European citizenship

This is the second of a three-part series. The first was published on March 16.

The Micheletti case (Case C-369/90 Micheletti v Delegation del gobierno en Cantabria 1992 ECR I-4239) indirectly ensures that the Community and every member state must accept that a person is a national of another member state.

In this case, Micheletti, a citizen of both Argentina and Italy, was refused leave to establish himself in Spain as he had lived in Argentina, and therefore, according to Spanish law, he was to be regarded as an Argentinian citizen.

Since only an individual who is a national of a member state can be a citizen of the Union, only the member states decide unilaterally who is a citizen of the Union.

Citizenship of the Union cannot be lost unless nationality of an EU country is lost at the same time. Therefore, as a result of this case, it has been stressed that citizenship of the Union does not replace national citizenship, but is conferred on the individual in addition to his national citizenship.

This principle is commonly called the principle of mutual recognition, a principle which cannot be implemented on a national level but on community level.

In order to strengthen this principle, the Amsterdam Treaty provides that citizenship of the Union shall complement instead of replace national citizenship. It must be added that, as a result of this judgment, how and when a person acquires his/her citizenship is immaterial .

The Amsterdam Treaty guarantees the protection of the so-called 'economic rights', and grants the right to every citizen of the Union to move and reside freely within the territory of the member states, subject to the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect.

There is no doubt that these rights are among the most important for the citizenship of the Union. Corresponding rights have gradually been developed for those individuals who do not fall within the scope of these Articles in the jurisprudence of the ECJ {see, for example, Cases 286/82 and 26/83 Graziana Luisi & Giuseppe Carbone v Ministero del Tesoro [1984] ECR 377 and Case 186/87 Ian William Cowan v Tresor Public [1989] ECR 195} and in secondary legislation. {Council Directives 90/364 [1990] OJ L 180/26, 90/365 [1990] OJ L 180/28, and 93/96/EEC [1993] OJ L 317/59}

It has been promulgated that the Council has the discretionary power to adopt provisions with a view to facilitating the exercise of the above-mentioned rights.

In relation to the above, Nascimbene states that whatever concerns the free movement of persons within the EU is also applicable to family members who are not citizens of the union.

{Nascimbene B., (1998), "Towards a European Law on Citizenship and Nationality?", in O'Leary S. & Tiilikainen T., Citizenship and Nationality Status in the New Europe, The Institute for Public Policy Research, p. 67}

In this context, the principles of free movement of persons and the right to reside are not new to Community law, but have been restricted to certain categories of persons.

In several multi-lateral treaties and international conventions, freedom of movement has been adopted as a human right, in particular the UN Universal Declaration on Human Rights, the European Convention on Human Rights, and the International Covenant on Civil and Political Rights.

In practice, freedom of movement consists of three main elements, namely, the right to enter, the right to stay and the right to leave the territory.

The possibility of expulsion can be said to run counter to the right to enter. Besides this, the right to leave one's own country has not always been recognised.

Freedom of movement within one's own country may also be limited, for example on the grounds of defence policy. It is pertinent to note that the ECJ pronounced that "it is a principle of international law, which the EC Treaty cannot be assumed to disregard in the relations between member states, that a state is precluded from refusing its own nationals the right of entry or residence."{Case C-41/74, Van Duyn v Home Office [1974] ECR 1337}

However, the state is not obliged to grant non-nationals leave to enter the territory, mainly because, under contemporary international law, every country has sovereignty to decide whether a person who is not a national shall be granted leave to enter.

Accordingly, the right to enter or reside in a foreign country is not an internationally recognised human right. Therefore, it is possible to treat nationals of a state and foreigners differently in this respect.

From this viewpoint, the free movement of the citizens of the Union appears to be an exception to what usually applies to relations between states.

The freedom of movement may be considered as a uniform, wholly embracing, all-encompassing and pervading notion; whereby all of its components, the right to enter, the right to reside, and the right to leave, must be real, judicially enforceable rights so that freedom of movement would become a reality for the individual.

Additionally, it also protects the individual's possibility of exercising other related rights, such as, for example, freedom of expression. In fact, the main, related rights granted in pursuance of citizenship are expressly stipulated in Article 19 of the EC Treaty.

It is here held that every citizen of the Union residing in a member state of which he is not a national has the right to vote and to stand as a candidate at municipal elections in the member state in which s/he resides, under the same conditions as nationals of that state.

Moreover, every citizen of the Union residing in a member state of which he is not a national has the right to vote and to stand as a candidate in elections to the European Parliament in the member state in which he resides, under the same conditions as nationals of that state.

The above-mentioned rights confer an important element upon the notion of citizenship, that is, the existence of the so-called 'political rights'.

These rights affect only a small proportion of the citizen of the Union, namely those who reside in a member state of which they are not nationals.

Workers have directly effective rights to move and reside under former Article 48 et seq. of the EC Treaty, which are amplified in secondary legislation, in particular Directive 68/360 and Regulation 1251/70.

Although the wording of the Treaty does not necessarily imply that workers must be nationals of a member state, as opposed to persons lawfully resident within the territory of a member state, it has been interpreted by some commentators as implying a nationality requirement.

It must be pointed out that prior to the coming into force of the TEU, movement and residence rights within the Community were based, to a considerably large extent, on nationality and economic activity.

Therefore, the Amsterdam Treaty reflects the fact that these rights have been constitutionalised and are subject only to a nationality requirement.

Moreover it is stated that economic activity is no longer a fundamental criterion, a necessary ingredient or a sine qua non. In other words, individuals are seen as having certain rights by virtue of their citizenship of the Union, a personal quality, rather than by virtue of their status as factors of production.

For the individual, citizenship is ultimately a question of being able to enter and reside freely in one's country (jus domicilii).

These provisions also refer to the protection owed to citizens of the Union by the diplomatic or consular authorities of a member state, while other dispositions grant to citizens the right to petition the European Parliament and to apply to the Ombudsman in accordance with the Treaty provisions.

After a quick glance at the EC Treaty, it would be sensible to reach the conclusion that the national concept of citizenship is a notion which differs greatly from the concept of citizenship of the Union.

The national concept of citizenship is a status relationship between the individual and his state to which certain rights and duties have been attached.

In other words, it is based upon a genuine link between the individual and his country of origin. On the other hand, citizenship of the Union stands out above all as a bundle of rights.

The legal bond, or rather, the juridical relationship, between the individual and the Union is much more tenuous than that which exists between the citizen and the state.

In a report relating to Citizenship of the Union (Com {93} 702), the European Commission wrote that "the Treaty has created a direct political link between the citizen of the member states and the EU such as never existed with the Community, with the aim of fostering a sense of identity with the Union".

In theory, citizenship is not only intended to protect the individual, strengthen his rights and give the Union a more state-like appearance, but also to strengthen the Community's democratic legitimacy.

According to the ECJ, Article 17 of the EC Treaty is not intended to extend the scope of Community law so as to include even internal, national situations which have no link to Community law.

Thus, Community law must first be activated. {Case 35-36/82, Morson and Jhanjan v Netherlands [1982] ECR 3723; Case C-299/95, Kremzow v Austria [1997] ECR I-2629; Cases C-64/96 and 65/96, Land Nordrhein-Westfalen v Uecker and Jacquet v Land Nordrhein-Westfalen [1997] ECR I-3171}. For example, for the rules on free movement to apply, a person must have migrated between two member states.

Indeed, citizenship of the Union lacks several of the features characteristic of citizenship, including a specific, fundamental legal relationship between the individual and the Union itself.

Citizenship per se stands out as an indirect status relationship, where the direct relationship lies on the one hand between the member state and the Union, and on the other hand between the member state and the individual.

Notwithstanding this, the term "citizenship of the Union" seems to be aimed principally at the particular rights to which the people of the different member states are entitled, and not this indirect legal relationship.

There is a great likelihood that Union citizenship could be regarded as a generic term for these rights. To a large extent, citizenship of the Union is viewed as being a very distinctive type of citizenship.

(To be concluded on April 13)