Chair in EU Constitutional Law, University of Groningen. ... Groningen 2014); Malgosia Fitzmaurice and Olufemi Elias, Watercourse Co-operation in Northern.
University of Groningen Faculty of Law
The Internal Aspects of Good Neighbourliness in the EU: Loyalty and Values
by Dimitry Kochenov
January 2015
University of Groningen Faculty of Law Research Paper Series No. 13/2015 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection Available at SSRN: http://ssrn.com/ abstract=2548141
Electronic copy available at: http://ssrn.com/abstract=2548141
The Internal Aspects of Good Neighbourliness in the EU: Loyalty and Values Dimitry Kochenov*
This is a draft of a contribution forthcoming in D Kochenov and E Basheska (eds) Good Neighbourly Relations in the European Legal Context (Brill Nijhoff, 2015). Please consult the book for the final version.
Abstract The contribution argues that the legal context of the EU is substantially different from the classical context within which the international law principle of good neighbourly relations is usually deployed, altering the traditional understanding of the principle to a great degree. Firstly, to be a good neighbour in the context of the Union implies not only respect for international law vis-à-vis neighbouring states and a strict adherence to the acquis. It also indispensably implies strict adherence to the values of the Union, including democracy, the rule of law and the protection of human rights – if not justice and minority protection. Being a good neighbour in the EU thus means being a particular type of state, embracing a particular type of constitutionalism. Secondly, the principle of good neighbourly relations, particularly in the context of EU enlargements and EU citizenship, implies that the Member States should be ready to adapt their national laws to the Union reality even outside the context of the EU acquis. In other words, having legitimate regulation in place, which is not in breach of international or EU law per se, can still amount to a violation of the principle of good neighbourly relations in the Union context. The examples of EU pre-accession conditionality in the fields of democracy and the rule of law, and of the recent reforms of the Slovak and Hungarian citizenship laws both suffice to make this point. Given the specificity of the legal reality of interdependence that the Union has shaped, it is perfectly legitimate to expect the EU to intervene should some Member States fail to internalise this special EU reality and cause negative externalities which start to affect others.
*
Chair in EU Constitutional Law, University of Groningen. I am grateful to Elena Basheska and Anatole Boute for helpful comments on the first draft.
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1. The key themes introduced The goal of this chapter is to demonstrate that the principle of good neighbourly relations we know so well from international law1 is bound to function significantly differently in the European Union compared to the rest of the world. While classical good neighbourliness is about the mutual respect of sovereignty and borders among states in the international community2 – as clearly outlined by Elena Basheska in the previous chapter – the internal context of the EU is quite different in a number of important respects.3 Further contributions to this volume explore these in detail, looking at a number of different contexts, offering a representative selection.4 Most importantly, given the specificity of the legal-political context that the Union provides, which has now come to be the natural habitat, as it were, for all the Member States of the Union, the EU necessarily faces growing expectations as an actor within good neighbourly relations, adopting this position alongside the states. This role implies acknowledgement and 1
For a detailed analysis, see Elena Basheska, ‘The Position of the Good Neighbourliness Principle in International and EU law’ in this volume. 2 e.g. Iftene Pop, Components of Good Neighbourliness Between States – Its Specific Legal Contents – Some Considerations Concerning the Reports of the Sub-Committee on Good-Neighbourliness Created by the Legal Committee of the General-Assembly of the United Nations (Editura R.A.I., Bucharest 1991). See also: Elena Basheska, ‘The Good Neighbourliness Principle in EU Law’ (PhD thesis, University of Groningen 2014); Malgosia Fitzmaurice and Olufemi Elias, Watercourse Co-operation in Northern Europe: A Model for the Future (T.M.C. Asser Press, The Hague 2004); Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (3rd edn CUP, NY 2012) 197 etc. 3 Philip Allott, ‘The European Community is not the True European Community’ (1991) 100 YLJ 2485– 2500 (see especially, his diplomacy–democracy distinction). See also Dimitry Kochenov and Fabian Amtenbrink, ‘Introduction: The Active Paradigm of the Study of the EU’s Place in the World’ in Dimitry Kochenov and Fabian Amtenbrink (eds), The European Union’s Shaping of the Legal International Order (CUP, Cambridge 2013) 1‒18. 4 Anatole Boute, ‘The Good Neighbourliness Principle in EU External Energy Relations: The Case of Energy Transit’; Hans Vedder, ‘Good Neighbourliness in a Sustainable European Internal Electricity Market: A Tale of Communities and Uncommunautaire Thinking’; Arthur Khachaturyan, ‘Application of the Good Neighbourliness Principle in EU Law: The Case of Gibraltar’; Stéphanie Lauhlé-Shaelou, ‘On the “Edge” of Good Neighbourliness in EU law: Lessons from Cyprus’; José-María Arraiza, ‘Good Neighbourliness as a Limit to Extraterritorial Citizenship: The case of Hungary and Slovakia’; Paul Blokker and Kriszta Kovács, ‘Hungarian Citizenship and Franchise Politics and their Effects on the Hungarian-Romanian Relations’, Damjan Možina, ‘Slovenia and Croatia in Dispute over Bank Deposits from Yugoslav Times – “No more Shall Foes, but Neighbors be”?’.
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pursuit of new responsibilities, which affect the EU’s foreign policy and, probably even more importantly, its internal organisation and functioning. Before starting the analysis, an important disclaimer should be made, however: this chapter will not argue for the existence of a principle of good neighbourly relations in international law, capable of being important in the EU legal context. The existence of the principle is simply assumed, to avoid overlaps with the preceding contribution to this volume. Moreover, it is not the intention of this contribution to suggest that good neighbourliness should be the main lens through which to assess the internal functioning of the EU. It will be demonstrated, however that the EU adds a number of significant differences to the functioning of this principle as we know it from international law. In addition, even if it should not be the main lens, this principle can certainly help illuminate a number of dark corners of the Union’s legal reality, potentially helping to solve a number of outstanding legal problems. In a nutshell, this chapter advances an argument that the EU implies a much deeper reach for the principle of good neighbourly relations compared to what can be observed in the context of classical international law owing, inter alia, to the reality of the interdependency – the Internal Market,5 a citizenship common to all the Member States,6 Union territory7 and the Area of Freedom Security and Justice8 – and common 5
Article 3(3) TEU. See also Niamh Nic Shuibhne and Laurence W Gormley (eds), From Single Market to Economic Union (OUP, Oxford 2012); Niamh Nic Shuibhne (ed), Regulating the Internal Market (Edward Elgar, Chantelham 2006). 6 According to the Preamble of the EU Treaty, the High Contracting Parties are ‘RESOLVED to establish a citizenship common to nationals of their countries’. See also Article 9 TEU; Part II TFEU. For an analysis: Dimitry Kochenov, ‘The Essence of EU Citizenship Emerging from the Last Ten Years of Academic Debate: Beyond the Cherry Blossoms and the Moon’ (2013) 62(1) ICLQ 97–136 (and the references, for an exhaustive list of relevant literature). 7 Case C–34/09 Ruiz Zambrano v Office national de l'emploi (ONEm) [2011] ECR 1–1177. Reconfirmed in C–256/11 Murat Dereci and Others v Bundesministerium für Inneres, judgment of 15 November 2011, not yet reported. For analyses, see Loïc Azoulai, ‘La citoyenneté européenne, un statut d’intégration sociale’ in Mélanges Jean Paul Jacqué. Chemins d’Europe (Dalloz, Paris 2010); Teresa Pullano, La citoyenneté européenne: Un espace quasi étatiqueI (Presses de Sciences Po, Paris 2014). 8 Article 3(2) TEU. For analyses see Ester Herlin-Karnell, ‘Constitutional Principles in the Area of Freedom, Security and Justice’ and also Stephen Coutts, ‘Citizenship of the European Union’ in Diego Acosta Arcarazo and Cian C Murphy (eds), EU Security and Justice Law (Hart Publishing, Oxford 2014) 38–53 and 92–109 respectively;
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values,9 objectives10 and destiny established in the context of the Union, which exhibit strongly federal features.11 This interdependency emerges with a particular clarity after the entry into force of the Treaty of Lisbon, as the Union has acquired – in Joris Larik’s brilliant analysis – a ‘constitutional sense of purpose’12 which goes far beyond its stated objectives.13 In practice, such an advanced level of interdependency among the Member States means that their departure from the foundational goals and values of the Union,14 even if this happens within the sphere traditionally regarded as strictly in the sovereign realm of a Member State, can inflict negative externalities on other Member States, let alone on the Union itself, as its functioning could thereby be undermined.15 The principle of good neighbourly relations can thus be breached ‘at home’.
Ester Herlin-Karnell, ‘Is the Citizen Driving the EU’s Criminal Law Agenda?’ in Michael Dougan, Niamh Nic Shuibhne and Eleanor Spaventa (eds), Empowerment and Disempowerment of the European Citizen (Hart Publishing, Oxford 2012) 203–224. 9 For a critical assessment, see e.g. Andrew Williams, ‘Taking Values Seriously: Towards a Philosophy of EU Law’ (2009) 29(3) OJLS 549–577. For the analysis of the meaning of the values in the context of Article 2 TEU enforcement, see Armin von Bogdandy and Michael Ioannidis, ‘Systemic Deficiency in the Rule of Law: What It Is, What Has Been Done, What Can Be Done’ (2014) 51 CML Rev 59–96. See also Armin von Bogdandy and Pal Sonnevend (eds), Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Hart Publishing, Oxford 2014). 10 Joris Larik, ‘From Speciality to a Constitutional Sense of Purpose: On the Changing Role of the Objectives of the European Union’ 2014 ICLQ 1–28, footnote 5 (for an exhaustive list of relevant literature). 11 Robert Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (OUP, Oxford 2009). See also Koen Lenaerts and Kathleen Gutman, ‘“Federal Common Law” in the European Union: A Comparative Perspective from the United States’ (2006) 54 AJCL 1–122; Jean-Claude Piris, ‘L’Union européenne: vers une nouvelle forme de fédéralisme?’ (2005) 41(2) Revue trimestrielle de droit européenne 243–260. 12 Larik (n 10). 13 For a classical work on EU constitutionalism see Joseph HH Weiler, The Constitution for Europe: ‘Do the New Clothes Have an Emperor?’ (CUP, Cambridge 1999). See also Gráinne de Búrca and Joseph HH Weiler (eds), The Worlds of European Constitutionalism (CUP, Cambridge 2011). 14 The ones espoused, especially, in Articles 2 and 3 TEU. 15 The duty of loyal cooperation potentially covers such situations: see generally John Temple Lang, ‘Developments, Issues, and New Remedies – The Duties of National Authorities and Courts Under Article 10 of the EC Treaty’ (2003) 27 Fordham Int’l L. J. 1904–1939. See also Laurence W Gormley, ‘Some Further Reflections on the Development of General Principles of Law within Article 10 EC’ in Ulf Bernitz et al. (eds), General Principles of EC Law in a Process of Development (2nd edn Kluwer Law Int’l, The Hague 2008) 303–313 (discussing the duty of loyalty).
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The sensitive border-line separating the internal from the external realm in the context of good neighbourliness in the EU thus simply disappears. Moreover, in this sense, EU law fundamentally differs from international law. It is not surprising then that the Union is ready to protect is constitutional core16 – which does not merely overlap with the acquis17 – both from recalcitrant Member States deviating from the spirit and the letter of Article 2 TEU18 and from the unwanted norms of international law, which the ECJ does not regard as being consistent with that provision.19 This chapter focuses on this particularity of the legal-political reality shaped by the European integration process: to demonstrate that virtually anything EU Member States do in deviation from Article 2 TEU can lead to negative externalities for their Union partners, leading to a potential breach, inter alia, of the principle of good neighbourly relations – the focus of this collection. A number of fundamental questions arise in this respect, from the interrelation between the EU duty of loyalty and the principle of good neighbourly relations, to the Union’s own role in the context of this principle. It is suggested that the principle of good neighbourly relations could theoretically be deployed within the Union to cover situations when, while the Union’s harmonious development is potentially disrupted, the duty of loyalty is not necessarily being
16
Opinion 1/91 [1991] ECR I–6079. Joined Cases C–402/05 P and C–415/05 P Yassin Abdullah Kadi and Al Barakaat v Council of the European Union and Commission of the European Communities, [2008] ECR I–6351 (Kadi I) and Joined Cases C–584/10 P, C–593/10 P & C–595/10 P European Commission, Council of the European Union, United Kingdom of Great Britain and Northern Ireland v Yassin Abdullah Kadi, judgment of 18 July 2013, not yet reported (Kadi II). See, for an analysis, Nikolaos Lavranos, ‘Revisiting Article 307 EC: The Untouchable core of fundamental European Constitutional Law Values and Principles’ in Filippo Fontanelli et al. (eds), Shaping Rule of Law Through Dialogue: International and Supranational Experiences (Europa Law Publishing, Groningen 2009) 119–146. 17 That acquis is not about the elaboration of Article 2 TEU values became clear in the context of the preaccession process. For a contemporary analysis, see Dimitry Kochenov, ‘Europe’s Crisis of Values’ (2014) 48 Revista catalana de dret públic 106–118. 18 As Article 7 TEU requires. Given the difficulties surrounding Article 7 TEU’s successful application to this effect, further steps have been discussed to ensure compliance: European Commission, ‘A New EU Framework to Strengthen the Rule of Law’, Strasbourg, 11 March 2014, COM(2014) 158 final. For the discussion of some academic proposals, see Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP, Cambridge 2015) (forthcoming). 19 Kadi I and Kadi II (n 16); Case C–369/90 Mario Vicente Micheletti and others v Delegación del Gobierno en Cantabria [1992] ECR I–4239 (Micheletti). Kochenov and Amtenbrink (n 1).
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breached. The proposition of this chapter – and it will of course be viewed as a long shot by many – is that good neighbourly relations could potentially reach the spots the duty of loyalty does not. Moreover, horizontal and vertical aspects of the operation of the principle of good neighbourly relations can be distinguished, covering situations between the Member States in the former case and involving the EU itself in the latter. The chapter starts by listing some relevant aspects of the EU’s specificity, to demonstrate the internal aspects of good neighbourliness with clarity, then proceeding to assess the ongoing struggle for the values of the Union in the context of several Member States deviating from them, listing the key approaches espoused by the Union to address such deviations (II.). The sections which follow say a few words on the specificity of two particularly sensitive contexts of interdependence, focusing on EU enlargement (III.) and EU citizenship in dealing with the principle of good neighbourly relations in the EU (IV.). In contrast with the other chapters in this volume addressing such issues, the main focus of this essay is on the internal aspects of the principle of good neighbourly relations: what is the transformation required of the EU and its Member States to make this principle fully operational in the context of the renewed reality of interdependence? The chapter concludes by establishing that the legal context of the EU is substantially different from the classical context within which the principle of good neighbourly relations is deployed, altering the traditional, international law-derived understanding of the principle to a great degree. A number of contributions in this volume provide vivid illustrations of the specificity of the EU’s context in fields which this chapter does not cover, thereby reconfirming the key findings of this analysis, which are the following. Firstly, to be a good neighbour in the context of the Union implies not only respect for international law vis-à-vis neighbouring states and a strict adherence to the acquis.20 It also indispensably implies strict adherence to the values of the Union, including democracy, the rule of law and the protection of human rights – if not justice
20
Christine Delcourt, ‘The Acquis Communautaire: Has the Concept Had Its Day?’ (2001) 38 CML Rev 829–870.
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and minority protection.21 Being a good neighbour in the EU thus means being a particular type of state, embracing a particular type of constitutionalism.22 Secondly – and this is a spill-over of the first finding – the principle of good neighbourly relations, particularly in the context of EU enlargements and EU citizenship, implies that the Member States should be ready to adapt their national laws to the Union reality even outside the context of the EU acquis. In other words, having legitimate regulation in place, which is not in breach of international or EU law per se, can still amount to a violation of the principle of good neighbourly relations in the Union context. The examples of EU pre-accession conditionality in the fields of democracy and the rule of law,23 or the recent reforms of the Slovak and Hungarian citizenship laws both suffice to make this point.24 Given the specificity of the legal reality of interdependence that the Union has shaped,25 it is perfectly legitimate to expect the EU to intervene should some Member States fail to internalise this special EU reality and cause negative externalities which start to affect others.26 Indeed, some Member States have come to expect this kind of intervention from the EU,27 which is particularly clear in the context of the preparation for the last three enlargement rounds: Member States expect the Union to participate actively in
21
On the context of justice in the EU, see Dimitry Kochenov, Gráinne de Búrca and Andrew Williams (eds), Europe’s Justice Deficit? (Hart Publishing, Oxford 2015) (forthcoming); on minority protection, see, Kristin Henrard, Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self-Determination (Kluwer Law, The Hague 2000). 22 Vlad Perju, ‘Proportionality and Freedom – An Essay on Method in Constitutional Law’ (2012) 1(2) J. Global Constitutionalism 334–367. 23 Dimitry Kochenov, EU Enlargement and the Failure of Conditionality: Pre-Accession Conditionality in the Field of Democracy and the Rule of Law (Kluwer Law Int’l, The Hague 2008). 24 See Arraiza and also Blokker and Kovács (n 4). 25 For a very sophisticated analysis of the Union’s effects on the Member States see Alexander Somek, ‘The Argument from Transnational Effects I’ (2010) 16 ELJ 315–344 and Alexander Somek, ‘The Argument from Transnational Effects II’ (2010) 16 ELJ 375–395. 26 Carlos Closa, Dimitry Kochenov and Joseph HH Weiler, ‘Reinforcing the Rule of Law Oversight in the European Union’, EUI Working Papers RSCAS 2014/25. 27 See ‘The Letter from Germany, Finland, Denmark and the Netherlands Request a New Mechanism to Safeguard the Fundamental Values of the EU’ addressed by the four respective Foreign Ministers to President Barroso, available at last accessed 14 December 2014.
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guaranteeing either that they themselves remain democracies where key liberties, rights and the rule of law are guaranteed, or that they are shielded from the negative consequences of other Member States’ shortcomings in adhering to the spirit of Article 2 TEU. Indeed, as Wojciech Sadurski explained,28 this has been an important driving factor behind the newly-joining Member States’ desire to become part of the EU. The Union thus potentially emerges as an additional level of constitutional protection of the key values which are shared, the Treaties teach us, by the EU and its Member States. That said, a legitimate question concerning the role of the EU as such in the context of the functioning of the principle good neighbourly relations emerges most acutely. Is the EU subject to the principle? If yes, what is to be expected of the Union in the context of good neighbourly relations?
2. EU’s specificity and the struggle for values The EU now is unquestionably a mature constitutional system.29 Making futile attempts to accommodate it within the realm of international law sensu stricto is unwise. This would necessarily affect the application of the principles of international law in the context of the EU, which is obviously not a state. Furthermore, it would also profoundly affect the very essence of the states which are part of the EU: the option to choose a destiny which deviates from the EU’s foundational values set out in Article 2 TEU is closed to them.30 The special interrelationship between the EU and its Member States on the one hand and, simultaneously, between the Member States of the EU on the other, is such that EU values play a central role in the functioning of the legal organism of the Union. This is certainly the case, even notwithstanding the fact that such values do not
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Wojciech Sadurski, Constitutionalism and the Enlargement of Europe (OUP, Oxford 2012). For a leading textbook, see e.g. Robert Schütze, European Constitutional Law (CUP, Cambridge 2012). 30 Indeed, a provision allowing withdrawal from the Union is designed precisely for such states. For analyses, see Phedon Nicolaides, ‘Withdrawal from the European Union: A Typology of Effects’ (2013) 20 MJ 209–219; Adam Łazowski, ‘Withdrawal from the European Union and Alternatives to Membership’ (2012) 37(5) EL Rev 523–540. 29
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find their automatic elaboration and expression in the acquis,31 which remains a tool with a clearly decipherable market bias,32 suffering from many a lacuna when approached from the standpoint of the very values the Treaties profess.33 Although the acquis on values and the values’ enforcement does not spread far beyond Article 7 TEU,34 the matured Union generates legitimate expectations that its values will be defended and enforced.35 The outcome of such enforcement should necessarily be the restoration of a situation where each of the Member States of the Union fully adheres to the specific type of constitutionalism, based on democracy, the rule of law, human rights protection and other key principles, such as proportionality and loyal cooperation, and also demonstrates full adherence to the acquis. Having even one Member State among the twenty-eight which does not meet these criteria can be argued to necessarily result in a breach, inter alia, of the principle of good neighbourly relations due to the Union’s very organisation. This is an additional perspective on non-compliance with the values which come in addition to the classical understanding of the duty of loyalty. Indeed, from an EU law-centred perspective, an equally strong argument can be made that any deviant Member State will also be in violation of the duty of loyalty – even though its exact scope is debatable.36 The need to defend Article 2 TEU values makes the Union’s involvement indispensable.
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Kochenov (n 17). Niamh N Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47(6) CML Rev 1597–1628; Jukka Snell, ‘The Internal Market and the Philosophies of Market Integration’ in Catherine Barnard and Steve Peers (eds), European Union Law (OUP, Oxford 2014) 300–324. 33 Williams (n 9); Andrew Williams, The Ethos of Europe: Values, Law and Justice in the EU (CUP, Cambridge 2010); Dimitry Kochenov and Andrew Williams, ‘Justice Deficit Introduced’ in Kochenov, de Búrca and Williams (n 21). 34 Wojciech Sadurski, ‘Adding Bite to a Bark: The Story of Article 7, EU Enlargement, and Jörg Haider’ (2010) 16 CJEL 385–426. 35 Jan-Werner Müller, ‘The EU as a Militant Democracy, or: Are There Limits to Constitutional Mutations within the Member States’ (2014) Revista de Estudios Políticos 141–162. 36 The Legal Service of the Council concluded the following: ‘[T]he new EU framework for the Rule of Law as set out in the Commission’s communication is not compatible with the principle of conferral which governs the competences of the institutions of the Union’: Council of the European Union, Opinion of the Legal Service 10296/14, of 14 May 2014, para 28. 32
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In other words, the principle of good neighbourly relations here necessarily overlaps with the duty of loyalty, even though it is seemingly easy to draw a conceptual distinction between the two: while good neighbourly relations by definition concerns relations between states, the EU duty of loyalty necessarily adds an acquis element to it, including the respect for the goals of integration.37 While a breach of the duty of loyalty causing negative externalities for other Member States will obviously also be a breach of the principle of good neighbourly relations, the reverse would not be true: the scope of the duty of loyalty should be construed more narrowly than the principle of good neighbourly relations in the context of breaches. One should thus not be mislead by the (potentially, at least) similar operation of the two, when their scopes overlap. Both the considerations of good neighbourliness and loyalty, when applied to the EU, are bound to rest on the understanding of the climate of interdependency that the Union has created for its Member States. Joining Carlos Closa, I have identified at least three key normative arguments for the Union’s involvement.38 These concern, firstly, the effects of Article 2 TEU violations by a single Member States on the whole of the Union both at the citizen and the Member State level; secondly, these concern the supranational understanding of the Union as a federal legal-political organism, requiring it to intervene in defence of the rights and freedoms, which it directly endows to its citizens;39 and, thirdly, the argument building on the EU’s congruence with its own proclaimed values and policies, especially acute once the external realm of the EU’s activities is taken into account: we cannot expect, say, Azerbaijan to take the EU’s attempts to promote the rule
37
Pierre Pescatore, Le droit de l’intégration. Emergence d’un phénomène nouveau dans les relations internationales selon l’expérience des Communautés Européennes (A.W. Sijthoff, Leiden/Institut Universitaire de Hautes Etudes Internationales, Genève 1972) 29. See also Panayotis Soldatos and Georges Vandersanden, ‘L’admission dans la CEE – Essai d’interprétation juridique’ (1968) 6 Cahiers de droit européen 674–707, 689. 38 Carlos Closa and Dimitry Kochenov, ‘Reinforcement of the Rule of Law Oversight in the European Union: Key Options’ in Werner Schröder (ed), Rule of Law in Europe (Hart Publishing, Oxford 2015) (forthcoming). 39 For a detailed assessment, see Dimitry Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (CUP, Cambridge 2015) (forthcoming).
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of law and other values40 seriously if the EU’s own internal affairs demonstrate lacunae precisely in these fields.41 While the first argument of the three clearly implies the possibility of approaching the EU’s problems with its values’ from the perspective of the principle of good neighbourly relations, the second of the three adds to this perspective, turning the Union as such into an active agent of good neighbourly relations in a legalpolitical context which is no longer two-dimensional, as the vertical division of competences between the EU and the Member States plays a crucial role here. The normative argument on the universal effects of the departure of individual Member States from the values of the Union as a whole starts with the all-pervading principle, related to the deep inter-penetration and the mutual interdependency between the Member States of the Union at the current stage of European integration.42 This works at two levels. Firstly, every European citizen has an interest in not being confronted with an illiberal Member State in the EU, since that state will take decisions in the European Council and the Council of Ministers and at least indirectly participate in governing the lives of all the citizens of Europe. If one or more Member States change their standards regarding the Rule of Law or democracy, this necessarily and automatically affects decisions in and by other Member States as well. Secondly, every EU Member State is equally interested in ensuring that none of the others get a free ride, undermining the genuine nature of the Union and the internal market. Legally speaking, the interdependency between the Member States now works in such a way that the EU obliges the Member States to presume that each of them is at least as good as any other in terms of standards of governance, democracy and the Rule of Law. Mutual trust, which is 40
The commonality of values is the key assumption behind the whole edifice of the ENP: Päivi Leino and Roman Petrov, ‘Between “Common Values” and Competing Universals’ (2009) 15 ELJ 654–671. See also Roman Petrov, ‘The Principle of Good Neighbourliness and the European Neighbourhood Policy’ in this volume. 41 External promotion of values, especially democracy, the rule of law and human rights is one of the main lines of EU’s foreign policy: Marise Cremona, ‘Values in EU Foreign Policy’ in Malcolm Evans and Panos Koutrakos (eds), Beyond the Established Legal Orders: Policy Interconnections Between the EU and the Rest of the World (Hart Publishing, Oxford 2011) 275–316; Ester Herlin-Karnell, ‘EU Values and the Shaping of the International Context’ in Dimitry Kochenov and Fabian Amtenbrink (eds), European Union’s Shaping of the International Legal Order (CUP, Cambridge 2013) 89–107. 42 Jan-Werner Müller, ‘The Copenhagen Commission’ in Closa and Kochenov (n 18).
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essential to the working of the EU and the market itself, depends precisely on holding true to this presumption.43 Failures to accept other Member State court decisions, European arrest warrants, newly-issued nationalities or the quality of phytosanitary measures – you name it – are generally prohibited by EU law: the Member States decide for each other every day. Thus, disrespect for the Rule of Law and democracy in one particular Member State can have negative externalities on third (EU, but also non-EU) parties. This principle assumes that the EU is already a coherent legal-political entity based on mutual trust and respect, and works at both the level of citizens and at the level of the Member States: this is unquestionably a fair description of reality, occasional issues with concrete implementation notwithstanding. The federal analogy builds on the inter-dependency argument but moves it one step further: the EU is recognised – in keeping with the functioning of its law in some domains – as a supranational federation. Such recognition provides an additional normative argument for its involvement in cases where the Member States disregard the Rule of Law, as the Union is per se also conceived of as a bearer of an important stake in the functioning of the system and the effectiveness of the rights it grants. As an important bearer of duties vis-à-vis the citizens and, also, the Member States, the EU as such is viewed as a responsible actor. This vision cannot emerge merely out of a crude story of interdependence between EU citizens or between the EU Member States. Once the EU’s supranational nature is fully taken into account, it acquires a role in protecting its citizens, which is independent of the Member States. Playing such a role pertains to the key recent jurisprudence of the Court of Justice of the European Union (ECJ).44 The debate on how far the federal analogies – particularly those related to the renewed importance of EU
43
Miguel Poiares Maduro, ‘So Close Yet So Far: The Paradoxes of Mutual Recognition’ (2007) 14 JEPP 814–825. See also: Susanne K Schmidt and Kalypso Nicolaïdis, ‘Mutual Recognition “On Trial”: The Long Road to Services Liberalization’ (2007) 14(5) JEPP 51–68. See, in general, Christine Janssens, The Principle of Mutual Recognition in EU Law (OUP, Oxford 2013). 44 E.g. Case C–135/08 Janko Rottmann v Freistaat Bayern [2010] ECR I–1449; Case C–34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) [2011] ECR I–1177. For an analysis, see Dimitry Kochenov, ‘A Real European Citizenship: A New Jurisdiction Test: A Novel Chapter in the Development of the Union in Europe’ (2011) 18 CJEL 56–109.
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citizenship – can be stretched is ongoing.45 The independent ability of the Union, observable in the EU every day, to affect the legal-political situation in the Member States in the most direct way, necessarily permits strong claims that the EU emerges as a ‘neighbour’ in its own right, when approached in light of the good neighbourliness principle. This is not only a matter of horizontal relations with non-EU states, but also, again, a matter of vertical relationships with its own constituent parts. The added value of bringing good neighbourly relations into the picture becomes clear in the context of the necessary limitations of EU’s own duty of loyalty principle. Good neighbourly relations, potentially enjoying broader scope – its much more basic and intuitive nature notwithstanding – could be deployed alongside the duty of loyalty. The third normative argument refers to the principle of congruence and has an internal and an external dimension. Externally, the argument based on this principle points to the kind of requirements that the Union usually sets for engaging in cooperation with third parties.46 The protection of fundamental rights, the Rule of Law and democracy together or individually are good cases in point. Indeed, the EU even attempts to shape international law to its liking, using its own fundamental values and principles as a basis for this.47 Should the EU establish oversight mechanisms, then it would clearly also reinforce its credibility in the wider world. This is crucial, in particular given that the EU sets high standards for the candidate countries in the course of the pre-accession process,48 which contrasts sharply with what is required of Member States which are already ‘in’. Internally, the congruence principle means that respect for democracy and the Rule of Law should not only be viewed as a prerequisite for accession but also for
45
See e.g. Eleanor Spaventa ‘Earned Citizenship: Understanding Union Citizenship through Its Scope’ in Dimitry Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (CUP, Cambridge 2015) (forthcoming) and Niamh Nic Shuibhne ‘EU Citizenship as Federal Citizenship: What Are the Implications for the Citizen?’ in Dimitry Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (CUP, Cambridge 2015) (forthcoming). 46 Cremona (n 41); Leino and Petrov (n 40). 47 Herlin-Karnell (n 41). 48 Marc Maresceau, ‘The EU Pre-Accession Strategies: A Political and Legal Analysis’ in Marc Maresceau and Erwan Lanon (eds), The EU’s Enlargement and Mediterranean Strategies: A Comparative Analysis (Palgrave, Basingstoke 2001) 3–28, 18.
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continued membership. In short, when taken seriously, the congruence argument enhances the EU’s credibility in safeguarding and defending its fundamental values. The three arguments combined provide a sound normative foundation for the intensification of the EU’s involvement with the outstanding issues on the disregard of the fundamental values by the Member States, enriching the possible understanding of good neighbourly relations in the internal context of the EU, as the principle acquires potentially new vistas of development and meaning. The struggle for the continued observance of Article 2 TEU values in the EU is on-going – arguably, it is now much more acute than ever before.49 Following the growing number of serious discussions on what to do with Hungary, given current developments there,50 and in light of the special features of the mounting problems, it seems high time to return to the very basic question on the reasons behind having a Union in Europe. The question of Europe’s raison d’être is as acute now, more than half a century into the project, as ever and is under active debate for good reason.51 Answering this question is crucial – not only because the answer provides better legitimisation52 – if
49
See e.g. Jan-Werner Müller, ‘Safeguarding Democracy inside the EU. Brussels and the Future of the Liberal Order’ (2013) Transatlantic Academy Paper Series (and the literature cited therein) available at: last accessed 14 December 2014; Closa and Kochenov (n 18). 50 e.g. Miklós Bánkuti, Gábor Halmai and Kim Lane Scheppele, ‘Hungary’s Illiberal Turn: Disabling the Constitution’ (2012) 23 The Journal of Democracy 138–146; Kim Lane Scheppele, ‘The Unconstitutional Consitution’, The New York Times (2 January 2012) available at: last accessed 14 December 2014. For a discussion see Verfassungsblog’s special feature Hungary: Taking Action, 2013. Available online at: last accessed 14 December 2014; Bojan Bugarič, ‘Protecting the Rule of Law in the European Union: The Hungarian Challenge’ LEQS Papers 79/2014, available at last accessed 14 December 2014. 51 Williams (n 33); Jürgen Neyer, The Justification of Europe: A Political Theory of Supranational Integration (OUP Oxford 2012); Gráinne de Búrca, ‘Europe’s raison d’être’ in Kochenov and Amtenbrink (n 1); Kochenov, de Búrca, and Williams (n 21). 52 Anthony Arnull and Daniel Wincott (eds), Accountability and legitimacy in the European Union (OUP, Oxford University Press 2002).
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not justification53 – of the integration project already in existence, but also, since it is likely to shed light on how to resolve some of the outstanding problems which the Member States and the Union are facing. In particular, this concerns the Union’s role in dealing with values/Rule of Law crises in the Member States – issues which are as indispensable for the Union’s survival as they are potentially outside the clear-cut scope of Union law. Indeed, the overwhelmingly fragility of the supranational authority – notoriously famous for its democratic deficit and criticized for the missing underlying idea of the good to go beyond the Internal Market54 – must be taken into account. Setting aside the clear weakness of EU’s powers, how can a Union which could legitimately be presented as antithetical to justice55 and democracy,56 reshape the essential constitutional fundamentals of the Herren der Verträge unfaithful to the values of Article 2 TEU?57 Will it be necessary to reinvent the integration construct first before this is can be made possible? Clearly, such a reinvention, presumably requiring explicit assent from all the Member States, is nothing short of impossible precisely because some of the Member States are at the heart of the problem. At the same time, will the Union be able to function – or at least pretend to function – successfully, if nothing is done, given the disruptive potential of the three essential features of the on-going crisis as outlined above? There are currently more questions than there are answers. 53
Neyer (n 51); Glyn Morgan, ‘European Political Integration’ (2007) 14(3) Constellations 332–346; Beate Sissenich, ‘Justification and Identity in European Integration’ (2007) 14(3) Constellations 347–354 (for posing this issue and some important attempts). 54 Joseph HH Weiler, ‘Bread and Circus: The State of the European Union’ (1998) 4 CJEL 223–248; Williams (n 9); Dimitry Kochenov, ‘The Citizenship Paradigm’ (2013) 15 Cambridge YB of European Legal Studies 196–225. 55 Kochenov, de Búrca and Williams (n 21); Williams (n 33). 56 See e.g. Joseph HH Weiler, ‘Deciphering the Political and Legal DNA of European Integration: An Exploratory Essay’ in Julie Dickson and Pavlos Eleftheriadis (eds), Philosophical Foundations of European Union Law (OUP Oxford 2013); See also Kalypso Nicolaïdis, ‘European Democracy and Its Crisis’ (2013) 51(2) JCMS 351–369; For earlier contributions on this subject see Kevin Featherstone, ‘Jean Monnet and the “Democratic Deficit” in the European Union’ (1994) 32 JCMS 149–170; cf Giandomenico Majone, ‘Europe’s Democratic Deficit: The Question of Standards’ (1998) 4 ELJ 5–28. 57 Joseph HH Weiler’s metaphor of living in a glass-house reflects this state of affairs very well: Closa, Kochenov and Weiler, ‘Reinforcing Rule of Law Oversight in the European Union’, EUI Working Papers RSCAS 2014/25.
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Given the current level of interdependence between the Member States in the Union, each and every other Member State is significantly harmed by such Hungaries. This therefore necessarily points in the direction of the Union’s raison d’être: is the Union about solving the constitutional conundrums of its Member States? The responsibilities which the Union now discharges, coupled with the full reliance of the Member States on the Union and also on each other in the context of the profound interdependence described above, make the deployment of the duty of loyalty, possibly backed by good neighbourliness considerations, indispensable.
3. EU Enlargement and the Internal Aspects of Good Neighbourliness For many decades, the Union has been consistently working against the raison d’être question, denying the very possibility that this question would ever arise, presenting itself as solely functioning within the paradigm of the Internal Market, which denies the very possibility of any serious treatment of the majority of the principles included in Article 2 TEU, since it builds on a justice void, thus denying the acuteness of the problems currently plaguing the Union, instead of trying to solve them. It is only in the context of the preparation for its Eastern enlargement that a fascinating situation arose, when the EU de facto ended up seemingly enforcing its foundational values through the pre-accession conditionality policy – with highly questionable results. The failure of conditionality in the fields of democracy and the Rule of Law, which is analysed elsewhere,58 is now overwhelmingly made manifest by the developments in Hungary. None of the ‘older’ Member States has come under the same level of heightened scrutiny concerning compliance with democracy, the Rule of Law and the other values of the Union. The message that the EU was projecting on the candidate countries from Central and Eastern Europe was that it would help them improve tout court. The promotion of the basic democratic principles and the Rule of Law – the values of Article 2 TEU – was presented as part of the enlargement package. It is crucial in this 58
Kochenov (n 23).
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context that the pre-accession activity of the EU was not limited per se, by the principle of conferral,59 as any internal activity of the EU would have been. This was because the task of the pre-accession exercise consisted not so much in the export of the acquis (which definitely played an important part), but also in guaranteeing that the new Member States would also embrace the specific type of constitutionalism which the EU promotes and embraces along with its Member States. As a political process partly outside the realm of the acquis, enlargement thus marked the first attempt by the EU to intervene with the constitutional core of states to ensure that the Union as a whole does not suffer negative externalities emerging from interdependence when a state fails to subscribe to the values of Article 2 TEU. Crucially, not a single Western European Member State joined the Union on such a premise: the EU was founded as a celebration of the value-rich nature of all the Member States as functioning democracies based on the Rule of Law. The enlarging EU, however, came to be expected to become a careful helper in areas outside of its reach. The acceding states looked at the EU as a possible guarantor of future democratic stability, to ensure that a Hungary never happens. It did. It appears that the radical difference in approaches towards the different groups of Member States adopted by the EU is actually mirrored by the Member States’ own aspirations in the EU context and has important implications for the whole EU integration project. Wojciech Sadurski has brilliantly described this cleavage, also covering the Council of Europe in a recent monograph:60 states join the Union precisely expecting to be monitored and relying on the guarantees, expressed in the context of the pre-accession process, that the Union will provide a helping hand in case of eventual departures from Article 2 TEU. The developments in Hungary thus provide an illustration of how the EU fell short of the growing expectations of the new Member States, by failing to guarantee that they stay true to the course of freedom and Article 2 TEU values. The essential lesson in terms of good neighbourliness and the duty of loyalty to be learnt from the latest rounds of the EU’s eastern enlargement is that the principle of good 59 60
ibid, Chapter 2. Sadurski (n 28).
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neighbourly relations unquestionably emerged as a bi-faceted legal reality. Firstly, as described in detail in Peter Van Elsuwege’s chapter in this volume, the principle of good neighbourly relations crystallised as an important component of the pre-accession preparation process of the new Member States-to-be through attempting to ensure that they did not import any conflicts into the EU. Let us call this the external facet of the operation of the principle. The internal facet, then, is reflected in the very set-up of the pre-accession strategy,61 which was based on the principle of conditionality and did not focus uniquely on the export of the acquis, intending to cover the values of the Union and thereby to transform the constitutional essence of the new-coming Member States of the Union. Although this tandem has failed to produce the desired results – which is not surprising given its poor design and implementation62 – the pre-accession context, followed by the introduction of Article 7 TEU into the Treaties and its gradual finetuning, was the first attempt by the EU to turn the values on which the Union is based and which are indispensable for its successful functioning, into binding legal provisions.
4. EU Citizenship and the Internal Aspects of Good Neighbourliness The EU enlargement regulation provides an example of how considerations of good neighbourly relations, informing both EU’s external action in the context of enlargement regulation and its internal approaches in preparing the new Member States to accession also in the areas outside the scope of the acquis and the EU powers sensu stricto, played a role in pushing the Union to rethink what is expected of it by the Member States, anticipating the ongoing heated debates on what to do with authoritarian Member States.63 The area of EU citizenship and Member State nationality law enables viewing
61
Maresceau (n 48) 3–28; Laurent Beurdeley, L’élargissement de l’Union européenne aux pays d’Europe Centrale et orientale et aux îles du bassin méditerranéen (L’Harmattan, Paris/Montréal 2003) 43; Kirstyn Inglis, ‘The Europe Agreements Compared in the Light of Their Pre-accession Reorientation’ (2000) 37 CML Rev 1173–1210, 1178 et seq. 62 Eline De Ridder and Dimitry Kochenov, ‘Democratic Conditionality in Eastern Enlargement: Ambitious Window-Dressing’ (2011) 16 EFAR 589–605. 63 Closa and Kochenov (n 18).
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good neighbourly relations from a different angle: the gradual development of the Union shaped such a reality, where legitimate sovereign regulation by the Member States in their own sovereign sphere of competences can potentially violate the principle of good neighbourly relations without, however, necessarily violating the duty of loyalty, if construed strictly. In fact, a wider approach to the requirements of the duty of loyalty is probably needed in this area.64 Be that as it may, aggressive nationalisation policies (such as the one pursued by Hungary in the last few years)65 can be problematic in the face of intolerant neighbours unwilling to subscribe to a liberal understanding of EU citizenship and the internal market (such as Slovakia withdrawing citizenship from natural-born Slovaks naturalising elsewhere in response to the Hungarian tolerance policy). None of the Member States in question is at fault from the perspective of the duty of loyalty interpreted restrictively: nationality is within the realm of Member States’ own competence,66 unless they act disproportionately in depriving their nationals of EU citizenship67 or fail to recognize the legally sound nationality of a different Member State.68 Indeed, none of the Slovaks-turned-Hungarian, even if deprived of their Slovak nationality is in danger of losing EU citizenship. Hungary is also certainly right to assume that the toleration of multiple nationalities is the general rule in the Union,69 and
64
See for an analysis, Dimitry Kochenov, ‘Double Nationality in the EU: An Argument for Tolerance’ (2011) 17 ELJ 323–343. The Greek government expressly referred to the duty of loyalty in this area in its submissions in the Rottmann case. For an analysis, see Dimitry Kochenov, ‘Case C–135/08, Janko Rottmann v Freistaat Bayern, judgment of 2 March 2010 (Grand Chamber)’ (2010) 47 CML Rev 1831– 1846. 65 As described in detail in the chapter by Arraiza (n 4). 66 For a detailed analysis, see Dimitry Kochenov, ‘Ius Tractum of Many Faces: European Citizenship and a Difficult Relationship between Status and Rights’ (2009) 15(2) CJEL 169–237; Stephen Hall, ‘Determining the Scope Ratione Personae of European Citizenship: Customary International Law Prevails for Now’ (2001) 28 Legal Issues of Economic Integration 355–360; Andrew Evans, ‘Nationality Law and European Integration’ (1991) 16 EL Rev 190–215. 67 Case C–135/08 Janko Rottman v Freistaat Bayern [2010] ECR I–149. 68 Micheletti (n 19). 69 Kochenov (2011) (n 64).
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globally,70 emerging, in the words of Peter Spiro’s insightful analysis, as a ‘human right’.71 From the point of view of good neighbourliness, the picture changes somewhat, however. Looking at the principle horizontally, without including the EU for the moment, Slovakia is clearly in breach in changing its tolerance policy in direct response to the introduction of the Hungarian policy of passportisation of Hungarian minorities abroad following a strictly ethnic approach to citizenship – as is analysed in detail in other contributions to this volume.72 What saved Slovakia from condemnation under EU law was the fact that the EU citizenship of the majority of those affected is not brought into question by the policy. However, at the horizontal level, the obvious causal link between Hungary’s policy and Slovakia’s change in the law point to the fact that, Slovak nationality is in fact withdrawn as a reaction to the lawful acquisition of a nationality of another Member State: moreover, the policy was created specifically to make this possible. This definitely undermines the idea of a single working and living space73 which EU citizens enjoy in the Union territory.74 The thinking behind the change in law in Slovakia was thus repugnant in essence and can easily be distinguished from the policy of other Member States which are intolerant, fully or in part, to accepting multiple nationalities: their intolerance is not necessarily linked to the desire to degrade one particular nationality, humiliating specific neighbouring states, as is the case in Slovakia.75 Hungary also, however, does not emerge in a favourable light. Even if one leaves aside the questionable thinking behind the distribution of Hungarian passports in
70
For an overview, see Peter Spiro, ‘Dual Citizenship as a Human Right’ (2010) 8 Int’l J. Const. L. 111– 130 (and the literature cited therein). 71 ibid. 72 See Blokker and also Arraiza (n 4). 73 Oxana Golynker, ‘European Union as a Single Working-Living Space: EU Law and New Forms of IntraCommunity Migration’ in Andrew Halpin and Roeben Volker (eds), Theorising the Global Legal Order (Hart, Oxford 2009) 145–166. 74 Pullano (n 7). 75 The law is overwhelmingly illogical, as the first statistical data demonstrates with clarity that instead of dual Slovak-Hungarian nationals, it mostly targets Slovaks with Czech or US nationalities.
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its neighbouring countries,76 it emerges that no sensitivity at all was demonstrated by Hungary vis-à-vis the Slovak position, even if the latter, although probably legal – if one is a particularly black-letter type – is questionable at its core. The principle of good neighbourly relations implies an ability and willingness to negotiate in good faith and certainly includes the idea of avoiding, rather than creating disputes – something that the two countries definitely failed to do. Moreover, the current temper of Hungarian-Slovak relations is definitely grotesque and rich in provocation,77 which destroys the spirit of constructive cooperation one would expect of two EU Member States. Therefore, while EU law has probably not been broken sensu stricto, strong considerations point in the direction of the breach of the horizontal aspects of the principle of good neighbourly relations. Furthermore, the duty of loyalty aside, one can also argue that the vertical aspects of the same principle of good neighbourly relations (the ones which bring in the Union), were equally broken, as both countries failed to consider the new reality of the federal context shaped by the EU. This is so, since the very value of a particular Member State nationality – as opposed to EU citizenship as such – has been gradually diminishing in the EU in recent decades as a consequence of the maturation of both EU citizenship and the Internal Market.78 Indeed, the successful development of the Internal Market was bound to diminish the legal effects of particular Member State nationalities due to four key factors, all striking at the core of the essence of nationality. EU law prohibits the Member States from favouring their own nationals in a growing range of situations;79 it seriously limits any discretion enjoyed by the Member States not to let in foreigners who
76
For analyses see Araiza (n 4); Kim Late Scheppele, ‘Hungary: The End of Politics’, The Nation (26 May 2014), available at last accessed 14 December 2014. 77 Case C–364/10 Hungary v Slovak Republic, judgment of 16 October 2012, not yet reported. 78 Dimitry Kochenov, ‘Rounding up the Circle: The Mutation of Member States’ Nationalities under Pressure from EU Citizenship’, EUI Working Papers RSCAS No 2010/23. 79 Gareth Davies, Nationality Discrimination in the European Internal Market (Kluwer Law Int’l, The Hague 2003).
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are EU citizens or to deport them;80 it severely restricts the Member States’ ability to impose specific duties of nationality by providing for a simple escape route for evading such duties through free movement;81 and it makes it impossible for the Member States to claim that they can safeguard equality among their citizens, since the situation of some of them is covered by EU law, while others are not.82 Member States are thus severely limited in what they can and cannot do: their nationality now comes with virtually no ‘bonus’83 and is just as good as any other EU nationality: the duties of nationality they impose can be legally disobeyed, and they have virtually no say in who will reside, work or study in their territory, let alone be treated equally to someone else. This is an important part of what Gareth Davies characterised as the ‘humiliation of the State’,84 when describing the constitutional essence of the Union. Importantly, such ‘humiliation’ is not a specific consequence of the introduction of EU citizenship or any other particular development of the acquis: it flows directly from the very essence of the Union rooted in the Internal Market, where internal borders are abolished and discrimination on the basis of nationality is outlawed. Humiliating the state is not necessarily a bad thing, as it can simultaneously empower individuals in their quest for better lives.85 So on the positive side of the same coin – European citizens residing in a Member State other than their Member State of
80
For a more sober account, see Dora Kostakopoulou, ‘When EU Citizens Become Foreigners’ (2014) 20(4) ELJ 447–463. 81 Dimitry Kochenov, ‘EU Citizenship Without Duties’ (2014) ELJ 482–498. 82 Dimitry Kochenov, ‘Citizenship without Respect: The EU’s Troubled Equality Ideal’, Jean Monnet Working Paper (NYU Law School) 08/10. 83 Non-deportability could potentially be presented as such bonus, which would nevertheless be a halfhearted boon in a context when the European Arrest Warrant (EAW) functions properly. On nondeportability outside of the legal context of the EAW, see Dimitry Kochenov and Benedikt Pirker, ‘Deporting the Citizens within the European Union: A Counterintuitive Trend’ (2013) 19(2) CJEL 341– 362. 84 Gareth Davies, ‘The Humiliation of the State as a Constitutional Tactic’ in Fabian Amtenbrink and Peter AJ van den Berg (eds), The Constitutional Integrity of the European Union (T.M.C. Asser Press, The Hague 2010) 147–174. 85 But see Joseph HH Weiler, ‘Europa: “Nous coalisons des Etats nous n’unissons pas des hommes”’ in Marta Cartabia and Andrea Simoncini (eds), La Sostenibilità della democrazia nel XXI secolo (Il Mulino, Bologna 2009).
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nationality are not simply ‘foreigners’.86 The ECJ acting with other institutions of the Union shaped a legal reality where the citizenship of the EU acquired clear and identifiable scope and a direct ability to shape the rights of those in possession of this status, enlarging their horizon of opportunity. To pretend that EU citizens are not, potentially at least, quasi-nationals of any of the Member States where they choose to reside, would thus amount to closing one’s eyes to the current level of development of EU law. Consequently, although acquisition and the loss of nationality are not among the issues which the Union is empowered to regulate,87 the very functioning of the Internal Market, amplified by the idea of EU citizenship, makes the retention of the pre-existing modes of regulation of such de jure extra-acquis issues by the Member States unsustainable: the EU reality must be taken into account for any regulation of these issues to make sense. In a situation where the nationalities of the Member States are legally unable to trigger differentiation between their owners in the majority of cases, the requirement to renounce one Member State’s nationality upon acquiring another seems to suggest an exchange between identical statuses. At the same time, it is a strong discouraging factor,
86
EU law thus questions the foreigner-citizen dichotomy: the lines between ‘us’ and ‘them’ are necessarily blurred in the borderless Internal Market. This blurring of the lines of belonging is not unique to the EU, however, and is a general trend, observable in a number of jurisdictions around the world: Tanja Brøndsted Sejersen, ‘“I Vow to Thee My Countries” – The Expansion of Dual Citizenship in the 21st Century’ (2008) 42(3) Int’l Migration Rev 523–549, 524. The signs of this erosion are not only seen in the equality of legally resident foreigners with citizens in the majority of spheres, ranging from non-discrimination to social security. Recent decisions of international tribunals also demonstrated that the international human rights protection regime can stand in the way of the use by states of the previously unconditional right to deport an alien. See e.g. Beldjoudi v France (App no 12083/86) ECHR 26 March 1992; Stewart v Canada, U.N. Doc. CCPR/C/58D/538/1993 (1996) 4 IHRR 418, IHRL 1745 (UNHRC 1996). See also Kochenov (n 66) 175–181; Linda Bosniak, ‘Citizenship Denationalized’ (2000) 7 Ind. J. Global Legal Stud. 447–510. 87 e.g. Opinion of AG Poiares Maduro in Rottmann (n 44) para 17: ‘la détermination des conditions d’acquisition et de perte de la nationalité, – et donc de la citoyenneté de l’Union –, relève de la compétence exclusive des États membres’ (also see the references cited therein). This, notwithstanding the famous obiter dictum in Micheletti that decisions on nationality should be taken by the Member States with ‘due regard of Community law’: Micheletti (n 19) para 10.
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preventing the naturalisation of long-term residents.88 This is particularly true given the lack of any reason for the requirement: in a situation where the bond between the sociocultural understanding of a nation and nationality as a legal status ceases to exist, and where EU citizenship gains in importance as the main source of rights for all the nationals of the Member States, to ask for renunciation of the previous nationality is meaningless. Those considering naturalisation need to balance the idea of compliance with a meaningless requirement against the prospect of being granted the two rights which are reserved to nationals. While the requirement to give up one’s previous nationality is discouraging, it is often also the only factor playing against naturalisation in one’s Member State of residence, since language proficiency is usually not a problem upon completion the several years of residence required for naturalisation. In the light of the considerations restated above, it is impossible to disagree with Evans’s observation that the ‘relaxation of restrictions on possession of dual nationality seems to be demanded by the spirit, if not the letter of Community law’.89 Ideally, this should not only concern EU citizens, but also third country nationals, who are equally affected by this nonsensical requirement. In other words, although not in breach of the duty of loyalty, the requirement of renunciation of a previous EU nationality upon naturalisation in the EU can be legitimately presented as a highly-problematic attempt to ignore all of what the Union stands for, degrading the trust among the Member States and closing one’s eyes to the successes of the EU integration project. This would clearly amount to the violation of the principle of good neighbourly relations, should this principle be interpreted, as this chapter suggests it should, in a context-sensitive way – i.e. by requiring the Member States of the Union to ensure that the reality of European integration is not ignored in their internal and external actions.
88
Ruth Rubio-Marín, ‘Transnational Politics and the Democratic Nation-State: Normative Challenges of Expatriate Voting and Nationality Retention of Emigrants’ (2006) 81 NYU L. Rev 117–147, 138. 89 Evans (n 66).
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5. Conclusion This chapter argues that the principle of good neighbourly relations, the existence of which it chooses to take for granted,90 is not context-free. In the EU it boasts vertical and horizontal dimensions, necessarily including the Union – and with it the whole of the integration project – among the actors to be considered when assessing the operation of the principle. In addition to the actorhood of the Union, which is not a state, the operation of the principle permits a somewhat broader view of the day-to-day operation of the duty of loyalty, as the principle of good neighbourly relations then functions to demand that the Member States ensure that no negative externalities are created by their lawful actions within their own sphere of competence for the other Member States and the Union as a whole. The very reality of European integration, implying that all the Member States fully embrace the values of the Union and a particular type of constitutionalism, is then what the principle protects. The examples of the toleration of dual nationality and the regulation of EU enlargement have been deployed to illustrate how this view of the principle of good neighbourly relations could function in practice, potentially enriching the protections that the new legal reality shaped by the Union – and the Member States faithful to it – enjoys under the suggested reading of the law. Notwithstanding the fact that the approach advocated here is nothing more than a hypothesis elaborated from our mainstream understanding of how EU law is supposed to function, it can hopefully contribute to the essential debate on how to assist EU constitutionalism in the face of Member States refusing to take its foundations to heart. High expectations notwithstanding, the EU is not yet a militant democracy,91 bound to disappoint those who see it as an all-purpose umbrella against bad weather in national politics. The close interrelation between the duty of loyalty – which is rooted in EU law – and the principle of good neighbourly relations – which is not necessarily acquis-bound, not even in the EU – pose serious questions on the role to be played by the EU as a sovereign actor in the context of the operation of the principle of good 90 91
See, for a meticulous analysis, Basheska (n 1). Müller (n 35).
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neighbourly relations. In particular, the EU’s involvement in assisting the Member States to become the particular type of state and to embrace the specific type of constitutionalism implied in Article 2 TEU – but not necessarily specified by the acquis as such – is of key importance here. Given that the acquis’ scope in a strictly legal sense cannot permit the EU’s unlimited intrusions into matters of Member State sovereignty within the scope of their own constitutional autonomy, we hypothesise that the principle of good neighbourly relations – understood in the broad EU-specific sense where the very nature of a Member State can have negative externalities on the rest of the Union – could also be employed alongside the duty of loyalty in dealing with problematic Member States. Failing to take the EU reality into account is unquestionably the easiest way to violate the principle of good neighbourly relations in Europe.
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