Citizenship of the European Union

History

EU citizenship was first introduced by the Maastricht Treaty, and was extended by the Treaty of Amsterdam. Prior to the 1992 Maastricht Treaty, the European Communities treaties provided guarantees for the free movement of economically active persons, but not, generally, for others. The 1951 Treaty of Paris establishing the European Coal and Steel Community established a right to free movement for workers in these industries and the 1957 Treaty of Rome provided for the free movement of workers and services.

However, the treaty provisions were interpreted by the European Court of Justice not as having a narrow economic purpose, but rather a wider social and economic purpose. In Levin, the Court found that the "freedom to take up employment was important, not just as a means towards the creation of a single market for the benefit of the member state economies, but as a right for the worker to raise her or his standard of living". Under the ECJ caselaw, the rights of free movement of workers applies regardless of the worker's purpose in taking up employment abroad, to both part-time and full-time work, and whether or not the worker required additional financial assistance from the member state into which he moves. Since the ECJ has held that a recipient of service has free movement rights under the treaty and this criterion is easily fulfilled, effectively every national of an EU country within another member state, whether economically active or not, had a right under Article 12 of the European Community Treaty to non-discrimination even prior to the Maastricht Treaty.

In Martinez Sala, the European Court of Justice held that the citizenship provisions provided substantive free movement rights in addition to those already granted by union law.

Stated rights

Historically, the main benefit of being a citizen of an EU country has been that of free movement. The free movement also applies to the citizens of European Economic Area countries and Switzerland. However, with the creation of EU citizenship, certain political rights came into being. The Treaty on the Functioning of the European Union provides for citizens to be "directly represented at Union level in the European Parliament" and "to participate in the democratic life of the Union" (Treaty on the European Union, Title II, Article 10). Specifically, the following rights are afforded:

Free movement rights

Article 21 (1) of the Treaty on the Functioning of the European Union states that

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

The European Court of Justice has remarked that,

EU Citizenship is destined to be the fundamental status of nationals of the Member States

The ECJ has held that this Article confers a directly effective right upon citizens to reside in another Member State. Before the case of Baumbast, it was widely assumed that non-economically active citizens had no rights to residence deriving directly from the EU Treaty, only from directives created under the Treaty. In Baumbast, however, the ECJ held that (the then) Article 18 of the EC Treaty granted a generally applicable right to residency, which is limited by secondary legislation, but only where that secondary legislation is proportionate. Member States can distinguish between nationals and Union citizens but only if the provisions satisfy the test of proportionality. Migrant EU citizens have a "legitimate expectation of a limited degree of financial solidarity... having regard to their degree of integration into the host society" Length of time is a particularly important factor when considering the degree of integration.

The ECJ's case law on citizenship has been criticised for subjecting an increasing number of national rules to the proportionality assessment.

Article 45 of the Treaty on the Functioning of the European Union states that

1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

State employment reserved exclusively for nationals varies between member states. For example, training as a barrister in Britain and Ireland is not reserved for nationals, while the corresponding French course qualifies one as a 'juge' and hence can only be taken by French citizens. However, it is broadly limited to those roles that exercise a significant degree of public authority, such as judges, police, the military, diplomats, senior civil servants or politicians. Note that not all Member States choose to restrict all of these posts to nationals.

Much of the existing secondary legislation and case law was consolidated in the Citizens' Rights Directive 2004/38/EC on the right to move and reside freely within the EU.

New member states may undergo transitional regimes, during which their nationals only enjoy restricted access to labour markets in other member states. EU member states are permitted to keep restrictions on citizens of the newly acceded countries for a maximum of seven years after accession. For the EFTA states (Iceland, Lichtenstein, Norway and Switzerland), the maximum is nine years.

Following the 2004 enlargement, three "old" member states—Ireland, Sweden and the United Kingdom—decided to allow unrestricted access to their labour markets. By December 2009, all but two member states—Austria and Germany—had completely dropped controls. These restrictions too expired on 1 May 2011.

Following the 2007 enlargement, all pre-2004 member states except Finland and Sweden imposed restrictions on Bulgarian and Romanian citizens, as did two member states that joined in 2004: Malta and Hungary. As of November 2012, all but 8 EU countries have dropped restrictions entirely. These restrictions too expired on 1 January 2014. Norway opened its labour market in June 2012, while Switzerland kept restrictions in place until 2016.

Following the 2013 enlargement, some countries implemented restrictions on Croatian nationals following the country's EU accession on 1 July 2013. As of July 2013, all but 13 EU countries have dropped restrictions entirely. The UK Home Office has announced a bill to this effect.

Acquisition

There is no common EU policy on the acquisition of European citizenship as it is supplementary to national citizenship (EU citizenship is generally granted at the same time as national citizenship is granted, likewise it is removed at the point of removal of national citizenship). Article 20 (1) of the Treaty on the Functioning of the European Union states that:

"Citizenship of the Union is hereby established. 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."

While nationals of Member States are citizens of the union, "It is for each Member State, having due regard to Union law, to lay down the conditions for the acquisition and loss of nationality." As a result, there is a great variety in rules and practices with regard to the acquisition and loss of citizenship in EU member states.

Exceptions for overseas territories

In practice this means that a member state may withhold EU citizenship from certain groups of citizens, most commonly in overseas territories of member states outside the EU.

For example, owing to the complexity of British nationality law, a 1982 declaration by Her Majesty's Government defined who would be deemed to be a British "national" for European Union purposes:

This declaration therefore excludes from EU citizenship various historic categories of British citizenship generally associated with former British colonies, such as British Overseas Citizens, British Nationals (Overseas), British Protected Persons and any British subject which does not have the 'right of abode' under British immigration law.

In 2002, with the passing of the British Overseas Territories Act 2002, EU citizenship was extended to almost all British overseas territories citizens when they were automatically granted full British citizenship (with the exception of those with an association to the British sovereign base areas of Akrotiri and Dhekelia on the Island of Cyprus). This has effectively granted them full EU citizenship rights, including free movement rights, although only residents of Gibraltar have the right to vote in European Parliament elections. In contrast, British citizens in the Crown Dependencies of Jersey, Guernsey and the Isle of Man have always been considered to be EU citizens but, unlike residents of the British overseas territories, are prohibited from exercising EU free movement rights under the terms of the UK Accession Treaty if they have no other connection with the UK and have no EU voting rights. (see Guernsey passport, Isle of Man passport, Jersey passport).

Another example are the residents of Faroe Islands of Denmark which, though in possession of full Danish citizenship, are outside the EU and are explicitly excluded from EU citizenship under the terms of the Danish Accession Treaty. This is in contrast to residents of the Danish territory of Greenland who, whilst also outside the EU as a result of the 1984 Greenland Treaty, do receive EU citizenship as this was not specifically excluded by the terms of that treaty (see Faroe Islands and the European Union; Greenland and the European Union).

Summary of member states' nationality laws

This is a summary of nationality laws for each of the twenty-eight EU member states.

Loss of EU citizenship due to member state withdrawal

The general rule for losing EU citizenship is that European citizenship is lost if member state nationality is lost, but the automatic loss of EU citizenship as a result of a member state withdrawing from the EU is the subject of debate.

One school of legal thought indicates that the Maastricht treaty created the European Union as a legal entity, it then also created the status of EU citizen which gave an individual relationship between the EU and its citizens, and a status of EU citizen. Clemens Rieder suggests a case can be made that "[n]one of the Member States were forced to confer the status of EU citizenship on their citizens but once they have, according to this argument, they cannot simply withdraw this status.". In this situation, no EU citizen would involuntarily lose their citizenship due to their nation's withdrawal from the EU.

Another school of legal thought indicates that the Maastricht treaty created the European Union as a legal entity, but it does not have a direct legal relationship with its citizens and EU citizenship is not comparable with any other citizenships and is not additional to the member state citizenship. EU citizenship is only a special feature that member states can offer their citizens. The relationship between an EU citizen and the EU as an organization, is therefore only legally through the member state. In this situation, when the member country leaves, the ex-member country can no longer offer that special feature to its citizens, thus (for example with respect to Brexit) British citizens would no longer be EU citizens.

It is likely that only a court case before the European Court of Justice would be able to properly determine the correct legal position in this regard, as there is no definitive legal certainty in this area.

Greenland

All citizens of Greenland are eligible for EU citizenship under its OCT status, even following Greenland's withdrawal from the EU in 1985, because they remain eligible for Danish passports (which confer EU citizenship) or Greenlandic (which do not). Greenland however was not a member state of the EU and is not a sovereign nation state, unlike for example the United Kingdom.

Danish opt-out

Denmark obtained four opt-outs from the Maastricht Treaty following the treaty's initial rejection in a 1992 referendum. The opt-outs are outlined in the Edinburgh Agreement and concern the EMU (as above), the Common Security and Defence Policy (CSDP), Justice and Home Affairs (JHA) and the citizenship of the European Union. The citizenship opt-out stated that European citizenship did not replace national citizenship; this opt-out was rendered meaningless when the Amsterdam Treaty adopted the same wording for all members. The policy of recent Danish governments has been to hold referendums to abolish these opt-outs, including formally abolishing the citizenship opt-out which is still technically active even if redundant.