Brexit and 25 years of EU Citizenship

The European Union is perhaps the best-known example of a supranational structure challenging the autonomy of the sovereign nation state. One of the ways this assumes concrete form is through the concept of European citizenship, a status which has gained importance ever since its introduction in the 1992 Maastricht Treaty. The establishment of EU citizenship was indeed a unique historical moment. Dora Kostakopoulou has observed that ‘for the first time in the history of the Westphalian political order a concrete citizenship design beyond the Nation State had emerged, thereby undermining the exclusivity of national citizenship’.

The Court of Justice of the European Union has declared on numerous occasions that EU citizenship is destined to become the fundamental status of the member state nationals. Article 20(1) of the Treaty on the Functioning of the European Union, by contrast, merely describes EU citizenship as a derivative status, stating that ‘every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship’. From reading this definition it becomes clear that a member state’s policy towards multiple nationality is of great consequence for the access to European citizenship. If naturalisation, for example, is no longer conditioned upon renunciation of the previous nationality, this is likely to increase the number of naturalizations, and consequently the number of European citizens. More European citizens are also created when Member States allow for the unrestrained transmission of their nationality by emigrants who permanently live abroad.

Twenty-five years after the entry into force of the Maastricht Treaty on 1 November 1993, many books and articles have appeared that trace the development of EU citizenship. Two contributions stand out for not only looking back but also looking forward, and for the author himself – Hans-Ulrich Jessurun d’Oliveira – who has been a prominent academic commentator on citizenship issues for several decades.

From taking a very dim view of EU citizenship (initially seeing the EU citizen primarily as a suppliant to whom Union citizenship is granted top down, ‘just like her majesty pours out the hot chocolate to the staff at Christmas’), he admits that the concept has gradually acquired considerable content and has given EU citizens a substantial number of rights. In Union Citizenship and Beyond, he notes that secondary legislation and case-law of the Court of Justice ‘show a definite shift from market citizenship of the economically active [i.e. EU citizenship could only be invoked by mobile EU citizens who exercised their free movement right] to a rounder, fully-fledged form of citizenship’.

Even more interesting is d’Oliveira’s Brexit, Nationality and Union Citizenship. One of the ironies of Brexit, which was partly inspired by the Brexiteers wish to regain and tighten immigration control, is that many Britons are now seeking the citizenship of any of the remaining EU27 member states. While some may be eligible to another citizenship via traditional routes such as marriage to a foreign spouse, others are in a position to take more unexpected routes. Thus, descendants of Sephardic Jews can rather easily obtain Portuguese or – somewhat less easily – Spanish nationality. Other Britons may be eligible for Irish citizenship or even German citizenship. Under German law the descendants of certain refugees, mostly Jewish, who settled in the UK after fleeing the Nazi regime are eligible for German citizenship. The massive increase in the number of applications under these different schemes is unlikely to stop anytime soon.

Author: Dr. Olivier Vonk