European citizenship - 1

Now that the sovereign people of Malta have made it clear that they want their country to become a European Union member state on May 1, 2004, it is appropriate to consider, at this important stage in our nation's history, some of the direct and natural consequences of our choice.

Citizenship is undoubtedly one of the main effects of membership. We will therefore be scrutinising the sui generis concept of citizenship per se from a multi-disciplinary viewpoint, together with its importance in our contemporary EU.

After a brief introduction of the subject, we will briefly analyse the law on citizenship. This will be done in conjunction with an analysis of the case-law of the European Court of Justice (ECJ), the Court of the EU.

It is no accident that European citizenship conjures up the image of a country called Europe. The idea first found expression in 1984 with proposals for a people's Europe designed to improve the flagging popularity of the Community and strengthen the sense of European identity by creating a raft of miscellaneous citizens' rights. A large number of these were enacted into Community Law over the ensuing years.

However it was not until the Treaty of Maastricht in 1992 that citizenship itself (at Spain's urging) was formally recognised as part of the acquis communautaire. It has been reiterated that although Maastricht represented the first formal constitutionalisation of European citizenship, the idea of Community citizenship and the rhetoric of a "People's Europe" had been in circulation for a long time.

The Treaty ordained that all nationals of member states must also be citizens of the Union. Initially, the privileges conferred by European citizenship were modest. However, the Treaty envisages these rights being strengthened or expanded.

The requirements of EU citizenship are left to the discretion of member states. Closa quotes Mancini, who points out that the Rome Treaty does not recognise a constitutional right to European citizenship, and that instead citizenship remains the prerogative of the member state. {Mancini, "The Making of a Constitution for Europe", 26 in Common Market Law Review, page 596, in Closa (1992), "The Concept of Citizenship in the Treaty on European Union," 29 Common Market Law Review, page 1,139}

For example, British subjects with the right to abode qualify, whereas those with Dependent Territories status, except Gibraltarians, do not qualify. In theory, British citizenship constitutes a mixture of jus soli, according to which place of birth is conclusive, and jus sanguinis (defined in 1992 by Italo Bellina in Il Latino degli Avvocati, Nuova Edizione Ampliata as "diritto derivante dai rapporti di sangue con i genitori"). Although the new concept of citizenship means an upgrading of the condition of individuals under Community Law, Closa argues that it has not superseded the preponderance of the concept of nationality of each member state.

As an autonomous notion, citizenship in the traditional, national sense is a relationship of complete membership to a state, to which certain rights and duties have been attached. Its constitutive elements are dealt with from an anthropological, historical, social and political perspectives by various experts.

Articles 17, 18, 19, 20 , 21 and 22 of the Treaty on EU (TEU), which deal with "Citizenship of the Union", have introduced a new, special type of citizenship. The citizens of the Union are, therefore, the nationals of the member states, but they have rights only in the member states and within the EU.

EU citizenship is apparently intended to provide an important step in the process of creating an ever closer union among the peoples of Europe. It constitutes a part of the endeavour to create a 'People's Europe'. Weiner, in fact, in 1997 held that citizenship is "one of the elements central to state-building" (Weiner, "Citizenship in a Non-State - The Developing Practice of European Citizenship", in J.P. Gardner, Citizenship: The White Paper, London, The Institute for Citizenship Studies & The British Institute of International & Comparative Law, page 245.)

Presumably, the purpose is to bring the EU closer to the citizens in the member states and to give the EU a new socio-political dimension. Moreover, it aims at giving the individual increased protection and strengthening individual rights both in the Community and in the member states. Although, prima facie, it seems relatively straightforward and not likely to create juridical, social or political problems, in practice, the contrary has happened.

For example, the concept of citizenship calls into question the issue of sovereignty of the member states, a notion examined by Dr David Friggieri in his book The EU and Sovereignty: Towards Multi-Level Governance, and by the panel of distinguished speakers in the launch of this book at the University of Malta on January 29, namely Professor Peter Xuereb, Rev. Professor Peter Serracino Inglott, Dr Joanna Drake, Dr Michael Frendo and Dr Ranier Fsadni.

Confrontations between the interests of the member states and the EU have shown to be unavoidable. These divergences and conflicts have been caused predominantly by the distinct laws on citizenship of the member states, and they are reflected directly in the nature of the concept of citizenship of the Union. Furthermore, laws on citizenship may differ, for example, as to whether the child shall have the mother's or the father's citizenship, the approach to dual nationality, time limits, and requirements of a special relationship to the member state.

Juridically, this relatively weak concept, which lacks independence because it is wholly founded on the splintered national concepts of nationality, finds legal ground in former Article 8 (today Articles 17-22) of the EC Treaty.

These legal provisions stipulate that every person holding the nationality of a member state shall be a citizen of the Union, and that this same Union citizenship will complement and not replace national citizenship - points considered in Case C-369/90, Micheletti v Delegacion del gobierno en Cantabria [1992] ECR I-4239.

Strictly speaking, citizenship is principally determined by the national rules of each state, but also by rules of international law and by rules on the protection of human rights and fundamental freedoms. In fact, civil rights and duties should be regarded as exclusively associated with citizenship.

Some of these legal instruments include the European Convention on Nationality of November 6, 1997, which lays down that everyone has the right to a nationality, just as the UN Declaration of Human Rights. Yet, this right is not addressed in the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms.

According to international law every country has the right to decide who shall be regarded as holding nationality of that state. In the 1930 Hague Convention Concerning Certain Questions Relating to the Conflict of Nationality, it is clear from Article 1 that "it is for each State to determine under its own law who are its nationals". The Convention on Nationality of the Council of Europe lays down in Article 3 that every State decides "under its own laws who are its nationals".

Additionally, the dependence of the concept of citizenship of the Union on national law has been interpreted as being mutual. It may be argued, in pursuance of this, that the right of member states to decide on matters of citizenship is strongly affected when the Community adopts measures within its own competence. Even the European Parliament itself has maintained that citizenship of the Union should be defined as an autonomous concept, in its Report of the Committee on Institutional Affairs on Union Citizenship - Doc. A3-0300/91.

Consequently, according to the EC Treaty, a European citizen enjoys the rights legally conferred by the European principal legal instrument and is subject to the duties imposed by that same law. In the light of the fact that the enjoyment of citizenship is dependent upon the possession of the nationality of a member state, it must be highlighted that there is no Community definition of "member state national" in the same way that there is a definition of worker.

This point is emphasised in the Declaration on Nationality of a member state annexed to the TEU, which states that "wherever in the Treaty establishing the European Community reference is made to nationals of the member states, the question whether an individual possesses the nationality of a member state shall be settled solely by reference to the national law of the member state concerned".

This declaration reflects a principle recognised in public international law, namely that, as a general rule it is up to each state to determine which persons possess the nationality of that state. However, other states may not always be obliged to recognise a conferral of nationality by a state seeking to exercise diplomatic protection over a person who has no 'effective' links with the state, according to the Nottebohm case - Liechtenstein v Guatemala, decided by the International Court of Justice in 1955.

(To be continued)