Nationality of the Member State

The concept of citizenship has been at the heart of the European project from its very beginnings. The Treaty of Rome (25 March 1957) in fact already emphasises the importance of no discrimination on the basis of nationality. This meant, of course, that there was to be no discrimination with regard to the nationals of each of the Member States of the European Economic Community. This prohibition was across the board with regard to the objectives of the Treaty: “Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.” (Article 7).

In Title III of the Treaty on Free Movement of Persons, Services and Capital, this horizontally applicable principle is applied to those secured freedoms: no discrimination based on nationality in the freedom of movement of workers with regard to employment, remuneration and other conditions of work and employment (Article 48(2)); no restrictions on freedom to provide services can be applied on grounds of nationality (Article 65) and no restrictions on the movement of capital can be applied on grounds of nationality (Article 67).

Freedom of establishment was to be secured with the progressive removal of restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State. (Article 52). This freedom of establishment was to be extended to companies and firms which, for this purpose, were to be treated in the same way as natural persons who are nationals of Member States. (Article 58).

These are a few of the many instances in the Treaty of Rome where reference is made to “nationals of Member States” because nationality is at the very basis of the benefits of the citizens of each of the member states which together created the European Economic Community. Clearly even the structures of the EEC were based on the participation of persons who were nationals of the Member States. Thus, for example, in Article 157 with reference to the European Commission, “Only nationals of Member States may be members of the Commission”.

While this concept of nationality of a member state remained the connector to the rights and benefits which the creation of a common market was intended to address, in time, as the European Communities were merged and then were transformed into a European Union, a new concept emerged: that of a European citizenship distinct from, but linked to, the nationality of each member state. One can see this European citizenship as an assertion of shared identity and also as an evolution of the integration process of the European Union as it continues to wrestle between a “Europe of peoples” and a “Europe of states”.

European Citizenship

It was the Treaty of Maastricht entitled the Treaty on European Union (1992) that introduced the concept of EU Citizenship. The Treaty of Maastricht declares, in its Preamble that the Member States resolved to establish a citizenship common to nationals of their countries through the introduction of a citizenship of the Union in order

“to strengthen the protection of the rights and interests of the nationals of its Member States…” (Preamble; and then Title 1 Common Provisions Article B). It established a European citizenship that was automatically conferred on “Every person holding the nationality of a Member State”. Later, the Treaty of Amsterdam clarified that “Citizenship of the Union shall complement and not replace national citizenship.” (Article 9).

In addition to the existing rights of the citizens of the Member States, that predate it, this Treaty and the Treaty of Amsterdam which followed it, while asserting that such a Citizen of the Union has the enjoyment of the rights conferred by the Treaties in general, enlists a number of rights inter alia emanating from such European Citizenship –

(a) to move and reside freely within the territory of the Member States

(b) to vote and to stand as a candidate at municipal elections in the Member State in which he resides

(c) to vote and to stand as a candidate in elections to the European Parliament

(d) to be protected by the diplomatic or consular authorities of any Member State

(e) to petition the European Parliament and

(f) to apply to the European Ombudsman

(g) to write to the Institutions in any of the official languages of the EU and to receive an answer in that same language (Article 11) and

(h) to have access to European Parliament, Council and Commission documents (this latter right applicable also to any natural or legal person residing or having their registered office in a Member State) (Article 45).

These citizens’ rights are today firmly entrenched in the legal system of the European Union, as it continued to evolve with other subsequent treaties not least the Treaty of Lisbon including with the adoption and legal enforceability of the Charter of Fundamental Rights of the European Union.  The Treaty of Lisbon further stated that it observes “the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies” (Articled 1.12)) describing European Citizenship as “additional” (not “complementary” as in the Treaty of Amsterdam) to national citizenship.

Acquisition and Loss of European Citizenship

How do you acquire European citizenship? It is a citizenship that is additional to that of national citizenship of a member state of the European Union generated at the same time as that national citizenship. The Treaty on the functioning of the European Union, reflecting the statement in the Maastricht Treaty, states very clearly that “Every person holding the nationality of a Member State shall be a citizen of the Union”. (Article 20(1)).

Are their common European rules for acquisition and loss of citizenship? No because the rules for acquisition and loss of a national citizenship of the EU pertain solely and exclusively to the Member State and not to the European Union. Issues of citizenship have not been conferred on the European Union and as is clearly laid out in Article 5 of the Treaty on European Union, the EU acts only within the limits of the competences that the EU member states have conferred upon it by the Treaties. The Treaty on the Functioning of the European Union lays out the exclusive, shared and supporting competences very clearly in Articles 2-6.  As a result, the acquisition of citizenship is regulated exclusively by the law of the Member State conferring it.

If you are the holder of dual nationality, it is sufficient for one of those nationalities to be that of one of the Member States of the European Union to benefit from the freedoms

available to you as a European citizen.[1]   In summary, the judgement lays down as follows: “The provisions of Community law concerning freedom of establishment preclude a Member State from withholding that freedom from a national of another Member State who at the same time possesses the nationality of a non-member country, on the ground that the legislation of the host State deems him to be a national of the non-member country. Whenever a Member State, having due regard to Community law, has granted its nationality to a person, another Member State may not, by imposing an additional condition for its recognition, restrict the effects of the grant of that nationality with a view to the exercise of a fundamental freedom provided for in the Treaty, particularly since the consequence of allowing such a possibility would be that the class of persons to whom the Community rules on freedom of establishment were applied might vary from one Member State to another.”[2]

Therefore while reasserting that the acquisition and removal of citizenship is a matter for the Member State, the court case law includes the words “having due regard to EU law” in relation to such grant. In this regard, the Commission, in its period report on the effectiveness of European Citizenship, comments that in “interpreting this proviso in the Rottmann Case (Case C-135/08), 2 March 2010[3], the Court did not challenge the exclusive competence of Member States to determine who may become their national and thus a Union citizen. Rather, it imposed limits on their power to deprive[4] Union citizens of the rights attached to their Union citizenship status. In particular, it affirmed that, in respect of citizens of the Union, the exercise of Member States’ power to lay down rules for the acquisition and loss of nationality, in so far as it affects rights conferred and protected by the legal order of the Union, as is the case with a decision withdrawing naturalisation, is amenable to judicial review carried out in the light of EU law.”[5]

Furthermore, the motive for or method of your acquisition of the citizenship of a Member State, and consequently of the European Union, does not seem to arise as an issue with regard to the benefits arising therefrom. In Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department the Court reiterated that “Under international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality and it is not permissible for a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty.”[6]

Interestingly in Case C-145/04 Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland, the Court exonerated the UK from breach of EU law by granting Commonwealth citizens resident in Gibraltar who are not EU nationals the right to vote and stand as candidates to the European Parliament stating that the current state of Community law, the definition of the persons entitled to vote and to stand as a candidate in elections to the European Parliament falls within the competence of each Member State in compliance with Community law which does not preclude the Member States from granting that right to vote and to stand as a candidate to certain persons who have close links to them, other than their own nationals or citizens of the Union resident in their territory. In addition, since the number of representatives elected in each Member State is laid down by EU law and since elections to the European Parliament are held in each Member State for the representatives to be elected in that State, an extension by a Member State of the right to vote at those elections to persons other than its own nationals or other than citizens of the Union resident in its territory affects only the choice of the representatives elected in that Member State and has no effect either on the choice or on the number of representatives elected in the other Member States.[7]

Similar reasoning, in terms of national regulation of the issue, was used in Case C-300/04 M.G. Eman and O.B. Sevinger v College van burgemeester en wethouders van Den Haag 12 September 2006.  where residents in an overseas territory of the Netherlands (Aruba) were precluded from voting in European elections because they failed to meet the test of residence in the Netherlands. The Court did not find breach of EU law stating that “In the current state of Community law, the definition of the persons entitled to vote and to stand for election to the European Parliament falls within the competence of each Member State in compliance with Community law”. Consequently, the Court said, a Member State may require meeting a criterion of residence in the territory in which the elections are held as a condition of the right to vote and to stand as a candidate in elections to the European Parliament.

Still there are situations where the value of European Citizenship becomes exponential, as was the recent case with the Court Order of the 6^th of September 2017 given in Case C‑473/15, Peter Schotthöfer & Florian Steiner GbR v Eugen Adelsmayr on request for a preliminary ruling.

The facts of the case related to an Austrian national and resident Mr Adelsmayr, a physician who, while working in the United Arab Emirates, had been blamed for the death of a patient he was treating who had died following an operation in February 2009. An investigation was carried out which made a finding of murder and manslaughter leading to proceedings in 2011 in Dubai where the public prosecution service requested the death penalty for Mr Adelsmayr. When Mr Adelsmayr left the UAE in 2012, he was sentenced in absentia to life imprisonment in interim proceedings which could be resumed at any time and in which he would still be liable to the death penalty. In Austria, where similar proceedings had been initiated, in 2014, the Austrian Public Prosecutor’s Office had discontinued similar proceeding against Mr Adelsmayr. In the reference to the Court of Justice of the European Union, Mr Adelsmayr was pleading the application of Charter of Fundamental Rights of the European Union. He had declined to attend a conference in Germany because he was unsure whether by going there he could have risked being turned over to the authorities of the UAE.

The Court, quoting Article 19 (2) of the Charter of Fundamental Rights of the European Union[8], ruled very clearly that “a request for extradition originating from a third country concerning a European Union citizen who, in exercising his freedom of movement, leaves his Member State of origin to reside in the territory of another Member State, must be rejected by the latter Member State where that citizen runs a serious risk of being subjected to the death penalty in the event of extradition.”

Work in Progress

There is no doubt that the development of a European citizenship, additional and parallel to national citizenship in the European Union is also an important assertion of a distinct European identity beyond that of the national state. Thus, for example, German and European, Italian and European, Maltese and European, dual identities which also translate into national and European citizenships.

Equally, there is no doubt that European citizenship carries with it benefits and rights which are increasingly important. Indeed, as we have seen above, in some cases, it can be even life-saving!

European citizenship is a cornerstone of Europeanness, complementing the day-to-day usefulness to the common citizen of Europe in crossing borders seamlessly within the Schengen area, in using a common currency, the Euro, in different member states, and, now, lately, in communicating across borders without the burden of roaming charges.

European Citizenship is work in progress. The Treaties themselves have an internal mechanism to keep the regulation, and effectiveness, of EU Citizenship under review: Article 25 of the Treaty on the Functioning of the European Union (TFEU) requires the Commission to report to the European Parliament, the Council and the European Economic and Social Committee every three years on the application of the provisions of Part Two of the Treaty dealing with Non-Discrimination and Citizenship of the Union.[9] The legal regulation of, and benefits arising from, European citizenship is an acquis in evolution and we shall certainly see greater developments, legislatively and in case-law, in the years to come.

Author: Dr Michael Frendo K.O.M., LL.M.(Exon.), LL.D.(Melit.), Frendo Advisory, Valletta

[1] Case C-396/90 Mario Vicente Micheletti and others v. Delegación del Gobierno en Cantabria, Judgment of the Court of 7 July 1992.

[2] ibid. The judgment can be viewed at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61990CJ0369&from=EN

[3] Case C-135/08, Janko Rottmann v Freistaat Bayern – Reference for a preliminary ruling under Article 234 EC from the Bundesverwaltungsgericht (Germany).

[4] Emphasis mine

[5] Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions under Article 25, TFEU. On progress towards effective EU Citizenship 2011-2013, Brussels, 8.5.2013 COM(2013) 270 final

[6] Case C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department, 19 October 2004 which can be viewed on https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62002CJ0200&from=EN

[7] https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62004CJ0145&rid=7.

[8] “2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”

[9] See supra at paragraph 11.