European citizenship in times of crisis: social rights and austerity
Costanza Margiotta (University of Padua)
At a first glance, it appears easy to say who is a European citizen, and thus to establish those to whom European law applies ratione personae. To establish whether one is a European citizen it is sufficient to ascertain whether that person is a citizen of any of the member states. “Anyone who holds the citizenship of a member state” is a citizen of the Union. The definition of the subjection limits of European citizenship is thus entrusted to national legislations who, as a matter of fact, delineate its limits. Article 8 of the Maastricht treaty, which institutes Union citizenship, was
integrated by art. 17 of the Amsterdam treaty (signed in 1997, effective since 1999) with the addition of a paragraph clarifying the connection between European and national citizenship, stating that “citizenship of the Union shall
complement and not replace national citizenship”. By making national citizenship a required condition for European citizenship, states wanted to underline that the new citizenship did not put into question the belonging to the original, national, political communities. European citizenship is thus defined in relation to the national ones. Precisely because of this it is possible to say that European law did not create a system of double citizenship, but a system of dual citizenship, as highlighted by Lippolis (1994, pp. 61 sgg.). Double citizenship is characterized by the fact that the same individual holds two (or more) citizenships that have their own, different and separated, origins, that do not imply one another and that refer to legal subjectivities acknowledged by different legal orders. European citizenship, on the other hand, is recognized immediately: from here it follows that it must be defined as dual, since its
acquisition is immediate and, furthermore, it does not put into question the original citizenship (while, on the contrary, some cases of double citizenship require that the state conferring the second citizenship accepts the maintenance of the original one, or vice versa).
The question was re-discussed in the light of the Lisbon treaty, which modified the citizenship articles by substituting the original “Union citizenship shall complement” with the expression “is added to” national citizenship. Some have argued (Triggiani 2010, p. 142) that this sets up conditions in which it may be possible to talk of second citizenship, which would allow European citizenship to acquire an autonomous status. In this case, European citizenship would not depend on national citizenship: by being added to national citizenship (though still not substituting it) European citizenship would acquire a more important status. National citizenship would represent a mere gateway to European citizenship. Union citizenship, in turn, would be something different from the national one since it would be subject to a different body of legislation, a body of legislation able to confer directly the rights proper to the European Union’s legal space. States, however, continue to remain the true foundation: they preserve their freedom to choose the criteria of attribution and removal of national citizenship, which is the necessary prerequisite for European citizenship. Treaties, moreover, do not limit in any way this power of the member states. Thus, though it is correct to underline the novelty represented by the Lisbon treaty at a symbolical level, it is premature to speak of a process whereby European citizenship becomes autonomous from the various national ones. Nonetheless, it is likely that this new formulation will favour a certain type of jurisprudential experimentalism on behalf of the European Court that will try to confer to European citizenship a more autonomous status. The Court, it should be said, already expressed doubts over the right of the state to act in complete independence on this question, since they ought to respects the rules and principles of EU law. It should follow then that the power to determine the conditions for the acquisition and loss of national citizenship should be exercised with the constraints imposed by European law.
Though the meaning of the “obligation of member states to respect European law on the issue of citizenship, deriving from the automatic extension of Union citizenship” remains controversial, it is possible to say that, nowadays, it represents the full respect, by all member states, of the conditions established by each one of them for the acquisition and the loss of citizenship. Moreover, in the case on controversies, the interpretations and application of internal norms is assigned to the European Court of Justice. It would be preferable, of course, that the Court clearly enunciated what are the principles of European law that can limit the legislative power of states on matters of citizenship. Even though occasions to specify such principles did arise (the Kaur and Rottmann cases), the Court did not clarify the ambiguity of the expression “in accordance with European law”, nor whether the respect of fundamental rights could constitute a limit to the states’ powers to assign and withdraw citizenship (with the exception of Advocate General Maduro, who has argued for this position in the Rottmann case). In the meantime, the requirement to respect the conditions established for the access to citizenship by each member states is no small feat. In virtue of the “direct” effect of European citizenship, i.e. in virtue of the right to free circulation and residence, the automatic extension of European citizenship can have undesired consequences on a member state different from the one that has naturalized a non-European: this notwithstanding, European law prevents member states from questioning the reasons that led another member state to confer citizenship to a given individual.