Armin von Bogdandy, Felix Arndt
- Citizenship — Nationality of individuals
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
A. General Questions
1. Historical Background
1 European citizenship is part of the project to create and fortify a European identity, and this identity is meant to strengthen Europe as an international actor. The first political initiatives that focus on a ‘Europe of citizens’ can be traced back to 1969. The idea of a European identity strengthening Europe internationally received an important uplift by the Declaration on European Identity, done in December 1973 by the Heads of State or Government of the then nine European Community Member States. Since then, this project was pursued by various means which transformed the proverbial ‘market citizen’ into a member of a new polity. The first elections of the European Parliament by direct universal suffrage in 1979, which had been envisioned by the EEC Treaty from the beginning (Treaty Establishing the European Economic Community [signed 15 March 1957, entered into force 1 January 1958] 294 UNTS 17), mark a notable milestone in this respect. Furthermore, a general right of residence and the conferral of political rights on the municipal level were important aspects of this idea and were proposed on several occasions (for a detailed account see Wollenschläger 91–109). The legal concept of Union citizenship was first introduced by the Draft Treaty Establishing the European Union proposed by the European Parliament in 1984. In the early 1990s, a number of legal acts extended the right of residence to economically inactive persons. The Maastricht Treaty (Treaty on European Union [signed 29 July 1992, entered into force 1 January 1993]  OJ C191/1) then consolidated this gradual development (for a recount of the negotiations before and at the Intergovernmental Conference [‘IGC’] see Closa  1153–57; O’Leary  23–30). The Amsterdam Treaty added a clarification, providing that ‘citizenship of the Union shall complement and not replace national citizenship’ (Art. 2 (9) Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts [signed 2 October 1997, entered into force 1 May 1999]  OJ C340/308). The Lisbon Treaty replaced the word ‘complement’ with ‘shall be additional to’ (Art. 2 (B) (34); for the drafting history of this change and possible implications see Schrauwen 58–60).
2. Legal Analysis
(a) Relationship between European and National Citizenship
2 Two key elements of Union citizenship are its accessoriness and its complementariness. It is accessorial as Art. 20 (1) 2 Treaty on the Functioning of the European Union (‘TFEU’) grants Union citizenship to every national of a Member State. Likewise, it cannot be held independently from a Member State’s nationality. In principle, the Member States autonomously determine who is a Union citizen. In contrast to public international law, this determination is binding upon the other Member States (Case C-369/90 Micheletti). Great Britain has defined who is a British subject specifically for the purposes of Union law. This unilateral declaration has been deemed consistent with Community law by the European Court of Justice (‘ECJ’) (Case C-192/99 Kaur 19–27). Notwithstanding their exclusive competence to lay down the conditions for acquiring or losing nationality, the Member States are bound by the principle of loyal cooperation in this field. Thus they may not ease naturalization so as to render a common immigration policy under Art. 79 TFEU practically impossible or so as to significantly undermine it. The case Zhu and Chen has been controversial in this respect (Case C-200/02 Zhu and Chen 34–41; see Kunoy 181–86). Similarly, Union citizenship may limit the ability of Member States to withdraw their citizenship acquired by naturalization. In particular, the principle of proportionality has to be observed if such a withdrawal leads, in addition, to a loss of European citizenship (Case C-135/08 Rottmann). Arguably, this decision may prove to have profound conceptual implications. Their consideration, however, is beyond the scope of this article.
3 By definition Union citizens do not share one single nationality. Moreover, Union citizenship serves different functions than nationality. Thus the two concepts have to be distinguished clearly. The complementariness of European and national citizenships is underlined by Art. 20 (1) 3 TFEU.
(b) Rights Associated with European Citizenship
4 The ECJ deems Union citizenship as the fundamental status of nationals of the Member States (Case C-184/99 Grzelczyk 31). The rights connected with this status can be classified into four groups: freedom of movement; political rights; rights connected with ‘good administration’; and protection by diplomatic and consular authorities. The scope and function of the latter are analysed in more detail below (see paras 13–20). The rights mentioned in Art. 20 (2) TFEU are not limited to those laid down in primary law but include rights provided for in secondary law. Pursuant to Art. 25 (2) TFEU, the Council may unanimously and with consent of the European Parliament adopt provisions to strengthen or to add to the rights listed in Art. 20 (2) TFEU. These provisions enter into force after ratification by the Member States.
5 Freedom of movement (Art. 20 (2) (a) TFEU, Art. 21 TFEU) is a central element of Union citizenship as it frequently constitutes the foundation for exercising other fundamental freedoms (Movement, Freedom of, International Protection). Art. 21 (2) TFEU provides the legal basis for measures facilitating the right to move and reside freely. Hereby, the traditional freedom of a State to decide whom to accept on its territory (Immigration) has been almost completely abolished. It does not allow for the establishment of new restrictions. The special provisions on the free movement of workers (Art. 45 TFEU), the right of establishment (Art. 49 TFEU), and the freedom to provide services (Art. 56 TFEU), which are in principle limited to Union citizens, provide the historical background for the freedom of movement. These provisions have to be interpreted in the light of Union citizenship (Case 138/02 Collins 63–64). Art. 21 (3) TFEU establishes a subsidiary special legislative procedure for the adoption of measures concerning social security or social protection.
6 The acquis communautaire of secondary law concerning the freedom of movement has been codified by Directive 2004/38/EC. It distinguishes three categories of residents: long-term residents with a right of permanent residence (Art. 16); mid-term residents (Art. 7); and short-term residents (Art. 6). The status of a long-term resident is acquired after five years of residence and entails eligibility for social benefits. An expulsion is only possible on serious grounds of public policy and public security. This exception is to be interpreted narrowly (see Case C-493/01 Orfanopoulus and Case C-441/02 Commission v Germany on the respective provisions in previous directives). Union citizens have the right to residence for a period exceeding three months if they fulfil certain economic conditions to ensure that they do not become a burden on the social assistance system of the Member State. Recourse to the social benefits system of the host State must not lead to expulsion as its automatic consequence (Case C-456/02 Trojani 40). Only if the right of residence becomes an unreasonable burden may the Member State pursue expulsion. Directive 2004/38/EC establishes derivative rights for family members of Union citizens whose precise scope has repeatedly been controversial (Case C-200/02 Zhu and Chen, Case C-127/08 Metock et al, Case C-34/09 Ruiz Zambrano Opinion of Advocate General Sharpston).
7 The second group encompasses political rights, ie the right to vote in municipal elections (Art. 20 (2) (b) TFEU, Art. 22 (1) TFEU) and in elections to the European Parliament (Art. 20 (2) (b) TFEU, Art. 22 (2) in connection with Art. 14 (3) Treaty on European Union [TEU]). The modalities of the right to participate in municipal elections are set out in Council Directive 94/80/EC. While Art. 22 (2) TFEU enables a citizen to vote at his place of residency, it does not limit his right to alternatively vote in his home country. This underlines the complementary function of European citizenship. Directive 93/109/EC contains the modalities for the exercise of the right to vote in the elections to the European Parliament. In particular, it aims to secure that no citizen can vote or stand for election in more than one Member State. Likewise, citizens who have lost their electoral rights in their home country are excluded from the European elections in the Member State they reside in. This restriction arguably constitutes an unjustified discrimination on the grounds of nationality and is thus in conflict with Art. 22 (2) TFEU. Furthermore, Art. 14 Directive 93/109/EC enables Member States to restrict the electoral rights of Union citizens if more than 20 per cent of the Union citizens residing there do not possess its nationality. These Member States, ie in practice Luxembourg, can in principle require a minimum time of residence. If a Union citizen, however, is precluded from voting or candidacy in his home State by domestic law, this derogation is not applicable. This underlines the integrated structure of the European electorate. The Lisbon Treaty provides for a citizens’ initiative (Art. 11 TEU, Art. 24 TFEU; on the significance of the citizens’ initiative see Peters 44–45, 68).
8 A third group contains rights that supplement electoral rights and are connected with ‘good administration’ (see Art. 20 (2) (d) TFEU, Art. 41 Charter of Fundamental Rights of the European Union   40 ILM 266; see also European Administrative Law). In particular, Art. 24 (2–4) TFEU refers to the right to submit a petition to the European Parliament (Art. 227 TFEU), the right to apply to the European ombudsperson (Art. 228 TFEU), and the right of citizens to information by the institutions in their own language. These rights are not limited to Union citizens.
9 Art. 20 (2) TFEU also refers to duties associated with citizenship. The Union legal order, however, does not contain any duties comparable with the political duties as they are known in some Member States, eg the duty to military service or an obligation to vote. Moreover, the establishment of such duties is not necessary to achieve the objectives of the European Union (Kadelbach  483–84).
(c) Equal Treatment and Fundamental Rights
10 A core element of the provisions concerning Union citizenship is the right to domestic treatment. The relationship between Art. 18 TFEU and the provisions on Union citizenship is a circular one, as the rights mentioned in Art. 20 (2) TFEU include Art. 18 TFEU, and Arts 21 to 24 TFEU belong to the ‘scope of application’ referred to in Art. 18 TFEU. The ECJ has construed this relationship in a way that these provisions mutually reinforce each other. As a result, Union citizens lawfully residing in another Member State can rely on Art. 18 TFEU in all instances that are encompassed by the objective scope of the Treaties. Beginning with its decision in the Martínez Sala case, the ECJ has applied this principle to social security schemes. Other prominent fields of application are cultural rights (Case C-274/96 Bickel and Franz; Case C-148/02 Garcia Avello), data protection (Case C-524/06 Huber), and education. Notably, the university system in the EU has been considerably more integrated than in the United States of America, where state universities regularly discriminate against out-of-State students with respect to admission quotas and financing questions (Case C-209/03 Bidar; Case C-147/03 Commission v Austria; Case C-158/07 Förster).
11 Moreover, citizenship entails the prohibition to discriminate against one’s own citizens exercising their right to freedom of movement (Case C-224/89 D’Hoop 30; Case C-520/04 Turpeinen 20). Similar to its approach with respect to fundamental freedoms, the ECJ has used the prohibition to create an unjustified restriction to free movement as the standard of review for this kind of unequal treatment (Joined Cases C-11/06 and 12/06 Bucher and Morgan 48). Citizenship does not, however, amount to a general prohibition of domestic discrimination.
12 Union citizenship can play a significant role by modifying the contents of fundamental rights protection in the Member States. Examples include the right to family life (Case C-413/99 Baumbast and R) and the right to privacy (Case 148/02 Garcia Avello). In Baumbast and R the ECJ decided that the limitations on a Union citizen’s right of residence must be interpreted in light of the right to family life. In Garcia Avello, the ECJ construed Arts 12 and 17 TEC (now Arts 18 and 20 TFEU) to allow the children of a Spanish Union citizen resident in Belgium to bear their surname in accordance with Spanish law. Union citizenship is particularly influential in this respect when it serves to reinforce the case law of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’; 213 UNTS 221). In this context it is currently an issue for debate whether Art. 21 TFEU contains a self-standing right of residence, which can be invoked independently of prior transborder movement (Case C-34/09 Ruiz Zambrano Opinion of Advocate General Sharpston). Another important field is fundamental rights associated with the electoral rights granted by Art. 22 TFEU, such as freedom of speech and assembly as well as the right to equal access to the media (Kadelbach  482).
B. Protection by Diplomatic and Consular Authorities
1. Protection by Member States Authorities (Art. 23 TFEU)
13 The right to protection by the diplomatic and consular authorities adds an external dimension to European citizenship. It is of significant practical relevance for European citizens travelling abroad. According to the European Commission, there are currently only three countries in which all Member States are represented with consular or diplomatic missions: China, Russia, and the United States. In 107 countries, only 10 or less Member States are represented.
14 The scope ratione personae of Art. 23 TFEU has been the issue of debate. While the language of the provision (‘citizen of the Union’) seems to suggest that only natural persons are included, systematic and teleological arguments counsel for an extension to legal persons. In particular, the fundamental freedoms are also applicable to legal persons. Likewise, the admissibility of consular and diplomatic protection for legal persons is an accepted principle in international law. Another issue is the applicability to third country nationals. Arguably, the protection of Art. 23 TFEU also extends to family members of Union citizens who are nationals of a third country. This follows from an interpretation of Art. 23 TFEU in light of Art. 8 ECHR and draws on the respective case law concerning the right to residence (Case 200/02 Zhu and Chen; Case C-413/99 Baumbast and R).
15 A further requirement is that the home State of the Union citizen is not represented in the third country. Under the principle of effet utile that includes cases in which a representation is not functioning or cannot be reached in due time, eg for geographical reasons. In contrast, it is not sufficient that the level of protection provided by the home State representation is less efficient.
16 As a result of the differences between the German and the other versions of Art. 23 TFEU, it is subject to debate whether this provision also extends to diplomatic protection. In the German version, Art. 23 TFEU refers to ‘diplomatic and consular protection’. This language obviously seems to include diplomatic protection. In all other languages, Art. 23 TFEU speaks of protection by the diplomatic and consular authorities. As diplomatic missions may also provide consular assistance, this wording is more open to a restrictive reading of the scope of the provision. In international law, diplomatic protection is associated with the law of State responsibility. It has a remedial function, namely to assert responsibility for an injury to a natural or legal person caused by an internationally wrongful act. In principle, diplomatic protection can only be exercised by the State of nationality. Consular protection, by contrast, has primarily a preventive function (Consular Functions). The distinction between those two regimes, however, is in itself not settled. Those advocating a limitation to consular protection, for example, often have a broader understanding of what constitutes consular protection (see Kluth 11; on the other hand Hilf 11–16, Künzli 332–37).
17 The existing complementary law has been limited to consular protection. In particular, Art. 5 (1) Decision 95/553/EC suggests that Art. 23 TFEU only encompasses consular assistance by consular and diplomatic missions of the Member States for distressed persons. However, acts adopted by the Member States on the basis of a Treaty provision have to be compatible with their legal basis, just as the legality of secondary law depends on its compatibility with primary law. While complementary law may serve as an indicator of the Member States’ interpretation of primary law, it cannot modify the rights provided for by the Treaties. Consequently, Decision 95/553/EC may not limit the scope of Art. 23 TFEU.
18 Whether a Member State is entitled to provide diplomatic protection for Union citizens who are not its nationals cannot be resolved unilaterally by the European Union. European citizenship itself does not provide a sufficient link to fulfil the requirement of nationality. Rather, the agreement of the State against which diplomatic protection shall be exercised is necessary. Accordingly, Art. 23 TFEU provides for an obligation of the Member States to enter into the necessary international negotiations. This provision provides the basis for a systematic interpretation indicating that diplomatic protection is in principle encompassed by the scope of Art. 23 TFEU. For the provision of consular assistance to nationals of another State, on the contrary, negotiations are in principle unnecessary, as Art. 8 Vienna Convention on Consular Relations (1963) (596 UNTS 261) only requires a notification. If the right to protection were limited to consular assistance, the negotiation clause would be stripped of its practical meaning. Further analysis underlines, however, that not all kinds of diplomatic protection are included by its scope. The applicability of Art. 23 TFEU is expressly limited to the territory of third States and it is subsidiary to the protection by the home State of a Union citizen. The exercise of diplomatic protection against another State will frequently not depend on the existence of a diplomatic mission in that State, ie in the case of international litigation. The scope of Art. 23 TFEU can thus be described in an institutional perspective: it is applicable if the involvement of a diplomatic or consular mission in a third State is necessary for the protection of a Union citizen. Examples include making legal declarations, transferring documents, official exertions for the release of imprisoned persons, assistance in the exhaustion of legal remedies (Kadelbach  76). So far, neither the European Union nor the Member States have entered into negotiations with a third State concerning the extension of diplomatic protection to Union citizens.
19 It has been an issue of debate whether Art. 23 TFEU is directly applicable (Treaties, Direct Applicability). Mainly two arguments are cited against direct applicability. Art. 23 TFEU provides, first, that the Member States need to adopt the necessary provisions, and, second, that they enter into international negotiations. For those arguing in favour of direct applicability, the necessary rules among the Member States only concern those implementing measures that simplify the exercise of the right. They do not, however, question the existence of the right as such. This interpretation is reinforced by the Lisbon Treaty that replaces the obligation to establish complementary law with a competence for the Council to adopt directives to facilitate protection by the consular and diplomatic authorities (see Art. 23 TFEU). With respect to the necessary consent of a third State insofar as diplomatic protection is concerned, it has been argued that its lack only constitutes a legitimate reason for unequal treatment but does not call into question the direct applicability of Art. 23 TFEU itself. Alternatively, it has been argued that Art. 23 TFEU engages the scope of application of the EC Treaty and thus of Art. 18 TFEU. Under this premise, the right to equal treatment exists independently from the answer on the direct applicability of Art. 23 TFEU (Kleinlein and Rabenschlag 1314–15).
20 Not all national legal orders recognize an individual right of their citizens to consular and diplomatic protection. In that case, direct applicability of Art. 23 TFEU does not have practical effects if its content is limited to an equal treatment provision. Thus the question arises whether Art. 23 TFEU obliges the Member States to provide such protection or whether the entitlement of Union citizens to protection only flows from the relevant complementary law in conjunction with the applicable domestic provisions. It has been argued that Art. 23 TFEU provides for such an individual right to protection, as otherwise its effet utile would be undermined (Ruffert 471–72). Yet, it stretches the principle of effet utile if it is used to transform a non-discrimination provision into an obligation to fulfil a certain action. Moreover, this interpretation brings Art. 23 TFEU in line with Art. 21 TFEU and Art. 22 (1) TFEU. A duty to act, however, might flow from fundamental rights (Kleinlein and Rabenschlag 1311–12). A harmonization of the protection regime could be achieved by the simplified treaty modification procedure of Art. 25 (2) TFEU. Art. 23 (2) TFEU provides a legal basis for such harmonization insofar as it is part of a coordination and cooperation measure necessary to facilitate protection by the consular and diplomatic authorities.
2. Protection by EU Institutions and Commission Delegations in Third Countries
21 In practice, the Commission frequently gives assistance to Union citizens and exercises diplomatic protection on behalf of Union citizens, the basis for which can be seen in Art. 35 TEU. This provision underlines that the Commission delegations form an integral part of the cooperation in diplomatic and consular matters under the European Security and Defence Policy. Diplomatic protection has also been exercised by resolutions of the European Parliament on behalf of Union citizens and by the Council.
22 The competence of the EU is an implied power following its external competences, eg its commercial policy (see also International Organizations or Institutions, Implied Powers). In particular, the EU can act if third States violate obligations arising from treaties they have concluded with the Union, be it under the legal personality of the EC. In these cases, third States have implicitly consented to the exercise of diplomatic protection within the scope of the respective treaty.
23 In light of Union citizenship and Art. 47 TEU, the competence of the EU entails an obligation to exercise protection. Accordingly, the Court of First Instance has assumed an obligation of the Commission to exercise diplomatic protection in a case concerning the protection of ships sailing under the flag of a Member State (Case T-572/93 Odigitria AAE v Council and Commission).
24 The implied power of the European Union to afford diplomatic protection to its citizens remains a parallel competence, even if the underlying substantive field is within the scope of an exclusive competence of the EU. The Member States are not generally precluded from exercising diplomatic protection in these areas. This distribution of competences reflects the legal situation in general public international law (see ICJ Reparation for Injuries Suffered in the Service of the United Nations [Advisory Opinion] 185–86). The Member States, however, are under the obligation to coordinate their actions with the EU institutions in accordance with Art. 4 (3) TEU.
C. Assessment: Conceptual Implications of European Citizenship
25 Assessments of the conceptual contents of European citizenship frequently rest on assumptions about its meaning for the identity of the European citizens. The trans-disciplinary discussion on this issue is closely related to the debates on the finality of European integration, on its democratic legitimacy, and on the European constitution. A prominent conceptualization views European citizenship as a reflection of the rational supra-nationalism civilizing the national identities. In this perspective, Union and national citizenships form integral parts of European identity, mutually stabilizing each other (Weiler 346–48). Others view Union citizenship as a first step towards a cosmopolitan citizenship.
26 To assess the conceptual implications of Union citizenship as it is conceived in Union law, it appears useful to conceptualize European citizenship in the perspective of a compound constitutional system, consisting of various constitutional orders. This approach rests on the premise that a meaningful citizen status is possible on the level of the Union as well as on the level of the State. It focuses on meaningful and institutionalized opportunities for citizen participation (Kadelbach  492–95). From this perspective, European citizenship has significant implications for the conceptualization of European democracy (see also Case C-135/08 Rottmann, Opinion of Advocate General Maduro para. 23). The provisions on the right to vote in elections to the European Parliament suggest a European legitimizing community transcending national borders: probably the first transnational democratic system and therefore of significant relevance for any school of thought on the development of international law. Moreover, the provisions concerning the right to free movement and residence reflect a tiered degree of financial solidarity (for a conceptualization see Wollenschläger 343–51; for a critique see Somek 812–18). Likewise, Art. 23 TFEU exemplifies the common responsibility of the Member States for all Union citizens.
27 A comparative perspective underlines the significance of European citizenship for a conceptual characterization of the European Union. So far other processes of regional integration have not developed an even remotely similar status. Even in organizations envisaging direct elections for their parliamentary assemblies, the idea of an overarching citizenship does not have notable relevance (Parliamentary Assemblies, International). Hence, the existence of a meaningful citizenship status may be taken as an indicator of the depth of an integration process.
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- Case 534/06 Huber  ECR I-9705.
- Case T-572/93 Odigitria AAE v Council of the European Union and Commission of the European Communities  ECR II-2025.
- Council Directive 93/109/EC of 6 December 1993 Laying down Detailed Arrangements for the Exercise of the Right to Vote and Stand as a Candidate in Elections to the European Parliament for Citizens of the Union Residing in a Member State of Which They Are Not Nationals  OJ L329/34.
- Council Directive 94/80/EC of 19 December 1994 Laying down Detailed Arrangements for the Exercise of the Right to Vote and to Stand as a Candidate in Municipal Elections by Citizens of the Union Residing in a Member State of Which They Are Not Nationals  OJ L368/38.
- Council Directive 2006/106/EC of 20 November 2006 Adapting Directive 94/80/EC Laying down Detailed Arrangements for the Exercise of the Right to Vote and to Stand as a Candidate in Municipal Elections by Citizens of the Union Residing in a Member State of Which They Are Not Nationals, by Reason of the Accession of Bulgaria and Romania  OJ L363/409.
- Council of the European Union ‘Guidelines on Consular Protection of EU Citizens in Third Countries’ (2 June 2006) Council of the European Union Document 10109/06.
- Decision 95/553/EC of the Representatives of the Governments of the Member States Meeting within the Council of 19 December 1995 regarding Protection for Citizens of the European Union by Diplomatic and Consular Representations  OJ L314/73.
- Decision 96/409/CSFP of the Representatives of the Governments of the Member States, Meeting within the Council of 25 June 1996 on the Establishment of an Emergency Travel Document  OJ L168/4.
- Declaration by the Heads of State or Government on European Identity, published by the Foreign Ministers (14 December 1973)  12 BullCE 118.
- Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the Right of Citizens of the Unions and their Family Members to Move and Reside Freely within the Territory of the Member State  OJ L158/77.
- Draft Treaty Establishing the European Union (14 February 1984)  2 BullCE 8.
- Ilaşcu v Moldova (ECtHR) Reports 2004-VII 179.
- Joined Cases C-11/06 and C-12/06 Rhiannon Morgan v Bezirksregierung Köln and Iris Bucher v Landrat des Kreises Düren  ECR I-9161.
- R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs England and Wales Court of Appeal (6 November 2002) EWCA Civ 1598.
- Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion)  ICJ Rep 173.
- Treaty on European Union (signed 13 December 2007, entered into force 1 December 2009)  OJ C115/1.
- Treaty on the Functioning of the European Union (signed 13 December 2007, entered into force 1 December 2009)  OJ C115/47.
- Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community (signed 13 December 2007)  OJ C 306.