European Union citizenship

Does EU ‘Associate Citizenship’ exist?

‘European citizenship’ is currently defined in the EU Treaties in Articles 20 – 25 of the Treaty on the Functioning of the European Union (TFEU), and once the EU Treaties no longer apply to the UK, European citizenship will not apply to UK citizens – unless the withdrawal agreement provides otherwise.

Currently, ‘associate(d) membership’ of the EU does not exist, so a new ‘fee-paying’ status of ‘associate(d) membership’ could only be introduced for UK citizens by amending the EU Treaties. This would be likely to require the unanimous approval of all EU Member States and could take a while to achieve.

But the withdrawal agreement could include elements of EU citizenship that would work for non-EU citizens. Other elements of EU citizenship clearly would not be possible for a country outside the EU (e.g. the right to petition the European Parliament).

EU citizenship under Article 20 TFEU

Article 20 TFEU provides for citizenship of the EU for individuals with the nationality of an EU Member State:

1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

• (a) the right to move and reside freely within the territory of the Member States;
• (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
• (c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
• (d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.

Other Articles in this part of the TFEU provide for free movement throughout the EU, the right to vote and stand in European Parliament (EP) and municipal (local) elections, diplomatic or consular protection in the authorities of any EU Member State, the right to petition the EP and apply to the European Ombudsman and write to any of the EU institutions.

No EU membership, no EU citizenship?

The TFEU asserts in the last paragraph of Article 20 that the rights of citizenship “shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder”.  In other words, EU citizenship as defined in Article 20 applies only within the context of EU Treaty provisions.  It is acquired automatically by virtue of being a national of an EU Member State. If the UK leaves the EU, it follows that its citizens – unless they have dual nationality – will no longer be citizens of the EU within the terms of the EU Treaties.

However, there has been a debate about the possibility that citizens of a withdrawing State have ‘acquired rights’ in certain Treaty areas,[1] and reciprocal rights for EU and UK citizens post-Brexit are currently being discussed by those negotiating the EU withdrawal agreement. This discussion is about continuing to guarantee certain rights currently enjoyed by EU and UK citizens, such as freedom of movement, social security and health care, pensions, benefits etc. But these guarantees are likely to be transitional and/or conditional (e.g. applying only to people already living in the EU or UK on Brexit day).

A future relations agreement between the UK and the EU might include elements of the current citizenship provisions, but the negotiations have not yet progressed to discussing future relations.

European Parliament support for ‘associate’ citizenship status

EP Constitutional Affairs Committee report

On 10 December 2016, the European Parliament’s chief Brexit negotiator, Liberal Democrat Guy Verhofstadt, considered a form of EU ‘associate citizenship’ status which would allow individuals to “keep free movement to live and work across the EU, as well as a vote in European Parliament elections”.[2]  Politico reported on12 December that MEPs in the EP’s Constitutional Affairs Committee (AFCO) supported an ‘associate status”.

• Pointing out that the EU’s “founding fathers” had imagined a type of “associate status,” MEPs called for “a partnership,” which “should be defined and developed in order to set up a ring of partners around the EU for states who cannot or will not join the Union, but nevertheless want a close relationship with the EU.”
• This would involve making “a financial contribution” and respecting the Union’s “fundamental values and the rule of law.”

AFCO’s draft report of July 2016 by Mr Verhofstadt on “Possible evolutions of and adjustments to the current institutional set-up of the European Union”, although probably attractive to Remainers, would appear to contradict the spirit if not the letter of Article 50 TEU: if a Member State decides to leave the EU, how could it at the same time retain EU citizenship?

The Goerens amendment

In November 2016 the Luxembourg MEP, Charles Goerens (Alliance of Liberals and Democrats Group), proposed Amendment 882 to the AFCO own initiative report on Possible evolutions of and adjustments to the current institutional set-up of the European Union. Goerens proposed adding an amendment to paragraph 37 which read:

“37a. Advocates to insert in the Treaties a European associate citizenship for those who feel and wish to be part of the European project but are nationals of a former Member State; offers these associate citizens the rights of freedom of movement and to reside on its territory as well as being represented in the Parliament through a vote in the European elections on the European lists;”

Charles Goerens’ blog provided further information on the purpose of the amendment:

“This associate membership should provide rights such as the freedom of movement and the right to reside in the EU Member States.  Following the reciprocal principle of ‘no taxation without representation’, these associate citizens should pay an annual membership fee directly into the EU budget. In return, EU associate citizens will be able to stand and vote in the European elections on trans-national European lists.”

And:

“48% of British voters wished to remain European citizens with all the advantages that this brings. The EU should facilitate associate voluntary EU citizenship for those who, against their will, are being stripped of their European identity. Individual EU associate citizenship could provide a practical solution for UK citizens aggrieved by Brexit.[3]“

I believe he eventually withdrew the amendment because it would require Treaty change, which would take a long time.

EP Brexit resolution

The EP motion for a resolution on UK withdrawal, 29 March 2017, implied in paragraph 27 that the EP supported a form of continued citizenship for those who did not want to leave the EU:

“[The EP] Takes note that many citizens in the United Kingdom have expressed strong opposition to losing the rights they currently enjoy pursuant to Article 20 TFEU; proposes that the EU-27 examine how to mitigate this within the limits of Union primary law whilst fully respecting the principles of reciprocity, equity, symmetry and non-discrimination;”

Mr Verhofstadt has also called for the UK Government to be “open” to a plan to help British people who want to retain EU citizenship after the UK leaves. Writing in The Independent on 8 April 2017, he said:

“After much debate within the European Parliament, the parliament’s resolution also notes that many citizens of the UK have expressed strong opposition to losing the rights they currently enjoy as European Union citizens and “proposes that the EU 27 examine how to mitigate this within the limits of Union primary law”. I fought hard in the parliament for this provision to be maintained and hope in the coming months to continue to push for such an offer from the EU to British Europeans.”

Other views on retaining EU citizenship

The former Director General of the EU Council’s Legal Service, Jean-Claude Piris, believes that withdrawing from the EU would not be compatible with continued EU citizenship:

“I would not think that one could build a new legal theory, according to which “acquired rights” would remain valid for millions of individuals … who, despite having lost their EU citizenship, would nevertheless keep its advantages for ever (including the right of movement from and to all EU Member States? Including the right to vote and to be a candidate in the European Parliament?). Such a theory would not have any legal support in the Treaties and would lead to absurd consequences.^[4]“

Professor Gareth Davies has argued that the Court of Justice of the EU (CJEU) could, if asked, find that it would be disproportionate to deprive the UK population of its rights as EU citizens through the process of withdrawal.[5] But as Stephen Coutts of Dublin City University has pointed out, “An argument that Union law could intervene to ‘protect’ the rights of individuals in the UK that are being dragged from the Union and denied Union citizenship against their will would amount to an argument that the United Kingdom acting under Article 50 TEU is not competent as a democratic political community to bind its own minority”.[6]

The former ALDE MEP, Andrew Duff, pointed out in a blog on 11 July 2017 that there is no such thing as ‘associate membership’ of the EU, but “There is however the possibility for a third country, which the UK will be, to seek an association agreement with the Union …”.

A report commissioned by Jill Evans MEP and published in July 2017[7] looked at ‘associate’ EU citizenship. The report’s findings are summarised as follows:

• First, the key question in relation to providing this protection is whether Union Citizenship continues post-Brexit, or whether Brexit extinguishes Citizenship. The report considers that Continuity Union Citizenship (“Continuity”) is the more convincing interpretation of European Union law and international law as it stands, but it also considers the alternative of creating the new status of Associate Union Citizenship of the European Union for British nationals (“Associate Union Citizenship”) with related rights.
• Second, the report identifies two possible means of realising these models: i) legislation by the Union to clarify Continuity and ii) the Withdrawal Agreement between the EU and the UK enshrining Associate Union Citizenship or Continuity.
• Third, it is established that no revision of the Founding Treaties is needed, irrespective of the model followed.
• Fourth, UK citizenship law is highly flexible in line with the principle that individuals ought not to be stripped of citizenship against their will.
• Fifth, devolution in the UK entails that Wales may have a considerable responsibility to protect Union Citizenship rights post-Brexit.

[1]     ‘Acquired rights’ are discussed in section 4.4 of Commons Briefing Paper 7551, Brexit: how does the Article 50 process work? 30 June 2016.

[2]     Independent, 9 December 2016.

[3]     See also article by Charles Goerens, If you don’t want to leave the EU, you don’t have to – become an associate citizen, The Independent, 14 November 2016.

[4]     Robert Schuman Foundation, European issues n°355, 5 May 2015. Should the UK withdraw from the EU: legal aspects and effects of possible options.

[5]     G. Davies, Union citizenship – still Europeans’ destiny after Brexit? 7 July 2016.

[6]     S. Coutts, Brexit and Citizenship: The Past, Present and Future of Free Movement, 12 September 2016.

[7]     The Feasibility of associate EU citizenship for UK citizens post-Brexit, Prof Volker Roeben, Prof Jukka Snell, Dr Petra Minnerop, Dr Pedro Telles and Mr Keith Bush QC, Swansea University.