The Brexit negotiations have assumed that EU citizenship will cease for all UK nationals if and when the UK leaves the EU. Tony Simpson, Tony Venables and Alexandra von Westernhagen question whether this is necessarily so, and what this means for EU citizenship in general.
Tony Simpson is the representative of the Permanent European Union Citizenship Initiative; Tony Venables is the founder of ECIT, a foundation working on European citizenship; Dr Alexandra von Westernhagen is an EU lawyer for international law firm DAC Beachcroft LLP.
With the outcome of Brexit still unclear only two months before the UK’s scheduled exit from the European Union, more and more EU member states are coming out and guaranteeing UK nationals who currently reside in their country continuing free movement rights.
But what about those UK nationals who have, so far, not chosen to exercise their free movement rights but still want to keep their EU citizenship if and when the UK leaves the EU?
It is fair to say that the withdrawal negotiations have solely focused on one aspect of EU citizenship, free movement, and this only for a very specific group of EU citizens – those who will have chosen to exercise this right by a specified cut-off date.
What is EU citizenship?
EU citizenship, however, means more than the right of free movement – important though that right undoubtedly is.
The idea of a form of citizenship bringing together people from different European nationalities had been floated since the 1950s. But it was not until the Treaty of Maastricht of 1992 that a ‘common’ EU citizenship was born.
Apart from free movement rights, it also provides holders with certain political rights, mostly in relation to the EU. For example, EU citizens have the right to vote and to stand as candidates in elections to the European Parliament. At the same time, they can also participate in municipal elections of the member state in which they reside.
This goes to show that EU citizenship, as with any other form of citizenship, is a political rather than an ethnic concept.
In fact, it’s important to point out the difference between EU citizenship and nationality of a member state, as these are very different things.
EU citizenship is additional to nationality, and does not replace it. It allows people from different nationalities to create a bond, based on values such as the respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.
It also allows participation in democratic decision-making in a way that is bigger than (and different from) the sum total of their individual nations.
EU citizenship in itself currently does not guarantee any ‘fundamental’ rights. It is rather a fundamental, individual right itself. It also does not entail any specific obligations.
For many, though, the European Union is a vehicle to inclusivity, openness and co-operation beyond national borders – as conferred by EU citizenship.
The concept is far from perfect – for example, it could be argued that EU citizenship has also a restrictive side as it excludes those from the ‘club’ who do not have EU citizenship but share a similar world view and similar values.
Yet it is currently the only model available in the world that brings people from different nationalities together through the bond of an international and supranational citizenship.
Can EU citizenship be taken away by unilateral act?
According to the EU Treaty provisions that govern EU citizenship, EU citizenship is automatically acquired by every person who holds the nationality of an EU member state. However, the Treaties are silent on what happens to this citizenship once a member state leaves the EU.
This begs the question: what happens to the EU citizenship of those nationals whose state has decided to leave the EU?
The Brexit negotiations have taken place on the assumption that EU citizenship is accessory to EU membership – and thus will cease to exist upon the UK’s exit from the EU.
But is this necessarily so? EU citizenship is the first international citizenship in the world. In other words, the question has never been tested.
What we do know though is that EU citizenship is conferred by the EU – which has its own legal personality.
So, how can single nation-states remove EU citizenship from their nationals by leaving the EU, without their nationals having a further say?
In this context, we should remind ourselves that 48% of those who participated in the 2016 referendum wanted to stay in the EU.
Certainly, we don’t know how many of them had their EU citizenship in mind when they took this decision.
However, do we have to know in order to take the view that it seems arbitrary to deprive people of rights that belong to them rather than the state of which they are a national?
What does this mean for the EU, which has made increasing efforts to focus on the people it brings together, rather than the governments of their member states? What does it mean for democracy as a whole? Is such treatment of one of the EU’s biggest achievements not a step back?
Citizens of the EU are waking up to these issues.
Britons in the Netherlands have brought a court case (their second attempt), arguing that EU citizenship is an acquired right that cannot be revoked under international law. Their case was heard on 14 January. Conferences focus on the issue and a European Citizens’ Initiative is currently fighting to get the required one million signatures by 23 July so that EU citizenship is officially recognized as a permanent right.
Some of these efforts may come too late for those UK nationals who are currently fighting for their right to remain part of the EU. But it seems a cause worth fighting for all who are concerned.