European Unions Definition of Citizenship - Essay Example

THE GUARANTEE OF CITIZENSHIP RIGHTS IN THE EUROPEAN UNION AND THE INTERACTION OF ARTICLE 20 OF THE TREATY ON THE FORMATION OF THE EUROPEAN UNION Contents INTRODUCTION 3 EU CITIZENSHIP AND FREEDOM OF MOVEMENT RULES 3 PROTECTION OF FOREIGN MEMBER STATES’ CITIZENS 5 ROTHMANN V FREISTAAT BAYERN 7 EXCEPTIONS TO NATIONAL CITIZENSHIP MATTERS THAT EU INTERVENTION IS NOT NECESSARY 9 CONCLUSION 12 INTRODUCTION The right to the free movement of persons is a central aspect and element of the European Union. From the Van Gend Loos case, it is established in uncertain terms that the European Union is meant to create a supranational entity that has a legal system which supersedes the legal system of Member States. On the other side, the principle of proportionality implies that member states will not be forced to go beyond its normal scope in enforcing EU law. The right to freedom of movement of persons in the European Union is no exception to this process and this situation. The law on the free movement of persons prevents EU nations from depriving citizens of member states of the enjoyment of the rights to freedom of movement. This paper examines the situations and circumstances within which the European Union’s freedom of movement rules interact with national rights to set immigration rules. To this end, the paper will critically review Article 20 of the TFEU and related Union rules. It will also examine the Rottmann V Friestadt Bayern case and how it interacts with the fundamental rules of the European Union. EU CITIZENSHIP AND FREEDOM OF MOVEMENT RULES Article 20(1) of the Treaty on the Functioning of the European Union (TFEU) brings to light, the concept of EU citizenship. The TFEU came to force in 2009. And it states that “every person holding the nationality of a Member State shall be a citizen of the Union”. This creates the definition of who form the “people” or the basic unit of the European Union1. Therefore, in the technical sense, anyone who is a citizen of any Member State has the right to make claims under EU law and has the right to privileges guaranteed under the numerous EU laws. One of the privileges that come with EU citizenship is that “every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid won in the Treaty and any of the measures adopted to give it effect”2. This implies that any citizen of the European Union has the right to move to other parts of the EU without any limitation and any kind of restrictions placed deliberately or unconsciously by the authorities of the host nation or state. Interpretations are given to this through a Council Directive which stated that “every citizen of the European Union and their family members have the right to move and reside freely within the territory of the European Union3. This implies that there is no need for the presentation of a residence card or permanent right to residence. Rather, upon showing one’s passport or eligibility documents that shows that s/he is a citizen of a member state, that person must be given the right to enter any member state. Thus, the arrangement on the free movement of persons is one that restricts authorities of their rights to refuse entry to a citizen of a member state or terminate residency. This has its roots in the European Economic Community of 1957 and was consolidated in the Maastrict Treaty of 1992 which allowed people to move freely without reference to an economic activity4. The treaty of Amsterdam guaranteed the right to European Union citizenship then the TFEU Article 20 came up and consolidated the concept of citizenship within the European Union. Under the arrangement, a citizen of a European member state can stay within another state for 3 months, after which that individual will need to show proof of status. This enables people to move to other countries and seek opportunities there in a legal manner. PROTECTION OF FOREIGN MEMBER STATES’ CITIZENS Article 45 of the Treaty of the Functioning of the European Union (TFEU) provides a guarantee of free movement of persons and it states that “this shall entail abolishing of all discrimination based on nationality between workers of the member states as regards to employment, remuneration and other conditions of work and employment”. This is buttressed by Article 20 of the TFEU which precludes national measures that are meant to deprive other citizens of the Union from enjoying the rights conferred upon them by their status as citizens of the Union. Article 20 seeks to provide the definition of citizenship, the right to move and reside freely in member states (2a) and the right to vote in European elections (2c)5. However, in some cases, there might be a clash of this right to citizenship and the right to a person to live in any part of the European Union. This is because in spite of the fact that nations and states are subject to the rulings of the European Union. However, states also have the right to define and determine who is a citizen and who is not a citizen. Hence, there is the need for some degree of clarifications to be granted in cases where there is some kind of ambiguity between the different stakeholders and the different parties who form the basic aspects of the society. This is because the states still have the power and right to provide and revoke citizenships of the people within its borders6. Hence, in a situation where a Member State of the European Union revokes the citizenship of a person, that individual might lose his or her right to citizenship of a member state. In such a situation, there is a definite clash between European Law and state law and this inevitably leads to various forms of legal issues that must be presented for further interpretation and in analysis in the European Court of Justice. As a general rule, “in cases of EU citizens’ rights and especially non discrimination, the methodology is to ‘read in’ the relevant competencies for the court is based on an interpretation of European Union objectives. This has paved the way for the court to draw further conclusions on the scope of the EU element applicable in nationality cases”7. This implies that in cases where a nation has an issue with the nationality of a person and that issue becomes a major problem and matter there is the need for the state and its courts to infer the broad meaning of ideas and concepts in the EU statutes. This will bring about important information about the main issues and problems in the case and from there, a national court will find some kind of synthesis between the two conflicting matters and come up with a solution. The implication is that the court case will have to draw meanings and insights into the main scope of European law and what it sought to achieve. This is done in order to clarify the position of national law and fill in the gaps in order to provide a fair judgement in a given case. Therefore, in an area that a person’s nationality is being barred, that individual might have an issue with the state. This is because if a person is the citizen of a member state and his or her citizenship is being revoked for one reason or the other, that person might lose the privilege of European citizenship which automatically comes with that right to member state citizenship. ROTHMANN V FREISTAAT BAYERN In the case of Rothmann V Freistaat Bayern, Rothmann was an Austrian national. However, he moved into Germany and applied for German citizenship. Based on Austrian law, the individual’s Austrian citizenship lapsed the moment he took up a German citizenship as Austria did not have room for dual citizenship. Thus, the person took up only the German citizenship. With time, the application of Rothmann was discovered to have contained some elements and aspects of falsification. Under German state laws, his citizenship was to be revoked because any citizenship application that was made on the basis of falsehood was declared null and void. Therefore, in an action to strip Rothmann of his citizenship, the national court sought to deprive him of his right to Germany his home country. However, there was going to be an issue with Rothmann because there were two possibilities. The first possibility was that Rothmann was going to be stateless because his Austrian citizenship had been automatically revoked. Hence, going back to Austria was going to be an issue and he was going to have no state after his German passport was taken. The second possibility relating to Rothmann was that he could go back and take up his Austrian citizenship which will automatically make him a European Union citizen and hence give him the right to all the privileges and arrangements meant for other European nationals in Germany. Hence, he could start a new cycle and apply for German citizenship again. This created a clash of legal positions and perspectives and the case had to be presented to the European Court of Justice. Although by default, the European Union uses the principle of proportionality to avoid the interference in state affairs, “in Rothmann V Freistaat Bayern, the European Court of Justice accepted its competence on nationality issues and stated that there might be a situation which ‘by reason of its nature and consequences’ falls within the ambit of European Union law”8. Therefore, in cases where a nation will need to take action concerning a person’s European Union citizenship, the status of the person’s European Union connections and the rights to be detached to it will have to be called to question. “Member states become more limited by EU citizenship rules and hence, this limits and constraints national law. Also, member states rules need to be adhered to, as long as they are not in conflict with European Union law”9. This implies that in cases where citizenship rules and national principles are against European citizens, the individual has the right to petition the European Court of Justice. The European Court of Justice has the right to require national institutions to factor in European law and act to ensure that the people are not denied the right to a life and a decent treatment according to the standards of European Union law which is a supranational legal system that overrides national and local laws and rulings. Article 20 is somewhat silent and it does not include details of situations and interactions that will give rise for the need to implement some elements and aspects of European Union law and rules10. Rather, it sets the broad framework within which this could be discussed and analysed in order to come up with solutions. However, it is acknowledged that in rare situations, there will be the need for the European Union to intervene based on the premise that the definition of citizenship exists11. However, the definition of citizenship is ambiguous. There is the need for cross-border correction to be put together in order to ensure that there is justice served in the European context and the essence of the European Union is preserved in all situations and circumstances. Article 4(2) of the TFEU conceives of an internal market as a space for which regulatory competency is shared. Hence, the European regulation is an “added value” and although internal situations concerning citizenship are regulated by member states, the conferral of powers and subsidiarity allows the European Union to intervene in matters as and where the need arises. This implies that although the European Union will not normally intervene in matters and situations, there is the chance and the possibility of having the need and compulsion to do so. This is because European citizenship puts an individual into a different category and a different class. This categorisation needs to be protected where the need arises. Therefore, in the Rothman case, it was identified that the rights and the jurisdiction did not lie within the scope of the governments of Austria or Germany. Rather, the power and authority remained in the hands of the European Union which had the power and authority to rule on such cases that involved two member states12. EXCEPTIONS TO NATIONAL CITIZENSHIP MATTERS THAT EU INTERVENTION IS NOT NECESSARY However, in some cases and situations, there is a departure from the Rothman rule. This is because the Rothman rule involved two member states and effectively, the individual could switch nationality easily even if there was no intervention from the European Union. This is because in the technical sense, if the German authorities deprived Rotthmann of his citizenship, he could have gone back to re-apply for his Austrian citizenship, returned to German as a legal resident and from there, he could have taken up German citizenship. In cases where there is a national of a third country (non-EU member state), the EU’s intervention might not be appropriate and hence, the nation can be allowed to act unilaterally without calling onto the ECJ. This cuts across situations relating to deportation and situations relating to one state and its laws13. These issues and pointers were presented in two landmark cases, the Ruiz Zambrano case and the McCarthy and Dereci case. In the Ruiz Zambrano case, a couple from Colombia had settled in Belgium and they had given birth to minor children who qualified for European citizenship. As European citizens, their parents were still not recognized as Belgian citizenship and hence, did not have the rights of European citizenship under the Article 20 of the TFEU. However, the children did. After much appeals and requests for consideration for Belgian citizenship, Ruiz Zambrano and his wife were denied residency and the right to work. This implied that the denial meant that the parents will not be able to work to take care of their children who are European citizens by birth. Hence, the parents were due for deportation alongside the children. A case presented by Ruiz Zambrano petitioned the European Court of Justice on behalf of the children who were legitimate European citizens and needed their parents to be around to take care of them. The European Court of Justice indicated that they did not have jurisdiction over the case. This is because Belgium’s right to deal with third party nationals on its own soil was up to Belgium as a sovereign nation that was part of the European Union14. The appeal presented on the grounds that the children were young and could not fend for themselves was not taken. Thus, Ruiz Zambrano and his wife and children had to leave Belgium and go back to their country of origin, Colombia. In the McCarthy case, Mrs. McCarthy was a UK citizen who qualified for Irish nationality. She married a Jamaican national and sought to live in the UK with him. However, she was not employed and was not a social security beneficiary. The UK law required a person to be employed and have social security contribution before that person could marry a foreigner and gain the rights to live in the UK with his or her partner. In line with this, Mrs. McCarthy, who qualified for Irish citizenship applied for an Irish passport and applied for a stay for her husband in the UK on the basis of EU law and her position as a citizen of the European Union. Traditionally, the UK has not signed some treaties relating to migration. And hence, there were many kinds of freedom of movement scenarios that were not applicable to the European Union. However, Mrs. McCarthy hoped that through her Irish origins, she could get the European Union citizenship and petition for her husband to stay in the UK with her. However, the Home Secretary of the UK denied her the right on the grounds that she is an unqualified person. Mrs. McCarthy petitioned the ECJ on the grounds that as a person of dual citizenship, she could be a beneficiary of Article 5 of the European Parliament Council Directive 2004/38/EC which guarantees her rights without any kinds of prejudice and also the rights of her family to reside legally anywhere in the EU. The ECJ held that the UK Home Secretary and the UK had the right to set their criteria. And hence, the European citizenship rights and processes did not cover citizens who brought in other third parties. Thus, the ruling follows that the UK will not interfere where there is a national arrangement and process that is in place by a sovereign government of a member state meant to streamline its migration processes and systems. CONCLUSION The study indicates that the European Union’s definition of citizenship is tied with the free movement of persons. However, it creates a distinct and supranational system that is based on the objectives of the Union. Hence, nations are bound to take into account, European Union rules, regulations and objectives before taking various forms of action. However, in the process, they must be sensitive to EU rules. Failure to do so will mean a breach of EU rules and the EU can intervene with its supranational authority. However, this right and authority of the European Union does not apply to foreign nationals that seek to enter the European Union and seek residency and citizenships. In that case, nations are allowed to have the full decision and control of affairs in order to decide who they allow into the European Union and who is refused entry to the EU. Hence, the EU allows nations to exercise their power and authority over residency and citizenship. This is typically done in relation to its national laws and its immigration laws. They only intervene where a genuine citizen of a EU nation goes through some challenges and will need some kind of intervention to prevent extreme situations and conditions. Bibliography Craig Paul. The Lisbon Treaty: Law, Politics and Treaty Reform Oxford: Oxford University Press. 2012. Eurofound. Free Movement of Citizens. [Online] Available at: http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/freemovementofcitizens.htm Accessed: April 11, 2014. Forlatti, Serena & Annoni Allesandra. The Changing Role of Nationality in International Law London: Routledge. 2012 Guzewicz Angiesku. “EU Citizenship & EU Entities: New Perspectives for Citizens and Companies” Woclaw Review of Law, Administration and Economics 3(1) pp49 - 51 Kruma, Kristine. EU Citizenship, Nationality and Migration Statutes: An Ongoing Challenge. Amsterdam: Martinus Nijhoff. 2010. Spaventa Eleanor. “From Gebhard to Carpenter: Rewards and (Non) Economic European Constitution” 2004. 41. CMLR. Pp743 – 773 Shuibhne Niamh. The Coherence of European Union Free Movement Law Oxford: Oxford University Press. 2012. Read More