Notes

  • 1. European Parliament, OJC 77/53, 19 March 1984.
  • 2. A terminological remark is needed: There are many expressions relating to loss of status civitatis: loss, quasi-loss (or ex tunc declaration of invalidity), deprivation, lapse, withdrawal, renunciation. Deprivation or withdrawal is usually an administrative measure by the competent authorities whilst lapse or ex lege loss happens automatically by operation of the law. Renunciation is voluntary. See Glossary Eudo-citizenship, available at http://eudo-citizen ship.eu/databases/citizenship-glossary (last accessed 30 October 2016). See Weis 1979; De Groot 2015, at 10.
  • 3. The UK supreme court refused the permission to appeal on the grounds of purely domestic law, leaving all EU citizens of UK nationality residing in other member states disenfranchised in the referendum: UKSC 2016/0105. See e.g. Ziegler 2016.
  • 4. See Chapter 2. The ability to disconnect member state nationality from EU citizenship, although confirmed in Kaur, is much more difficult for the member states to use after Rottmann.
  • 5. My italics.
  • 6. BVerfG, 2 BvE 2/08, 30/06/09, § 350.
  • 7. See Chapter 2. This choice give rise to concerns both for the political legitimacy of the construct and for legal foreseeability in certain hard cases: Mindus 2008; Mindus and Goldoni 2012. For a comparative reading with federal settings, see Schonberger 2005.
  • 8. See the research results of the ILEC project: Carrera Nunez, De Groot 2015; De Groot and Vonk 2016.
  • 9. The UNDHRis here reminiscent of the Decree of Adolf Hitler of 25 November 1941 that determined loss ex lege of status for Jewish citizens of Germany.
  • 10. For a general overview, UN Human Rights Council (12009), Human Rights and Arbitrary Deprivation of Nationality: Report of the Secretary- General, 14 December, A/HRC/13/34.
  • 11. These principles include that a loss of citizenship requires (1) firm legal basis; (2) may not be enacted retroactively; (3) in case of the introduction of a new ground of loss, a reasonable transitory provision has to be made to avoid an individual losing his nationality due to an act that had already started before the introduction of the new ground for loss; (4) a legal provision regarding the acquisition of nationality may not be repealed with retroactivity; (5) the principle tempus regit factum applies; (6) loss provisions must be easily accessible and predicable; (7) the ground given for deprivation must be proportional; (8) provisions may not be discriminatory; (9) it must be possible to challenge the application of loss provisions in court. Full list and analysis in De Groot 2015, at 9-39.
  • 12. See Chapter 2.
  • 13. Mario Vicente Micheletti and others v Delegacion del Gobierno en Cantabria, Case C-369/90 § 10.
  • 14. Case C-315/08, Janko Rottman v. Freistaat Bayern, § 51.
  • 15. Among those who have insisted on this, there is the Institute for Public Policy Research that maintained in a recent report that a fundamental reform of the UK citizenship policy is required after Brexit. See Murray 2016.
  • 16. One reading of this term may be those having exercised ‘treaty rights’ or are in process of doing so.
  • 17. Notice, for example, that 2/3 flopped the Danish citizenship test recently. The test includes questions such as which Danish restaurant has three Michelin stars. It is not Noma.
  • 18. See note 21.
  • 19. Belgium, Cyprus, Denmark, Finland, France, Ireland, Malta, Netherlands, Spain, Sweden. The details of these rules vary considerably in procedure (lapse vs. withdrawl), personal scope (naturalised, foreign-born citizens or all), statelessness (only for dual citizens or not), age, and connected sanctions.
  • 20. Given the large number of British nationals currently living in Spain, it is worth recalling that Spain does enforce such a ban.
  • 21. Nottebohm 6 April 1955, Liechtenstein v. Guatemala, CIJ Recueil, at 23 ff. Glazer 1955; Bastide 1956; Maury 1958; Weis 1979, esp. 176-181 and 318-321. A national of a member state who is also a national of a nonmember state is a EU citizen regardless of social ties or place of residence: since the ruling in Mario Vicente Micheletti v Delegation del Gobierno en Cantabria (Case C-369/90), the European Court of Justice favours a formalist reading that distances itself from the doctrine of ‘genuine link.’ See Chapter 2.
  • 22. http://www.spiegel.de/politik/deutschland/brexit-sigmar-gabriel-for dert-doppelte-staatsbuergerschaft-fuer-junge-briten-a-1101010.html (last accessed 30 October 2016).
  • 23. Opinion of AG Poiares Maduro in Case C-135/08, Rottman [2010] ECR I-01449.
  • 24. In 2006 the Council of Europe adopted a new specific Convention of the Avoidance of Statelessness in Relation to State Succession that establishes that the successor state should grant nationality to certain nationals of the predecessor State if they would otherwise become stateless. This specific group includes those who are habitually resident in the successor state, those with a legal bond through federal citizenship, those born there or having their last habitual residence there before leaving the predecessor state. It is ratified only by Austria, Hungary and the Netherland.
  • 25. It has been suggested that the Ruiz Zambrano doctrine on ‘genuine substance’ would be relevant to allow decoupling: it would: replicate the emancipatory move of Van Gend en Loos - to liberate individuals from the preferences of their states. De-coupling would signify a constitutional recognition that rights acquired as European citizens really are ‘fundamental’: integral to individual personhood and therefore inscribed into the deep structure of an autonomous EU legal order (Dawson and Augenstein 2016).
  • 26. Case C-34/09, Ruiz Zambrano EU:C:2011:124. The Court supplemented the protection of the status of Union citizenship with the requirement that the substance of rights attached to the status be enjoyed. The ECJ resorted to the ‘substance’ of European citizenship to ground the entitlement of a third country national to reside and work in Belgium as the father care-taker of two children who had been born nationals of Belgium in order to avoid statelessness that would have followed from being born by Colombian nationals who did not reside in Colombia (Colombia being a country applying ius soli quite strictly): ‘Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, [... ] has such an effect.’
  • 27. See Case C-256/2011, Dereci EU:C:2011:734; Case C-434/09, Shirley McCarthy EU:C:2011:277.
  • 28. It does not cover lesser interferences such as with the mere desire to keep a family together in a given member state. See Joint Cases 356/11 and 357/ 11, O, S EU:C:2012:776, § 52; Case C-87/12, Ymeraga EU:C:2013:291, § 38. Also see Case C-86/12, Alokpa EU:C:2013:645.
  • 29. Case C-135/08 Janko Rottmann v Freistaat Bayern [2010] ECRnyp, § 42.
  • 30. In the case of Kaur (16 Case C-192/99 The Queen v Secretary of State for the Home Department, ex parte: Manjit Kaur [2001] ECR I-01237), the British nationality rules were examined by the European Court ofJustice. In that case a third country national who was recognised by the UK as citizen of the UK and Colonies but did not fall within the personal scope of citizens entitled to right to abode, could not rely on her Union citizenship. The European Court of Justice held, in that case, that the declaration on nationality of the UK ‘did not have the effect of depriving any person who did not satisfy the definition of a national of the UK of rights to which that person might be entitled under Community law. The consequence was rather that such rights never arose in the first place for such a person.’ Kaur is a case of quasi loss, Rottman a case of loss.
  • 31. See ILEC Guidelines IV.5.c. and V.a.; De Groot 2015, at 35.
  • 32. On Rottman, and for extensive comments on why it was not a judgment ‘out of the blue’ but rather consistent with previous activism of the European Court of Justice: see http://eudo-citizenship.eu/commen taries/254-has-the-european-court-of-justice-challenged-member-state- sovereignty-in-nationality-law?start=1 (last accessed 30 October 2016).
  • 33. The case-law of the European Court of Justice generally has been pointing towards avantguardism of pushing EU citizenship beyond the merely economically motivated concept. See cases such as Baubast (C-413/99),

Martinez-Sala (C-85/96), Grzelczyk (C-184/99), Garcia Avello (C-148/ 02) and Bidar (C-209/03).

  • 34. De Groot calls this doctrine ‘an even more sensational construct’ that the claim made by the Advocate General Maduro that since Rottman was born Austrian and made use of his EU citizenship and his freedom of movement when moving to Germany, the case ought not to be considered a ‘purely internal one’ (De Groot 2010).
  • 35. See note 3.
  • 36. For example, during the 2007 intergovernmental conference, Italy did not approve the new composition of the European Parliament. On this incident, see Manzella 2008. The proposal voted by the European Parliament had used a formula based on resident population rather than ‘citizenship’ (i.e. nationality). It would have left Italy with 72 seats compared to 73 for the UK, 74 for France (that had historically had the same weight as Italy). This dispute led to Declaration 4 attributing the extra seat to Italy and to Declaration 57 on the definition of citizenship.
 
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