By Robin Leick*
One of the most decisive factors within the Brexit debate is the topic of EU citizens’ rights, especially regarding EU citizens coming to the UK.[1] Slogans connected to this topic, like “take back control of our borders” or “we can be in charge of immigration” will be familiar to everyone. One has to keep two aspects in mind. First, criticism about EU citizenship and the rights arising from it is often inaccurate or at least simplified. Second, the rights that exist actually offer many advantages not only to EU citizens coming to the UK but also to UK citizens going to other EU countries. To shed more light on the issue, this article will provide an overview of the development of EU citizenship and the rights and concerns connected with it.
From market citizen to Union citizen[2]
The roots of European citizenship go back to the beginning of the European Economic Community, one of the predecessors of today’s EU. Already at the beginning of the 60s, the European Court of Justice (ECJ) underlined
“that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.”[3]
Accordingly, for almost ten years before the accession of the UK to the (now) EU, every Member State citizen was the holder of a variety of additional European rights. Among the most important to date are the freedoms to move goods within the Union, to establish oneself in another Member State, to work there and to distribute and receive services. These so-called fundamental freedoms provided economic growth in the Member States and formed a European single market which is able to compete with other leading markets in the world. Moreover, they have created additional life opportunities for millions of Europeans. They not only guarantee the right to enter and stay in other Member States for economic purposes without any discrimination but most importantly, provide the foundation for realising one’s own life dreams. Not surprisingly, this integration initiated for economic purposes led to a more closely linked European Community. As a response to that, in 1993 the Member States established the European Union and Union citizenship. Today’s Art. 20(1) of the Treaty on the Functioning of the European Union states that:
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
Criticism about Union citizenship
This shift from an economic to a more political and civic community, which resulted in the establishment of the Union citizenship, was not and still is not always seen as an achievement. For instance, in 1993, Margaret Thatcher warned of Union citizenship as a step towards the European state[4]. Today, the supporters of Brexit have much more concrete concerns. They implicitly link Union citizenship to their claims that “EU membership stops us controlling who comes into our country, on what terms, and who can be removed. The system is out of control.” or “If we vote to stay, EU judges will decide who gets British citizenship.”.[5]But is this true? Instead of diluting the truth with political statements, it helps to take a neutral look at the core elements of EU citizenship.
Freedom of movement – no freedom to exploit foreign social assistance systems and no duty to hand over border control
The right to move and reside freely in other EU Member States, without experiencing discrimination because of nationality, is the most important right arising from EU citizenship.[6] As an addition to the above-mentioned fundamental freedoms, this right guarantees the freedom to travel and reside in a non-discriminatory way in other EU country without any economic purpose. It’s usually used by tourists, students or retired persons, but can also be claimed by job seekers and their families. It is a misbelief, however, that this right is guaranteed without any limits. This is only the case for the first three months[7], after which Union citizens must usually provide proof of having sufficient resources for themselves and their family members. The purpose of this solution is to guarantee that EU citizens without any economic objectives do not become a burden on the social assistance system of the host Member State during their period of residence. They must also prove that they have comprehensive health insurance cover in the host Member State. Moreover, the right of free movement does not mean that EU citizens can enter any EU country without any control. This requires additional consent of a Member State to join the so-called Schengen Borders Code. The UK has not taken this step and therefore continues to control its borders.[8]
Conclusion
Citizenship of the Union is an addition to national citizenship that only arises if one has citizenship of a Member State. The term “citizenship” is intended to convey the next stage of the European integration and this has certainly worried many EU sceptics. However, it contains above all one essential right: the freedom of movement, which also grants UK nationals the right to enter and reside in other Member States without experiencing discrimination. European citizenship is therefore a bonus and a great relief for most people who want to realise certain life dreams within the EU. However, it is not a free ticket to live exclusively at the expense of other states – the rules are actually quite rigid, even if some Member States decide not to implement them so strictly.
*I would like to thank Jakub Karczewski very much for his valuable comments on a previous version of the blog post.
References
[1] See Sarah Fine, Whose Freedom of Movement Is Worth Defending?, in: R. Bauböck (ed.), Debating European Citizenship, IMISCOE Research Series, 2019, p. 129 (available at https://doi.org/10.1007/978-3-319-89905-3_26under the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/)).
[2] Title used by Rudolf Streinz, Forschungskolloquium für Eckart Klein, 2009, p. 63.
[3] ECJ Case 26/62 – Van Gend en Loos(emphasis added).
[4] See Margaret Thatcher’s speech in the House of Lords on June 7, 1993, https://www.margaretthatcher.org/document/108314.
[5] See http://www.voteleavetakecontrol.org/briefing_immigration.html.
[6] The most important other rights can be found in Article 20(2) TFEU: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12016E020.
[7] And even then the Member States are not obliged to confer entitlement to social assistance (Art. 24(2) of Directive 2004/38/EC).
[8] See recital 42 of the Regulation 2016/399/EU (Schengen Borders Code), available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32016R0399.