The Derivative Character of Union Citizenship
European citizenship is a status that has a very specific character: It is derivative. A person gains access to the status by already having access to another status: that of national of a member state for the purposes of EU law. The Article 20 TFEU (ex Article 17 TEC) provides the following: ‘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 be additional to and not replace national citizenship.’ This position was reiterated by the Declaration no 2 that was annexed to the Treaty of Maastricht on nationality of a member state, according to which ‘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.’ So member states retain the competence to define criteria for acquisition and loss of their own nationality. Nationality of a member state is therefore a necessary criterion for the acquisition of European citizenship. This derivative nature of EU citizenship confers upon it the quality of a complementary status, different from dual citizenship status common in federal states.
An often-repeated claim is that the choice of instituting European citizenship in this derivative way, via member state legislation, was the easy way out from the political perspective. It was not the only option on the table. In the 1970s, for example, there had been suggestions linking the status of European citizenship to the principle of ius soli, bestowing a birth-right status upon those born in the EU.12 In the Nineties this way appeared to be politically tortuous; thus the option of a derivative and complementary status. The cost of this option is that different legal norms appear to be coexisting in a non-subordinate manner. For some, EU law and domestic law would even constitute competing norms (e.g. Evans 1991).
To limit state discretion in this area would have required harmonisation of domestic legislation on acquisition and loss of nationality. The harmonisation of nationality laws is important if the point is to prevent possible conflicts between the different domestic laws, to limit the possibilities of states to indirectly influence common rules, or to limit states’ possibilities to exercise discretion when granting access to European citizenship for third county nationals (Nascimbene 1998). No such harmonisation occurred spontaneously. However, some efforts in this direction were made outside the framework of the European Communities. As a result of the work of the Council of Europe, an international treaty was signed in Strasbourg on the 6th of November 1997: The European Convention on Nationality (Schade 1995; Sabourin 1999).
It is worth noticing that the wording of the Article 20 TFEU has changed in the course of time: European citizenship is not merely ‘derivative’ (Treaty of Maastricht) but then also ‘complementary’ (Treaty of Amsterdam) and, after the Treaty of Lisbon, EU citizenship is said to be ‘additional’ (Geogiadou 2015, p. xix). Consider also that the abovemen- tioned declaration on nationality was removed from the annex ofthe TEU after entry into force of the Lisbon Treaty.
This change is, to a great extent, the reflection of the development of the case-law (e.g. Rottman), according to which EU member states are not unbounded in stripping their own nationals of nationality in ways that would violate Union law. To be precise, the question whether an individual possesses the nationality of a Member state is no longer settled solely by reference to national law. So whereas in determining loss of citizenship states need to take into account EU law, and in particular general principles of EU law (such as the principle of proportionality), it is safe to say that nationality laws of member states is the legal source par excellence that determines access to the status. So supranational scrutiny of state discretion in this area is increasing, but this does not imply that states do not have discretion in defining their citizenship policy. The same year the Treaty of Lisbon came into force, a court ruling by the authoritative German constitutional court confirmed this view. In its 2009 Lissabon Urteil, the Bundesverfassungsgericht ruled that citizenship laws are to be considered ‘core sovereignty’ (Mindus and Goldoni 2012).
The fact that member states control access to the status may seem straightforward, but it is also a source of intricacies: There are 28 access gates to the status. The choice of using mere lexical reference to Member State nationality laws in Article 20 leaves the Herren der Vertrdge (Masters of the Treatises), in principle, free to determine the access criteria. There are several consequences.
A first consequence is that even though it is often claimed that all nationals of member states are European citizens, it is more accurate to say that a Union citizen is a national of a member state for the purposes of European law. Member states aiming to deprive of rights certain minority groups among their citizens have been able to engage in the inelegant practice of bringing this kind of unilateral declarations on the meaning of nationality for the purposes of EU law.13 Indeed, the design-choice made in Article 20 (ex Article 17 TEC) left member states free to influence indirectly the personal scope of application of Community legislation through the application of their nationality laws. This explains why despite the fact that Article 20 provides that the citizen of a member state is also a Union citizen, there are citizens of member states that are not European citizens: e.g., the inhabitants of Faro Islands. The people of the Faro Islands are Danes but not EU citizens. The Danish government added a protocol specifying that ‘the Danish nationals’ of the islands were not ‘nationals for the purposes of Community law.’14 In sum, nationality of a member state is a necessary, albeit insufficient, criterion for acquisition of Union citizenship. To be sufficient, absence of unilateral declarations on the meaning of nationality for the purposes of EU law is required.
The design-choice also implies that - since we are in a setting in which no additional criteria may be added, following the break with the genuine link doctrine (see previous section) - member states are obliged to accept as second country nationals those who hold citizenship of any other member state, even though the first member state has no say in who gets to enjoy the status of national in that second state. Consider that as a result of the Spanish option right for the children of former Spanish nationals born in Spain (Art. 20 of the Spanish Civil Code), Fidel Castro could opt for European citizenship without moving from Havana (De Groot 2004, p. 7). No member state except Spain has a say on this matter.
Another puzzling case that has been discussed, and that might have some traction in a post-Brexit scenario, is this: What would happen if a member state would naturalise a significant part of the population of a state, which is not a member of the Union, without first consulting Brussels? For example, what happens if the Netherlands were to grant Dutch citizenship to the entire population of Surinam (De Groot 2004, p. 7)? It is not always clear what European law requires in relation to citizenship. What would have been the reaction of the Commission and the member states if Cyprus had not been accepted as a member and Greece would have granted citizenship to all Cypriots of Greek origin (Kotalakidis 2000, p. 299)?
Finally, mention ought also to be made of the fact that one of the parameters of representation in the Union is member states’ population size. Depending on how population is defined (residents, EU citizens, nationals...), population size changes. It is susceptible of fluctuating considerably. Consider the fact that Greece, Hungary, Ireland but also Italy and Spain have a considerable number of expatriated citizens, while in other countries there is a significant presence of third country nationals. The relative ‘weight’ of the member state within the Union depends, albeit in a mediate way, on how access to nationality in these different countries is regulated and on how nationality law and immigration policies are designed. There is leeway for gerrymandering here.
Leaving the choice of designing the access gate to domestic law-makers might have been the easy way out in 1992, but today it seems to raise a lot of questions. Unclearness, in various forms, hoovers above the construct and specifically around the implications surrounding the derivative character of European citizenship. Much clearer are, however, the entitlements associated with the status.