Citizenship of the European Union
Citizenship of the European Union is afforded to qualifying citizens of European Union member states. It was created by the 1992 Maastricht Treaty, at the same time as the creation of the European Union. European Union citizenship is additional to national citizenship, and affords EU citizens with rights, freedoms and legal protections available under EU law.
European Union citizens have the right to free movement, settlement and employment across the Union. EU citizens are free to trade and transport goods, services and capital through EU state borders, with no restrictions on capital movements or fees. Citizens have the right to vote in and run as a candidate in elections in the state where they live, while also voting for European elections and participating in a European Citizens' Initiative.
Citizenship of the EU confers the right to consular protection by embassies of other EU member states when a person's country of citizenship is not represented by an embassy or consulate in the foreign country in which they require protection or other types of assistance. EU citizens have the right to address the European Parliament, European Ombudsman, and EU agencies directly, in any of the Treaty languages, provided the issue raised is within that institution's competence.
EU citizens enjoy the legal protections of EU law, including the Charter of Fundamental Rights of the European Union and acts and directives regarding, for example, protection of personal data, rights of victims of crime, preventing and combating trafficking in human beings, equal pay, protection from discrimination in employment on grounds of religion or belief, sexual orientation and age. The office of the European Ombudsman whom EU citizens can approach directly.
HistoryEU citizenship was first introduced by the Maastricht Treaty, and was extended by the Treaty of Amsterdam. Prior to the 1992 Maastricht Treaty, the European Communities treaties provided guarantees for the free movement of economically active persons, but not, generally, for others. The 1951 Treaty of Paris establishing the European Coal and Steel Community established a right to free movement for workers in these industries and the 1957 Treaty of Rome provided for the free movement of workers and services.
However, the treaty provisions were interpreted by the European Court of Justice not as having a narrow economic purpose, but rather a wider social and economic purpose. In Levin, the Court found that the "freedom to take up employment was important, not just as a means towards the creation of a single market for the benefit of the member state economies, but as a right for the worker to raise her or his standard of living". Under the ECJ caselaw, the rights of free movement of workers applies regardless of the worker's purpose in taking up employment abroad, to both part-time and full-time work, and whether or not the worker required additional financial assistance from the member state into which he moves. Since the ECJ has held that a recipient of service has free movement rights under the treaty and this criterion is easily fulfilled, effectively every national of an EU country within another member state, whether economically active or not, had a right under Article 12 of the European Community Treaty to non-discrimination even prior to the Maastricht Treaty.
In the case of Martinez Sala, the European Court of Justice held that the citizenship provisions provided substantive equal treatment rights alongside those already granted by union law. The case of Baumbast later established that the right to equal treatment applies equally to both economically active and inactive citizens. Despite these broad interpretations, the landmark case of Dano combined the criteria of freedom to move and equal treatment, citing them as inter-dependant, subsequently limiting the scope of Martinez Sala.
Stated rightsHistorically, the main benefit of being a citizen of an EU state has been that of free movement. The free movement also applies to the citizens of European Economic Area countries and Switzerland. However, with the creation of EU citizenship, certain political rights came into being. The Treaty on the Functioning of the European Union provides for citizens to be "directly represented at Union level in the European Parliament" and "to participate in the democratic life of the Union". Specifically, the following rights are afforded:
- Voting in European elections: a right to vote and stand in elections to the European Parliament, in any EU member state
- Voting in municipal elections: a right to vote and stand in local elections in an EU state other than their own, under the same conditions as the nationals of that state
- Accessing European government documents: a right to access to European Parliament, Council, and Commission documents.
- Petitioning Parliament and the Ombudsman: the right to petition the European Parliament and the right to apply to the European Ombudsman to bring to his attention any cases of poor administration by the EU institutions and bodies, with the exception of the legal bodies
- Language rights: the right to apply to the EU institutions in one of the official languages and to receive a reply in that same language.
- Right to free movement and residence: a right of free movement and residence throughout the Union and the right to work in any position ;
- Freedom from discrimination on nationality: a right not to be discriminated against on grounds of nationality within the scope of application of the Treaty ;
- Right to consular protection: a right to protection by the diplomatic or consular authorities of other Member States when in a non-EU Member State, if there are no diplomatic or consular authorities from the citizen's own state : this is due to the fact that not all member states maintain embassies in every country in the world.
Free movement rights
Article 21 of the Treaty on the Functioning of the European Union states that
Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.
The European Court of Justice has remarked that,
EU Citizenship is destined to be the fundamental status of nationals of the Member States
The ECJ has held that this Article confers a directly effective right upon citizens to reside in another Member State. Before the case of Baumbast, it was widely assumed that non-economically active citizens had no rights to residence deriving directly from the EU Treaty, only from directives created under the Treaty. In Baumbast, however, the ECJ held that Article 18 of the EC Treaty granted a generally applicable right to residency, which is limited by secondary legislation, but only where that secondary legislation is proportionate. Member States can distinguish between nationals and Union citizens but only if the provisions satisfy the test of proportionality. Migrant EU citizens have a "legitimate expectation of a limited degree of financial solidarity... having regard to their degree of integration into the host society" Length of time is a particularly important factor when considering the degree of integration.
The ECJ's case law on citizenship has been criticised for subjecting an increasing number of national rules to the proportionality assessment.
;Article 45 Freedom of movement to work
Article 45 of the Treaty on the Functioning of the European Union states that
1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
State employment reserved exclusively for nationals varies between member states. For example, training as a barrister in Britain and Ireland is not reserved for nationals, while the corresponding French course qualifies one as a 'juge' and hence can only be taken by French citizens. However, it is broadly limited to those roles that exercise a significant degree of public authority, such as judges, police, the military, diplomats, senior civil servants or politicians. Note that not all Member States choose to restrict all of these posts to nationals.
Much of the existing secondary legislation and case law was consolidated in the Citizens' Rights Directive 2004/38/EC on the right to move and reside freely within the EU.
New member states may undergo transitional regimes for Freedom of movement for workers, during which their nationals only enjoy restricted access to labour markets in other member states. EU member states are permitted to keep restrictions on citizens of the newly acceded countries for a maximum of seven years after accession. For the EFTA states, the maximum is nine years.
Following the 2004 enlargement, three "old" member states—Ireland, Sweden and the United Kingdom—decided to allow unrestricted access to their labour markets. By December 2009, all but two member states—Austria and Germany—had completely dropped controls. These restrictions too expired on 1 May 2011.
Following the 2007 enlargement, all pre-2004 member states except Finland and Sweden imposed restrictions on Bulgarian and Romanian citizens, as did two member states that joined in 2004: Malta and Hungary. As of November 2012, all but 8 EU countries have dropped restrictions entirely. These restrictions too expired on 1 January 2014. Norway opened its labour market in June 2012, while Switzerland kept restrictions in place until 2016.
Following the 2013 enlargement, some countries implemented restrictions on Croatian nationals following the country's EU accession on 1 July 2013. As of May 2019, all EU countries except Austria have dropped restrictions entirely., the Austrian restrictions are set to expire on 1 July 2020.
AcquisitionThere is no common EU policy on the acquisition of European citizenship as it is supplementary to national citizenship.. :s:Consolidated version of the Treaty on the Functioning of the European Union/Part Two: Non-Discrimination and Citizenship of the Union#Article 20|Article 20 of the Treaty on the Functioning of the European Union states that:
"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."
While nationals of Member States are citizens of the union, "It is for each Member State, having due regard to Union law, to lay down the conditions for the acquisition and loss of nationality." As a result, there is a great variety in rules and practices with regard to the acquisition and loss of citizenship in EU member states.
Exceptions for overseas territoriesIn practice this means that a member state may withhold EU citizenship from certain groups of citizens, most commonly in overseas territories of member states outside the EU.
A previous example, was for the United Kingdom. Owing to the complexity of British nationality law, a 1982 declaration by Her Majesty's Government defined who would be deemed to be a British "national" for European Union purposes:
- British citizens, as defined by Part I of the British Nationality Act 1981.
- British subjects, within the meaning of Part IV of the British Nationality Act 1981, but only if they also possessed the 'right of abode' under UK immigration law.
- British overseas territories citizens who derived their citizenship by a connection to Gibraltar.
In 2002, with the passing of the British Overseas Territories Act 2002, EU citizenship was extended to almost all British overseas territories citizens when they were automatically granted full British citizenship. This had effectively granted them full EU citizenship rights, including free movement rights, although only residents of Gibraltar had the right to vote in European Parliament elections. In contrast, British citizens in the Crown Dependencies of Jersey, Guernsey and the Isle of Man had always been considered to be EU citizens but, unlike residents of the British overseas territories, were prohibited from exercising EU free movement rights under the terms of the UK Accession Treaty if they had no other connection with the UK and had no EU voting rights..
Another example are the residents of Faroe Islands of Denmark who, though in possession of full Danish citizenship, are outside the EU and are explicitly excluded from EU citizenship under the terms of the Danish Accession Treaty. This is in contrast to residents of the Danish territory of Greenland who, whilst also outside the EU as a result of the 1984 Greenland Treaty, do receive EU citizenship as this was not specifically excluded by the terms of that treaty.
Summary of member states' nationality lawsThis is a summary of nationality laws for each of the twenty-seven EU member states.
Loss of EU citizenship due to member state withdrawalThe general rule for losing EU citizenship is that European citizenship is lost if member state nationality is lost, but the automatic loss of EU citizenship as a result of a member state withdrawing from the EU is the subject of debate.
One school of legal thought indicates that the Maastricht treaty created the European Union as a legal entity, it then also created the status of EU citizen which gave an individual relationship between the EU and its citizens, and a status of EU citizen. Clemens Rieder suggests a case can be made that "one of the Member States were forced to confer the status of EU citizenship on their citizens but once they have, according to this argument, they cannot simply withdraw this status.". In this situation, no EU citizen would involuntarily lose their citizenship due to their nation's withdrawal from the EU.
It is likely that only a court case before the European Court of Justice would be able to properly determine the correct legal position in this regard, as there is no definitive legal certainty in this area. As of 7 February 2018, the District Court of Amsterdam decided to refer the matter to the European Court of Justice, but the state of the Netherlands has appealed against this referral decision.
GreenlandAlthough Greenland withdrew from the European Communities in 1985, all citizens of Denmark residing in Greenland are eligible for EU citizenship by virtue of their Danish citizenship. This contrasts with Danish citizens living the Faroe Islands who are excluded from EU citizenship.
United KingdomAs a result of the Withdrawal of the United Kingdom from the European Union, the opinion of both the European Union and the British government has been that British citizens would lose their EU citizenship and EU citizens would lose their automatic right to stay in the UK. To account for the problems arising from this, a provisional agreement outlines the right of UK citizens to remain in the EU where they are resident in the Union on the day of the UK's withdrawal. EU citizens may remain in the UK post-Brexit if and only if they apply to EU Settlement Scheme. The only exception to this is citizens who possess dual citizenship with an EU state. This eligibility includes the majority of British citizens from Northern Ireland, who are automatically entitled to Irish citizenship as part of the Good Friday Agreement.
European Citizens' Initiatives to challenge BrexitAs a result of the Brexit referendum, there were three European Citizens' Initiatives that were registered which sought to protect the rights and/or status of British EU citizens. Out of these three initiatives, the one with the strongest legal argument was registered on 27 March 2017 and officially named "EU Citizenship for Europeans: United in Diversity in Spite of jus soli and jus sanguinis". It is clear that the initiative abides by the first school of thought mentioned above because the annexe that was submitted with the initiative clearly makes reference to Rieder's work. In an article titled " EU citizenship to UK nationals ESPECIALLY after Brexit]" and published with the online magazine Politics Means Politics, the creator of the Initiative argues that UK nationals must keep their EU citizenship by detaching citizenship of the European Union from Member State nationality. Perhaps the most convincing and authoritative source that is cited in the article is the acting President of the European Court of Justice, Koen Lenaerts who published an article where he explains how the Court analyses and decides cases dealing with citizenship of the European Union. Both Lenaerts and the creator of the Initiative refer to rulings by the European Court of Justice which state that:
- “Citizenship of the Union is intended to be the fundamental status of nationals of the Member States”
- "Article 20 TFEU precludes national measures that 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"