to remedy the main drawbacks inherent in the design of the concept of European citizenship. However, what the Court managed to achieve with the meager resources at its disposal, concentrated in Part II EC, is truly amazing. Initially the Court was reluctant to assist in the creation of a legally enforceable set of rights for European citizens.270 The latest case-law, however, clearly demonstrates that Part II of the EC Treaty became a powerful legal instrument for the protection of European citizens’ rights. The Court has been busy “putting flesh on the bones of EU Citizenship.”271 By relying on Part II EC, it is now possible to challenge discrimination in getting childcare allowance,272 give one’s children the names one wants,273 fall within the scope of the non-discrimination provisions of the EC Treaty even without reassessment of the issue of whether the requirements of the residence directives are met,274 use one’s mother tongue before the authorities in a Member State other than one’s own in the same way as the nationals of that state,275 and even get limited financial assistance,276 maintenance grants, and loans from a host state while studying at a university,277 and job-seeker’s allowance278—not to

269 Opinion of Advocate General Leger, Case C-214/94, Ingrid Boukhalfa v. Germany, 1996 E.C.R. I-2253, ¶ 63. 270 Joined Cases C-64 & 65/96, Land Nordrhein-Westfalen v. Kari Uecker & Vera Jacquet, 1997 E.C.R. I-3171; Case C-348/96, Criminal proceedings against Donatella Calfa, 1999 E.C.R. I-11 (for commentary, see Cathryn Costello, Case C-348/96, 37 COMMON MKT. L. REV. 817 (2000)); Case C378/97, Criminal proceedings against Florius Ariel Wijsenbeek, 1999 E.C.R. I-6207; Case T-66/95, Hedwig Kuchlenz-Winter v. Comm’n, 1997 E.C.R. II-637. 271 Síofra O’Leary, Putting Flesh on the Bones of European Union Citizenship, 24 EUR. L. REV. 68 (1999). 272 Case C-85/96, Martínez Sala v. Bayern, 1998 E.C.R. I-2691. 273 Case C-148/02, Carlos Garcia Avello v. Belgium, 2003 E.C.R. I-11613; see also Opinion of Advocate General Jacobs, Case C-96/04, Standesamt Stadt Niebüll, 2006 E.C.R. I-3561. 274 Case C-456/02, Michel Trojani v. Centre publique de l’aide sociale de Bruxelles (CPAS), 2004 E.C.R. I-7573. 275 Case C-274/96, Criminal proceedings against Horst Otto Bickel & U. Franz, 1998 E.C.R. I-7637 (for commentary see Mielle Bulterman, Case C-274/96, 36 COMMON MKT. L. REV. 1325 (1999)). 276 Case C-184/99, Rudy Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, 2001 E.C.R. I-6193 (for commentary, see Anastasia Iliopoulou & Helen Toner, Case C-184/99, 39 COMMON MKT. L. REV. 609 (2002)). But see Case C-258/04, Office national de l’emploi v. Ioannis Ioannidis, 2005 E.C.R. I-8275 (conclusions identical to those reached on facts very similar to Case C224/98, Marie-Nathalie D’Hoop v. Office national de l’emploi, 2002 E.C.R. I-6191, but reached with the use of Article 39 EC, not Article 18 EC). 277 Case C-209/03, R. ex rel. Danny Bidar v. London Borough of Ealing, Sec’y of State for Educ. and Skills, 2005 E.C.R. I-2119 (for commentary see Catherine Barnard, Case C/209/03, 42 COMMON MKT. L. REV. 1465 (2005)); see also H. de Waele, Europees burgerschap en studiefinanciering: Nieuwe rechten, nieuwe beperkingen na het arrest Bidar, 2005 NEDERLANDS TIJDSCHRIFT VOOR EUROPEES RECHT 122 n.6. 278 Case C-138/02, Brian Francis Collins v. Sec’y of State for Work and Pensions, 2004 E.C.R. I2703 (benefit not granted, but see ¶ 63).

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mention residence rights.279 Moreover, European citizenship provisions in the Treaty are also being used against the citizen’s Member State of nationality.280 These developments have been dealt with in the literature in astounding detail281 and broadly follow three main lines of development. As Jacobs argued,282 the ECJ used citizenship to broaden the scope of the non-discrimination principle, to broaden the non-discrimination principle in the context of market freedoms, to create an independent source of rights, and to move from the prohibition on discrimination to the prohibition on “unjustified burden” on free movement.283 The important role played by citizenship of the EU in Community law at the moment is thus largely due to the active position taken by the Court of Justice.

279 Case C-200/02, Chen v. Sec’y of State for the Home Dep’t, 2004 E.C.R. I-9925 (for commentary see Jean-Yves Carlier, Case C-200/02, 42 COMMON MKT. L. REV. 1121 (2005)); Case C413/99, Baumbast & the Queen v. Sec’y of State for Emp., 2002 E.C.R. I-7091. 280 D’Hoop v. Office national d’emploi, 2002 E.C.R. I-6191. 281 See Francis G. Jacobs, Citizenship of the European Union—A Legal Analysis, 13 EUR. L.J. 591 (2007); Elsmore & Starup, supra note 21, at 77–89; Juliane Kokott, EU Citizenship—citoyens sans frontières?, Durham European Law Lecture (2005), available at http://www.dur.ac.uk/resources/deli/annuallecture/2005_DELI_Lecture.pdf (last visited Feb. 3, 2009); Bernhard Hofstotter, A Cascade of Rights, or Who Shall Care for Little Catherine? Some Reflections on the Chen Case, 30 EUR. L. REV. 548 (2005); Mouton, supra note 170; A. Pahladsingh & I.M. Uitermark, De ontwikkelingen rond artikel 18 EG: Nieuwe uitganspunten opgesteld door het Hof?, 2005 NEDERLANDS TIJDSCHRIFT VOOR EUROPEES RECHT 56; James D. Mather, The Court of Justice and the Union Citizen, 11 EUR. L.J. 722 (2005); H. Oosterom-Staples & A. Vazquez Muñoz, Burgerschap van de Unie, 52 SOCIAAL-ECONOMISCHE WETGEVING 494 (2004); Christiaan W. A. Timmermans, Ontwikkeling van het Europees burgerschap in de rechtspraak van het Hof van Justitie van de EG, in EUROPEES BURGERSCHAP 11 (Wouter F.W. van Ballegooij ed., 2004); Michael Dougan & Eleanor Spaventa, Educating Rudy and the Non-English Patient: A Double Bill on Residency Rights under Article 18 EC, 28 EUR. L. REV. 699 (2003); Dimitry Kochenov, The European Citizenship Concept and Enlargement of the Union, 3 ROM. J. POL. SCI. 2 (2003); Emmanuel Aubin, La citoyenneté de l’Union européenne dix ans après: quid novi?, 59 L’ACTUALITÉ JURIDIQUE DROIT ADMINISTRATIF 2064 (2003); Á. Castro Oliveira, Workers and Other Persons: Step-by-Step From Movement to Citizenship—Case-law 1995–2001, 39 COMMON MKT. L. REV. 77 (2002); Sybilla Fries & Jo Shaw, Citizenship of the European Union: First Steps in the European Court of Justice, 4 EUR. PUB. L. 533 (1998). 282 Jacobs, supra note 281, at 593. 283 See Case C-406/04, Gérald De Cuyper v. Office national de l’emploi, 2006 E.C.R. I-6947, ¶¶ 39–40; Case C-192/05, K. Tas-Hagen en R.A. Tas v. Raadskamer WUBO van de Pensioen- en Uitkeringsraad, 2006 E.C.R. I-10451; Case C-76/05, Herbert Schwarz & Marga Gootjes-Schwarz v. Finanzamt Bergisch Gladbach, 2007 E.C.R. I-6849; Joined Cases 11, Rhiannon Morgan v Bezirksregierung Köln, & 12/06, Iris Bucher v. Landrat des Kreises Düren, 2007 E.C.R. I-9161; Case C499/06, Halina Nerkowska v. Zak"ad Ubezpiecze# Spo"ecznych Oddzia" w Koszalinie, 3 C.M.L.R. 8, ¶ 47 (2008). The main idea of this groundbreaking case-law is summarized by Advocate General Jacobs in his opinion in Pusa with great clarity: “[S]ubject to the limits set out in Article 18 itself, no unjustified burden may be imposed on any citizen of the European Union seeking to exercise the right to freedom of movement or residence. Provided that such a burden can be shown, it is immaterial whether the burden affects nationals of other Member States more significantly than those of the State imposing it.” Opinion of Advocate General Jacobs, Case C-224/02, Heikki Antero Pusa v. Osuuspankkien Keskinäinen Vakuutusyhtiö, 2004 E.C.R. I-5763, ¶ 22; see also Opinion of Advocate General Geelhoed, Case C403/03, Schempp v. Finanzamt München, 2005 E.C.R. I-6421; Jacobs, supra note 281, at 597; Editorial Comments, 45 COMMON MKT. L. REV. 2 (2008).

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F. The Issue of Reverse Discrimination One issue that the ECJ was unable to tackle and that is fundamental to the development of European citizenship is reverse discrimination.284 The problem stems directly from the peculiar nature of the Community legal order in that not all the relations are regulated by European law. Consequently, in order to benefit from the status of a European citizen, it is first necessary to make sure that the situation in which the citizenship rights are to be applied is actually within the scope ratione materiae of EC law. This consideration has plagued the idea of European citizenship since the moment of its conception. In the words of Lippolis, “[s]i evidenziava . . . la mancanza di uno dei caratteri propri della cittadinanza, e cioè la generalità: le situazioni giuridiche soggettive, diritti e obblighi, dello status di cui si discuteva erano funzionalmente collegati all’ordinamento communitario e ne subivano le limitazioni.”285 The general rule is simple: those who do not make use of the rights offered by Community law in the majority of cases do not find themselves within its scope. The ECJ has been clear on this issue: “citizenship of the Union, established by Article 8 of the EC Treaty, is not intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with Community law.”286 Only those who move enjoy the full array of rights.287 In other words, in any situation where a cross-border element is absent, European citizens are not protected by the rules of Community law. As has been rightly noted in the literature, this state of affairs goes against the idea of European citizenship as an equal status for all.288 In practice, there are two main groups of European citizens: active, who use their Community rights and thus find themselves within the scope of Community law, and dormant, who are not always able to appeal to the Community in order to have their rights protected.289 A good example is provided by the country of origin

284 For a fundamental critical analysis of the wholly-internal situations in Community law of free movement of persons, see Niamh Nic Shuibhne, Free Movement of Persons and the Wholly Internal Rule: Time to Move On?, 39 COMMON MKT. L. REV. 731 (2002). See also Alina Tryfonidou, Reverse Discrimination in Purely Internal Situations: An Incongruity in a Citizens’ Europe, 35 LEGAL ISSUES OF ECON. INTEGRATION 43 (2008). 285 LIPPOLIS, supra note 21, at 20 (“[It became obvious that one of the typical elements of citizenship was lacking: that of the generality: individuals’ rights and obligations, linked with the status in question, were functionally connected with the Community order, being limited by it]”). 286 Joined Cases C-64 & C-65/96, Land Nordrhein-Westfalen v. Uecker & Jacquet, 1997 E.C.R. I-3171, ¶ 23; Case C-148/02, Garcia Avello v. Belgium, 2003 E.C.R. I-11613, ¶ 26 (citing Land Nordrhein-Westfalen v. Uekcer). 287 Such movement does not only mean physical crossing of the border of a Member State by a European citizen. As the case law of the ECJ has demonstrated, other factors, such as cross-border provision of services, are also able to put EU citizens within the scope ratione materiae of Community law. See e.g., Case C-60/00, Carpenter v. Sec’y of State for the Home Dep’t, 2002 E.C.R. I-6279. 288 E.g., Samantha Besson & André Utzinger, Introduction: Future Challenges of European Citizenship—Facing a Wide-Open Pandora’s Box, 13 EUR. L.J. 573, 583–84 (2007); Tryfonidou, supra note 284, at 54–64. 289 The case-law on reverse discrimination in the area of free movement is abundant. See, e.g., Joined Cases 35/82, Elestina Esselina Christina Morson v. State of the Netherlands and Head of the Plaatselijke Politie within the meaning of the Vreemdelingenwet, & 36/82, Sweradjie Jhanjan v. The Netherlands, 1982 E.C.R. 3723; Case C-332/90, Volker Steen v. Deutsche Bundespost, 1992 E.C.R. I341.

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principle290 in the free movement of services: service providers can be economically active in a jurisdiction without being covered by its rules, operating according to more beneficial provisions than the locals who never used their free movement right.291 Dealing with this particular issue, Davies made a sound argument against neglecting the essence of equality.292 Indeed “an individual who is present in the jurisdiction but not subject to its regulation, and operating under a more beneficial regime, is a direct challenge to the content of citizenship—national or European— and its associated guarantees of equality and privilege.”293 Although the Court has been trying hard to ensure that more citizens fall within the scope of Community law by somewhat stretching its scope ratione materiae in some cases, without however denouncing the whole reverse discrimination logic,294 it is clear that case-law alone might not be enough to remedy this situation. As Besson and Utzinger suggest, given the negative impact of reverse discrimination on the freedom of movement, “harmonisation might be the solution”;295 they advocate the top-down prohibition of reverse discrimination among EU citizens.296 Making the enjoyment of protections associated with a fundamental status of a person dependent upon the history of the use by this same person of the rights associated with this status undermines the initial claim regarding the self-sufficiency of the status concerned. The permissibility of reverse discrimination is an anachronism to be dealt with. Nic Schuibhne is right, stating that “the objectives of the original Treaty of Rome no longer reflect the scope of EC reality—or ambition.”297 Consequently, “the fundamental regulatory shift effected by citizenship strongly challenges the legitimacy of maintaining the wholly internal rule.”298 Clearly, Article 18 EC free movement is not driven uniquely by economic considerations. In such a situation, reverse discrimination, which comes down to “a difference in treatment based on the fact that a person has not contributed to the construction of the internal market,”299 seems to be virtually unjustifiable; the Union citizenship, as formulated in Article 17 EC, is not connected with the economic activity of those possessing this status.

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As articulated in Council Directive 2006/123, 2006 O.J. (L 376) 36. Id. Note that Article 16(1)(b) of the directive contains a shorter list of possible derogations than the case-law preceding the directive. See, e.g., Case C-55/94, Reinhard Gebhard v. Consiglio dell'Ordine degli Avvocati e Procuratori di Milano, 1995 E.C.R. I-4165; see generally Catherine Barnard, Unravelling the Services Directive, 45 COMMON MKT. L. REV. 323 (2008) (providing an analysis of the directive). 292 Davies, supra note 107, at 1. 293 Id. at 7. 294 Case C-403/03, Egon Schempp v. Finanzamt München, 2005 E.C.R. I-6421, ¶ 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.”); Carpenter v. Sec’y of State for the Home Dep’t, 2002 E.C.R. I-6279. 295 Besson & Utzinger, supra note 288, at 584. 296 Id. 297 Nic Shuibhne, supra note 284, at 731. 298 Id. at 748. But see L.A. Geelhoed, De vrijheid van personenverkeer en de interne situatie: maatschappelijke dynamiek en juridische rafels, in DE EU: DE INTERSTATELIJKHEID VOORBIJ? 31 (Elisabetta Manunza & Linda Sendeneds eds., Wolf Legal Pub. 2006) (providing a somewhat orthodox analysis of the wholly internal situations). Geelhoed opines, “nee, het ziet er niet naar uit dat de ‘zuiver interne situatie’ in het vrije verkeer van personen haar relevantie zal verliesen.” Id. at 47. 299 Tryfonidou, supra note 284, at 54. 291

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IV. THE CITIZENSHIP RIGHTS OF THOSE IN POSSESSION OF EUROPEAN CITIZENSHIP STATUS Notwithstanding the fact that Part II EC does not make any mention of the possibility of not granting all the rights mentioned therein to all the European citizens, not all European citizens enjoy all the rights mentioned in Part II EC. Building on the number of rights enjoyed by each particular group of European citizens, several classes of citizens can be outlined, including full citizens; citizens temporarily deprived of the possibility of enjoying one or more rights guaranteed by the EC Treaty; and citizens permanently deprived of a number of citizenship rights. Some European citizens, while theoretically able to enjoy citizenship rights, are deprived of this possibility in practice. These are classified below as “de facto second class citizens.” A. Full Citizens Because of the EU citizenship’s ius tractum design and the lack of a ban on reverse discrimination, EU citizenship is still a far cry from being a universal status. Given that the absolute majority of “full citizens” do not normally fall within the scope ratione materiae of Community law, it would be premature to talk about equality among EU citizens. In fact, if one believes that equality lies at the core of the citizenship idea, EU citizenship is to be dismissed as a fictious construct altogether. Only those EU citizens who exercised their free movement rights enjoy equality.300 Consequently, calling all those who spend their lives in the Member States of nationality fully fledged EU citizens would only be true when speaking about their potential to become such once they move. In other words the majority of the “full EU citizens,” that is, Member States’ nationals for the purposes of Community law, can be characterized as “potential,” as opposed to “real” European citizens. Nevertheless, the EC Treaty is an important source of rights for all those willing to use them.301 Usually functioning harmoniously in two different legal orders, the rights stemming from possession of a Member State’s nationality and the European citizenship rights not only enrich each other, but can also come into conflict. This is potentially one of the most important problems related to the functioning of a legal construct involving two overlapping legal orders. For example, reliance on European citizenship rights can contradict the obligations connected with the nationality of a Member State. Although no clear-cut ECJ case-law dealing with such situations exists to date, building on the logic of supremacy and direct effect302 governing the

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See also Alina Tryfonidou, Reverse Discrimination in Purely Internal Situations: An Incongruity in Citizens’ Europe, 35 LEGAL ISSUES OF ECON. INTEGRATION 43 (2008) (approaching reverse discrimination as an unjustified violation of the general EC principle of equality, arguing that if equality is to be respected, a ban on reverse discrimination is absolutely necessary). 301 Needless to say, they should also be Member States’ nationals for the purposes of Community law. 302 Case 6/64, Flaminio Costa v. E.N.E.L., 1964 E.C.R. 585; Case 26/62, N.V. Algemene Transport en Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963 E.C.R. 3, ¶ II B; see also Bruno de Witte, Direct Effect, Supremacy, and the Nature of the Legal Order, in THE EVOLUTION OF EU LAW 177 (Paul Craig & Gráinne de Búrca eds., 1999).

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functioning of the European legal order vis-à-vis the legal orders of the Member States, it can be concluded that when in conflict with the national citizenship obligations the European citizenship rights should prevail. The ECJ has demonstrated, albeit indirectly, that European citizenship rights can outweigh the obligations stemming from the possession of a nationality of a Member State. The obligations attached by the Member States to their nationality cannot prevent European citizens from exercising their free movement right. A fascinating example is provided by the Panagiotis Giagounidis case, where the ECJ obliged the German authorities to issue a residence permit to a Greek national unwilling to perform military service in Greece and consequently deprived of a passport by the Greek authorities.303 This case marks a very important development in European law, de facto coming down to building a hierarchy of values where free movement plays a more important role than the obligation to perform military service in a Member State of nationality.304 Clearly, European citizens can benefit from their Treaty rights even if this can be regarded as contradictory to their national citizenship obligations. B. Temporary Second-class Citizens ex lege This category of citizens came about as a consequence of the careless regulation of the enlargements of the EU.305 Every enlargement of the EU to include new Member States is regulated by Article 49 EU, which implicitly allows the establishment of transitional periods to facilitate the smoother integration of the new

303 The residence permit was finally issued on the basis of a Greek national identity card issued before the entry of Greece into the EC, containing no expiration date and only written in Greek. Case C376/89, Panagiotis Giagounidis v. Stadt Reutlingen, 1991 E.C.R. I-1069. While military service is often cited as one of the key aspects of citizenship, the actual connection between this obligation and the citizenship ideal is quite contestable. See, e.g., Michael Walzer, Civility and Civic Virtue in Contemporary America, 41 SOC. RES. 4 (1974) (“[I]n August 1914, Australians and Germans, Frenchmen and Englishmen, flooded the enlistment offices, but we would not want to explain their military enthusiasm by reference to the quality of their citizenship [but rather] as a sign of the poverty of their lives and their lack of moral independence.”). Viewed in this light, the preference awarded to European citizenship rights in the face of the military duties of citizens of some of the Member States is not at all surprising; conceived to make wars in Europe impossible, it is only logical that the EU should not allow Greece to limit free movement of some European citizens in order to raise an army. Giagounidis is not often turned to by scholars because it is in line with the case-law confirming that the legality of residence of Community nationals in the Member States other than their own does not depend on the issuance of a residence permit. See also Case 157/79, R. v. Stanislaus Pieck, 1980 E.C.R. 2171; Joined Cases 389 & 390/87 G.B.C. Echternach & A. Moritz v. Minister van Onderwijs en Wetenschappen, 1990 E.C.R. 723. 304 The outcome of the ECJ’s balancing of EC fundamental freedoms (often coinciding with EU citizenship rights) and fundamental human rights is not always straightforward because no clear hierarchy exists between the EC fundamental freedoms and general human rights provisions. See, e.g., Case C112/00, Eugen Schmidberger, Internationale Transporte und Planzüge v. Austria, 2003 E.C.R. I-5659. The same nuanced approach should also be applied to the cases of conflict between EU citizenship rights and obligations stemming from the possession of a nationality of a Member State. 305 See Dimitry Kochenov, EU Enlargement Law: History and Recent Developments: Treaty— Custom Concubinage?, 9 EIOP 6 (2005), http://eiop.or.at/eiop/texte/2005-006.htm (last visited Feb. 3, 2009) (and the literature recommended therein); see also HANDBOOK ON EUROPEAN ENLARGEMENT: A COMMENTARY ON THE ENLARGEMENT PROCESS (Andrea Ott & Kirstyn Inglis eds., T.M.C. Asser Press 2002); DIMITRY KOCHENOV, EU ENLARGEMENT AND THE FAILURE OF CONDITIONALITY: PRE-ACCESSION CONDITIONALITY IN THE FIELDS OF DEMOCRACY AND THE RULE OF LAW 11–82 (Kluwer Law International 2008).

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Member States into the Union.306 One of the favorite areas for the application of such periods by the Member States has been the free movement of workers from the new Member States, allowing the “old” members of the block to “protect” their markets from an “influx” of “cheap” labor from the incoming Member States.307 As a consequence of such policy, the effects of Articles 39 and 49 EC remain suspended by the Acts of Accession for a considerable time. The last two rounds of enlargement308 allowed for a maximum seven years suspension of the free movement right.309 As Dougan noted, “Article 18 EC [did not] detain diplomats for long.”310 By including into the annexes to the 2003 and 2005 Acts of Accession provisions suspending the application of the free movement of workers from the new Member States, the Acts of Accession indirectly limited the scope of citizenship rights of Article 18(1) EC of all the EU citizens who are nationals of the new Member States, thus introducing a temporary division of citizens into classes.311 Moreover, since the 306 The ECJ refused to rule on the content of such transitional periods. See, e.g., Case 93/78 Lothar Mattheus v. Doego Fruchtimport und Tiefkühlkost eG, 1978 E.C.R. 2203, ¶ 7. 307 Dimitry Kochenov, European Integration and the Gift of Second Class Citizenship: The Absence of the Tools Within the European Legal System to Combat Temporary Discrimination of European Citizens on the Basis of Nationality Institutionalized by the Acts of Accession, 13 MURDOCH UNIV. ELEC. J.L. 209 (2006); Adelina Adinolfi, Free Movement and Access to Work of Citizens of the New Member States: The Transitional Measures, 42 COMMON MKT. L. REV. 469 (2005); Orsolya Farkas & Olga Rymkevitch, Immigration and the Free Movement of Workers after Enlargement: Contrasting Choices, 20 INT’L J. COMP. LAB. L. & INDUS. REL. 369 (2004); Kochenov, supra note 281, at 71. 308 The sixth enlargement round added Romania and Bulgaria. Accession Treaty 21/06, 2005 O.J. (L 157) 11 (entered into force on Jan. 1, 2007). See generally J.S. van den Oosterkampand & A.S.M. Galama, De toetreding tot de Europese Unie van Bulgarije en Roemenië, 55 SOCIAAL-ECONOMISCHE WETGEVING 8, 12 (2007); Adam $azowski, And Then They Were Twenty-Seven . . . A Legal Appraisal of the Sixth Accession Treaty, 44 COMMON MKT. L. REV. 401 (2007). The preceding, fifth enlargement round added Estonia, Latvia, Lithuania, Poland, Slovakia, the Czech Republic, Hungary, Slovenia, Malta, and Cyprus. Accession Treaty 23/09, 2003 O.J. (L 236) 17 (entered into force on May 1, 2004). See generally K. Inglis & A. Ott, EU-uitbreiding en Toetreidingsverdrag: verzoening van droom en werkelijkheid, 52 SOCIAAL-ECONOMISCHE WETGEVING 146 (2004); Kirstyn Inglis, The Union’s Fifth Accession Treaty: New Means to Make Enlargement Possible, 41 COMMON MKT. L. REV. 937 (2004); E. Lannon, Le traité d’adhésion d’Athènes: Les negotiations, les conditions de l’admission et les principales adaptations des traités resultant de l’élargissement de l’UE à vingt-cinq Etats membres, 40 CAHIERS DE DROIT EUROPÉEN 15 (2004); Christophe Hillion, The European Union is Dead. Long Live the European Union . . . A Commentary on the Treaty of Accession 2003, 29 EUR. L. REV. 583 (2004). 309 See Kochenov, supra note 307, at 10; Adinolfi, supra note 307, at 2; Kochenov, supra note 281, at 218–19 (addressing the technical functioning of the transitional periods in the area of the free movement of workers). 310 Michael Dougan, A Spectre Is Haunting Europe . . . Free Movement of Persons and the Eastern Enlargement, in EU ENLARGEMENT: A LEGAL APPROACH 113 (Christophe Hillion ed., 2004). 311 The pre-accession limitation to free movement rights only concerned the free movement of workers and service providers and not other categories of citizens because none of the transitional measures aimed at direct suspension of the legal effects of Article 18 EC. While the economic European citizens or the bourgeois from the new Member States were excluded from the application of the right, all the other categories of European citizens could still benefit from their Article 18 EC rights and rely on Directive 2004/38/EC. However, given the crucial importance of the role played by the economic free movement, which can easily be characterized as the main European citizenship right in Community law, its suspension is most unfortunate. As far as all the other citizenship rights of the temporary second-class citizens are concerned, the European citizens with this status by virtue of a connection of nationality with one of the new Member States could benefit from them in full, including the rights to participation in local elections in the Member States of residence other than their own and in the elections of the EP.

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annexes to the Acts of Accession are part of the Primary law of the Community, no legal means to challenge their legality in front of the Court of Justice312 was open to those interested in benefiting in full from the citizenship provisions.313 All that the ECJ can do is merely to interpret the provisions of the acts,314 which is of little help to those concerned given the unequivocal limitation of the workers’ free movement rights contained therein, and also taking into account the fact that contra legem interpretation is highly unlikely.315 Given that the previous enlargements, and especially the third which incorporated the Iberian states, demonstrated that no dangerous influx of immigrants was to be expected, it is clear that the Member States’ considerations in regulating free movement post-enlargement were dominated by abstract fears and an astounding lack of vision, resulting in neglect of the EU citizenship ideal. C. Permanent Second-class Citizens ex lege Some European citizens are able to participate in the EP elections but are permanently unable to enjoy free movement rights. This concerns EU citizens residing in the territories expressly excluded from the territorial scope of the application of free movement of persons provisions.316 This regime applies to the European citizens who acquired this status by virtue of being U.K. nationals residing on Channel Islands and the Isle of Man (introduced by a protocol to the Act of Accession).317 The Channel Islanders and Manxmen fall within the scope of British nationality, as defined for the purposes of Community law in Declaration No. 2 annexed to the EEC Treaty by the British Government.318 Point (c) of the Declaration expressly refers to Manxmen and Channel Islanders, making it clear that they are nationals of the U.K. for the purposes of Community law and thus European citizens.319 However, the inhabitants of these territories are not fully-fledged European citizens because the Community law provisions related to the free movement of workers and

312 Joined Cases 31 & 35/86, Levantina Agricola Industrial SA (LAISA) & CPC España v. Council, 1988 E.C.R. 2285. 313 Kochenov, supra note 309, at 209, 221. 314 See, e.g., Case C-355/97, Landesgrundverkehrsreferent der Tiroler Landesregierung v. Beck Liegenschaftsverwaltung mbH, 1999 E.C.R. I-4977. 315 Some of the new Member States invoked a principle of reciprocity, making the free movement of workers from the “old” Member States in their territory dependent upon their holding a valid workpermit, but this could not solve the problems inherent to the way the Acts of Accession were drafted. Farkas & Rymkevitch, supra note 307, at 388. 316 Not to be confused with the territories merely lying outside the geographical scope of Community law, like those included in Annex II EC and covered by Part IV EC and Article 299(3) EC. 317 Documents Concerning the Accession to the European Communities of the Kingdom of Denmark, Ireland, the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland, Protocol No. 3, Mar. 27, 1972, 1972 O.J. (L 73) 164 [hereinafter Protocol No. 3]; see also K.R. Simmonds, The British Islands and the Community: I—Jersey, 6 COMMON MKT. L. REV. 156 (1969); K.R. Simmonds, The British Islands and the Community: II—The Isle of Man, 7 COMMON MKT. L. REV. 454 (1970); K.R. Simmonds, The British Islands and the Community: III—Guernsey, 8 COMMON MKT. L. REV. 475 (1971). 318 New Declaration by the Government of the United Kingdom of Great Britain and Northern Ireland on the Definition of the Term “Nationals,” Jan. 28, 1983, 1983 O.J. (C23) 1. 319 See de Groot, supra note 14, § 3.

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the free movement of services do not apply to them.320 In order to fall within the scope of the Community free movement provisions and thus become full-fledged EU citizens, Manxmen or Channel Islanders have to reside in the U.K. for five years.321 To provide another example of permanent second class citizens ex lege, one can again turn to the free movement right. Free movement of persons in EC law not only consists of moving to a Member State other than one’s own in order to establish residence there, but also grants the beneficiary the right to be accompanied by his or her immediate family. This is where a conflict limiting citizenship rights arises. Given that there is no Community law definition of “family,”322 relevant secondary law leaves to the Member States the scope of this notion.323 Consequently, free movement law applies in all the Member States acting through the local definition of the term “family.” As a consequence of this development going against the logic of free movement, gay and lesbian European citizens see their free movement rights severely curtailed by the minority of the Member States that still do not recognize either gay marriages or registered partnerships.324 In other words, contrary to the logic of equality, the intrusion of the national legal orders into the functioning of one of the four fundamental freedoms guaranteed by the Community legal order results in the limitation of the scope of European citizenship rights, which stem directly from the EC Treaty, by the national legal provisions of the Member States.325 It is absolutely clear at this point that in order for 320 EC Treaty art. 299(6)(c). Protocol No. 3, supra note 317. The special status of the Islands has been confirmed by the ECJ in Case C-171/96, Rui Alberto Pereira Roque v. His Excellency the Lieutenant Governor of Jersey, 1998 E.C.R. I-4607. Some people regard this state of affairs as a blessing; the status of territories lying mainly outside EU law turned the Channel Islands into tax-heavens allowing them to attain levels of GDP per capita much higher than the U.K. average. Andrew Massey, Modernising Government in the Channel Islands: The Context and Problematic of Reform in a Differentiated but Feudal European Polity, 82 PUB. ADMIN. 421, 426 (2004). Others are annoyed by the de facto discrimination and the inability to rely on the free movement of persons and services under EC law. 321 Protocol No. 3, supra note 317, art. 6. In other words, their connection with the territory of particular islands alters the bundle of rights connected with the European citizenship status that they enjoy. This is not the case with the inhabitants of the Netherlands Antilles and Aruba, for instance. Although these territories lie stricto sensu outside the scope ratione loci of the Treaties by virtue of Article 299(3) EC, Part IV EC, and Annex II EC and the agreements under Article 186 EC able to include them within this scope for the purposes of free movement rights were never concluded. The inhabitants, traveling on Dutch passports and enjoying the “indivisible” status of the Netherlands nationality, are covered by the free movement provisions by virtue of being European citizens, no exceptions being made in the primary law of the Community concerning the application of EU citizenship right to this group of citizens. Case C-300/04, M.G. Eman & O.B. Sevinger v. College van Burgemeester en Wethouders van Den Haag, 2006 E.C.R. I-8055, ¶ 23; see also Kochenov, Europeesrechtelijke aspecten, supra note 9, at 113–14. 322 Eugenia Caracciolo di Torella & Annick Masselot, Under Construction: EU Family Law, 29 EUR. L. REV. 32 (2004); see also Emily Reid & Eugenia Caracciolo di Torella, The Changing Shape of the “European Family” and Fundamental Rights, 27 EUR. L. REV. 80 (2002). 323 Directive 2004/38, art. 2(2)(b), 2004 O.J. (L 158) 77 (EC). 324 The majority of the Member States recognize these rights. See Dimitry Kochenov, Gay Rights in the EU: A Long Way Forward for the Union of 27, 3 CROAT. Y.B. EUR. L. & POL’Y 469, 483 n. 91 (2007). For a review of gay rights in the EU in light of the case-law of the ECJ see, e.g., Gabriel von Toggenburg, “LGBT Go to Luxembourg”: On the Stance of Lesbian Gay Bisexual and Transgender Rights Before the European Court of Justice, 5 EUR. L. REP. 174 (2008). 325 European citizenship rights are thus made directly dependent on the place of residence of a European citizen. Thus although a Greek national residing in the Netherlands can be united with her American same-sex spouse, who she married, say, in Spain in observance of Community law, once the

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European citizenship rights to remain meaningful, they cannot depend on the specificities of national legislation of the Member States.326 Otherwise, uniform application of Community law throughout the territory of the Community327 is simply impossible. All in all, the existence of legal possibilities to block access of some EU citizens permanently from the main EU citizenship right is in obvious opposition to the citizenship idea, downgrading the status of EU citizen. D. De facto Second-class Citizens A number of European citizens are systematically deprived of the possibility of enjoying their rights in full by their Member States of residence. The ECJ, alongside the ECt.HR, has been active in condemning such practices. The infringement of citizens’ rights usually occurs in one of two contexts. The first relates to denying European citizens the possibility of exercising one of their Treaty rights without, however, questioning their status. The second is where the infringement of citizens’ rights was accompanied by the denial of the very status of European citizen. The first case can be illustrated by the successful fight for voting rights of the European citizens residing in Gibraltar.328 While their EU citizenship status was not questioned, the qualifying inhabitants of Gibraltar were not given any practical opportunity to take part in the elections for the EP. The deprivation of the European citizens residing in Gibraltar of their right to vote for the EP329 was found to be in violation of Article 3 of the first protocol to the ECHR330 by the ECt.HR in Matthews.331 In reaction to this decision, Gibraltar was made part of the U.K.’s

couple moves to Italy, which does not recognize such marriages, Community law changes, and the American wife would be deported. 326 Upon the entry into force of the Lisbon Treaty, new Article 81(3) FEU will allow the Council to establish “measures of family law with cross-border implications.” FEU Treaty art. 81(3). However, any improvement of the situation is unlikely, given that Poland has made it clear that it will not play along with other Member States by attaching Declaration 61 to the Final Act of the Lisbon IGC. Poland’s vote will be necessary because unanimity in Council is required to decide on the matters of family law under the new Article 81(3) FEU. Id. 327 This was one of the key arguments used by the ECJ in establishing the principle of supremacy of Community law since Costa. Case 6/64, Flaminio Costa v. E.N.E.L., 1964 E.C.R. 585 (English special edition). 328 The residents of Gibraltar enjoy the EU citizenship status by virtue of Article 17 EC in conjunction with the second U.K. Declaration on nationality appended to the 1972 Treaty of Accession. 329 This is by virtue of the Act Concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage, which only extended the franchise to the U.K. territory. Act Appended to Council Decision 76/787/ECSC, EEC, Euratom, 1976 O.J. (L 278) 1 (adopted under Article 190 EC (ex-Article 183(3) EEC)). This Act has primary significance since it sets out the agreement reached by the Member States and consequently enjoys a higher status in the hierarchy of the sources of Community Law than any ordinary Council decision would. The document enjoys the status of a treaty. Alan S. Reid & Michael Doherty, Voting Rights for the European Parliament: Whose Responsibility, 4 EUR. HUM. RTS. L. REV. 420 (1999). 330 On the scope of this provision, see Mathieu-Mohin & Clerfayt v. Belgium, App. No. 9267/81, 10 Eur. Ct. H.R. 113 (ser. A) (1987). 331 Matthews v. U.K., App. No. 24833/94, 28 Eur. Ct. H.R. 361 (1999). See Toby King, Ensuring Human Rights Review of Intergovernmental Acts in Europe, 25 EUR. L. REV. 79 (2000); Olivier de Schutter & Olivier L’Hoest, La cour européenne des droits de l’homme juge du droit communautaire: Gibraltar, l’Union européenne, et la Convention européenne des Droits de l’Homme, 36 CAHIERS DE DROIT EUROPÉEN 141 (2000); Gérard Cohen-Jonathan & Jean-François Flauss, A propos de l’arrêt Matthews c/ Royaume-Uni (18 février 1999), 35 REVUE TRIMESTRIELLE DE DROIT EUROPÉENNE 637

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South West constituency for the purposes of the EP elections, and the electoral rights of the European citizens residing there were restored.332 Interestingly, the disenfranchisement of EU citizens inhabiting a particular territory of a Member State does not seem to be contrary to any provision of Community law at the moment, since, as noted above,333 Article 19(2) EC merely prohibits discrimination on the basis of nationality. In other words, the deprivation of inhabitants of a particular territory of their voting rights seems to be a problem arising within the scope of national law of a Member State as opposed to EC law, as long as there is no discrimination.334 More complicated issues arose before the ECJ in the Eman and Sevinger case,335 which concerned not only the exercise of the voting rights of the European citizens, but also came down to a more general issue of possession of such status de facto by those persons who, though in possession of a Member State’s nationality, permanently reside outside the territory of the Community. The case concerned two European citizens of Dutch nationality residing in Oranjestad, Aruba, who challenged the refusal of the Dutch authorities to register them for participation in the EP elections. The government of the Netherlands submitted that European citizens are “not . . . entitled at all times to all the rights linked to citizenship of the Union,”336 claiming that since the EC Treaty has only been concluded for the European Part of the Kingdom of the Netherlands and the Netherlands New Guinea,337 it can therefore not apply to the territories lying outside its scope, such as Aruba.338 Consequently, since the articles of the Treaty related to the EP elections do not apply to Aruba, “[s]o long as the person concerned is in the territory of Aruba or the Netherlands Antilles, the Treaty has no effect on his situation,” thus actually depriving such a person of a European citizenship status by emptying it of rights.339 The ECJ disagreed, ruling that the place of residence of the European citizen is irrelevant for the enjoyment of the rights connected solely to his or her citizenship status. Residence outside the territory of the Community cannot deprive a national of a Member State for community purposes of his or her legal status as a European

(2000); A. Potteau, L’article 3 du premier Protocole additionnel à la Convention et l’obligation des États membres de l’Union européenne de reconnaître le droit de participer aux élections au Parlement européen, 10 REVUE TRIMESTRIELLE DES DROITS DE L’HOMME 873 (1999). 332 European Parliament (Representation) Act, 2003, c. 7, §§ 9, 15, sched. 1a (Eng.). 333 See supra Part III(D)(2). 334 It can be argued, however, that Article 3 of the 1st Protocol to the ECHR spells out one of the principles of Community law, given the special status enjoyed by the ECHR as a source of legal principles in the EU legal system. See EU Treaty art. 6(1); see also ECJ case-law, e.g., Case C-185/97, Belinda Jane Coote v. Granada Hospitality Ltd., 1998 E.C.R. I-5199, ¶¶ 21–23; Case C-13/94, P. v. S. & Cornwall County Council, 1996 E.C.R. I-2143, ¶ 18; Case 222/84, Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary, 1986 E.C.R. 1651, ¶ 18. It can also be argued that the right to vote is inherent in the principle of democracy, recognized by the EU in Article 6(1). EU Treaty art. 6(1). 335 Eman & Sevinger, 2006 E.C.R. I-8055. 336 Id. ¶ 26. 337 This territory left the Kingdom in the process of decolonization and is thus outside the scope of application of Community law. 338 The Treaties were amended in 1962 (Nov. 13), to include the Netherlands Antilles (Aruba then being part of this Land of the Kingdom of the Netherlands) into the annex listing the overseas countries and territories associated with the Community. EC Treaty at Annex II. 339 Eman & Sevinger, 2006 E.C.R. I-8055, ¶ 26.

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citizen under Article 17 EC.340 Further, the Court tackled the issue of the voting rights, ruling that the principle of non-discrimination341 disallows different treatment of citizens living abroad by making the enjoyment of different rights depend on the country of residence. Since the citizens of the Kingdom of the Netherlands residing in third countries are entitled to vote in the EP elections, denying the right to those of them who decided to move to Aruba or the Netherlands Antilles342 amounts to discrimination and is thus in breach of the law, unless such difference in treatment is objectively justified. The Netherlands government failed to provide such a justification.343 This case is of ultimate importance for the characterization of the scope of those in possession of the European citizenship status, particularly because the Netherlands was not the only country trying to make a superficial connection between such status and residence in (or outside) Community territory. Given that Article 17 EC does not make any reference to residence, all the attempts to limit the scope of persons enjoying European citizenship status based on the argument that they reside outside the Community and overlooking the fact that they are Member-State nationals are clearly illegal, and Eman and Sevinger supports this point.344 Further problems arise, however, when a special declaration is made regarding who are Member-State nationals for the purposes of Community law, which uses as the main criterion of eligibility for such status the place of residence. In light of the ECJ’s position in Eman and Sevinger, the legal status of the Danish nationals residing in Færœ Islands, regulated by Article 4 of a special protocol to the 1972 Treaty of Accession, can be reassessed.345 The article classifies Danish citizens from the Færœ Islands as not nationals for Community purposes. It is possible to argue, however, that simply by virtue of possessing Danish nationality, all the inhabitants of the Islands are brought within the scope of the European citizenship status of Article 17 EC. Moreover, once a non-discrimination argument used by the Court in Eman and Sevinger is applied to them, it turns out that they should be able to vote for the EP if Danes residing in third-countries enjoy the right to participate in the EP elections.346 With the rulings in Matthews and Eman and Sevinger, the ECt.HR and the ECJ succeeded in strengthening the connection between the citizenship status and rights 340

Id. ¶ 29. The general principle of non-discrimination, not merely confined to the grounds of Arts. 12, 13 and 141 EC (and the relevant legislation). It has been recognized in Community Law since Case 117/76, Ruckdeschel Co. v. Hauptzollamt Hamburg-St Annen, 1977 E.C.R. 1753, ¶ 7. 342 Both are “countries and territories” in the sense of Article. 299(3) EC placed outside the scope of Community law. Dimitry Kochenov, Europeesrechtelijke aspecten, supra note 9, at 65; see generally SCHURENDE RECHTSORDERS, supra note 9. 343 Eman & Sevinger, 2006 E.C.R. I-8055, ¶¶ 58–61. 344 Id. ¶ 29. 345 Protocol to the Act of Accession Relating to Færœ Islands, supra note 139, art. 4. 346 Drawing a parallel with the legal situation of the Manxmen and the Channel Islanders would be misleading in this regard, since the U.K. protocol does not question their status as European citizens and merely limits some (not all) of the rights they enjoy in the capacity of European citizens. In other words, limiting access to European citizenship status in Community law based on purely territorial considerations is illegal, while clarifying the rights based on the place of residence of European citizens is theoretically possible. 341

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in the EU, moving in the direction of minimizing the number of those who, though in possession of a formal European citizenship status, are unable to benefit from the rights this status is supposed to bring as a consequence of narrow interpretation of the EC Treaty by the national authorities of the Member States concerned. V. THE “CITIZENSHIP” RIGHTS OF THOSE NOT IN POSSESSION OF EUROPEAN CITIZENSHIP STATUS Before the recent directive on the status of third-country nationals who are longterm residents,347 third-country nationals348 residing in the EU349 were mainly in possession of Community rights stemming from three sources: their connection with a community national, resulting in a number of derivative rights;350 an employment relationship with a company using its right to provide services in the Member State other than its own, equally resulting in a number of derivative rights;351 and international agreements concluded by the Community and the Member States with their countries of nationality.352 The rights of the persons falling within these three categories differ in a number of respects.

347 Council Directive 2003/109, supra note 248. This directive is the first significant step towards a certain harmonization of the treatment of the third-country nationals in the Community not based on derivative rights or international agreements with the third countries. Arguably, the directive continued the process started with the Commission’s 1985 White Paper on Completing the Internal Market, ¶ 55, COM (85) 310 final (June 14, 1985). 348 For the assessment of the legal position of the third-country nationals in the EU see Georgia Papagianni, Free Movement of Third Country Nationals on the Eve of 1 May 2004: Another Missed Deadline?, in LA LIBRE CIRCULATION DES PERSONNES: ÉTATS DES LIEUX ET PERSPECTIVES 145 (Dominik Hanf & Rodolphe Muñoz eds., 2007); 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, 38 COMMON MKT. L. REV. 525 (2001); HELEN STAPLES, THE LEGAL STATUS OF THIRD-COUNTRY NATIONALS RESIDENT IN THE EUROPEAN UNION (1999); Ian Ward, Law and the Other Europeans, 35 J. COMMON MKT. STUD. 79 (1997); Steve Peers, Towards Equality: Actual and Potential Rights of Third-Country Nationals in the European Union, 33 COMMON MKT. L. REV. 7 (1996); Andrew Evans, Third-country Nationals and the Treaty on European Union, 5 EUR. J. INT’L L. 199 (1994); Peter Oliver, Non-Community Nationals and the Treaty of Rome, 5 Y.B. EUR. L. 57 (1985). It has been argued that third-country national permanent residents of one of the Member States of the European Union should be granted European citizenship equalizing their Treaty status with that of the nationals of the Member States. See Becker, supra note 43, at 150. 349 There are more third-country nationals residing in the Member States of the EU than Union citizens exercising their free movement right and residing in a Member State other than the Member State of their nationality. Shaw, supra note 38, at 27. 350 See Regulation (EEC) No. 1612/68, supra note 114; see also Cédric Chenevièvre, Régime juridique des ressortissants d’Etats tiers membres de la famille d’un citoyen de l’Union, in LA LIBRE CIRCULATION DES PERSONNES: ÉTATS DES LIEUX ET PERSPECTIVES 125 (Dominik Hanf & Rodolphe Muñoz eds., 2007). 351 Case C-43/93, Raymond Vander Elst v. Office des migrations internationals, 1994 E.C.R. I3803, ¶ 21; Case C-113/89, Rush Portuguesa Lda v. Office national d'immigration, 1990 E.C.R. I-1417, ¶ 12; Joined Cases 62 and 63/81, Seco SA & Desquenne and Giral v. Etablissement d’assurance contre la vieillesse et l’invalidité, 1982 E.C.R. 223. 352 Relevant agreements with a number of countries have been concluded. The most important of them are: - Association Agreement with Turkey 3687/64, Sept. 12, 1963, 1964 J.O. (217) 3687, and Additional Protocol to the Agreement, 1977 O.J. (L 361) 1; Customs Union with Turkey, Feb. 2, 1996, 1996 O.J. (L 35) 1.

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From the simple enumeration of different classes of persons who are not in possession of European citizenship and yet able to enjoy certain rights in the EU that can be characterised as genuinely similar to European citizenship rights in the EC Treaty, it becomes clear that Community law as it stands provides for a number of at times overlapping statuses for non-citizens of the Union, forming a highly sophisticated web of entitlements and obligations. For instance, a Turkish national 353 can be married to a European citizen covered by the Ankara Agreement exercising free movement rights and, at the same time, enjoy the status of a long354 term resident in the territory of the Community under the Directive 2003/109/EC. Several groups of persons not having the EU citizens’ status, however, enjoy the rights associated with the status of European citizenship.355 Especially the “quasicitizenship” rights of third-country nationals with direct, not derivative rights, are of interest here because their enjoyment is not dependent on the primary beneficiary of rights. A. Third-country Nationals and the Scope of Article 39 EC Before moving to the European quasi-citizenship rights proper, a short overview of the personal scope of application of the workers’ free movement right should be provided. It can shed light on the intentions of the drafters of the Treaties regarding the granting of rights to the third-country nationals. It is also of direct concern to the possible development of the third-country nationals’ quasi-citizenship rights. Before the formal inclusion of the European citizenship status into the text of the EC Treaty it was far from clear to which category of persons residing in the Community this key community right had to belong. This right is conferred by Article 39 EC on the “workers of the Member States.”356 Clearly, having made no reference to the requirement to possess MS’s nationality, the Treaty could be (and should have been) interpreted in such a way as to cover all the workers legally resident in the Union, not only those in possession of Member-State nationality for

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Association Agreements with Algeria, Apr. 22, 2002, COM (2002) 157 final (entry into force 2005); Egypt, June 25, 2001, COM (2001) 184 final (entry into force June 1, 2004); Israel, Nov. 20, 1995, 2000 O.J. (L 147) 1 (entry into force June 1, 2000); Jordan, Nov. 24, 1997, 2002 O.J. (L 129) 3; Lebanon, June 17, 2002, COM (2002) 170 final (entry into force 2006); Morocco, Feb. 26, 1996, 2000 O.J. (L 70) 2; Tunisia, July 17, 1995, 1998 O.J. (L 97) 2. - Interim Association Agreement with the Palestinian Authority, Feb. 24, 1997, 1997 O.J. (L 187) 3. - Agreement on the European Economic Area, 1994 O.J. (L 1) 3; EC-Switzerland Agreement, May 21, 1999, 2002 O.J. (L 114) 6. - Stabilisation and Association Agreements with Croatia, Oct. 29, 2001, 2005 O.J. (L 26) 3; Macedonia (FYROM), March 26, 2001, Interinstitutional File No. 2001/0049 (ACV) (entry into force 2004); Albania, May 22, 2006 (pending awaiting ratification). Three more SAAs are being negotiated: with Bosnia and Herzegovina, Montenegro, and Serbia. 353 Association Agreement with Turkey, supra note 352. 354 Council Directive 2003/109, supra note 248. 355 That citizenship rights in the Treaty are not reserved uniquely to citizens has been underlined on a number of occasions. See Constantinesco, supra note 35 (focusing on the analysis of the exclusivity of citizenship rights in the TCE); Davis, supra note 36 (focusing on the analysis of the exclusivity of citizenship rights in the Charter of Fundamental Rights of the European Union). 356 EC Treaty art. 39(2).

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Community law purposes.357 The narrow reading given to this provision by the ECJ in all the free-movement-of-persons cases that excluded all the workers who are third-country nationals from the scope of application of Article 39 EC is contested in the literature. Evans in particular has been an outspoken critic of the Court’s approach to the interpretation of the scope of Article 39 EC.358 Indeed, to limit the application of the article to Community nationals, which has been done both in the secondary law of the Community359 and the case-law of the ECJ,360 seems “inconsistent with the goals of the common market”361—an argument later used to argue for the inclusion of the third-country nationals within the scope of European citizenship. As Blanke and MacGregor wrote, “[i]t would seem obvious that a seamless functioning of the Internal Market, given its borderless character, would proscribe the unlimited free movement of E.U. citizens and legally resident non-E.U. nationals alike within it.”362 Moreover, once parallels with other kinds of free movement are drawn, some further arguments in support of a more inclusive interpretation of the scope of application of Article 39 EC can be made. It is unclear, for instance, why free movement of goods, which applies to all the goods legally in the territory of the Community,363 should not provide an example for the interpretation of Article 39 EC, which is especially acute now, after the inclusion of Title IV EC—dealing with the issues of immigration, asylum, and visa regulation— into the EC Treaty by the Treaty of Amsterdam.364 The same argument can also be based on the scope of interpretation of Article 90 EC related to the taxation of “products of other Member States”—the ECJ included the products legally imported from the third countries into the latter category.365 On a closer scrutiny, Directive 2003/109/EC (granting limited free movement rights to third-country nationals who are long term residents of the Member States) seems to be an attempt of the Community legislator to deal with the Court’s narrow reading of the EC Treaty. It remains to be seen how effective the directive will be in securing the rights of third-country nationals residing in the Community. Very much

357 This would also be in line with Article 14(2) EC which covers “free movement of . . . persons” with no reference to any nationality requirements. The provisions of the EC Treaty dealing with establishment and free movement of services do not offer such a possibility, making express references to the possession of the nationality of the Member States in Arts. 43 and 49 EC. 358 Evans, supra note 348, at 205. 359 Regulation (EEC) No 1612/68, supra note 114, art. 1(1). 360 See Case 238/83, Caisse d’allocations familiales v. Echtelieden Meade, 1984 E.C.R. 2631, ¶ 7. 361 Becker, supra note 43, at 138. 362 Gordon Blanke & Anne MacGregor, Free Movement of Persons within the EU: Current Entitlements of EU Citizens and Third-country Nationals—A Comparative Overview, 8 INT’L TRADE L. REV. 173, 173 (2002); see also Thomas Hoogenboom, Integration into Society and Free Movement of Non-EC Nationals, 3 EUR. J. INT’L L. 36 (1992). 363 See EC Treaty art. 24 (announcing that “[p]roducts coming from a third-country shall be considered to be in free circulation in a Member . . .”). 364 Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340) 173. 365 EC Treaty art. 90. See Case C-193/85, Cooperativa Co-Frutta Srl. v. Amministrazione delle finanze dello Stato, 1987 E.C.R. 2085; see also Evans, supra note 348, at n.4.

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will obviously depend on the ECJ, whose record in the field of protection of the rights of the third-country nationals has so far been quite dubious.366 B. Third-country Nationals and European Citizenship Rights The European citizenship rights are not necessarily marked by exclusivity.367 Some of them can be enjoyed by groups of third-country nationals and are thus not directly connected to the idea of possession of a European citizenship status. Four such groups are of particular interest when testing the boundaries of the personal scope of application of European citizenship rights. They are: any person; a thirdcountry national who is a long-term resident in terms of Directive 2003/109/EC; a Commonwealth citizen with no Member-State nationality residing in the United Kingdom; and a national of a third-country with which the Community and the Member State concluded a special agreement.368 1.

Any Person

EC Treaty citizenship rights are drafted in such a way that two of them can be enjoyed by “any person.” Although this is not stated directly in the text of Article 21 EC, the wording of this provision contains references to Articles 194 and 195 EC, spelling out the same right in a broader context. Given the scope of their application, it is puzzling why the rights to petition the EP and to apply to the Ombudsman are actually included among the citizenship rights of the Treaty.369 Not connected to the possession of citizenship status, they can easily be reclassified simply as human rights.370 2.

Third-country Nationals who are Long-term Residents

Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents was a response to the Tampere European Council Presidency Conclusions.371 While this directive is a veritable breakthrough in the 366 See generally Joseph H.H. Weiler, Thou Shalt Not Oppress a Stranger: On the Judicial Protection of the Human Rights of Non-EC Nationals—A Critique, 3 EUR. J. INT’L L. 2, 65 (1992) (discussing, especially, Case 12/86, Meryem Demirel v. Stadt Schwäbisch Gmünd, 1987 E.C.R. 3719, and Case 267/83, Aissatou Diatta v. Land Berlin, 1985 E.C.R. 567). 367 See also Constantinesco, supra note 35, at 227; Davis, supra note 36, at 136. 368 This category includes several different sub-categories because third-nationals’ rights vary depending on the particular agreement from which they derive their rights. 369 EC Treaty art. 21. 370 Whatever was the intention of the drafters, by virtue of being placed in Part II EC, these rights, pertaining to anyone, are nevertheless citizenship rights in Community law. 371 Presidency Conclusions, Tampere European Council (Oct. 15–16, 1999). A reference to the Presidency Conclusions is provided in the preamble to Directive 2003/109. See Council Directive 2003/109, supra note 248, rec. 2. Paragraph 21 of the European Council Presidency Conclusions reads as follows: The legal status of third-country nationals should be approximated to that of Member States’ nationals. A person, who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit, should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by EU citizens; e.g. the right to reside, receive education, and work as an employee or self-employed person, as well as the principle of nondiscrimination vis-à-vis the citizens of the state of residence. The European Council

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legal position of the third-country nationals who are long term residents, this breakthrough appears to be somewhat timid and fails to solve a number of outstanding problems.372 The weak points of the directive are mostly related to the limited nature of the free movement right provided, the link made between the residence in one Member State and the acquisition of the long-term resident status in the EU, the limited geographical scope of application of the directive, and a total lack of any guarantees of political rights to be by the third-country nationals who are long-term residents. Moreover, the problem of unequal access to the ius tractum citizenship has not even been addressed. While providing for a limited free movement right,373 which is not essentially different from that enjoyed by the European citizens,374 the directive failed to fully detach the acquisition of a long term resident status in the EU from the permanent residence status of one of the Member States. The directive simply disregards the very rationale of the internal market. Those third-country nationals, who resided five years in one Member State, become entitled to a right to be issued with a long-term residence permit.375 It is unfortunate that those who resided in the EU for the same period and moved from one Member State to another are not covered by the directive at all. Given the reality of the market integration in Europe, such redivision of the EU into the Member States under the directive is made for no apparent reason and leads, at the same time, to the exclusion of a number of actual long-term residents. It is ill-suited and harmful for the cause of integration of the third-country nationals into the internal market. Once a Community right is at stake, it should be acquired on the basis of the residence in the Community, not in its constituent parts, the Member States. Changing the territorial logic of the directive would not be difficult from a technical point of view; all it would take is to allow time of legal residence in the various Member States to be cumulated. The flipside of acquisition of long-term resident’s status under the directive is the loss of this status. Unfortunately, the directive allows for the loss of the status upon a twelve consecutive months absence from the EU.376 The stability of the status leaves much to be desired. Nevertheless, the very possibility of being issued with a long-term residence permit after five years of residence in one of the Member States and the right to exchange it for a similar document in another Member State while exercising free movement right is a breakthrough in the European legal climate. Before the directive, third-country nationals had to apply for new work and residence permits endorses the objective that long-term legally resident third-country nationals be offered the opportunity to obtain the nationality of the Member State in which they are resident. Id.

372 The further strategy has been outlined by the Commission. Common Agenda for Integration Framework for the Integration of Third-country Nationals in the European Union, COM (2005) 389 final (Sept. 1, 2005). 373 Council Directive 2003/109, supra note 248, art. 14(1). 374 Notwithstanding the fact that the exercise of such right is made dependent on administrative procedures, such as an exchange of a residence permit provided by the previous Member State of residence to that of the new state of residence. Id. art. 15(4). 375 Id. art. 4(1). 376 Id. art. 9(1)(c).

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any time they moved from one Member State to another. Simply put, the internal market as such, which is “an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured,”377 did not exist for them, since they were constantly reminded of the existence of the borders, albeit invisible, between the Member States of the Union. Unequal access to the nationality of the Member State of residence remains one of the key problems associated with European citizenship for third-country nationals permanently residing in the EU. At present, ius tractum largely means “inequality of opportunity and rights for groups of identical origins and periods of settlement.”378 Although Directive 2003/109/EC established a clear regime for acquiring long-term resident status in the EU, thus making a step towards facilitating naturalization of a number of third-country nationals in the EU, the crucial element in this construction, i.e., the determination of the minimum length of residence necessary in order to be eligible for naturalization, is still in the hands of the Member States, meaning that the ultimate inequality of treatment of the third-country nationals in terms of access to European citizenship remained intact.379 This is very unfortunate, since by unifying naturalization rules and making the acquisition of the citizenship of a Member State easier, the ultimate effect of achieving a more inclusive European citizenship status can be achieved.380 The scope of geographic application of the directive also seems to be contrary to the objectives it is set to achieve. It is unfortunate that the directive does not apply to the U.K. and Ireland on the one hand and to Denmark on the other; these Member States opted out by virtue of Articles 1 and 2 of the Protocol on the Position of the U.K. and Ireland annexed to the EU and EC Treaties381 and Articles 1 and 2 of the Protocol on the Position of Denmark,382 respectively. Taking all the weaknesses of the directive listed above into account, there remains one crucial drawback to mention, which concerns the political rights of the third-country national long-term residents of the EU.383 Not only can they not vote in national elections in their Member States of residence, but they are also deprived of European voting rights and hence do not take part in the elections to the EP. Neither does European law require the Member States to allow the third-country national

377 EC Treaty art. 14(2). The establishment of the Internal Market is, one of the activities of the Community, established by Article 3(1)(c) EC for the achievement of the objectives of Article 2 EC. 378 Bauböck, supra note 95. 379 Regrettably, at the present stage of development of European and International law this is not viewed as a problem. Regarded from the point of view of common sense, however, the diverging terms of access to European citizenship are strikingly unjust, contributing to the bigger picture of the employment of citizenship for the perpetuation of inequality. See generally Ayelet Shachar, Children of a Lesser State: Sustaining Global Inequality Through Citizenship Laws, in CHILD, FAMILY, AND STATE 345 (Stephen Macedo & Iris Marion Young eds., 2003). 380 Theodora Kostakopoulou, European Citizenship and Immigration After Amsterdam: Openings, Silences, Paradoxes, 24 J. ETHNIC & MIGRATION STUD. 639, 646 (1998). 381 Council Directive 2003/109, supra note 248, rec. 25. 382 Id. rec. 26. 383 The issue of a new status for the third-country nationals who reside in the EU has been on the EU’s agenda for a very long time. E.g., the EP’s proposal, dating back to 1988, to grant the third-country nationals permanent residents the right to vote in municipal elections. See Becker, supra note 43, at n. 73. This issue has also been discussed at the 1996 IGC. Kostakopoulou, supra note 104, at 409–10.

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long-term residents in their territories to vote in local elections. Although the majority of the Member States have such provisions,384 the general rule remains that the absolute majority of third-country nationals residing in the Community do not enjoy such rights.385 Directive 2003/109/EC offered a unique opportunity to extend the franchise (in European and local elections at least) to the third-country nationals permanent residents of the EU, but it was left unused.386 This is notwithstanding the fact that the main political science theories of citizenship underline the importance of integration through voting, as Lardy has demonstrated.387 National law of the Member States can remedy this situation. Given that the possibility of introducing an all-European procedure for the EP elections spelled out in Article 190(4) EC has not yet been used, it is up to the Member States themselves to decide who qualifies to take part in such elections. As long as this right is not used by the Member States in breach of Article 19(2) EC,388 the Member States are free to extend the voting right to any person in their territory.389 The ECJ has been clear on this issue, underlining the fact that the rights contained in Part II EC are not exclusive and can thus be granted to those who are not in possession of the European citizenship status.390 Regarding the extension of national and local franchise, the Member States seem to retain even more sovereignty, making them perfectly able to include third-

384 At present “fifteen [Member States] confer some electoral rights on at least some third-country nationals.” SHAW, supra note 22, at 13. Needless to say, such rights, when given, do not stem from the Community legal order. 385 This is due to a number of factors, ranging from the lengthy national residence requirements, which have to be met in order to qualify for enfranchisement, to the simple fact that the third-country nationals are mostly enfranchised in the smallest Member States while in Italy, Poland, France, and Germany, where the majority of them reside, they have no right to vote. See id. For an overview of noncitizens’ voting rights in the Member States, see id. at 78–80. 386 Shaw argued that the legal basis of the directive (Article 63(3)–(4) EC) did not allow for the grant of political rights to the third-country nationals. Id. at 14. Article 63(4) EC makes reference to “the rights and conditions under which nationals of third countries who are legally resident in a Member State may reside in other Member States.” Given the all-encompassing scope of Directive 2003/109/EC and the importance of political representation for the long-term residents, the claim of lacking legal basis for the enfranchisement of the third-country nationals seems overly pessimistic. The Commission, however, was of the same opinion—that there is no legal basis for enfranchising third-country nationals in the Treaties. See Commission Proposal for a Council Directive Concerning the Status of Third-country Nationals who are Long-term Residents, COM (2001) 127 final (Mar. 13, 2001); Explanatory Memorandum, ¶ 5.5, 2001 O.J. (C 240E) 79; see also SHAW, supra note 22, at 222–27. A new legal basis will appear upon the entry into force of the Lisbon Treaty. According to the new Article 79(4) FEU, the Union will be able to adopt “measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories.” See FEU Treaty art. 79(4); see also Treaty Establishing a Constitution for Europe art. III-267(4). 387 Heather Lardy, Citizenship and the Right to Vote, 17 OXFORD J. LEGAL STUD. 75, 97–98 (1997). 388 Case C-145/04, Spain v. United Kingdom, 2006 E.C.R. I-7917, ¶ 66. 389 Also, in the United States, arguments have been made in the literature that the states should legally be able to extend the franchise also to the persons who are not in possession of U.S. citizenship status. See, e.g., Brozovich, supra note 261. It has even been argued that non-citizens’ suffrage is a requirement following from the Equal Protection Clause of the Fourteenth Amendment. Gerald M. Rosber, Aliens and Equal Protection: Why not the Right to Vote, 75 MICH. L. REV. 1092, 1112 (1977). 390 Spain v. United Kingdom, 2006 E.C.R. I-7917, ¶ 78.

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country nationals in the democratic process.391 Examples are already numerous: commonwealth citizens residing in the U.K. may vote in the U.K. elections at all levels, subject to reciprocity; Brazilian citizens residing in Portugal can vote at national and municipal level there;392 a large number of Member States offer thirdcountry nationals a vote at the municipal level. It is regrettable, however, that there is no common approach in all EU Member States to this issue. It is not possible to disagree with Shaw that “the lack of competence is often raised as the argument for the failure to adopt measures, but it is clear that in this area it is the absence of political will to enact such measures which is just as great a problem.”393 While Directive 2003/109/EC succeeded in introducing the first, albeit limited, free movement right to be enjoyed by the third-country nationals who are long term residents of the Union, it is up to the Member States to continue on the path of inclusion of this group of EU residents. The ECJ is also likely to play an important role here, by extending the scope of application of Article 12 EC to those thirdcountry nationals who fall within the scope of Directive 2003/109/EC. Focusing on the bigger picture, however, it becomes clear that the legal positions of European citizens and third-country national long-term EU residents are bound to converge even further in the near future. At present, third-country nationals are still “une population infériorisée en droits, donc aussi en dignité.”394 3.

Commonwealth Citizens Residing in the U.K.

Commonwealth citizens residing in the U.K. represent a unique group of thirdcountry nationals in the EU as far as rights of political participation are concerned.395 Although free movement rights do not apply to them,396 they enjoy more rights in the field of democratic representation than European citizens from the continent who moved to the U.K. in exercise of their Article 18 EC free movement right. Given that Article 19 EC does not provide for political participation of European citizens residing in Member States other than their own at the level of the national parliaments, the unique position of the qualifying Commonwealth citizens who can elect and be elected to the House of Commons becomes clear. Moreover, Commonwealth citizens residing in the U.K. also participate in local and European elections. Regarding the latter, the ECJ has been explicit in dismissing the claims 391 The Council of Europe, in a PACE Report, has recommended that its Member States move in this direction. EUR. PARL. ASS., supra note 195, pt. I(5)(v)(d)(iv) (addressing host country local elections). The possibility to allow resident non-nationals to vote in national elections has also been seriously discussed, especially in the States traditionally granting foreigners political participation rights at the national level. See, e.g., Ko-Chih R. Tung, Voting Rights for Alien Residents—Who Wants It?, 19 INT’L MIGRATION REV. 451 (1985) (discussing the Swedish case). 392 EUR. PARL. ASS., supra note 195, ¶ 78. 393 SHAW, supra note 22, at 232. 394 BALIBAR, supra note 104, at 192. 395 Maltese and Cypriot nationals residing in the U.K. enjoy a special status by virtue of being both Commonwealth citizens and EU citizens, hence being able to enjoy the best of both worlds. The same also applies to Irish nationals, who, although not Commonwealth citizens, enjoy a special status when residing in the U.K. This section focuses exclusively on the discussion of the legal position of those Commonwealth citizens residing in the U.K. who are not also European citizens. 396 Council Directive 2003/109, supra note 248, rec. 25.

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that enfranchising those persons who are not in possession of European citizen status is contrary to Community law. In Spain v. United Kingdom, the Court supported the U.K.’s constitutional tradition of enfranchising the Commonwealth citizens, including their right to be elected to the EP.397 In other words, the ECJ made it clear that the scopes of European citizens and voters in the EP elections differ: a formal European citizenship status is not necessary to be enfranchised.398 There is no strong argument available in the literature on the topic for the exclusion of those who are not in possession of EU citizenship status from the right to participate in EP elections. Davis reasonably called for the extension of the right to vote in all elections to all persons meeting certain residency requirements.399 In fact, although Spain, making an argument in Spain v. U.K., seemed to presume that a strong link exists between nationality and the right to vote in national and European elections,400 the history of the development of the concept of citizenship does not support this point of view.401 Even when the view that “foreigners” should not be entitled to vote prevails, there is always a possibility of creating a legal status that would fit in-between being a citizen and an alien. In the U.K., where the English Parliament prohibited foreigners from voting as early as in 1698,402 a category of Commonwealth citizens and Irish nationals403 falls outside that of aliens, thus qualifying these groups of people, when residents in the U.K.,404 for the franchise. A similar practice also existed in the U.S.405 In the European context it would be reasonable to link such status to a particular period of residence in the EU as a whole, not in one particular Member State.

397

398

Spain v. United Kingdom, 2006 E.C.R. I-7917, ¶ 78. In the current state of Community law, the definition of the persons entitled to vote and to stand as a candidate in elections to the European Parliament falls within the competence of each Member State in compliance with Community law . . . Articles 189 EC . . . 17 EC and 19 EC do not preclude the Member States from granting that right to vote and to stand as candidate to certain persons who have close links with them, other than their own nationals or citizens of the Union resident in that territory. This decision of the ECJ echoes the famous ruling of the U.S. Supreme Court in Pope v.

Williams: [T]he privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals, in violation of the Federal Constitution. The state might provide that persons of foreign birth could vote without being naturalized . . . . Pope v. Williams, 193 U.S. 621, 632 (1904). 399 Davis, supra note 36, at 132. 400 Spain v. United Kingdom, 2006 E.C.R. I-7917, ¶ 37. 401 Heather Lardy, Citizenship and the Right to Vote, 17 OXFORD J. LEGAL STUD. 75 (1997). 402 Id. at 75 n.2. 403 Irish nationals are not “alien” just as Ireland is not a “foreign country” under the 1949 Ireland Act. Consequently, Irish citizens enjoy more rights than “foreigners” would. See supra note 186. 404 Neither Commonwealth citizens nor Irish nationals can register in the U.K. as overseas voters, meaning that moving their residence outside the U.K. terminates their voting rights in that country, including, in the case of the Commonwealth citizens, EP voting rights. 405 Several states used to permit voting by those residents who registered their intention to become U.S. citizens, while other aliens were not given that privilege. See Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. PA. L. REV. 1391, 1418 (1993).

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The legal situation of Commonwealth citizens who are not nationals of Malta or Cyprus residing in the U.K. in the fields other than democratic representation is very weak. Unlike third-country national long-term residents residing in other Member States, they cannot rely on the free movement provisions of Directive 2003/109/EC. Also, once a Commonwealth citizen transfers residence from the U.K. to another Member State, he or she loses the democratic representation rights which he or she used to enjoy in the U.K., losing the right to vote in all elections in the new state of residence. The political rights enjoyed by the Commonwealth citizens residing in the U.K. are very telling in many respects. Most importantly, they permit examination of the ties between the Member States of the EU from a fresh perspective. Is it not strange that, for instance, for the purpose of voting in national elections, the ties between the U.K. and the countries of the Commonwealth appear stronger than between the U.K. and other Member States of the EU?406 It is difficult to justify from the point of view of common sense that a Dutch person residing permanently in London has fewer political rights in the U.K. than a citizen of Mozambique residing next door, neither of the two nations having any historical ties with the Crown. Most importantly, however, do the political rights of the Commonwealth nationals in the U.K. show with all clarity that enfranchisement of non-citizens is possible and that no Community action is required for this?407 4.

Third-country Nationals’ Rights under International Agreements

Although the international agreements with their countries of nationality provide third-country nationals with certain rights,408 it is difficult to speak of “citizenship” rights in such a context. This is because the majority of agreements concluded by the Community and the Member States with the third countries do not contain any provisions related either to free movement of the nationals of those states residing in the EU, or to the rights to participate in the political life of the Union, or the Member States. However, there are a number of agreements that contain provisions somewhat comparable to the European citizenship rights. Three agreements are particularly relevant in this respect, including the EEA (European Economic Area) Agreement,409 covering Iceland, Liechtenstein and Norway; an Agreement on the free movement of persons with Switzerland;410 and the Association Agreement with Turkey (Ankara Agreement).411 None of these provide for any political participation rights. As far as free movement rights are concerned, however, the picture is quite different. 406 407

Except Ireland, Malta, and Cyprus. Especially given the “green light” to such practice. Spain v. United Kingdom, 2006 E.C.R. I-

7917.

408

See generally Hedemann-Robinson, supra note 348. Agreement on the European Economic Area, supra note 352. 410 EC-Switzerland Agreement, supra note 352. 411 Association Agreement with Turkey, supra note 352; see also Council Regulation 2760/72, 1970 (L 293) 1; Decision No. 1/80 of the Association Council of 19 September 1980 on the Development of the Association (unpublished), available at http://www.diyih.gov.tr/files/ uluslararasi_kuruluslar/ab/ortaklik_ant_doc/okk_1_80_eng.doc (last visited Feb. 3, 2009); Decision No. 3/80 of the Association Council of 19 September 1980, 1983 (C 110) 60; Nicola Rogers, Movement of Persons (Association Agreement with Turkey), in HANDBOOK ON EUROPEAN ENLARGEMENT: A COMMENTARY ON THE ENLARGEMENT PROCESS 495 (Andrea Ott & Kirstyn Inglis eds., 2002). 409

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The agreement concluded with the EEA States is the most advanced in this regard. By virtue of this agreement the EEA nationals have free movement rights which are almost identical to those enjoyed by the European citizens. EEA nationals can work and reside freely in any Member State of the EU if they fall within the Community meaning of the notion of “workers,”412 are self-employed,413 provide services,414 or are students, pensioners, or persons of independent means. Generally speaking all the “pre-citizenship” free movement acquis, including the nondiscrimination right, have been incorporated into the agreement.415 Although no articles that would replicate Articles 17 EC and 18 EC were included in the agreement, the free movement rights of the EEA nationals appear to be almost as substantive as those of European citizens.416 The same largely applies to the EC-Switzerland Agreement, which is, however, slightly narrower in scope. This is mostly because of the restrictive rules regarding employment in public sector,417 exclusion of “social advantages” in terms of Article 7(2) of Regulation 1612/68418 from the scope of the agreement’s equal treatment provisions,419 and the issues related to ECJ’s jurisdiction under the agreement.420 In contrast with the EEA and EC-Switzerland Agreements, the EC-Turkey Association looks very modest as far as free movement rights are concerned. In fact, Turkish workers are not granted any free movement rights comparable to those enjoyed either by European citizens or even third-country national permanent EU residents. The Member States fully control the admission of Turkish workers and their families to their territories.421 The rights of the Turkish citizens benefiting from the agreement are mostly related to non-discrimination at the work-place and the continuation of residence and access to the job-market once admitted as workers in a Member State.422 Also, the Member States are prohibited from adopting new measures likely to make the exercise of the rights of the Turkish workers and companies under the Ankara Agreement more difficult.423 Yet, because of the

412

Agreement on the European Economic Area, supra note 352, art. 28, annexes V and VI. Id. art. 31. 414 Id. art. 36. 415 Hedemann-Robinson, supra note 348, at 538. 416 Free movement of the EEA nationals will not however be covered by the principles of all the Article 18 EC case-law mentioned supra in Part III(E). 417 EC-Switzerland Agreement, supra note 352, annex 1, art. 10. 418 Regulation (EEC) No 1612/68, supra note 114. 419 EC-Switzerland Agreement, supra note 352, annex 1, art. 9. 420 EC-Switzerland Agreement, supra note 352, art. 16(2); see also Hedermann-Robinson, supra note 348, at 539. 421 Case C-36/96, Faik Günaydin, Hatice Günaydin, Günes Günaydin and Seda Günaydin v. Freistaat Bayern, 1997 E.C.R. I-5143, ¶ 23; Case C-1/97, Mehmet Birden v. Stadtgemeinde Bremen, 1998 E.C.R. I-7747, ¶¶ 37–38. 422 E.g., Decision No. 2/76 of the Association Council, art. 2(1)(b) (not published in the O.J.); Decision No. 1/80 of the Association Council, supra note 411, art. 6(1); Rogers, supra note 411, passim. 423 Additional Protocol to the Agreement, supra note 352, art. 41(1); Decision No. 1/80 of the Association Council, supra note 411, art. 13; See also Joined Cases C-317/01 & C-369/01, Eran Abatay and Nadi %ahin v. Bundesanstalt für Arbeit, 2003 E.C.R. I-12301. 413

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decisions of the EC-Turkey Association Council,424 Turks in the EU enjoy more rights than other non-EEA third-country nationals. As Hedemann-Robinson wrote, “the degree of economic convergence between the respective contracting parties appears to have been a dominant factor in determining whether any rights are to be accorded to [third-country national] residents.”425 The nationals of richer states within the proximity of the EU clearly enjoy a treatment which is more comparable to that of European citizens than of third-country nationals. It is clear that such agreements follow the same logic as European citizenship internally, making the enjoyment of rights dependent on wealth. Just as a wealthy European citizen is by law entitled to more rights compared with a poor one, a third-country national coming from a wealthy country is treated differently in EU external relations law from a national from a poorer state. C. Third-country Nationals’ European “Citizenship” Rights: a Collection of Inconsistencies The patchwork rights of third-country nationals residing in the EU, composed of different rights depending on their terms of residence, the countries of origin and the Member States where they reside, form an important obstacle on the way to further integration. The ECJ has not been helpful so far in harmonizing horizontal inequalities between the different classes of third-country nationals, as Becker regretted.426 Although it upheld some of their rights under the Association Agreements, overall its approach to the problems arising out of the situation of thirdcountry nationals in the EU is difficult to conclude on, yet. “Thou shalt not oppress a stranger,” as Weiler reminded.427 Yet such an idealistic approach is not applicable to the ECJ case-law in this field. Also, the Community legislator is not doing enough to try to solve the outstanding problems experienced by the third-country nationals residing in the EU. The Member States are equally to blame for the modest progress in this area, holding the ultimate key to the status of European citizenship for thirdcountry nationals via the naturalization practices, which still rest within their sovereign domains. Little can be expected of the EU in terms of equalizing the access to European citizenship throughout the Union, to say nothing about fully fledged political participation and free movement rights for third-country nationals who are long-term residents. All in all, however, as the survey of the citizenship-like rights enjoyed by noncitizens of the EU demonstrates, it cannot be argued at the present stage of European integration that citizenship rights are only enjoyed by status citizens. The ECJ approved of the current situation in Spain v. United Kingdom, while the European Council in the Tampere Presidency Conclusions called for moves towards equality between European citizens and third-country nationals resident in the Union.

424 The provisions of the decisions can have direct effect. See, e.g., Case C-192/89, Sevnice v. Staatssecretaris van Justitie, 1990 E.C.R. I-3461. 425 Hedemann-Robinson, supra note 348, at 538. 426 Becker, supra note 43, at 151. 427 Weiler, supra note 366 (see title).

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With a general approval of all the key actors in the process, the statuses of a “citizen” and a “resident alien” seem to be slowly converging in the EU. A similar development has also been observed in the national citizenship context. Increasingly, previously “citizenship-associated” rights are granted to long-term resident aliens. While in the context of a nation-state the exclusion of those already enjoying some citizenship rights from the access to formal citizenship status can be justified by the exclusionist argument of “national membership” required to acquire such status,428 in the EU context, where the Volk is elusive, “common values” are uncertain, and the d mos is replaced by multiple d moi,429 this argument is hardly sustainable. Indeed, the very nationally-framed idea of belonging contradicts the whole dynamics of integration—a fact formulated by Advocate General Jacobs in his opinion in Garcia Avello with outstanding clarity and persuasion: 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 justice,” in which both cultural diversity and freedom from discrimination [are] ensured.430 VI. REFORMING IUS TRACTUM A reform of European citizenship is needed to make sure that is it “not merely a hollow or symbolic concept.”431 At present, Europeans are still en suspence: “non più stranieri, non ancora cittadini.”432 These words written by Sica at the end of the seventies still apply to the citizens of the EU today. Based on an overview of the legal essence and functioning of European citizenship, a number of questions arise. First, what is the use of the status of European citizenship if it cannot guarantee that all those in possession of it also benefit from a certain minimum of rights? Second, why not grant European citizenship to third-country nationals without links to any particular Member State in a situation where virtually all the European citizenship rights can be enjoyed by different categories of non-citizens? Third, is it possible to speak of a “citizenship status” at all in a context where the actual enjoyment of the rights supposedly associated with it is made directly dependent on a number of factors that are entirely unrelated to the possession of the status?

428

Bosniak, supra note 27, at 1286. Joseph H.H. Weiler, The State “über alles”: Demos, Telos and the German Maastricht Decision, in 2 FESTSCHRIFT FÜR ULRICH EVERLING, BADEN-BADEN: NOMOS VERLAGSGESELLSCHAFT (Ole Due et al. eds., 1995). 430 Opinion of Advocate General Jacobs, Case C-148/02, Garcia Avello, 2003 E.C.R. I-11613, ¶ 72 (internal citations omitted). But see Jessurun d’Oliveira, supra note 70 at 120, 122 (criticizing Advocate General Jacob’s opinion unconvincingly). 431 Opinion of Advocate General Geelhoed, Case C-209/03, Danny Bidar v. London Borough of Ealing, Sec’y of State for Educ. and Skills, 2005 E.C.R. I-2119, ¶ 28. 432 SICA, supra note 21, at 1 (“no longer foreigners, not yet citizens”). 429

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Instead of simply stemming from the possession of the EU citizenship status, the enjoyment of European citizenship rights depends, inter alia, on the following considerations: -

the financial situation of the citizen: a single mother with no job or independent means does not enjoy a free movement right;

-

the occupation of a citizen: the free movement rights of European citizens employed in the public service are very limited (however narrowly the Court interprets the possible limitations);

-

the choice of the Member State of residence: European citizens residing in Luxembourg are not able to vote there for ten years unless in possession of the nationality of the Grand Duchy;

-

the past history of exercising European citizenship rights: those who never have used free movement rights and reside in their Member States of nationality without providing cross-border services do not easily fall within the scope ratione materiae of Community law, which makes the appeal to some European citizenship rights impossible and often results in reverse discrimination, which is not prohibited by Community law but which remains discrimination nonetheless;

-

the law of the Member State of residence: for example, recognition or nonrecognition of same-sex partnerships affects the rights related to free movement by way of subjecting one of the Community’s fundamental freedoms to Polish, Irish, or Italian national regulation;

-

the nationalist logic of the Community law approach to representation resulting in huge discrepancies between the weight of the votes brought by European citizens in the EP elections depending on the place of residence;

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the Member States’ option to limit the exercise of free movement rights by law on the grounds of public policy, security, or health. However narrowly construed, such an option undermines the idea of equality among citizens.

These factors are too numerous and diverse to allow one to speak of a true European citizenship status. This status is not necessarily connected to the enjoyment of citizenship rights and can in some cases be completely emptied of any concrete meaning without breaking the law. Being a European citizen can simply mean nothing. Moreover, since the enjoyment of citizenship rights is made dependant on such a huge number of diverse additional factors, any appeal to equality between European citizens is made de facto impossible. The possibility of reverse discrimination provides one telling example of this, covering the majority of European citizens, since the majority of them have never used their free movement rights and thus do not necessarily fall within the scope of the EC Treaty. From this it follows that European citizenship is a rare example of a “fundamental status” which is entirely dependent on the specific features of the bearer, instead of vice versa. The very ius tractum logic behind the acquisition of this status also leaves much to be desired. Since the acquisition of such status is placed in the hands of the Member States, Article 17 EC frames the scope of the beneficiaries of European

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citizenship exclusively in terms of exclusion. The Member States alone decide who gets to join. While the majority of the Member States’ nationals do not actually suffer as a consequence of such a state-centric approach to the definition of the scope of the supranational citizenship, it blocks the way to European citizenship status for all those who, although long-term residents in the EU, are not in possession of any of the twenty-seven Member States’ nationality. These people, whose exclusion from the scope of European citizenship status is difficult to justify, are the most obvious victims of the present status allocation system. The sovereignty considerations underpinning the Member States’ unwillingness to include these people within the scope of Community citizenship by changing the Treaty to grant the Community itself the competence to determine who its citizens are, are not really logically justifiable, especially in a flexible constitutional system such as the EC, where the revisions of the primary law are as frequent as they are deep. Substantively, there is no problem here either, since sovereignty in the area of immigration has already been de facto lost by all the Member States. Under circumstances where the borders between the Member States are nonexistent, preserving them on paper exclusively for third-country nationals seems not only impractical but also unjust. Whether the Member States want it or not, the development of the internal market as an area without frontiers will demand better co-ordination of their nationality and naturalization requirements. This is likely to result in the shaping of a common set of rules. These rules will then also become the rules for the acquisition of European citizenship. It is abundantly clear to the Member States, however, that once such rules are in place, the nationalities of the Member States will instantly disappear as meaningful legal concepts. Once no difference is left between the nationality and naturalization rules, say, in Germany, Romania, and Cyprus, and the principle of non-discrimination prohibits any possible use of the nationality of a particular Member State as a source of rights different from the rights enjoyed by nationals of any other Member State in the same situation, a new reality will be shaped wherein the importance of the nationality of a Member State will become truly marginal. What will the rule for the conferral of European citizenship then be? Residence seems to be the only viable option. Indeed, “in a Europe where states are still geographical, but nationality is a taboo, residence is one of the few realistic ways of determining the obligations of individuals and public authorities to each other.”433 Not divided by borders, twenty-seven societies working together in twenty-three official languages will make the imposition of other naturalization requirements— besides perhaps the knowledge of one of the official EU languages—unjust. It would be difficult to ask for more than legal residence for a certain period of time and remain within the realm of reason. Requiring the knowledge of the “state and society,” or the language of the place of residence at the moment when the application is submitted, would clearly be entirely illogical in a Union where all the conditions are created in order to make moving from one Member State to another as easy as possible and where free movement is the main citizenship right. As Kostakopoulou observed, “since the boundaries of the community have been extended to include nationals of other Member States, there is no a priori reason to 433

Davies, supra note 96, at 43.

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justify the preservation of quasi-nationalist trappings on the institution of Union citizenship.”434 At present, not only are numerous citizens prevented from fully benefiting from their European citizenship rights on an equal footing to all the other individuals enjoying the same status; the third-country nationals, whose access to the status of European citizenship is blocked by the ius tractum nature of the latter also find themselves in a similar situation. Moreover, the Court has been unwilling to apply the main non-discrimination instrument of the EC Treaty, Article 12, to those thirdcountry nationals finding themselves within the material scope of Community law, thus de facto interpreting the provision contra legem. This is all not to say that the third-country nationals cannot enjoy more rights comparable to European citizenship rights in the EU than the citizens themselves. Examples of the contrary are numerous. Commonwealth citizens and those without European citizenship residing in the U.K. enjoy many more political rights than the European citizens residing there. As far as the free movement right is concerned, third-country nationals who are long-term residents are much better off than certain categories of European citizens for whom free movement rights are either permanently or temporarily suspended, like those enjoying the status by virtue of a nationality connection with one of the new Member States of Central and Eastern Europe, the Channel Islands, and the Isle of Man. To make European citizenship a real citizenship status based on equality and enjoyment of rights, it is necessary to attempt to equalize the status of the multiple diverging groups of those already in possession of the European citizenship status, rights, or both on paper and in fact. It has been argued that the transformative potential of rights in already free societies is far from obvious;435 however, the rights might prove effective in creating the inclusion of those finding themselves outside of the process of European integration precisely because the unique European rights are not granted to them (such as third-country nationals), or cannot be used by them (such as the citizens discriminated against on the basis of nationality in wholly internal situations). Neither the exclusion of long-term resident third-country nationals, nor remaining faithful to the logic of the wholly internal rule serves any reasonable goal. Conceptually, the easiest way of dealing with the drawbacks of European citizenship is the denunciation of its ius tractum nature.436 This should be coupled with a return to the point when the ideal of equality mattered.

434 Theodora Kostakopoulou, European Union Citizenship: Writing the Future, 13 EUR. L.J. 623, 644 (2007). 435 Joseph Weiler, To Be a European Citizen: Eros and Civilization, in THE CONSTITUTION OF EUROPE ‘DO THE NEW CLOTHES HAVE AN EMPEROR?’ AND OTHER ESSAYS ON EUROPEAN INTEGRATION 324, 334 (1999). 436 Nikos Prentoulis, On the Technology of Collective Identity: Normative Reconstructions of the Concept of EU Citizenship, 7 EUR. L.J. 196 (2001); see also Theodora Kostakopoulou, supra note 380, at 644.