Abstract
The question of who ought to be regarded as Union citizen is a central but not an easily answered question. Drawing on an analysis of the ECJ’s case-law and the underlying constitutional set up of Union citizenship, this article argues that the notion of nationality in EU law is based on a jurisdictional conception that builds on the idea of a genuine link and a territorial link with the EU. Relying on this understanding the article assesses the peculiar cases of Germany, the UK and Denmark, establishing not only if and how Member States can reconfigure the meaning of their nationality under EU law but also highlighting that the notion of nationality as a peremptory marker for Union citizenship is defined within the constitutional realm of EU law. The understanding that Member States are free to define their nationality within EU law, hence, is a misplaced overstatement of sovereignty. Against this backdrop the last part of the article turns to the case of Latvian non-citizens, arguing that Latvian non-citizens, who are generally not regarded as Union citizens, have been Union citizens all along.
Keywords
1. Framing the painting: Nationality and Union citizenship
Union citizenship is additional to the nationality of a Member State (MS). 1 The personal scope of EU law – defined as the number of people who simply by relying on their status as Union citizens are subjects of and subjected to EU law – is a variable dependent of how we understand MS nationality for the context of EU law. Nationality for the purpose of EU law 2 thereby is construed as the quintessential foundation that either does or does not exist.
Intriguingly, the notion of nationality for the purpose of EU law is, however, mostly treated as somewhat self-evident. 3 ‘[W]hether an individual possesses the nationality of a Member State’ is, as Declaration No 2 of the Maastricht Treaty 4 sets out, solely to be settled ‘by reference to the national law of the Member State concerned’. In a similar vein, also the ECJ has underscored that nationality falls within the domaine reservé of MS, as ‘it is for each Member State having due regard to Community law to lay down the conditions for the acquisition and loss of nationality’. 5 In principle, it should therefore be relatively straightforward to determine the personal scope of EU law and the ambit of Union citizenship by browsing through the respective nationality laws of MS.
As with so many other things, also the issue of who is and who is not a Union citizen becomes more complicated if one takes a closer look. The notion of nationality, albeit intrinsically linked to operations of nationality laws of the MS, is a notion enshrined in the treaties. Nationality for the purpose of EU law thus is something purposefully construed; it is framed for and within EU law. 6 That is to say, albeit MSs remain sovereign to decide who their nationals are, the issue of nationality for the purpose of EU law must be viewed through the prism of EU law and the very meaning of this notion within this constitutional context. Metaphorically speaking, EU law nationality hence can be configured as a single frame encompassing an array of paintings, each depicting the emblematic colours and styles of the different nationality regimes of the MSs. Crucially, the following analysis, however, does not aim at indulging in these paintings but rather aims to take a closer look at the frame itself, as it is this frame that is decisive for the size of the painting – and hence determines who is and who is not encompassed within the personal scope of EU law.
To this end, the ensuing second part of this article provides an analysis of the very meaning of the notion of nationality for the purpose of EU law and the nature of Union citizenship as a derivative status of MS nationality. Against the backdrop of Article 20 TFEU and the relevant case law, the analysis makes the case that Union citizenship and the underpinning status of nationality for the purpose of EU law ought to be conceptualized from a jurisdictional rather than a political perspective. Nationality for the purpose of EU law and Union citizenship by extension thus are not dependent on the political status of citizenship within MSs but are construed on the basis of nationality as understood in international law, reflecting the individual’s embeddedness within the legal and social fabric of his/her MS. Additionally, the notion of nationality for the purpose of EU law carries a peculiar territorial undertone, presupposing an unconditional right to reside within the EU territory of the respective home MS. Against the ever more accentuated citizenship rhetoric in the Treaties, this understanding therefore purports that the personal scope of EU law is not delineated on the basis of political enfranchisement and equality but draws on a jurisdictional conception of nationality along the lines of nationality in international law.
This understanding is also exemplified in the third part, which assesses the cases of German, British and Danish nationality within the context of EU law. These cases are of particular interest as these nationalities are different from all other MS nationalities in that they are subject to provisions under EU law, addressing the specific scope of their nationality for the purpose of EU law. These case studies hence not only provide insights into the complex overlay of the respective nationality regimes and the issue of who in fact is to be regarded as a German, British or Danish Union citizen, but establish how and to what extent MSs can specifically configure the ambit of their EU law nationality – and by extension their Union citizenship – through instruments enshrined in EU law. This assessment thereby emphasizes the constitutional dimension of the notion of nationality as the common denominator for Union citizenship and contrasts it with an assumed absolute sovereignty to define nationality also for the purpose of EU law.
Drawing on the analysis provided in the second and third part, the final– and probably most contentious – part of the article sets out why Latvian non-citizens, who in the prevailing doctrinal understanding are not considered to be Union citizens, in fact ought to be regarded as Union citizens. This assessment, on the one hand, seeks to underscore that the issue of who is to be regarded as a MS national within the context of EU law is an issue of substance over terminology and that this understanding, on the other hand, can have profound repercussions for the hitherto sacred paradigm that States are sovereign to decide who their nationals are.
Overall, the article thus purports that the seemingly simple question of who is to be regarded as a Union citizen and who is not, is far from being a clear-cut case and, as the case of Latvian non-citizens exemplifies, might warrant us to reconsider certain beliefs.
2. Union citizenship between political and legal conceptions
A. Nationality and the territory of the EU as points of departure
If one looks at Article 20 TFEU and compares the different language versions, one is usually drawn to consult the more prominent language versions of the Treaties: And accordingly, Union citizenship is preconditioned by the status of nationality, nationalité or Staatsangehörigkeit. In line with the terminology of these versions of Article 20 TFEU, it would seem that Union citizenship is dependent on the formal status of nationality under international law. Nationality in this sense, as Closa has put it, reflects the ‘affiliation of individual from the point of view of international law’ 7 and gives rise to claims of diplomatic protection, personal jurisdiction and the obligation to take back one’s own nationals vis-à-vis another State. 8 Importantly and in contrast to the concept of citizenship, nationality in this formal sense of international law tells us nothing about a specific set of the domestic rights and obligations the individual has in relation to his or her home State 9 but – to quote the International Court of Justice’s (ICJ) dictum in Nottebohm – is merely a ‘juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State’. 10
In this regard, it seems worth recalling that also the Treaties, despite their constitutional character, are rooted in international law. EU law, hence, is construed as a new legal order founded on the MSs limiting and transferring aspects of their sovereignty within the realm of international law. Consequently, this new legal order is delineated along the margins of MS sovereignty under international law. That is to say, that there can be no EU law beyond the claims of MS sovereignty. And since the ambit of the MS personal sovereignty is encapsulated within and delineated through the status of nationality, also the personal scope of EU law can be conceptualized as a derivative function of MS nationality. This of course infers that the scope of EU law ratione personae in principle is reflexive of the personal reach of the legal order of the MS under international law, 11 and to this end is dependent on the status of being a national under international law rather than being a citizen under national law. 12
This conclusion is also supported by the case law of the ECJ who has constantly held that ‘[u]nder international law, it is for each MS, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality’. 13 Nationality as the preconditioning status Union citizenship thereby is treated not only as a formal status in line with international law but also construed on the basis of a genuine link. 14 Despite the fact that the concept of a genuine link has remained disputed in international law circles, 15 the Court in Rottmann pointed out – seemingly paraphrasing the ICJ’s Nottebohm dictum – that nationality in the context of EU law must be construed as a ‘special relationship of solidarity and good faith’ founded on ‘the reciprocity of rights and duties, which form the bedrock of the bond of nationality’. 16 In this regard it is worth noting that also the Commission has embraced the concept of a genuine link, holding that MSs need ‘to ensure that nationality is not awarded absent any genuine link’ 17 and against this backdrop has instigated infringement proceedings against Malta and Cyprus in relation to their so-called investor citizenship schemes, for ‘granting […] their nationality – and thereby EU citizenship – in exchange for a pre-determined payment or investment and without a genuine link’. 18
On the substance of this bond, the ECJ in Tjebbes 19 held that the underlying genuine link 20 between an individual and its MS must be assessed taking account of EU law, as the loss of a MS nationality leads to a loss of Union citizenship. That said, the Court in Tjebbes in principle accepted the proposition set out in the relevant Dutch legislation, foreseeing the loss of Dutch nationality if a Dutch national has had his/her principal residence abroad – and outside the EU – for an uninterrupted period of more than 10 years and has not made a request to be issued ‘a declaration regarding the possession of Netherlands nationality, a travel document or a Netherlands identity card’ 21 may be regarded as ‘an indication that there is no such link’. 22 However, the Court went on to stress that an act, bringing about the loss of Union citizenship must be proportional and thus take into account the individual’s family and business interests in a wider sense. 23 The loss of the Dutch nationality, hence, would be incompatible with EU law if the concerned individual (inter alia) 24 would face ‘particular difficulties in continuing to travel to the Netherlands or to another MS in order to retain genuine and regular links with members of his or her family, to pursue his or her professional activity or to undertake the necessary steps to pursue that activity.’ 25 Therefore, the loss of a genuine link cannot simply be inferred from a prolonged habitual residence abroad but must be made subject to an assessment of the individual’s persisting ties within the society of the MS and the EU at large.
It is submitted that the assessment of these ties does not simply relate to the factual existence of continued personal and business relationships but also to their legal dimension as those families and business ties have been created and shaped within a particular legal forum and the understanding that the individual in question is as a national ad personam subject to this legal order. The loss of nationality – and Union citizenship by extension – hence is set to affect these ties not only factually but also legally. Importantly, the interest of the individual to retain these ties corresponds with a larger interest to preserve the integrity of the legal framework upon which these ties have been built. The issue of a genuine link, in other words, must not just be assessed in light of the factual personal and business ties of an individual within a MS but as an issue that relates to the legal pedigree of these ties. Inasmuch as the individual is interwoven with the MS, its society and the Union at large through a net of factual and legal ties, the conclusion must be that the genuine link has not been severed. Nationality as an expression of a genuine link hence is based on the sustained social and legal embeddedness of the individual within a MS and the Union and thus reflects the fact that the individual on the basis of this fundamental status is ad personam the principal bearer of rights and obligations within the legal regime of his or her home State and by extension the EU’s legal order at large. 26 The conclusion in Tjebbes that individuals who would be exposed to limitations in retaining these genuine and regular links must be able to ‘recover their nationality ex tunc’ as a matter of EU law 27 therefore substantiates the weight of a genuine link, connoting the individual’s inclusion within the social and legal fabric of the MS and the EU at large.
Very much in line with this understanding, the ECJ, already before Tjebbes, intertwined the notion of nationality with ‘an unconditional right of residence’, holding that ‘a Member State cannot refuse its own nationals the right to enter its territory and remain there’. 28 As a factual prerequisite of retaining a genuine link, nationality under EU law thus is inextricably linked to an individual right 29 to access and reside in the EU territory of one’s own MS. Consequently, any individual that lacks an unconditional right of residency within the EU territory of one’s own MS cannot be regarded to be entitled to ‘the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’. 30 In line with the logic of the Zambrano case-law, any situation where a Union citizen is obliged ‘to leave the territory of the European Union’ 31 hence implies nothing less than the negation of an essential element of nationality for the purpose of EU law. Seen from this angle, it also understandable why the ECJ in Zambrano relied on Rottmann 32 as both cases relate to the – de facto in the former and de jure in the latter – loss of nationality underpinning the fundamental status of EU law. Importantly, the ECJ thereby also rooted the substance of Union citizenship in Article 20 TFEU, directly linking the fundamentals of Union citizenship to the status of nationality.
The central importance of an unconditional right of residence in fact also shines through in the contrasting logic of the ECJ case-law in Kaur 33 and Eman and Sevinger. 34 While in Kaur the ECJ dismissed the argument that a British national without a right of abode in the UK ought to be regarded to come within the personal scope of the Treaties, 35 the ECJ in the latter case established that the status of Union citizenship is not dependent on whether or not the individual in question is residing in the territory of the EU or not, as long as the individual in question holds a ‘full-fledged European nationality’, that inter alia entitles the holder to move freely to and within his or her home MS. In Eman and Sevinger the ECJ thus held that Dutch nationals, irrespective of their place of residence, could rely on their Union citizens’ rights such as in this case the right to participate in European elections. 36 The comparison between these two cases, although not straightforward, is striking since it highlights that the substance of what it means to be national under EU law is neither dependent on the place of residence, nor the simple fact of being a national in name, but hinges on the unconditional quality of the right to reside in the EU territory of one’s own home MS.
This, in fact, also helps to explain why Moluccans that moved to the Netherlands after the decolonialization of Indonesia in the 1950s but were never endowed with Dutch citizenship 37 are considered to be Union citizens. 38 As their special status under Dutch law amounts to a ‘quasi-citizenship’ with an unconditional right to reside in the Netherlands 39 and a right to a Dutch passport that warrants and guarantees equal treatment with Dutch citizens on the international plane, 40 it is indeed difficult to argue that the Netherlands is anything but their home MS. Hence, Moluccan Dutch quasi-citizens are not only genuinely embedded within the Netherlands but are also ‘full-fledged Dutch nationals’ under EU law.
The central importance of the right to reside within one’s own MS is further buttressed by a wider reflection of the underlying rationale of the right to free movement of Union citizens in and to other MS. It has already been pointed out that the ECJ has intertwined the status of nationality with ‘an unconditional right of residence’, holding that ‘a Member State cannot refuse its own nationals the right to enter its territory and remain there’. 41 Intriguingly, EU law nationality – and hence Union citizenship – thereby is grounded on a paramount responsibility of MS to welcome and take back their own nationals. If this was not so, one could indeed ask: Why should any MS accept a right to free movement of nationals of another MS, if, in relation to said nationals, not even the home MS is willing to accept a right of residence on his own EU territory? The consequences of this underlying territorial logic inherent to the conception of nationality under EU law are in fact particularly apparent when it comes to limitations of the right to free movement: where a Union citizen is expelled by another MS because he or she poses a general and imminent threat to the public order and/or security, 42 the expulsion arguably will do little to mitigate the negative personal character traits that warrant the expulsion in the first place. 43 The expulsion, hence, merely provides a mechanism to reattribute the responsibility to the home MS. Notwithstanding the transnational integration and the common solidarity 44 this mechanism therefore very much accentuates the paramount and ultimately territorially bound responsibility of MS to take care for their own nationals. Nationality as the very basis for Union citizenship thus is still grounded on a bond that presupposes an unconditional right to reside in the EU territory of one’s own home MS.
As a preliminary conclusion the notion of nationality for the purpose of EU law, thus, is to be interpreted along the line of the notion of nationality under international law, building the concept of a genuine link. Additionally, the notion of nationality within the constitutional context of EU law, however, comes with a particular emphasis on an unconditional right to access and reside in the EU territory of one’s own home MS. The meaning of nationality for the purpose of EU law thereby is subjected to a prevalent territorial undertone relating to the territorial scope of EU law.
B. Union citizenship for citizens only?
If one takes a look at Article 20 TFEU in one of the other language versions, one is tempted to draw a rather different, more demanding conclusion on the meaning and substance of the preconditioning status of Union citizenship. The Latvian version of Article 20 TFEU, for example, – and indeed most of the newer language versions of the Treaties 45 – subject the status of Union citizenship to being a citizen of a MS. 46 And although being a national normally goes hand in hand with being a citizen there is – at least conceptually – a significant difference between being a national and being a citizen. In contrast to the notion of nationality, which as has been set out legally codifies the jurisdictional belonging of an individual to a State for the purpose of international law 47 the notion of citizenship is laden with the idea of political equality and participation within a State. Citizenship in other words means enfranchisement within the political order of a State rather than formally belonging to a State. 48
It seems evident that there is a difference between construing Union citizenship as a status that is founded upon political enfranchisement in a MS and an understanding of Union citizenship on the basis of the individual’s integration and subjection within a legal order of a MS. While the former approaches the fundamental status under EU law from the intertwined nature of the political process in the EU and its reliance on the citizens as subjects of legitimization, the latter (merely) addresses Union citizenship from a jurisdictional perspective and the embeddedness of the individual within a MS’s social and legal order. Union citizenship, therefore, can either be perceived as a status that casts the individual as the fundamental subject of a polity, or relates to the individual and its ‘fundamental subjection’ within the EU’s and MS’s contingent legal orders. And while the conventional interpretation as well as the existing case law point towards a jurisdictional understanding – i.e. nationality 49 – the ever more accentuated citizenship rhetoric in the Treaties and the democratic self-conception of the Union seem to favour a (more) politicized understanding, befitting a Union where ‘[e]very citizen shall have the right to participate in the democratic life of the Union’. 50
C. The prevailing jurisdictional logic of Union citizenship
To conceive Union citizenship as a status that is meant to signify the individual’s participation in the EU’s integration process is not new but indeed has been a constant theme over the last decades. Indeed, the whole idea of establishing a Union citizenship itself and the more or less constant strive to upgrade the modes of representation of Union citizens speak volumes in this regard. The ever-strengthened role of the European Parliament, the involvement of national parliaments as well as additional instruments such as the European Citizens’ Initiative are all but tokens for the ever-growing enfranchisement of Union citizens in the polity of the EU. Union citizenship, seen from this perspective, does not relate to a mere bundle of transnational rights that are directed to the individual ad personam, 51 but connotes a status of representation and enfranchisement within a polity beyond the conception of a State.
However, whether or not the EU as a supranational international organization, Staatenverbund or a sui generis entity is capable of establishing such a genuine status of citizenship is disputed. 52 And in spite of the indications outlined above and the tentative arguments made to this effect, 53 it is submitted that the conceptualization of Union citizenship as a truly political status seems – at least for the time being – far-fetched. The disconnection between Union citizenship and political representation becomes all but evident upon closer inspection: European elections, for example, are in fact not European but simultaneous national elections to the European Parliament, where the right to vote is not exclusively reserved for Union citizens but can also be granted ‘to certain persons who have close links to [a MS]’. 54 The disconnection is also manifest in the second strand of political representation, as the democratic accountability of national governments in the Council and European Council is not substantiated by a Union citizen’s right to vote in national elections. 55 In fact, quite a few MS disenfranchise their citizens in national elections if they permanently reside in another MS. 56 Conversely, to the assumed logic of political enfranchisement, relying on Union citizenship rights in these cases leads to a deprivation of political participation rights. 57 And last but not least, one has to point out that the concept of equality of Union citizens does not provide for equal enfranchisement but merely relates to ‘enabling those who find themselves in the same situation to receive the same treatment in law’ 58 . The fundamental status of Union citizenship therefore still is built around a concept of equality before EU law 59 rather than equality in the political process of shaping EU law.
In light of the evolution of the EU as a new legal order rather than a polity of citizens, Union citizenship must still be regarded as a legal construct based on a jurisdictional conception. As such, Union citizens are the fundamental subjects within – and hence are subjected to – the EU’s legal order because as nationals they are rooted in the social and legal fabric of their MS and not because of their political enfranchisement as citizens.
All of this, of course, is not to say that Union citizenship is a mere appendix of nationality. Union citizenship is a performative status in its own right. It establishes the individual within a legal space beyond the State and allows the individual to integrate into a larger Union. 60 The underlying bond of nationality thereby is reconfigured and subjected to the observance of EU law. 61 And though the status of Union citizenship thus far has remained an emblematic construct essentially based on a bundle of ever more transnational rights, its effects have been spilling over to questions of social and political association. 62 The citizenship rhetoric and the ‘promise’ that Union citizenship is destined to be the fundamental status of the citizens of the Union all point towards an evolution that eventually places the individual at the core of the Union as a genuine polity of its citizens. However, in the present state of EU law, the status of Union citizenship is still better understood as a construct that serves as a catalyst for the legal emancipation and integration of the individual beyond his/her home MS. 63
3. Measuring the frame – nationality for the purpose of EU law
As outlined, the conception that Union citizenship is additional to the status of being a national of a MS is complicated by the fact that every MS has its own definition for the notion of nationality. Although nationality in this sense serves as a common denominator for and within EU law, its contours are seemingly delineated on the paradigm that nationality falls within the reserved domain of MS.
It is all but obvious that there is an inherent tension between an assumingly unfettered claim of sovereignty over nationality on the one hand and the understanding that nationality is the common denominator for Union citizenship and the personal scope of EU law on the other hand. As nationality for the purpose of EU law is incorporated within the confines of EU law and MSs are obliged to observe EU law the claim of an unfettered sovereignty over nationality must be put into perspective. MS sovereignty over EU nationality, in this sense, can only be regarded as a relative concept, allowing MSs to shape the contours of their EU nationality within a frame defined under EU law. That is to say that if the notion of nationality for the purpose of EU law is, as outlined above, construed on the basis of the status of nationality under international law and the contingent unfettered right of residence in the EU territory of his or her own MS, MSs cannot extend or limit the personal scope of EU law beyond the confines of this constitutional framework set out for the notion of nationality.
There are, however, three cases where the issue of how to understand the notion of nationality is complicated by the fact that EU law itself provides for some ‘additional material’ that seemingly blurs the lines of the constitutional meaning of nationality. While in the case of Germany and the United Kingdom a declaration sets out that the notion of nationality for their part is to be interpreted in a particular way, a clause in a protocol relating to Denmark and the status of the Faroe Islands indicates that Danish nationals residing in the Faroe Islands must not be considered nationals for the purpose of EU law. Prima facie these cases thus seem to imply that MSs retain some sort of sovereignty to change the contours of their nationality for and within the realm of EU law.
As the following analysis argues, there are, however, substantial differences between these cases and the abilities of the different instrument employed to set out who should be regarded as a Union citizen and who not. Against the predominant doctrinal opinion, the following analysis sets out that the German and British Declarations must not be construed as instruments capable of changing the personal scope of EU law but must be conceived as interpretative instruments that help to explain the ambit of the notion of nationality for the purpose of EU law in light the complexities of their respective nationality regimes. In contrast thereto, the – rather curious – case of the Faroe Islands provides for an example where the personal scope by way of a provision enshrined in primary EU law has indeed been adapted, to exclude Danish nationals residing in the Faroe Islands. The case studies to this end not only underscore the constitutional dimension of the notion of nationality within EU law and provide insights into the peculiarities of the respective nationality regimes but also assess the ability of MSs to shape the meaning of EU law nationality through instruments enshrined in EU law itself.
A. Declaring the personal scope of EU – deconstructing Germany’s and the UK’s nationality for the purpose of EU law
1. The German declaration
The case of Germany is a fabulous example to highlight that the issue of what it means to be a national under EU law transcends the creation of Union citizenship. When (Western) Germany and the other founding MS ratified the Rome Treaties, Germany attached a unilateral declaration to the treaties, 64 setting out that for the purpose of the then Community law the scope of German nationality should also encompass so-called ‘Status Germans’.
Status Germans are individuals with a genuine connection to Germany, who fled to Germany after the Second World War but were not, due to the limited territorial scope of the German Nationality Act of 1913, entitled to a German nationality proper. 65 Article 116 para. 1 of the German Constitution provides that these German refugees, upon settling in Germany, ought to be regarded as Germans ex constitutione. In doing so, Status Germans were given the same constitutional rights as German nationals under the German Nationality Act, allowing them inter alia to reside within Germany, 66 to take part in elections as well as to stand for public office. 67 Status Germans with regard to their rights as citizens, hence, were effectively treated just like Germans covered by the German Nationality Act of 1913.
Moreover, Status Germans were also treated as German on the international plane – most notably with regard to the issue of diplomatic protection. 68 Since Status Germans had to possess a genuine connection with Germany 69 this arguably leads to the conclusion that Status Germans were in fact German nationals also for the purpose of public international law. 70
Although Germany revised its Nationality Act in 2000, extending German nationality proper to all Status Germans and thereby rendering the German Declaration effectively superfluous, 71 the German Declaration still is of significant interest to understand the premises that underpin the personal scope of EU law. The German Declaration to this end has generally been read as an instrument that itself is decisive for the determination of the personal scope of EU law with regard to the issue of German nationality. 72 In line with the paradigm that MS remain sovereign to define the scope of their nationality MS this argumentation assumes that MS are also able to define the breadth and width of their nationality for and within the context of EU law. The German Declaration accordingly ought to be regarded as a unilateral instrument, by which Germany amended the meaning for its EU nationality to also encompass Status Germans. That is to say, that without this Declaration Status Germans – purportedly – could not have been considered to be German nationals for the purpose of EU law.
It is submitted that this understanding is problematic: Firstly, because it assumes that the German Declaration is not just an interpretative instrument but has itself a normative character. This, however, goes against the doctrinal reading of the ECJ, which has held that declarations are just interpretative instruments. As such a declaration cannot amend or change the Treaties but rather must be considered when interpreting the Treaties. 73 And secondly, this reading arguably also overlooks that the notion of nationality under EU law – as has been pointed out above –is to be interpreted in line with the formal understanding employed under international law and the (accentuated) requirement of an unconditional right to reside within the EU territory of the respective home MS. As Status Germans were treated like Germans on the international plane and upon acquiring their status by settling in Germany also had an unfettered right to stay and reside in Germany, it would seem that there are good reasons to regard them as Germans not only within the domestic/constitutional and international law context but also for the purpose of EU law.
Arguing otherwise implies that a MS could unilaterally ‘extend’ the scope of the notion of nationality set forth in the Treaties, through the means of a declaration. In doing so, MSs could in effect configure the personal scope of the fundamental status under EU law ad libidum. Irrespective of whether a group of people are nationals of a MS or in fact have any connection with that MS, that MS could, by relying on the means of a simple declaration, determine that these people ought to be regarded as nationals for the purpose of EU law and hence Union citizens. An interpretation that stretches the sovereignty of MS to individually define the personal scope of EU law not only overlooks the constitutional context but seems to very much ‘over-interpret’ the paradigm of MS sovereignty over their nationality as a peremptory marker for the fundamental status under EU law.
It is submitted that the German Declaration, hence, is better understood as an instrument that clarifies the subtleties of the German nationality regime 74 and to this end highlights that German nationality (also) for the purpose of EU law is broader than a mere look at the German nationality law might have suggested in the first place. Contrary to the prevailing view, 75 the German Declaration, thus, is a case in point that the notion of nationality within the context of EU law comes with a peculiar meaning and as such cannot be single-handedly modified by a MS. This reading, moreover, emphasizes that EU law nationality provides a uniform frame that is functionally defined within the Treaties. 76 Consequently, nationality for the purpose of EU law – in principle – can be wider or narrower than nationality as understood in the purview of the respective nationality laws. For the case of Germany, this simply infers that nationality for the purpose of EU law encompasses all Germans irrespective of whether their status is derived from Germany’s nationality legislation or the German constitution.
2. The UK’s Declaration
The Declaration by the Government of the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’ 77 held the perhaps most widely known anomaly with regard to the personal scope of EU law. 78 Not only did this Declaration add a layer of imperial history and conundrum to the question of who, for the purposes of EU law, was a British national, but the Declaration was also at the heart of the already referenced Kaur 79 judgment. To properly comprehend the implications of the UK’s Declaration and the Kaur judgment, it is, however, important to put the Declaration and its provenance in the wider context of British nationality policy changes.
a. UK nationality – imperial roots and EEC alignment
When the UK joined the EEC in 1973, British nationality more or less was still construed on an imperial understanding. The British Nationality Act of 1948 conferred the status of a British subject to all citizens of the UK and its Colonies as well as to the citizens of the other Commonwealth countries 80 – all in all, an estimated 600 million people. 81 While the status of being a British thereby created what has been termed a ‘substantive British nationality’ 82 for all citizens of the UK Colonies it also created a common status for citizens of newly independent countries of the Commonwealth. For the latter, the status of being a British subject (also referred to as Commonwealth citizenship) 83 was, however, merely an additional status that was meant to signify a ‘derivative, attenuated nationality possessed by virtue of one’s national citizenship’. 84 Rather than being a genuine form of nationality, 85 the central function of this Commonwealth citizenship was to give way for a preferential treatment of Commonwealth citizens within the Commonwealth and the UK. 86
The upheavals of the decolonization process, the fading influence of the UK in the Commonwealth and the advent of the UK joining the then EEC, however, led to a pivotal reconfiguration of this ‘British nationality’ 87 in 1971. As the UK adopted a new Immigration Act it also introduced a new concept of patriality, providing a right of abode only for certain citizens of the UK and its Colonies and Commonwealth citizens with ancestral links to the UK. 88 In effect, the Immigration Act established two classes of British subjects: those with a right of abode in the UK and those without. As such the right of abode was in essence limited to citizens of the UK and its Colonies going back two generations or to Commonwealth citizens going back one generation, 89 thus excluding the great majority of Commonwealth citizens of non-European descent. 90 And although the Immigration Act did not legally change the ambit of the British Nationality Act, the Immigration Act was at the forefront of altering the imperial conception of British nationality and bringing it gradually in line 91 with the understanding of the other EEC MSs. 92 It is therefore of little surprise that the UK’s Declaration defining the term ‘nationals’ attached to Accession Treaty draws on this very distinction, setting out that only citizens of the UK and its Colonies with a right of abode or a specific connection with Gibraltar 93 or Commonwealth citizens with a right of abode who were not citizens of another Commonwealth country 94 should be considered nationals for the purpose of the then-EEC law. 95 The personal scope of EU law in relation to ‘British nationals’ hence was limited to British subjects who were not citizens of another independent Commonwealth country and who could freely move to and within parts of the UK’s territory falling within the territorial ambit of EU law.
In 1981, the UK adopted a new British Nationality Act, incorporating the right of abode as a decisive marker between the different types 96 of British nationality and ‘integrated’ these legal changes into EU law through an ‘update’ of its original Declaration in 1983. 97 As a consequence, ‘British Dependent Territories Citizens’, 98 ‘British Overseas Citizens’, ‘British Subjects without Citizenship’ and ‘British Protected Persons’ who have no right of abode in the UK are not Union citizens, 99 despite the fact that all of them must be considered British nationals under international law. 100
b. The ambiguity of the Kaur judgment and the legal character of declarations under EU law
Similar to the German Declaration, the notion of nationality in the UK was structured along internal variations of nationality. Unlike the German ‘extension’, however, the British Declaration was not only subject to scholarly debate but also subjected to judicial scrutiny in the case of Kaur. The outcome of this case, in which Ms Kaur, a British Overseas Citizen without a right of abode in the UK, sought to rely on EU law to establish a right of residence in the UK is well known: the ECJ simply held that Ms Kaur in light of the UK’s Declaration did not fall within the ambit of EU law ratione personae and could therefore not claim any personal rights under EU law in the first place. 101
The ruling is, however, not without ambiguity: by holding that Ms Kaur was not a British national under EU law, the ECJ established its line of reasoning in accordance with the UK’s Declaration. The Declaration thus seems to have been given a normative meaning, drawing on an understanding that the Declaration was intended to ‘define the United Kingdom nationals’ 102 and forms part of the Accession Treaty, setting out the basis on which ‘the conditions of accession were determined’. 103 The fact that the original Declaration was updated in 1983 104 to take account of the adoption of the new Nationality Act 1981 did nothing to alter this assessment, as according to the ECJ ‘[i]t is common ground that the 1982 Declaration was an adaption of the 1972 Declaration’. 105
However, the Court also stressed that the Declaration is only an instrument that ‘must be taken into consideration […] for the purpose of […] determining the scope of the Treaty ratione personae’; 106 and that the Declaration was ‘intended to clarify an issue of particular importance for the other Contracting Parties’. 107
So, while the judgment on the one hand seems to indicate that the Declaration bears normative meaning, defining and thereby establishing a specific meaning of the notion of nationality for the purpose of EU law for UK’s nationals, other parts of the judgment suggest that the Declaration is merely of an informative nature, meant to clarify the legal subtleties of British nationality (and immigration) legislation. On the substance the former reading infers that Ms Kaur did not come within the personal scope of EU law because of the Declaration, while the latter implies that irrespective of the Declaration Ms Kaur did not come within the personal scope of EU law, because without a right of abode in the UK she lacked the territorial nexus with the EU to be regarded as a national for the purpose of EU law.
Very similar to the German Declaration, a normative reading, however, would be very problematic from a constitutional point of view. It is the constitutional nature of the Treaties, as Advocate General Maduro in another case pointed out, that warrants a rigid understanding of the instrumental abilities of a declaration. 108 Unlike under international law – and despite the fact that the MS remain the Masters of the Treaties – a declaration cannot be instrumentalised to amend the Treaties. 109 Otherwise, all or any MS could simply circumvent the Treaty amendment procedure through the means of a declaration.
This caveat is also underscored by Declaration No 2 on nationality of a MS, attached to the Maastricht Treaty. And although this Declaration is no longer attached to Treaties this Declaration set out that ‘Member States may declare, for information, who are to be considered their nationals for Community purposes’. 110 The reference to the informative character of any such declaration clearly indicated that a declaration could not be regarded to be an instrument capable of changing the meaning of the notion of nationality as enshrined in the Treaties. 111 Hence, neither the UK’s nor Germany’s Declaration nor indeed any declaration can curtail or extend the ambit of nationality for the purpose of EU law and Union citizenship by extension.
3. The pure view on nationality for the purpose of EU law
The examples of the UK and also of Germany underline the initial assessment that EU law nationality and hence Union citizenship is construed on the fundament of a legal bond that not only signifies a genuine connection but is contingent on an unconditional right of residence on the EU territory of his or her own MS. Access to the territory of the EU at large in other words presupposes an existing right of abode to access and permanently stay somewhere in the territory of the EU.
Importantly, the cases of Germany and the UK also underscore that the fundamental status of the individual within EU law has a constitutional dimension that would be obfuscated if each MS could unilaterally by the means of a declaration define and adapt its personal scope of EU law. If this was not the case the MS could simply immunize dubious practices, such as schemes aimed selling their nationality and Union citizenship by extension to affluent investors, 112 from legal scrutiny. 113 The respective Declarations of Germany and the UK, therefore, must be read as interpretative instruments that did not alter the personal scope of EU law but – merely – served to contextualize the complexity of the respective nationality legislations. 114
In fact, if one were to picture the notion of nationality under EU law as a singular frame for a set of paintings each depicting the nationality regime of a MS, the British painting inside the frame would be a cut-out part of a larger imperial painting of the British Nationality Act. While in the case of Germany, the very same frame would encompass a more abstract characterization of the German nationality regime cobbled together from two smaller paintings, depicting the German Nationality Act and Article 116 of the German Constitution. The Declarations – to stay with this metaphor – do not modify the frame or add anything new to the paintings. They simply come as little plates, explaining that irrespective of the overall size of the paintings it is the frame that is decisive for our conceptual perception of these paintings as one painting.
B. Amending the personal scope of EU law – residing in the Faroe Islands
The Faroe Islands are a small group of islands situated in the north of the Atlantic that, though legally autonomous, form a part of the Kingdom of Denmark. When Denmark joined the then EEC, the Danish government accepted the Faroe Islands’ opposition to joining the EEC. The Faroe Islands thus remained outside the scope of EU law. In Protocol No 2 on the Faroe Islands, 115 it was nevertheless set out that the Faroe Islands could accede to the EU as a part of Denmark if Denmark were to issue a declaration to that effect at the latest by 31 December 1975. In that case, according to Article 4 of Protocol No 2 on the Faroe Islands, ‘Danish nationals residing in the Faroe Islands [should] be considered to be nationals of a Member State’.
Since the Faroe Islands never made use of that option, the islanders enjoy a rather interesting status under EU law as Danish nationals but non-Union citizens. Kochenov in this respect quite pointedly observed that this exclusion of Union citizenship ratione loci – Danes residing in the Faroe Islands – seems problematic, as it implies that ‘Danish Union citizenship’ is contingent on the place of residency and can be lost simply by settling on the Faroe Islands. 116 Not only does this seem to stand in stark contrast to the ECJ’s dictum in Eman and Sevinger, holding that the status of Union Citizenship is not subject to residing within the territorial scope of EU law, 117 it is also complicated by the fact that there is just one Danish nationality, that – unlike in the case of the UK and Germany – is not subject to further internal differentiations or variations. Danish nationals residing in the Faroe Islands, in other words, are as much Danes as Danish nationals residing on the mainland – with an unconditional right to reside in Denmark. 118 In line with the peculiar meaning of nationality under EU law Danish nationals should therefore be regarded as Union citizens, irrespective of their place of residence.
However, in contrast to the UK’s and Germany’s Declaration, Protocol No 2 on the Faroe Islands forms an integral part of the Treaties. 119 Article 4 of Protocol No 2 on the Faroe Islands thus is not just a unilateral interpretative instrument but enshrines a territorial exemption from the personal scope of EU law in primary EU law. As such, Article 4 of Protocol No 2 on the Faroe Islands not only creates a genuine exemption from Union citizenship but also – implicitly – establishes a distinctive type of Danish nationality for the purpose of EU law.
The practical question of how to distinguish between Danish Union citizens and the Danish non-Union citizens, nevertheless, seems to have been solved on a rather pragmatic note: Danes residing in the Faroe Islands can either get a green version for Faroe Islanders or a burgundy Danish EU Passport. 120 Union citizenship for Danes residing in the Faroe Islands, hence, seems to be a question of passport colour preferences. Whether or not this modus operandi is fully in line with the spirit of Protocol No 2 on the Faroe Islands, though, is a different matter. 121
The case of the Faroe Islands thus provides for the conclusion that the contours of a MS’s nationality can be modified under EU law. In contrast to the cases of Germany and the UK, any such amendment requires an act of EU primary law. On a more figurative note, the Danish peculiarities can be depicted as a slightly too small painting that is kept within the frame of EU law nationality by a little tweak; and while the painting seems to be in place it is in fact the tweak that serves to neatly frame the painting.
4. Nationality for the purpose of EU law beyond nominal nationality – Union citizenship for Latvian non-citizens
The present analysis so far has sought to establish that in the context of EU law the notion of nationality of a MS comes with peculiar meaning and to this end provides a uniform frame for the assessment of who is and who is not to be regarded as a Union citizen. That said, it seems evident that in general, the answer to this question is rather straightforward. Indeed, besides the cases of Germany, the UK and Denmark there are no instruments enshrined in EU law to suggest that the issue of nationality under EU law warrants further attention for any other MS. The assumption thus would be that for all other MS nationality as understood within the national and international context means nationality for the purpose of EU law and hence Union citizenship. However, the peculiar meaning of nationality under EU law leaves it open that the scope of Union citizenship may be wider or narrower than a nominal reading of MS nationality might suggest. Indeed, the referenced case of the Moluccan Dutch quasi-citizens, 122 who are regarded as Union citizens despite them not being Dutch citizens strict sensu, may serve as a case in point.
In this light, the following part of this article will take a closer look at the status of so-called Latvian non-citizens. Latvian non-citizens in the prevailing understanding are not Latvian nationals and consequently cannot be Union citizens. 123 As the ensuing analysis shows, there is, however, room for the argument to be made that Latvian non-citizens in fact ought to be regarded as EU law nationals. The assessment of the status of Latvian non-citizens in the context of EU law not only serves to underscore that the question of who is and who is not a national under EU law is far from being a clear-cut case but also shows that this seemingly academic question of what the notion of nationality for the purpose of EU law actually means is an issue of utmost practical relevance with possibly far-reaching repercussions.
A. Latvian non-citizenship
When Latvia regained its independence after the collapse of the Soviet Union in 1991, Latvia also had to find a way to accommodate to the fact that throughout the Soviet occupation the composition of the resident population in Latvia had dramatically changed. After the restoration of the Law on Citizenship of 1919, which followed an ius sanguinis approach, some 28.2% of the overall resident population were left with an undetermined status. 124 In order to overcome this situation and under quite some pressure from the international community, Latvia introduced the status of non-citizenship for former Soviet citizens who were not citizens of any other State in 1995. 125 Today, the status of non-citizenship is still held by 10.4 % of Latvia’s resident population. 126
The status of non-citizenship has been characterized by the Latvian Constitutional Court as a ‘specific legal status’ that ‘cannot be compared with any other status of [a] physical entity’. 127 As such, non-citizens have an unconditional right of residence, possess a Latvian passport, 128 have a right not to be discriminated against and are granted diplomatic protection abroad. 129 Moreover, the status of non-citizenship is not of a temporary nature, 130 and is only lost upon taking up the nationality of another State or serving in the armed or judicial institutions of another State 131 and until January 2020 could be passed on. 132 Non-citizens have, however, no right to vote in national elections and are barred from holding certain official functions. 133 In essence, the status of non-citizenship is construed on the basis of ‘mutual obligation and rights’, 134 albeit non-citizens are generally disenfranchised from participating in the political process. 135
Interestingly and conversely to what would seem to be the logical consequence of the genuine connection the status of non-citizenship entails, Latvia maintains that non-citizens are not nationals of Latvia; nor are they deemed to be stateless. 136 Non-citizenship according to the Constitutional Court ‘cannot be regarded as a variety of Latvian citizenship’, 137 but rather should be regarded as new, a sui generis status under international law. 138
B. The status of Latvian non-citizens under EU law – to be or not to be a Union citizen?
The status of non-citizens under EU law with regard to Latvia as already indicated above has not been subject to any sort of clarification in EU law. Whether or not non-citizens can be regarded as Union citizens is therefore a matter of interpretation. And while the institutional practice and some scholars have accepted the Latvian doctrine that non-citizens are not Union citizens there are voices of discontent, 139 questioning the ‘disenfranchisement’ of Latvian non-citizens from Union citizenship. 140
1. Political sovereignty over Latvian non-Union-citizenship?
According to Kruma ‘granting EU citizenship to non-citizens was never seriously debated in ruling right-center coalitions’, because any such ‘discussion would [have] inevitably lead to [the] rejection of EU membership in a referendum’ and ‘would [have] significantly reduced the interest [of non-citizens] in naturalization’. 141 And while this may be true on a political level, unfortunately, this reasoning does not harbour any substantial legal arguments. The underlying political sentiment, nevertheless, exemplifies what the widely held paradigm of MS sovereignty over nationality and Union citizenship by extension amounts to in practical terms: The subjection of the fundamental status under EU law to the absolute benevolence of national politics.
Besides relying on the seemingly unsurmountable paradigm of sovereignty in the field of nationality there is, however, also a less apodictic rationale that – at least at first sight – seems to support Latvia’s stance: the Latvian version of Article 20 TFEU 142 sets out that the status of Union citizenship is dependent on being a citizen of a MS. A literal reading, hence, appears to merit the exemption of Latvian non-citizens from the scope of Union citizenship. This interpretation, nevertheless, is – as pointed out above 143 – at odds with the existing case law and the conventional understanding of the preconditioning status of Union citizenship. To equate Union citizenship with a political citizenship status under national law would not only imply an evolvement of Union citizenship towards a political status itself but would also infer that issues of political participation and equality between citizens in a purely internal context come within the ambit of EU law. Since any such radical reconfiguration of what it means to be a Union citizenship is not foreseeable, any literal interpretation along these lines of the Latvian wording of Article 20 TFEU is not particularly convincing.
2. Latvian non-citizenship, Latvian nationality and the case for Union citizenship
The more interesting question thus is whether the argument that Latvian non-citizens are not only non-citizens but also non-nationals allows for an exemption of Latvian non-citizen from Union citizenship and the personal scope of EU law.
As already mentioned, the Latvian doctrinal understanding has been that non-citizens are neither nationals nor stateless. The Latvian Constitutional Court in this respect stated that the ‘status of non-citizenship cannot be regarded as a variety of Latvian citizenship’. 144 The Constitutional Court in the same paragraph, however, also accepted that non-citizenship testifies to a bond founded on ‘mutual rights obligations’ that ‘may influence immigration policy of other states with regard to’ non-citizens. 145 The status of non-citizenship thus carries legal relevance under international law and is instrumental in establishing rights and obligations on the international plane for Latvia in relation to its non-citizens. This in particular includes the right to provide diplomatic protection ‘as well as […] the right to return to Latvia’. 146 Latvian non-citizenship, thus, contains all essential ingredients associated with nationality. This, of course, also means that the difference between Latvian non-citizens and other Latvian citizens, namely the exclusion from political participation, is confined to the situation of non-citizens in Latvia. The assertion that Latvian non-citizens are not Latvian nationals is therefore rightly met with some scepticism, even by those who ultimately accept that Latvian non-citizens, at least for the purpose of EU law, are not Latvian nationals. 147
And while the crucial question of what it is that distinguishes Latvian non-citizenship from Latvian nationality remains unanswered, one cannot help but notice some linguistic similarities in the way the Latvian Constitutional Court depicted the status of non-citizenship. Placing the informative description of nationality in the Nottebohm judgment alongside the characterization of non-citizenship by the Latvian Constitutional Court, one is indeed tempted to consider the latter to be a mere paraphrase of the former: According to the ICJ, nationality is constituted upon a ‘social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’. Similarly, non-citizenship in Latvia, ‘[testifies] that the legal ties of non-citizens with Latvia are to a certain extent recognized and mutual obligations and rights have been created on the basis of the above’. Both statuses thus seem to be construed on an understanding that the individual is immersed within a State and its legal order. Importantly, this understanding also concurs with the jurisdictional conception of nationality under EU law. 148
The (seemingly) contrarian argument that in light of international law it is for ‘each State [to] determine under its own law who […] its nationals’ 149 are and Latvian non-citizens hence must not be regarded as Latvian nationals – though factually correct in principle – should and must be taken with a grain of salt. To simply state that nationality is what a State makes of it overstates the meaning of sovereignty in the context of nationality. 150 If taken literally, nationality as a legal cipher under international law would be obfuscated and relinquished to the realms of a probabilistic legalism. Rather than focusing on the semantics of the notion of nationality in national law, it is therefore necessary to focus on the substance of the connection and whether that connection framed within a legal status in internal law is intended to shape the relationship between an individual and a State in relation to other States and subjects on the international plane. 151
In light of Latvian non-citizens, that is to say that Latvia accepts that the status of non-citizenship testifies to a bond founded on ‘mutual rights obligations’ and that that status ‘may influence immigration [policies] of other states with regard to’ the persons holding that status. Moreover, Latvia claims to be entitled to a right of diplomatic protection in relation to persons holding this status and accepts that these persons have a right to return and reside on its territory just like Latvian nationals. 152 So obviously Latvia not only accepts that other States use that status as a qualifying status under international law but also relies itself on this status to shape its rights and obligations in relation to persons holding this status on the international plane. Latvian non-citizenship thus arguably equates to Latvian nationality all but in name. 153
It is submitted that despite this notional incongruence between non-citizenship and nationality there is some evidence that nationality under international law may be established on the basis of a genuine link and the conduct of a State also in the absence of a qualifying national legislation. 154 Weis in his leading treatises on Nationality and Statelessness in International Law moreover has set out that ‘[n]ationality as a term of international law cannot be defined in terms of municipal law. In order to understand nationality as a conception of international law, only those rights and duties of the State in relation to the national and vice versa, may be considered which are, in their character, basically international.’ 155 Whether or not a status is termed nationality in national law, thereby, is and can be only of indicative relevance.
This understanding is also reflected in the reverse situation, as no single State can simply establish its nationality for individuals that have no connection with that State. Indeed, it is commonly accepted that a nationality that is not buttressed by some sort of a comprehensible genuine link bears no substance on the international plane. 156 The conclusion, therefore, that Latvian non-citizenship does not mean nationality while seemingly carrying all the ingredients of nationality is perplexing.
This perplexity is not yielded by the argument that non-citizenship is something else entirely: not nationality but also not statelessness. 157 Within the present system of international law, nationality is a strictly binary status: it either is or is not. 158 Semantic retouching 159 to contextualize Latvian non-citizenship as some sort of quasi-nationality, hence, is not suited to establish the status of non-citizenship within international law. This is true even more so if one considers that it remains fundamentally unclear what, apart from the assertion that Latvian non-citizenship is not a form of nationality, actually distinguishes Latvian non-citizenship from nationality proper. Interestingly and quite to the point, even those international bodies that have somehow come to terms with Latvian non-citizenship have not embraced it as a genuine status. 160 By all the standards of the duck test, 161 it is therefore difficult to see why Latvian non-citizens, who are very much treated like Latvian nationals, and arguably are socially and legally ‘more closely connected with the population of [Latvia] than with that of any other State’, 162 should not be regarded as Latvian nationals.
In line with the understanding that EU law nationality draws on the concept of nationality under international law with a particular emphasis on the territorial connection with the EU, the conclusion must be that Latvian non-citizens too are and in fact have been Union citizens all along.
3. The consequences of Union citizenship for Latvian non-citizens
Obviously, this conclusion – if followed through – has profound political implications for Latvia and the EU since it stands to argue, that the Latvian non-citizens have been disregarded and disenfranchised in their status as Union citizens.
The caveat raised by Kochenov and Dimitrovs 163 as well as Paparinskis 164 that any such profound and sensitive ‘change’ requires a political debate and commitment from and within Latvia certainly has its merits. However, neither this intrinsically political argument nor the fact that a certain practice has evolved over time and has somehow become self-evident suffice to not have second thoughts about the true character of the status of Latvian non-citizens under EU law.
That is all the more so as the legal consequences of this conclusion are foremost felt within the realm of EU law. 165 Latvian non-citizens retain their apolitical status within the national sphere – in Latvia, they are and remain non-citizens after all. On the European level, however, they would inter alia enjoy a right to free movement, be able to participate in European elections as well as in municipal election in another MS they reside in, be able to support EU citizen’s initiatives as well as be able to seek consular protection abroad.
It is important to note that in particular the right to free movement as perhaps the most prominent right associated with Union citizenship does not come as a true novelty. Latvian non-citizens also within the current doctrinal understandings have been able to acquire the status of EU long-term residents, which provides for a right to live and work in the EU very much along the rights enjoyed by Union citizens. 166 However, this status has to be applied for 167 and is subjected to certain integration requirements stipulated in the Latvian transposition of the long-term residents directive. 168 The crucial difference between the status as a long-term resident and a Union citizen in this sense, hence, does not so much relate to the different rights but more importantly to the right to an unqualified status under EU law as such. In short: the right to have rights.
Paradoxically, the understanding that Latvian non-citizens are Union citizens also adds momentum to a more politicized reading of Union citizenship, as Latvian non-citizens would be entitled to vote in EU elections while still being disenfranchised in the national sphere. The contrast between the enfranchisement of Latvian non-citizens at the European level and their apolitical status in Latvia indeed seems to elevate the political gravitas of Union citizenship as an ostensibly original status of citizenship beyond the MS. However, this impression is deceptive as the character of Union citizenship and the limited political rights that come with it remain unchanged. Rather than the elevated political nature of Union citizenship, it is the comparative obviousness of the disenfranchisement of Latvian non-citizenship in Latvia that drives this impression. Ultimately the – far wider – question raised, thus, is not how political the status of Union citizenship is but how democratic must a MS of the EU be in the first place?
From a legal point of view and speaking in a metaphorical sense, Latvian non-citizens thus ought to be seen as a part of the painting encompassed within the frame of EU law nationality – although the painting itself probably is better depicted as a passe-partout: Latvian non-citizens then are not part of the actual painting depicting Latvia’s citizenship, but still come within the outer frame of EU law nationality.
5. Concluding remarks
Union citizenship is not a self-standing status. It is based upon and additional to the nationality of a MS. And although MS nationality is seemingly a self-evident concept, a closer look unveils that nationality under EU law comes with a particular meaning: As a legal construct Union citizenship draws on an international law conception of nationality that is based on a genuine embedment of the individual within the social and legal fabric of a State. Nationality under EU law, however, also builds upon a territorial nexus with the territory of the EU, encompassing only those nationals of a MS with an unconditional right to reside in the EU territory of their MS. Despite the political overtone the fundamental status of Union citizens, hence, is a jurisdictional construct that reflects the legal immersion of the individual in the legal order of its home MS and the EU at large.
Evidently, this conception of nationality under EU law purports an understanding that accentuates the limitations of MS sovereignty over their nationality and brings about a (potentially) unsettling influence into a legal field that Spiro has described as the ‘last bastion in the citadel of sovereignty’. 169 However, it is worth pointing out that the significance of the territorial nexus underlying this understanding, underscores that nationality also in the context of EU law remains a State-centred concept. As Union citizenship is contingent on having an unfettered right of residence somewhere in the territory of the EU, there can be no Union citizenship without a territorial anchor in a MS of the EU. Ultimately, this does not only infer that Latvian non-citizens are Union citizens but also implies that within the present constitutional framework of the European Union there can be no self-standing Union citizenship. 170
Footnotes
Acknowledgements
I am sincerely grateful to Martina Melcher, Hubert Isak and Gerard-René de Groot for their critical and most valuable comments on the preliminary drafts of this article. I also wish to thank Nina Kulundzija and Alma Stankovic for their help in revising the inital draft. All mistakes remain my own.
