It is fair to say that since June 23, 2016 – the day the UK voted to leave the EU –the 48.1% of the electorate that voted to remain have voiced some concerns. Indeed, many of the concerns expressed by this minority are shared by EU citizens residing in the UK who were unable to vote in the referendum, with none more important than the idea of rights to free movement within the EU. The concept which grants rights such as residency, entry and exit from the territory of EU Member States without prejudice is EU citizenship. Article 45 TFEU also encompasses some of these same rights, but applies only to workers. In contrast, EU citizenship status, enshrined in Article 20 TFEU, is granted to all Member State nationals by virtue of their Member State nationality. As made clear in that provision, EU citizenship does not replace nationality but is additional to it. This status was first introduced 24 years ago, in the Maastricht Treaty 1992. The most recent study in 2012 showed that a third of the population of foreign citizens in EU Member States are individuals from other EU Member States, indicative of large volume of people who have made use of their rights to free movement.
Associate citizenship of the EU
With the vote to leave the EU and the subsequent process of withdrawal that the UK must now undergo, it is clear that EU citizenship will no longer be a status accorded to British nationals. Though nothing is set in stone as yet, this much is fairly clear. However, this would mean British nationals can no longer enjoy the rights to free movement and residency that are currently enjoyed by all EU citizens. Plainly, this is one of the consequences that Britain must be prepared to accept as it negotiates its exit in the coming years. Unsurprisingly, there have been voices of discontent from sections of the “Remain” electorate about the unilateral “stripping” of their EU citizenship and calls for some consideration of a voluntary citizenship of the EU for British citizens. Most recently, this has crystallised in the form of Amendment 882, brought before the European Parliament by MEP Charles Goerens, to offer citizens from a former Member State what would be known as “associate citizenship”. The Amendment offers a new regime for discussion amongst high level EU officials. This is the most thoroughly considered of all the suggestions thus far on any alternative arrangement for British citizens post-Brexit. In contrast, other suggestions concerning the retention of citizenship rights after Brexit have not been as formal as Amendment 882 and are also less specific about solutions to the problem of losing of EU citizenship status after Brexit. The proposal here is for an opt-in with payment of a membership fee; in return, individuals would have some of the rights guaranteed by the Treaty under Articles 21-22 TFEU: to free movement, to residency, and to vote and stand for election in the European Parliament. The right to consular protection, petitioning the European Parliament, recourse to the Ombudsman and right to communication from EU institutions in the citizens’ own language are not included. The effect therefore, would be retention of a form of citizenship of the EU.
It is clear where this sentiment is coming from. While the referendum was won by “Leave”, over 16 million people in the UK did vote to remain in the EU. It is assumed that these voters would have wanted to retain the benefits of being part of the supranational entity, including EU citizenship and its associated rights. Furthermore, EU citizenship has been granted to the entire British population and these individuals feel that they did not choose for it to be taken away from them. Indeed, as a right that impacts the majority of the population in the EU, its loss will be felt by many. Speculation is already rife about the visa requirements for British citizens in the EU after Brexit. Therefore, the outcry arguing in favour of a way to retain EU citizenship and its requisite rights is unsurprising. However, there is equal outcry about associate citizenship of the EU as a solution.
The criticism from the supporters of “Leave” describing the Amendment as an “outrage” and “totally unacceptable” has already been noted as creating a particular problem with associate citizenship of the EU. As admirable as it appears for the European Parliament itself to be concerned with the status of British citizens after Brexit – given their geographical proximity to the rest of Europe – the subversion of the political freedom of the UK to exit the EU simply cannot be accepted. Whilst the associate status will not prevent withdrawal, the argument here is that retaining such a status seems to suggest the potential for further cherry-picking of the benefits available to UK citizens after exiting. The UK will no longer be an EU Member State and its citizens will not have EU citizenship status. If the EU decides to amend its Treaties to allow this by the backdoor, this may suggest that the EU does not actually intend to allow exiting Member States a clean break under Article 50 TEU.
Another of the problems associated with Goerens’ proposed amendment is that it comes from the EU itself. It is incredibly politically risky for the EU to be the solution to the British citizens’ concerns surrounding their free movement after Brexit. The risk that the European Parliament runs with its suggestion is that it may appear to undermine the notion of freely allowing Member States to exit the EU under Article 50 TEU. The situation would be slightly different if the suggestion came from the UK Parliament as that would be a clear indication of the Member State’s own intention and desire to retain benefits of EU citizenship status. The Amendment might be easier to accept if the initiative came from Westminster itself, especially given that the EU is already widely criticised for its deficits in democracy. However, the reaction from the British public to a suggested national amendment akin to Goerens’ may now be different after the Miller case. The criticism of the UK’s judges for their controversial decision to require MPs to vote before triggering Article 50 TEU suggests that the British public may not even respect decisions of its own judiciary, which could cause more difficulties for the Parliamentary process of anything similar to Amendment 882.
Furthermore, as Goerens himself recognises, there would need to be significant amendments to the Treaties governing the EU before his proposal can become reality. The biggest caveat to EU citizenship is that it is additional to national citizenship and should not replace it. By offering an associate citizenship of the EU to British citizens (although Amendment 882 has a wider view of being available to all former EU Member State nationals) this calls into question the division of competences as set out in Article 3 TFEU. Case law has confirmed categorically that rules on nationality remain an exclusive competence of Member States, and the Treaty is clear that EU citizenship is conferred through national citizenship. The question would be how this could be reconciled with a citizenship which effectively, British citizens could simply buy. The answer here is that Amendment 882 cannot do this.
An alternative to associate citizenship?
Given the problems associated with Goerens’ proposed Amendment, it is relevant to note an alternative way of retaining EU citizenship status suggested by Gareth Davies prior to the existence of Amendment 882. This was in response to a case brought before the Court of Justice of the EU in 2010, C-135/08 Rottmann. In the case, the claimant risked losing his EU citizenship status because he was on the verge of becoming stateless. The Court of Justice of the EU stated that:
‘it is for the Court to rule on the questions referred by the national court which concern the conditions in which a citizen of the Union may, because he loses his nationality, lose his status of citizen of the Union and thereby be deprived of the rights attaching to that status.’ (paragraph 46)
What this meant, essentially, was that because the claimant was in danger of losing his EU citizenship status because of a provision under national law, the situation fell within the scope of EU law and had to be subject to a proportionality assessment. After Rottmann, therefore, the simple fact that EU citizenship status may be under jeopardy was enough to necessitate a balance of interests based on proportionality. Applied to the Brexit scenario, the Court could be required to consider whether a decision to withdraw from the EU and thereby also take away EU citizenship status from individuals would be proportionate to enjoyment of the rights under Article 20 TFEU. If this was successful, British citizens may be able to argue for retention of their EU citizenship status.
Considering the proportionate nature of a decision to exit the EU because of the Rottmann ruling provides some relief on paper for those worried about the EU citizenship status of British citizens. The argument made by Davies is that the Court could find that it would be disproportionate to deprive the British population of their rights as EU citizens through the process of withdrawal. Indeed, this is likely to be the motivation behind Goerens’ proposal and underlies much of the other voices of dissatisfaction with the potential effects of Brexit. However, as Davies rightly points out in his analysis, it is highly unlikely that the assessment will fall on the side of favouring an effective limitation on the British withdrawal. Stephen Coutts also cautions about the political consequences of ignoring the will of the Brexit vote to truly divorce the UK from the EU. These political consequences are likely to be the factors that tip the proportionality assessment towards favouring and following through on the decision to withdraw. It would have been clever, but ultimately too political risky for the Court to argue that the retention of EU citizenship status was a proportionate reason to prevent the UK from entirely leaving the EU. Idealistically speaking, the Rottmann route could have been a potential solution from the jurisprudence of the Court itself. However, when scrutinising the political consequences of such a decision, it seems a less practical and defensible solution suffering from similar issues to Amendment 882.
The attempts by all parties, whether from the EU or from the UK, to avoid the consequences of a withdrawal of the UK from the EU are commendable, especially from the stance of a “Remain” supporter. They are also telling in terms of who is feeling the effect of the Brexit vote clearly the pain is felt not only by those in the UK, but also by those within the EU institutions. However, while there is clear dissatisfaction with the high likelihood of losing EU citizenship rights when withdrawal is complete, the suggestion by Charles Goerens is, I argue, unlikely to amount to much. The amendment will be applauded, and could even campaigned for by representatives in the EU Parliament. But is it politically realistic? Probably not.
(Suggested citation: A. Yong ‘The problems associated with associate citizenship of the EU.’ EUtopiaLaw (18th Nov 2016) (available at – https://eutopialaw.com/2016/11/18/the-problems-associated-with-associate-citizenship-of-the-eu/)