This is EXACTLY how we can guarantee every European’s fundamental rights.
First published in September 2017.
Apparently, my previous article got a bit of attention and caused a lot of disagreement and controversy.
Let’s see if we can outdo ourselves with this next one... In the end I hope we will finally stop arguing about our differences and start acting on our commonalities.
Among the primary complaints from those who actually read and followed the legal argument from the previous article, the biggest concern was something along the lines of:
“Even if you are right that Brits can keep their EU Citizenship, none of the citizens from the other 27 Member States would appreciate that. It is unfair to guarantee the rights for the withdrawing country (i.e. British nationals in the EU) without offering protection to the rest (i.e. EU citizens in the UK)!”
Fair enough. If it is justice that we are after, then it does, in fact, seem rather unfair to guarantee rights for one group and refuse them to another. But what if I told you that there is a way to guarantee the rights of ALL EU Citizens? Would you find new reasons to argue, or would you stand up and take action before it’s too late?
Experience tells me that most people will go for the former because it is much easier to say “you’re wrong and that’s not true” [without providing a better solution or idea] than to listen. But for the few who strive for the latter and think “maybe you’re wrong... but what if you’re right?” all I have to say is:
How are we gonna do it? Let me offer my 3-step plan, and if you’re on board, then it is you (not me) who will truly make a difference. I’m just the crazy dude typing on a keyboard and there’s no way I can do this alone. But I figured it’s worth a shot to publish this because it is that important to me, and I sincerely hope it will become that important to you as well. Here are the three key ingredients:
Understanding how EU law can protect all EU Citizens.
Why a European Citizens’ Initiative is the Best Method.
What this could lead to in Europe and the rest of the World...
Tl:dr version: we can use the primacy of EU law to protect all EU Citizens by passing a Regulation before UK withdrawal is completed, so please sign this initiative, share it with others, and help us reach one million signatures so that you can tell your children that you were part of something historic.
1. Understanding how EU law can protect all EU Citizens.
Consider this a crash course on EU law coming from someone who has been forced to learn the law in order to save his own bacon (not because I thought being a lawyer would earn me any money).
The three most important things that you need to know about EU law are:
For those of you who roll your eyes at the very thought of law or legal principles, I completely understand. It is not the most riveting stuff to read and digest, but I will do my very best to keep it brief and with visuals so that you feel like we are on the same page, because this is of fundamental importance.
In a nutshell, proportionality says that “the action of the EU must be limited to what is necessary to achieve the objectives of the Treaties.” We could dive into the details of distribution of competences (i.e ability to act), or prove that Article 4 TFEU gives the Union “shared competence in the principal areas of: (a) internal market, (b) social policy...(j) area of freedom, security and justice”, but the important thing to keep in mind is that the EU cannot do more than what is necessary to achieve an objective laid out in the Treaties. If a specific power has been conferred on the Union, and there is a need for action in order to achieve an objective in the Treaties, then exclusive competence means that only the EU can act, and shared competence means that “EU countries can act only if the EU has chosen not to”. Well, Citizenship of the Union is a power that belongs to the EU because it was conferred in 1993, and it is at the very least a shared competence of the EU, if not an exclusive one (feel free to provide evidence otherwise if you disagree). This means that the EU can take action in matters of Union citizenship, so how is all of this relevant?
Because the Treaties repeatedly state the objective that “decisions are taken as openly as possible and as closely as possible to the citizen”(Preamble, Article 1 TEU, Article 10(3) TEU, and Protocol 2 preamble); so what could be more in line with this principle than citizens aiming to protect their own EU citizenship when it is being threatened?
This brings us immediately into subsidiarity. At its core, subsidiarity is all about efficiency. In its definition (Article 5 TEU), we learn that “the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”
Again, the “simple terms” understanding of this is about efficiency: Is it more effective for the local, regional, or national level to take action? Or would it be more efficient to carry this out at the EU level?
In an issue such as “EU Citizenship” the answer is beyond self-evident, and the legal glossary explanation of subsidiarity also states that subsidiarity “aims to ensure that decisions are taken as closely as possible to the citizen”. So once again, it is hard to find a legitimate argument against European citizens who choose to identify as EU citizens in spite of their nationality (especially when they already have Union citizenship). No national law or act can guarantee or protect the status and rights of all EU Citizens; it is a Union power which requires Union action.
As an example of these two principles in action: It would be incredibly inefficient to ask every city in England to pass their own law on an issue that concerns the whole United Kingdom (e.g. the criminality of rape); conversely you wouldn’t want the UK government to tell every city in the UK to “accept documents only in English and never in Welsh, Gaelic, etc” for the sake of ‘efficiency’. EU law works the same way: subsidiarity and proportionality ensure that the EU doesn’t do more than it needs to, thereby also respecting Member States desire do certain things in their own way.
This naturally leads us to the final principle...
What if there is some conflict between the laws of a Member State and the laws of the European community?
Anyone who is inclined to present the argument of “national sovereignty” at this point should be aware that the aforementioned principles were designed precisely to protect national sovereignty while also ensuring efficient and effective action at all levels of government. If you believe that the EU is ineffective and overly-bureaucratic, that’s partly because it sometimes lacks the power to act without conferring with all the Member States and respecting the national sovereignty of those who simply refuse to collaborate.
The main thing that the precedence/primacy of EU law does is “ensure that citizens are uniformly protected by a European law assured across all EU territories” especially in a situation of conflicting laws. If a law already exists at the Union level, it is up to the EU to ensure the protection of citizens all across the EU.
The EU is not the enemy. And Union law is not designed to undermine national sovereignty, regardless of what any nationalists may tell you. Member States agreed to be bound by Union law in the same way that UK citizens agreed to be bound by UK law (although arguably the former agreed to it by treaty while the latter were born into the agreement and never had a choice). If we truly want to accomplish the goals of our forefathers and we want Europe to be a continent of freedom, security, and justice, then there is an inherent need for proportionality, subsidiarity and primacy of supranational law if and when laws are in conflict. What is the point of any Union such as the United Kingdom, the United States or the European Union if a Member State is allowed to act as if it is not bound by the rules?
Again, I return to the issue of fundamental human rights: how could the European project ever be effective if national sovereignty allowed a country to revoke the rights of citizens despite the fact that EU laws were established to protect them?
Allowing the UK to pretend that it is not bound by Union law just because some of its population wants to withdraw would be equivalent to Scotland refusing to abide by UK law for the same reasons, and if that’s the mentality that the UK wants to pursue when trying to leave the Union, then God Save the Queen indeed when Scotland applies the same mentality...
2. Why a European Citizens’ Initiative is the Best Method.
The fundamental border between Citizenship and Nationality is at the very core of the “Flock Brexit”/“Article 20 TaskForce” ECI. If you need more evidence, just try not to roll your eyes when you read the registered full name of the Initiative “EU Citizenship for Europeans: United in Diversity in Spite of jus soli and jus sanguinis”. I created the damn thing and even I just copy-pasted the name instead of writing it out. But I chose that long name in case anyone was curious enough to find out about the terms “jus soli” and “jus sanguinis”, and I was even more optimistic about the number of people who might look into these two terms and think “you know, that is a bit divisive and unfair that our nationality is decreed unto us at birth, and we spend our whole lives using this fictional label to differentiate ourselves from so-called Others.”
A relatively clever fellow back in 1929 said that “Nationalism is an infantile disease”; it’s about time we cure it.
EU Citizenship provides us with the tools to do this.
Why and how does this ECI plan on detaching EU Citizenship from Member State Nationality? Well, now that you understand the difference between these two concepts, and now that I’ve explained the core principles of EU law, let’s look at the concrete plan behind this initiative...
Short answer: A Regulation based on an inherent conflict between Article 50 TEU and Article 20 TFEU.
That’s as simple as I can state it, but I imagine that very few of us in the room could simply read that sentence and say “Holy crap, that should actually work!” And that is why I will now elaborate a bit on what has been the goal of this initiative from the very beginning.
A Regulation is perhaps the most immediate and powerful legal act of the Union. It aims to ensure the uniform application of EU law in all EU countries. In legal terms, one crucial feature of Regulations is that they always have Direct Effect: they are entirely legally-binding on EU institutions, on countries and on individuals, and they are effective immediately and in every Member State. This means that if when when a regulation is passed on a particular issue, there is no further need for national lawmakers to implement this within national law, but there is a duty for all national lawmakers in all EU countries to abide by it.
A European Citizens’ Initiative “enables citizens to call directly on the Commission to bring forward new proposals for legal acts” and given that a regulation is a legal act, then citizens can be at the root of a regulation if this is the end result of their citizens’ initiative. The regulation that we are proposing with “EU Citizenship for Europeans” is a “Regulation on Withdrawal from the Union” laying down the rules and principles to be followed when withdrawing from the Union. There is currently no such regulation, and no country has ever withdrawn from the Union (please don’t try the “Greenland” argument).
This means that “a legal act of the Union is required for the purpose of implementing the Treaties” and a citizens’ initiative can be used to this end thanks to Article 11(4) TFEU. A Member State is indeed allowed to withdraw from the Union, but it is not allowed to deprive EU citizens from their status or rights guaranteed by Union law. By detaching EU Citizenship from Member State nationality (given that they are in fact not the same thing), we can ensure the protection of all citizens through international law. That way neither the UK nor the EU could violate the rights of any international citizen, and this would be in line with everything in Section 1 (above) as well as the objective and interpretation of the Treaties.
“But surely the UK, and other countries such as Hungary and Poland will never agree to a supranational/international citizenship that is guaranteed for everyone after withdrawal of a Member State!”
That is perhaps true. But thankfully a regulation is adopted through a legislative procedure, and not every Member State has to agree. The ordinary legislative procedure requires a qualified majority (55% of Member States and at least 65% of the population), while the special legislative procedure does not have a precise description and can sometimes be turned into the ordinary legislative procedure through passerelle clauses (“these clauses also allow voting by qualified majority to be applied to acts that are to be adopted unanimously”).
Before we get too deep into this legal rabbit hole, the point is simply that not all Member States have to agree on an issue that most believe is for the good of the Union and its people. By passing a regulation on “withdrawal of a Member State” (which does not refer to a specific country), the UK can be made to agree because it is bound by Union law, and this will also prevent any future withdrawal from using EU citizens as bargaining chips.
Some hardcore leavers in the UK will surely have a problem with the idea that 55% of the EU can force the UK to follow a specific path for withdrawal, but hey, 65% of the EU population is higher than the 52% of UK voters (i.e. 27% of the total UK population) who voted to leave the Union and are now forcing everyone to follow through with a destructive path (i.e. deprivation of citizenship and its rights) that was never mentioned in the referendum. And besides, the UK is certainly a fan of “commonwealth citizenship” for former colonies, what’s wrong with playing the same game in order to guarantee the rights and freedoms of all EU citizens through a more powerful international citizenship?
“That will never work. All of that entails amending the Treaties, and that requires unanimity!”
Not really. Again, the point of a regulation is to implement the Founding Treaties (and perhaps also the Charter of Fundamental rights). Sometimes secondary law is necessary in order to turn the statutes into more concrete laws and procedures. What is the concrete law or process to withdraw from the Union? Any lawyer who claims to have the answer is merely speculating, because the fact is that there is none (Articles 50 TEU and 218 TFEU say nothing about how to deal with pre-existing regulations, directives, etc).
Many argue that “the Treaties are clear: only nationals of the Member States shall be citizens of the Union” but I hereby challenge every single one of these experts to provide concrete evidence that only nationals of the Member states shall maintain Citizenship of the Union or that there is no fundamental difference between being and becoming (and thus “unbecoming”). It is impossible to prove this because withdrawal from the Union is unprecedented; furthermore, being a national and becoming a citizen are not always the same thing.
I know Rottman, I know Zambrano, and I know Dereci, Iida, Ymeraga, Alokpa and all the rest… so I know that you cannot prove that your bias about EU citizenship being subordinate to MS nationality is correct. If your absolute biggest concern is that this [r]evolution of EU citizenship will definitely require amending the Treaties because this would entail a major change to the nature of EU Citizenship, then fine, I suppose I will concede to your stubbornness on this point... but now I would like to remind you that the Treaties will have to be amended after the withdrawal anyway. Here’s a 2016 report by the European Parliament Research Service which very clearly states that “At the very least, Article 52 TEU on the territorial scope of the Treaties, which lists the Member States, would need to be amended, and Protocols concerning the withdrawing Member State revised or repealed.”
How could you possibly be okay with amending the Treaties in this minor way while at the same time throwing away the first truly international citizenship in world history without a second thought?! If we are going to amend the Treaties, we will do it properly and with the right priorities. And if “citizens come first”, then it’s time that we prove it.
Current negotiations are quite blatantly using citizenship as a bargaining chip because (1) there is no clear public agreement, (2) no legal act has been passed to ensure these protections and (3) there are no rules to prevent either side from saying one thing and negotiating another. If both sides are true to their rhetoric about respecting citizens’ rights, they will have no objection to the regulation that we are proposing, and even if the UK wants to unilaterally object (thereby depriving citizens of their rights), other Member States can prevent this from happening. Amendment of the treaties is not an excuse and even Article 218(11) TFEU states that any Member State or EU institution may refer an envisaged agreement to the European Court of Justice and that “Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.”
So enough with the excuses, enough with the alleged ‘progress’ in negotiations and enough with the ‘it can’t be done’ laziness. I just proved to you how exactly this can be accomplished, so let’s reach one million signatures and move on (unless the Commission takes the initiative without a push from us, the citizens). If anyone in power is so adamant that they are right and I am wrong, then let’s refer this question to the Court through Article 218 (11) TFEU and see who wins. I dare you. As I said in the beginning, you are very likely to say “you’re wrong and that’s not true” without providing a better solution...
... or perhaps we can come together in the belief that “maybe you’re wrong... but what if you’re right?”
3. What this could lead to in Europe and the rest of the World...
Check back for Part III of this series. There’s already too much to read and think about in these first two articles and the third one won't just be about Brexit, but also about Trump.🔷
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