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A Critical Perspective on “Associate EU Citizenship”

A Critical Perspective on “Associate EU Citizenship”

 

Martijn van den Brink (Max Planck Institute, Göttingen)

Dimitry Kochenov (Faculty of Law, University of Groningen)

 

Brexit will almost inevitably result in a significant loss of rights, in particular for UK citizens. They will lose their EU citizenship and the EU citizenship acquis will not apply in the UK. To prevent UK citizens from losing EU citizenship, several commentators, including Guy Verhofstadt, the EP Brexit negotiator, have floated the idea of an associate citizenship for UK nationals to safeguard their rights as EU citizens after Brexit. In a recently published Brexit Institute Working Paper, we offer the case against associate EU citizenship. In this blog post, we set out our main concerns with the idea of associate EU citizenship status.

For a start, it should be evident that an associate EU citizenship status is incompatible with the Treaties. Several proponents suggest differently, however, most prominently on the ground that the Court has said that EU citizenship ‘is destined to be the fundamental status of nationals of the Member States’. But, of course, EU citizenship has never been fundamental in this sense; it was never meant to live a life independently of Member State nationalities. The Treaties are crystal clear in that regard: EU citizenship is contingent on and ‘additional to’ Member State nationality (Art. 20 TFEU). For similar reasons, we reject the idea that stripping Union citizens of their rights would contravene the principle of the full effectiveness of EU law. Such a deprivation of rights can be prevented only by detaching EU citizenship from the nationalities of the Member States or by disentitling Member States to withdraw from the Union. Both options would undermine the full effectiveness of the Treaties, which requires that withdrawal under Article 50 TFEU remains possible and EU citizenship is lost, per Article 20 TFEU, for the nationals of the withdrawing state. On the basis of these legal considerations, we also think that the Court should answer in the negatively the questions, referred to it recently by the Amsterdam District court, of whether withdrawal of the UK from the EU results in the automatic loss of EU citizenship of UK nationals and the rights they derive from that status (English translation).

In addition to these black letter considerations, we also reject the idea of associate EU citizenship for democratic reasons. Advocates of associate EU citizenship fear majority tyranny and seek to prevent ‘the unilateral erasure of [EU citizenship] by a transient and slim majority in the United Kingdom’. We offer two arguments in response. For a start, proponents of associate EU citizenship take such extreme positions that they ostensibly reject principles of democratic self-government altogether. For Dawson and Augenstein, for example, it is unclear why ‘a decision of the UK government should bind those UK nationals who wish to retain their European citizenship’. By putting into question whether the UK can bind its own minority, and (seemingly) suggesting that the political decision not to be a member of the EU anymore is justifiable only to those citizens who have consented to it, they appear to reject democratic majoritarian principles (see also Coutts). Secondly, the fear that the minority of UK citizens will suffer from majority tyranny is exaggerated, as the UK and EU have both expressed the intention to offer substantial safeguards to those who exercised free movement rights previously (see Article 32 of the Draft Withdrawal Agreement).

Proponents of associate EU citizenship are also remarkably quiet about processes of democratic decision-making within the EU. First, associate EU citizens will not enjoy voting rights in national elections, by virtue of the mere fact that they do not enjoy the nationality of a Member State. Hence, associate EU citizens will be excluded from the EU’s indirect channels of political participation. Secondly, if all UK nationals, including those resident within the UK, could acquire associate EU citizenship status, it seems exceptionally difficult to guarantee their right to vote in elections to the European Parliament. These issues certainly deserve more attention than those advocating for associate EU citizenship have given it thus far.

Finally, we argue that associate EU citizenship is contrary to the EU’s interests, as it fails to respect reciprocity in future relations with the UK. The EU should hold firm on the demand of reciprocity during negotiations in order to incentivise the UK to offer a favourable free movement regime for EU citizens. A reciprocal regime is also what fairness requires, as otherwise the nationals of remaining EU Member States could legitimately wonder why UK citizens may be conferred more substantive rights than they enjoy under UK law. The counter-argument offered by Kostakopoulou is that UK nationals and EU citizens should not be the object of political negotiations. That, however, is not nearly as self-evident as she would want to make us believe. For example, if the majority of the Swiss population in a referendum decides that free movement with the EU should be limited, threatening thereby to violate its agreement with the EU, we also think normally that the EU can reconsider its position towards Swiss nationals and terminate their rights. The EU makes these issues of political discussion with the purpose of protecting its own citizens.

To be clear, we do not think it would be desirable for UK nationals to be stripped of all their rights. That also will not happen of course. The UK and EU have expressed the intention to offer substantial safeguards to those who have exercised free movement rights. In addition, bearing in mind the EU’s extensive legislation on third-country nationals, it could not even deprive UK nationals of all their rights. What we do argue, however, is that there seems little reason to think that UK nationals ought to enjoy better treatment than other third-country nationals who may be longing for EU citizenship, certainly not those UK nationals who are not even resident in the EU. While we hope that a future UK–EU agreement will offer substantial legal protections to mobile citizens of both entities, the EU should not offer EU citizenship as such to UK nationals.

Martijn van den Brink (Max Planck Institute, Göttingen) holds degrees in law and political science from the Universities of Oxford and Groningen, with specialisations in European Union law and politics. Currently, he conducts research into the boundaries of citizenship within the EU. He has held visiting positions at the University of Michigan and the University of Zagreb.

Dimitry Kochenov holds a Chair in EU Constitutional Law at the University of Groningen. His research focuses on Comparative and EU Citizenship Law; Principles and Enforcement of EU Law with an emphasis on the Rule of Law; EU External Relations Law, and the Law of the EU’s Overseas. Together with Henley and Partners, he created the Quality of Nationality Index.

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