debate between Dora Kostakopoulou and Richard Bellamy, I agree with most of the
propositions put forward by Dora in her introductory paragraphs: that EU
citizenship allows former enemies to meet and live in harmony; that
nationalistic populism should be rejected; and that the prospect of Brexit
remains depressing. Nonetheless, I disagree with her proposal to move towards
an autonomous EU citizenship.
complement the contributions by other authors, my intervention will have an
institutional focus by considering questions of positive law, citizenship
governance, and legitimacy. It will demonstrate why I regard the proposal as
being politically unfeasible, legally unnecessary, and conceptually incomplete.
My suggestion would be not to invest our energy in pipe dreams at a time when
the EU is in desperate need of (more) realistic reform proposals.
Pitfalls of a Citizenship Directive
remains vague about how her proposal of an autonomous EU citizenship law should
be realised. Her comments on ‘Step 2’ speak about EU rules to be adopted. Others have suggested that the proposal should be
realised by means of a Directive on Citizenship. It sounds theoretically quite
easy: the EU would adopt another directive, like so many others. In practice,
however, such a realisation might prove tremendously difficult.
Several actors might disagree. Not least as a result of the subtle changes
introduced in the aftermath of the 1992 Danish referendum, in which the Danish
population voted against the Maastricht Treaty – the vote led to the well-known
formulation in today’s Article 9 TEU that ‘Citizenship of the Union shall be
additional to national citizenship and shall not replace it’ – it will be an
uphill legal battle to argue that the EU Treaties comprise a supranational
legislative competence for harmonising the acquisition and loss of nationality
or EU citizenship. The absence of such a competence is one reason why the Court
has proceeded carefully when dealing with nationality law. Judgments such as Micheletti or Rottmann established some limits, but remained cautious
full-blown Citizenship Directive would require Treaty change or activation of
Article 25 TFEU, which would have similar consequences in practice. As we know,
Treaty amendments are subject to a completely different set of procedures than
the adoption of secondary legislation. There are multiple veto players.
It seems to
me that this is more than a practical nuisance, since the centre of attention
shifts away from the supranational debate in Brussels to domestic fora. To
achieve a Treaty change, one has to politically convince actors and discursive
forums at the national levels, which are often side-lined in supranational
any expansion of EU citizenship would probably have to survive another Danish
referendum, along the lines of the 2015 vote on the new Europol decision, which
would have altered slightly the contours of the 1992 Edinburgh compromise and
which was rejected by the Danish population.
national governments and parliaments might disagree. Hungary is only the most
extreme example of a country in which the parliamentary majority might not be
happy if it was told that third-country nationals living in Hungary are to be
naturalised as Hungarians or EU citizens as a matter of EU law.
you might even encounter the opposition of the German Constitutional Court,
which, in its ruling on the Lisbon Treaty, stated somewhat ambiguously that the
rules on ‘Staatsbürgerschaft’ are subject to
the constitution’s eternity clause (even though we should note that the scope
of the caveat is not crystal clear, since it fluctuates semantically between
the more formal rules on the acquisition and loss of nationality, called Staatsangehörigkeit in German – and the substantive rules governing the status of citizens
in the body politic, the Bürgerschaft or Citizenship). Common
supranational rules might encroach the constitutional identity of the Federal
Republic and be blocked by a veto from Karlsruhe.
the politics of citizenship law are against
legalistic discourses. Political dynamics would differ markedly from what
abstract legal debates about the wording of the Treaties suggests. It will
require more than a deal between the Council and the European Parliament or a
consensus among a group of pro-European academics. One would have to engage in
a pan-European debate about the merits and pitfalls of EU citizenship. The
example of the Constitutional Treaty and the Brexit referendum shows that this
is easier said than done.
Relevance of Citizenship Law
It seems to
me that the debates about EU citizenship are defined by a double exaggeration:
on the one hand, academic commentators tend to overstate its practical
significance and, on the other hand, some colleagues tend to underestimate the
symbolic dimension beyond hard legal developments.
argument about limited practical effects is primarily about rules on the acquisition
and loss of nationality or EU citizenship, which would be relevant primarily
for third-country nationals living in Europe. When it comes to third-country
nationals, we should be careful not to confuse naturalisation (or the direct
conferral of EU citizenship) with basic questions of immigration and asylum
jurisdictions follow a step-by-step approach when initial admission gradually
gives way to more robust statuses. Nationality or EU citizenship is the last
step in this process. Under Directive 2003/109/EC, most immigrants acquire a secure
residence status with widespread equal treatment after five years. For such
long-term residents, the added value of citizenship is limited from a practical
perspective. Studies in Germany show that many migrants with a
secure status do not even bother to apply for nationality even though they
would fulfil the requirements for naturalisation.
status established under Directive 2003/109/EC is no novelty. It has existed
for many years in most jurisdictions and coincided, in countries like Germany, with restrictive ius sanguinis rules. As a result,
inspecting the naturalisation regime alone can give an incomplete and sometimes
false impression of the immigration practice.
applies for Brexit: if you are concerned with a pragmatic solution securing the
rights of EU citizens in the UK and of British nationals in the EU, there is no
need to embark on a politically sensitive, procedurally complicated, and
normatively loaded debate about the direct conferral of EU citizenship. From a
practical perspective, the EU and the UK resolve 95 % of all problems through
advanced rules on immigration statuses in the exit agreement.
To sum up,
if academic observers are concerned with immigrant admission, residence
security and equal treatment, nationality law often is a secondary side aspect,
which needs to be complemented with closer inspection of immigration and asylum
regulations. These rules are highly complex and many of us shy away from
studying them. But if the concern lies on practical effects, the academic
debate cannot evade doing so.
The Symbolic Relevance
of Citizenship Law
I do not
claim that debates about citizenship and nationality are about practical
effects only. Rather, the normative dimension seems to be the primary reason
why academics and the broader public love discussing nationality law and EU
citizenship. Citizenship law can be a reflection of the collective
self-perception of European societies and the European Union at large. It
allows to articulate normative visions about the direction to be taken. Dora’s kick-off
is a perfect example.
experience from the German context is that the same applies to domestic
debates. Discussions about the ius soli
and double nationality have limited effects for residence security or equal
treatment, which third-country nationals acquire on the basis of long-term
residence status anyway, but academics and the broader public embrace these
debates nonetheless – and rightly so –since they serve as a projection sphere
for how we define membership and identity.
It seems to
me that the main added value of most citizenship debates is the symbolic
dimension. It guides and reinforces changing self-perceptions of European
societies, which welcome third-country nationals as equal members – an effect
that technical rules on long-term residence status cannot bring about.
The Limits of Legal and
symbolic dimension pervades Dora’s kick-off and has defined the history of EU
citizenship from the beginning. Arguably, the normative imaginary that the very
term ‘citizenship’ conveys in many European languages was an important reason
why heads of state or government agreed on the introduction of EU citizenship
in Maastricht. Citizenship serves as a projection sphere for political visions
of a good life and a just society and it was, in the case of the EU, a symbolic
expression of the ambition to move towards some sort of federal Europe.
of Maastricht used this normative reservoir despite the absence of widespread
legal changes, thereby nurturing the initial criticism among academics that the
new rules were just a ‘label’, an ‘empty gesture’ or a sort of ‘cynical public
relations exercise on the part of the High Contracting Parties’.
similar lines, the famous dictum by the Court that citizenship was ‘destined to
be’ the fundamental status arguably hinted at the forward-looking potential and,
in the beginning, it seemed that Luxembourg might realise the dream of a ‘real’ European
by means of court judgments.
explained in the introductory chapter to the book ‘Questioning EU Citizenship’, which I edited (Hart Publishing,
2017), that such an instrumental use of supranational law as an engine for
social change is not specific to the citizenship regime. It defines much of the
integration process, including the single market programme, the Charter of
Fundamental Rights or the erstwhile project of a Constitutional Treaty.
projects were successful, the Constitutional Treaty and the Brexit referendum
remind us that Treaty changes, new legislation and innovative judgments alone
cannot bring about an enhanced degree of identity and solidarity. Supranational
citizenship law is thus not a self-fulfilling prophecy.
That is not
to say that the law or court judgments are irrelevant. They express basic
choices of societies and legal developments partake in the constant
reconstruction of societal and individual self-perceptions. But the law and
court judgments cannot change them single-handedly. To win the argument,
innovative court rulings need to be embedded in social structures and political
life – in the same way as the success of nation-building in Italy or Germany in
the late 19th century was not the result of nationality laws alone.
developments are not embedded in social practices and political life, they can
remain a ‘hollow hope’. We all know that the context is,
unfortunately, not very supportive at the moment. I therefore suggest not to
invest too much energy into a project which is politically sensitive,
procedurally complicated, and normatively loaded. Let’s focus, instead, on more
realistic reform proposals which help the EU to overcome the ongoing crises.