Who Gets to Withdraw the Status?

Abstract This chapter determines the extension of Union citizenship by asking: Who gets to withdraw the status of Union citizenship? It is a complex and debated issue. The various options are presented and the anticipated consequences for both the UK and EU states are fleshed out. Venues for challenging the loss of status are also discussed. The chapter discusses limits to what the UK can do to protect itself against abuse of multiple citizenship and what member states are allowed to do to UK citizens resident in their territories. The key finding is that while member states are in principle free to revoke the status of Union citizen, former member states are not unbounded in stripping Union citizens of their acquired territorial rights.

Keywords European citizenship • Brexit • Freedom of movement • Right of residence • EU law • Migration law • International law • Political rights • Citizens’ initiative

Who Gets to Withdraw Union Citizenship?

This chapter explores the extension of Union citizenship, by asking who determines loss of Union citizenship. Can member states impose involuntary loss of EU citizenship? What are the limits to state discretion in this area? What material consequences may follow from such limits?

© The Author(s) 2017

P. Mindus, European Citizenship after Brexit, Palgrave Studies in European Union Politics, DOI 10.1007/978-3-319-51774-2_6

It was long supposed that the only way to lose European citizenship for a European citizen was by losing member state nationality. Already the Resolution on the draft Treaty establishing the EU from 14 February 1984, stressed that European citizenship ‘may not be (...) forfeited (...) independently of nationality of a member state.’1 With Brexit the nationality of the former member state is not lost, but Union citizenship would be. So Brexit proves that there is another way to lose ‘the fundamental status’: Ex lege automatic loss due to the exiting of a member state. Indirectly, Article 50 adds a ground for loss of Union citizenship. This ground for loss finds its mirror image in the acquisition of Union citizenship ex lege for states acceding to the Union according to Article 49 TFEU. The argument, in keeping with traditional theories of statehood, is that any mutation to the legal status of territory can thus naturally be expected to generate effects for the citizenship status of (at least some) inhabitants.

With Brexit, we are witnessing a form of involuntary loss2 of citizenship en masse, ex lege, imposed on EU citizens of British nationality that, however, does not create statelessness and is likely to be tolerated under public international law. Involuntary here indicates the modality of loss, not the will of the status holder. Legally, the loss of citizenship is involuntary insofar as it is not a case of (individual) renunciation. In the case of Brexit one may also make the political claim that it is involuntary because 48% expressed their will to remain European citizens; certain territories voted massively in favour of staying and the UK citizens residing abroad were disenfranchised, even though they were among the most affected.3 Can such an involuntary loss be unilaterally imposed by an exiting state? If so, what consequences follow in the current legal setting? No Treaty provision explicitly deals with the consequences of loss of Union citizenship. Any consequences would need to be found in non-primary sources.

At first sight, whether involuntary loss can be imposed by the state that exits seems very simple to answer. Even though access to the status is, formally, regulated by the Treatises, Union citizenship is not an autonomous status. The choice of using mere lexical reference to member state nationality laws in Article 20 TFEU leaves the Herren der Vertrdge (Masters of the Treatises), in principle, free to determine such criteria. This has, among other things, permitted member states aiming to deprive of rights certain minority groups among their citizens to engage in the inelegant practice of bringing unilateral declarations on the meaning of nationality for the purposes of EU law.4

All in all, Article 20 TFEU leaves little doubt about who owns the competence: ‘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.’ It is confirmed by the wording of the declaration annexed to the Maastricht Treaty on the nationality of member states: ‘The question whether an individual possesses the nationality of the Member state shall be settled solely by reference to the national law of the Member State concerned.’5 In this context, it is worth recalling the doubts of the Danes, expressed during the summit in Edinburgh, who feared that European citizenship would substitute their own infodsret. Only after many specifications as to the adjunctive character of the new status, did Denmark ratify the Treaty of Maastricht following a second referendum (Howarth 1994).

The rule governing the allocation ofcompetence in the area ofnationality law is entrenched in international law and recently codified in the Article 3(1) European Convention on Nationality: ‘Each State shall determine under its own law who are its nationals.’ Member states share this view too. Suffice to say that the German constitutional court, in its Lissabon Urteil from 2009, expressed the point as follows: ‘In view of the elaboration of the rights of the citizens of the Union, the German state people (Staatsvolk) retains its existence as long as the citizenship of the Union does not replace the citizenships of the Member States or is superimposed on it.’6

Member states own the competence to define criteria for acquisition and loss of their own nationality. Nationality of a member state is a necessary criterion for acquisition of EU citizenship. This determines the derivative nature of EU citizenship that confers upon it the quality of a complementary status, different from dual citizenship status common in federal states.7 Unclearness hovers above the construct and it allows indirect influence of member states on the definition of who counts a Union citizens. For some, EU law and domestic law would even constitute competing norms (e.g. Evans 1991). As mentioned in Chapter 2, a famous paradox is 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 himself could immediately opt for European citizenship without moving from Havana (De Groot 2004, p. 7).

One might be tempted to conclude that the remedial solutions for avoiding the loss of status for the category of British nationals living in other member states are therefore nil: Vain would be the attempt to domesticate the sovereign power to exclude of an exiting member state.

The short answer to the question put in the title of this section is member states, but a more nuanced answer adds granu salts. The question whether an individual possesses the nationality of the member state is no longer settled solely by reference to the national law. The famous declaration attached to the Maastricht Treaty on ‘nationality’ was removed from the annex of the TEU after entry into force of the Lisbon Treaty. There are limits to the ability of member states to impose involuntary loss of citizenship entailing curtailment of previously enjoyed rights. Supranational scrutiny of state discretion in this area is increasing.

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