Understanding Citizenship: The Functionalist Approach
Abstract This chapter starts by explaining why a theoretically informed inquiry is needed. Such an inquiry is warranted for a number of reasons that include political volatility, lack of relevant precedents and the fact that conventional approaches do not lead to many policy suggestions for solving the hard cases at hand. It is suggested that Brexit may place us before a constitutional dilemma: Can Article 50 be taken seriously without giving up rights? The functionalist theory that this study adopts is outlined and explained. Three ways in which it applies to Brexit are distinguished. These three directions of inquiry are developed in the rest of the book.
Keywords European citizenship • Functionalist theory of citizenship • Brexit EU law
Four Arguments in Favour of Theory
A theoretically informed inquiry is needed, I submit, to understand European citizenship after Brexit. An explanation is needed on why we ought to abandon the more traditional or mainstream analysis of the issue that has hitherto prevailed both among scholars and in the media. There are a number of reasons for favouring a different approach. These include the political volatility surrounding the matter, the lack of relevant precedents and the fact that conventional approaches offer few or no policy suggestions for solving the hard cases at hand. But
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P. Mindus, European Citizenship after Brexit, Palgrave Studies in European Union Politics, DOI 10.1007/978-3-319-51774-2_4
there are also more deep-seated reasons why a different kind of approach to the matter is needed. Some are starting to sense that a choice has to be made: Are we serious about the exit or about safeguarding rights? In what follows, four arguments are made in favour of a theoretical take.
The first reason is dictated by circumstance: the political volatility surrounding the matter suggests avoiding predictive activities. It is imperative to determine if, and which, ‘acquired rights’ will be upheld - in itself a ‘dauting task,’ to use the phrasing adopted by the EU committee report, entitled The Process of Withdrawing from the European Union and drafted at the request of the House of Lords in 2015 (House of Lords 2015).
As things currently stand, outcomes of negotiations cannot be foreseen. Focus here will be on determining what resources, if any, are available to the legal scholar regardless of what may happen politically. I will therefore operate under the assumption agreement-less withdrawal.
Many have pointed out the unlikelihood of non-negotiated withdrawal. Yet, in this study I will discuss this possibility (or a withdrawal treaty making no mention of free movement rights, which for the present purposes would amount to the same thing). I have chosen to operate under this assumption because the question of remedies in the absence of an agreement is relevant since there is no guarantee that any agreement would have terms that are favourable to all affected groups and/or that any agreement would claim comprehensiveness.
In the next chapter of the book, I scrutinise the extra-negotiational resources able to ‘freeze’ what is often described as the ‘transnational individual rights of EU citizens’ so as to point out some limits to political engineering. Despite the unquestionable existence and importance of the political dimension, the primary focus is on the legal nature of the consequences of Brexit for the laws governing nationality, EU citizenship status and connected rights.
The second reason that suggests we avoid adopting mechanically the approaches we find in mainstream legal research is the unprecedented character of Brexit. The very framing of the unprecedented nature of the problem requires some reflection and it raises a number of very important issues, a point which was made clear in the wake of the High Court’s decision on 3 November 2016 concerning the issue of whether the government needs to obtain approval from Parliament to trigger Article 50 (see, e.g. Peers 2016). There is much novelty in what is happening: Invoking Article 50 is certainly uncharted territory (Craig 2016).
It is not, however, the first time in the history of European integration that the territorial scope of application of the Treatises changes. Previous modification of territorial validity include the following: In 1975 the EC Treaties ceased to cover the French Commodores and the island of Mayotte, which however is now EU overseas territory; the same happened in Dutch New Guinea (1962); Algeria (1962); Greenland (1985); Saint Barthemely (2003). European integration history also includes cases of member state territory declared to fall outside the scope of the Treatises: suffice to mention, for example, Faroe, Macao, Hong Kong, Surinam and the UK Sovereign Base Areas in Cyprus, as well as territories that joined after the member state joined: for example, Netherlands Antilles and the Canary Islands (Kochenov 2011). To be precise, more than half of what used to be member states’ territory have ‘left’ since the creation of the Communities (Ziller 2005). The reference is to the Belgian territories of Congo, Rwanda-Burundi, Italian protectorate of Somalia, the Netherlands, New Guinea, French equatorial Africa, French East-Africa, the protectorates of Togo and Cameroon, the Commodores Islands, Madagascar, the Cote Fran^aise des Somalis; and following the accession of the UK, also Bahamas, Brunei, the Caribbean Colonies and Associated States, Gilbert and Ellis islands, the Line Islands, the Anglo- French condominium of the New Hebrides, the Solomon Islands and the Seychelles.
Yet, there is no relevant precedent, when reviewing the territorial changes that have taken place in the ‘territory of the Union,’ which can be applied in strict analogy to Brexit. Not even the independence of Algeria, the ‘withdrawal’ of Greenland, nor the most recent modification of EU territory, that is, the case of Saint Barthelemy, can be fully compared with Brexit. Saint Barthemely had a previous status as department belonging to Guadaloupe, but after the 2003 referendum the island became a ‘communaute d’outre mer’ as defined in Art. 79 Constitution Frangaise.
Algeria would probably be the closest precedent, if any were to be indicated. Yet, the events were such that the analogy does not hold: Between 1962 and 1975, when Algeria concluded a treaty with the EEC, the Treaties were nonetheless ‘valid by implication’ (sic!), but Algerians lost the status of member state nationals for the purposes of Community law (Laffont 1979). In February 2004 the European Commission answered a parliamentary question that queried the precedential value of Algerian independence for a division of a member state and whether the region in question would have to leave the EU and renegotiate an accession treaty and the answer was that a part of member state territory upon gaining independence is from EU perspective a third country in which EU law is not valid. A fortiori, this is the case of a receding state.
Greenland is often mentioned in the media and by certain scholars, but it is even more misleading. Greenland never did exit. Following a vote in 1982, Greenland officially ‘withdrew’ from the European communities in 1985. There were difficult and protracted negotiations between the governments of Greenland and Denmark, and between Denmark and the Commission, particularly with regard to fisheries. Greenland became associated with the EU as an Overseas Country and Territory (OCT) through the Greenland Treaty.1 The Article 2 of the Protocol attached to the Greenland Treaty clarified that there would be a transitional period during which Greenlanders, non-national residents and businesses with acquired rights under EU law would retain these rights.2 The agreement applied to Greenland is hard to define as any kind of ‘exit.’ Greenland simply changed its status under the Treatises to an Overseas Country or Territory in the sense of Annex II.
Another reason why the analogy with Greenland fails is political: Because the Brexit debate regarded immigration, we should rule out that, were the UK to leave without any negotiated transitional measures, it would retain free movement tout court. When Greenland ‘left’ the EU, the Commission considered that vested rights meant Greenland should retain ‘the substance’ of free movement rights for workers from other EC countries employed in Greenland at the time of withdrawal:
Provision should be made for appropriate measures to protect companies and persons who have exercised the right of establishment as well as Community workers employed in Greenland. The extremely small number of persons affected and the case-law of the Court of Justice that has already been established in favour of the retention of pension rights acquired by workers during periods of employment in a territory which has subsequently ceased to belong to the Community give no reason to suppose that there will be any major difficulties in this area, even if the future status of Greenland were to rule out the principle of free movement. It would, however, be preferable to retain the substance of the Community rules, at least in respect of Community workers employed in Greenland at the time of withdrawal.3
The Commission did not say whether the rest of the EU should retain these rights for workers from Greenland.
None of the cases mentioned can be said to constitute precedents. This fact suggests that traditional comparative legal readings may therefore be inappropriate.
Let alone the political volatility and the unprecedented character of the case at hand, there is a third reason suggesting we adopt a better-reasoned approach. It pertains to the legal uncertainty affecting many on both sides of the emerging border. The complexities involved in finding remedial solutions calls for an assessment that avoids jumping to incautious conclusions. A complete overview of remedial options to enforce ‘vested rights’ in EU27 for UK nationals stripped of Treaty rights is a complicated affair. It is a matter of national law that would depend on the individual provisions of each member state’s domestic public and administrative law.
The conventional wisdom has it that Union citizenship follows national citizenship like a shadow follows the body that carries it along. From here springs the commonly made assumption that entitlements vanish when access criteria are no longer fulfilled. This is, in my view, due to the way citizenship is, often but not always, conceived in legal science. Most lawyers confuse the meaning of status civitatis with criteria for access and loss of the status.4 Indeed, ask ‘what is citizenship?’ and the standard answer will invariably involve reference to the principles of ius soli and ius sanguinis that regulate access criteria. This instinctive reaction leads to the often-repeated claim that no treaty rights can thus be guaranteed to those who are ipso facto no longer European citizens: Good riddance to the Treaty rights of Brits living in the Union! Neither can Treaty rights be enforced beyond the scope of application of the Treatises: Good luck to European citizens in the UK! This approach undermines the search for smart policy suggestions. I prefer to offer a better-informed view of the relationship between loss of the status, and the content of European citizenship. Status civitatis, after all, is a conceptual bridge linking the criteria for acquisition and loss to the entitlements the status consists in.
Finally, a last reason to think well about the way we approach the issue of Brexit depends on the fact that the stakes are high. This is not only due to the foreshadowed political circumstances, general novelty and legal ambiguity but also due to the very significance of Brexit for Union citizenship. The way issues raised by Brexit, especially in relation to ‘citizenship rights,’ will be tackled is revealing of the nature of Union citizenship and ofthe strength, or weakness, ofthe vertical link between the Union and its
citizens. Who has the competence to withdraw the status of Union citizenship? What are the limits to the ‘sovereign right to exclude’? Are these limits sufficient for making the case that European citizenship is ‘the fundamental status’ of ‘those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality’5 according to a federal-constitutional reading?6 Or do these limits show that the ‘rights’ attached to the status are more truthfully framed, in the intergovernmental perspective on European citizenship, as ‘privileges’ or ‘concessions’ that are ‘mutually recognised’?7 Looking into the extra- negotiational resources for ‘freezing rights’ is important from this perspective because to answer these questions means to confront a dilemma:
One horn of the dilemma is constituted by the claim that supranational rights constitute European citizenship and cannot be erased at will by the withdrawing state; the other horn is constituted by the claim that they may very well be suppressed if a member state decides to exit. The European Court of Justice (ECJ) stated back in 1963 in the case Van Gend and Loos that such rights are part of individuals’ ‘legal heritage.’ Would this imply that ‘such acquired rights cannot be immediately and directly extinguished’? (Douglas-Scott 2015). Will rights exercised under EU law be recognised as part of individuals’ legal heritage, outlasting the legal provisions that created it? Or would such a reading violate the very spirit of exiting, according to the view that ‘imposing [European citizenship and relative rights-protection] on the people of a member state who just voted to leave the Union would be nothing but a direct attack on the letter and purpose of the provision making withdrawals possible’? (Kochenov 2016; also Athanassiou and Laulhe Shaelou 2016). Can’t the ‘acquired rights’ of people having made use of their free movement be frozen without rending futile the attempt of a country to exit the Union? Would such a freezing mean that European citizenship deprives Article 50 of its effet utile? To some, the issue is nothing less than a constitutional test: ‘The de-coupling of European from national citizenship in the CJEU’s case-law has already begun to shift citizens’ entitlement to jointly decide about membership in the polity from the national to the European level. Extending that primordial political right to the case of the UK leaving the Union would certainly amount to a coup d’etat (Dawson and Augenstein 2016).
Put this way, the dilemma looks like a choice between Scylla and Charybdis: Sacrificing EU citizens’ rights on the altar of democratic selfdetermination or - if rights are substantially maintained and content of
Union citizenship left unaltered - sacrifice the will of the people to withdraw on the altar of individual rights. The risk of facing such a dilemma warrants the rest of this inquiry.