First published in September 2017.

Before we go further, let’s get some things out of the way.

I know, I know, “you have to be a national of a Member State to have EU citizenship. And the UK will no longer be a Member State.”

Yes, you’re right, “experts say the proposal to keep citizenship after Brexit doesn’t have a chance.”

And then there’s the argument “Why would we guarantee these rights for Brits without reciprocity? Why should we? They voted to leave anyway!”

Forgive my tone, but: now that we’ve established that we all ‘know’ the obvious and the headlines, let’s focus on the less obvious and the complex, shall we? Let’s talk law.

First of all we need to understand that citizenship is not the same as nationality. If we check the entry for “Nationality” in the Max Planck Encyclopedia of Public International Law we find that:

“Nationality is a legal concept of both domestic and international law. For the purposes of the former it is often referred to as ‘citizenship’, although as a matter of terminology, it would seem much more precise to denote the legal status of the individual as ‘nationality’ and the consequences of that status, ie the rights and duties under national law, as ‘citizenship’.”

There’s a lot of potential to get confused here, especially because this definition comes from the perspective of international law, but the simplest way to understand everything is:

Domestic law grants individuals domestic citizenship, and given that nation-states are the most common legal entities in our international legal system, then each individual’s domestic citizenship becomes their national citizenship (aka nationality).

So far so good? Ok, so let’s start making things more interesting.

In order to understand the point here, it is imperative to keep in mind that according to Article 47 of the Treaty on the European Union (one of the two Founding Treaties of the EU), the European Union has international legal personality. In the simplest of terms, this means that the EU is in fact just as “real” as any country and it can legally do just about anything a country can (but it often needs ‘permission’ thanks to the principle of subsidiarity).

Now, here’s where things become fun:

Article 20 of the Treaty on the Functioning of the European Union.

Based on the EU’s internal/domestic legal system, a Citizenship of the Union has been established since 1993. For any hardcore skeptics who might start an argument over the definition of “established”, the Spanish version of the treaty says “Se crea una ciudadanía de la Unión” (“A citizenship of the Union is [hereby] created”) and the German declares “Es wird eine Unionsbürgerschaft eingeführt” (“A citizenship of the Union is [hereby] introduced/adopted/initiated”). So in the same way that the EU was legally and politically created by the Treaties, so was its citizenship.

“But how is that even a real citizenship? It’s nothing without the Member State nationality that it derives from!”

Disproving such intuition and bias is going to take three more sections along with a lifetime of elaboration, so let’s get started.

The three sections will be:

  1. The origins of this international citizenship, the first ever of its kind
  2. The meaning and substance of Article 20 TFEU, which describes the nature of this Citizenship of the Union
  3. Applying existing legal precedents to the problem of Brexit and the issue of citizens’ rights

For those who want the “tl;dr” (“too long, didn’t read”) version, the following diagram is where we will end up:

Don’t argue just yet. Read on and then we’ll have a proper discussion. :)

In a nutshell: each national group has its own idea of who is and who isn’t a citizen/national. National laws implement this idea into a coherent concept of “nationality” by granting rights and duties under domestic law (which don’t have to be respected or recognized elsewhere). But only EU citizenship combines various national tribes into one citizenry. This international citizenship and its rights aren’t dictated from the top by a national authority; instead, this citizenship strives upward towards the recognition and respect of the fundamental human rights that we all have in common, regardless of nationality.

The origins of Citizenship of the Union, the first ever of its kind

By far the most enlightening document on this issue is the Edinburgh Agreement of December 1992. If you’re into the whole “referendums are binding” trend, you should read up on the Danish Referendum of 1992 which was one of the reasons why this Edinburgh document exists. For our purposes, the important thing is that Denmark was the only country who failed to agree with the initial Maastricht Treaty, and one of the reasons was this so-called Citizenship of the Union. But afterward, all twelve Member States agreed on the following:

Annex 3 of the Edinburgh Agreement of 1992.

Some of you might already see what’s coming, but let’s go over who these members were: Belgium, France, Germany, Italy, Luxembourgh, Netherlands, Denmark, Ireland, United Kingdom, Greece, Portugal and Spain.

That’s right: the United Kingdom was one of the original 12 Member States who agreed on the nature of EU Citizenship, and it was Denmark (not the UK) who initially held a referendum to disagree on how this citizenship was related to nationality, but in the end all members agreed on the definition.

How do we know that they found an agreement? Aside from the Edinburgh Agreement, we know they agreed because changes to the Founding Treaties require the consensus of all Member States, and the wording to define “Citizenship of the Union” has evolved over time:

  • “Every person holding the nationality of a Member State shall be a citizen of the Union” (Maastricht Treaty 1992/1993)
  • “Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship” (Amsterdam Treaty 1997/1999)
  • “Citizenship of the Union shall be additional to and not replace national citizenship” (Lisbon Treaty 2007/2009)

We will save the fascinating discussion of being vs becoming for later, but for now we need to observe how the wording changed from “complement and not replace” to “additional to and not replace”. From this wording, it is clear that Union Citizenship is indeed an additional object in and of itself. Some readers might consider the following as a boring triviality, but those who are linguistically-oriented or legally-minded will notice that the issue here is “complement”.

(Source: Oxford Dictionaries)

This could give the impression that Citizenship of the Union completes national citizenship (as if national citizenship were lacking in some regard). If you think the issue is only in English, then rest assured that this is not the case and therefore there’s a very good reason why the legal negotiators, writers and reviewers of the treaties made sure to focus on and remedy such a ‘triviality’.

The Spanish version of the Treaty of Amsterdam uses the same ambiguous word while the German text reads “Die Unionsbürgerschaft ergänzt die nationale Staatsbürgerschaft, ersetzt sie aber nicht.” (“The citizenship of the union completes/complements/supplements national citizenship, but does not replace it”).

So it is clear that the revision was necessary in order to clarify that Citizenship of the Union is something additional to national citizenship rather than being another component of the same thing. But how do we make sense of this new citizenship?

If the EU were a nation, perhaps this is how we could conceptualize citizenship.

Given the “additional” aspect of EU Citizenship, some might think that the two go alongside each other. The image on the left is a potential visualization of how Citizenship of the Union is related to national citizenship. Perhaps that would be appropriate if the EU was indeed a nation-state, with its own sovereign territory, sovereign government and sovereign laws.

But we all know that this is not the case. The European Union is not an individual nation, it is a union of nations. It is a cooperation project less inclusive than the United Nations but far more ambitious. It is the result of an entire continent’s decision to look at its history of war and say “no more.”

And that’s what leads us to this diagram:

Citizenship of the Union is supranational by nature.

This diagram shows that holding the nationality of a Member State is a prerequisite for becoming a Citizen of the Union. The two types of citizenship are not alongside each other and there’s no independent way to become an EU citizen (yet?). Instead, EU citizenship encompasses all the national citizenships of its Member States and harmonizes the rights and duties provided to all. The EU did not say “this is our territory, these are our citizens, and these are our laws”. It did not have a ‘national awakening’ and it did not try to forge an identity by implementing laws and saying “that is them and this is us”. Unlike national citizenship and national identities, the European Union did not have an exclusive theory of who “its people” are; it simply had an inclusive goal and said “we are coming together because we choose to, and rather than emphasizing our differences in order to create division, we will take advantage of these very differences in order to become stronger by letting each group keep its own identity and use its strengths for the benefit of the collective.”

In short: Europeans may indeed be fundamentally different from one another, but that’s why we are United in Diversity.

But is there a difference between being and becoming? How is the meaning of Article 20 TFEU affected by the answer to this question?

Article 20 TFEU: the nature of European Citizenship

Although my girlfriend would surely hate me for being repetitive and saying the exact same thing over and over again, perhaps we all have a duty to memorize these words so it’s worth repeating this over and over again:

If repetition is conducive to learning, then these words need to be displayed everywhere #Article20.

If only it were as simple as memorizing words, perhaps then we would all understand our rights as EU citizens and we would know how to exercise these properly. But the reality is that interpreting laws is not always so straightforward, and that is why we have courts and judges to help us interpret the law. So for this section there will be three very important foundations that we will then apply to the problem of Brexit and the issue of citizens’ rights. These foundations are: Rottmann, Zambrano, and Lenaerts.

Venn diagrams for Rottmann.
Venn diagrams for Zambrano.

The Venn diagrams above summarize the cases of Janko Rottmann (C-135/08) and Ruiz Zambrano (C-34/09). The star represents the individual in question and the colored circles represent the way national or EU laws apply to the individual in question. The important lesson in Rottmann was that the ECJ may intervene when a decision to withdraw nationality deprives an EU citizen of his/her status and rights as EU citizens. Meanwhile, Zambrano showed that a Member State is compelled to grant the right of residence and a work permit to a third-country national in cases where not doing so would deprive an EU citizen of the substance of their rights or forces them to leave the territory of the Union.

In other words: Member States are not allowed to deprive EU citizens of their status or rights as Citizens of the Union

You can read both cases in full here and here, but the conclusions remain the same and these are not the only cases that provide a lesson of what EU citizenship is or how it works. That is why we now turn to the last of our foundations: Lenaerts.

Koen Lenaerts has been a judge at the ECJ since 2003, served as Vice-President of the ECJ from October 2012–2015, and has been President of the European Court of Justice since 8 October 2015. In November 2015 he published the article “EU citizenship and the European Court of Justice’s ‘stone-by-stone’ approach” which includes the following conclusions:

“A joint reading of Rottmann, Ruiz Zambrano, McCarthy, Dereci, Iida, O and S, Ymeraga and Alokpa shows that the legal reasoning of the ECJ is far from being laconic or cryptic. The sequence of these cases demonstrates that the new approach set out in Ruiz Zambrano has been built up progressively, i.e., on a ‘stone-by-stone’ basis. Indeed, Dereci, Iida, Ymeraga and Alokpa make clear that the new approach only operates under exceptional circumstances, namely in so far as the contested national measure forces EU citizens to leave the territory of the Union, depriving them of ‘the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’ (Ruiz Zambrano, 2011, para 42). […] The experience gained through the deliberations in Rottmann shed light on how to address the issues raised in Ruiz Zambrano, in the same way as the latter case did to address the issues raised in McCarthy, and then in Dereci, Iida, O and S, Ymeraga and Alokpa and in cases to come (Rendón Martín, pending case and CS, pending case).”

For those who may not be in the mood for reading legalistic text, the conclusions simply state that cases regarding EU Citizenship have consistently and progressively built on each other. Starting with Rottmann and Zambrano (which he calls the ‘founding stones’), there was an “emancipation of EU citizenship from the limits inherent in its free movement origins.” In other words: Citizenship of the Union evolved thanks to the interpretation of Article 20 TFEU.

What this conclusion and these cases reinforce is the idea that citizens of the Union may not be arbitrarily deprived of their Citizenship of the Union (or the enjoyment of the rights that come from it) and in some cases there need to be derivative rights given to third-country nationals in order to ensure the protection of this status and these rights. In summary:

Rottmann (top): “National decision may NOT deprive an EU citizens of status or rights”. Zambrano (bottom): “Derivative rights must be given to ensure protection of EU citizen”.

Article 20 TFEU states that “Every person holding the nationality of a Member State shall be a citizen of the Union” but it is clear from the Court’s interpretation that every person holding the nationality of a Member State shall become a citizen of the Union. Once this status has been acquired (which often occurs at birth), then it is not secondary or supplementary to national citizenship. That’s because:

“Citizenship of the Union is intended to be the fundamental status of nationals of the Member States” (inter alia: Grzelczyk, paragraph 31; Baumbast and R, paragraph 82; Garcia Avello, paragraph 22; Zhu and Chen, parag. 25; Rottmann, parag. 43; Zambrano, parag. 41, etc)

And this leads us to the final section of piece: How do we apply existing legal precedents to the problem of Brexit and the issue of citizens’ rights?

In Part 2 we learned the complementary/additional nature of EU citizenship and in Part 3 we learned the slight difference between being and becoming a Citizen of the Union (whereby citizenship can’t simply be taken away once it’s been given). Applying the exact same logic to the problem of Brexit, we reach the following conclusion: UK nationals must keep their EU citizenship despite their government’s national decision to withdraw from the Union. For those who have been reading closely, the answer should perhaps be obvious, but let’s recall the facts:

  • The European Union is its own legal entity with international personality and it has the power of citizenship since 1993;
  • Citizenship of the Union is granted through Member State nationality, but the former is an international and supranational citizenship that is additional to and therefore not identical to national citizenship;
  • Becoming an EU citizen requires the nationality of a Member State, but being an EU citizen is a “fundamental status” that cannot be taken away by a national decision.

For those who have followed and understood the visual diagrams, the representation of this point is as follows:

Zambrano: “Derivative rights must be given to ensure protection of EU citizen”.
Zambrano: “Derivative rights must be given to ensure protection of EU citizen”.
Implications of existing law when a Member State threatens to take away status and rights of EU citizens under EU law.

The images above are all consistent with EU statutes and case law. They are also coherent and mutually-supporting because the top images represent 2-dimensional Venn diagrams and the bottom images show a 3-dimensional representation/rotation of those same diagrams. Hopefully it will be enough to clarify all confusions and to put the issue of EU Citizenship to rest once and for all.🔷

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[This is an original piece, first published by the author in on 6 September 2017. | The author writes in a personal capacity.]

(Cover: Pixabay.)