EU citizenship constitutes, perhaps, the highest expression of that «ever closer union among the peoples of Europe» (Treaty of Maastricht, preamble). In fact, the existence of this bond of belonging to the Union going hand in hand with statehood allows a large section of the European population to be able to affirm “ego civis europeus sum” (Opinion AG Jacobs, in ECJ, Christos Konstantinidis v Stadt Altensteig, Case C-168/91, 9 December 1992, para. 46). This focus concentrates on European citizenship as the generator of a series of rights, reflecting on the (previously unimaginable) transnational importance of this institution both at a legal level and in the daily lives of hundreds of millions of inhabitants of the European continent. In addition, this contribution provides an anticipation of a topic that, in view of the forthcoming elections to the European Parliament, will be widely echoed in the academic and civil debate.

 

Before entering the discussion on the EU citizenship, it is necessary to, first, introduce the text of the Treaties and, then, move on to the case law of the Court of Justice, which has played a prominent role in the development and consolidation of this institution. The Maastricht Treaty of 1992 officially established EU citizenship. Actually, the question of granting new rights to the citizens of the Member States had already been raised in the mid-1970s. The Fontainebleau European Council of June 1982 set up a “Committee on Citizens' Europe” – known also as the Adonnino Committee -whose work, however, was not transposed by the Single European Act of 1986. Indeed, the first political agreement on the establishment of a EU citizenship complementary to that of the Member States, came with the 1990 Dublin European Council. This conferred additional rights on the citizens of the Member States over and above those already deriving from the Treaties, including the right of free movement and residence granted by the 1957 Treaty of Rome, which could be activated directly vis-à-vis both the EU and the Member States, as had previously been the case.

These new citizenship rights included the right to petition, the right to address the European Ombudsman, and the right to use one's national language to write to and receive responses from Community bodies. The essential content of the agreement reached at the Dublin European Council would be incorporated with minor variations into the Maastricht Treaty. Subsequently, the legal institution of European citizenship was included in the Treaty establishing a European Constitution of 2004, which, however, never entered into force, due to the referendum rejection by France and the Netherlands. Albeit with slight changes to the original 1992 wording, citizenship was finally confirmed with the 2007 Treaty of Lisbon, which now enshrines the final wording of the Treaties.

 

Specifically, Articles 9, 10 and 11 of the Treaty on European Union (TEU) and Articles 20, 21, 22, 23 and 24 of the Treaty on the Functioning of the European Union (TFEU) are dedicated to the issue of citizenship. It is stated there that, inter alia, citizens of the Union enjoy the right to move and reside freely in the territory of the member states, hence also the right to exercise the right to vote and stand as a candidate not only in the European Parliament, but also in municipal elections in the Member State of residence. Furthermore, the treaties enshrine the right to diplomatic and consular protection in third states, to petition the European Parliament, to appeal to the European Ombudsman, to access documents and to good administration. These rights associated with European citizenship were then reiterated by the Charter of Fundamental Rights of the European Union, which dedicates Title V to the subject of “Citizenship”. The enjoyment of these rights is directly linked to the possession of the citizenship of a Member State. As Advocate General stated in the Rottmann case that «citizenship of the Union [...] is a legal and political concept autonomous from that of national citizenship [...]. It presupposes the existence of a link of a political nature between European citizens, even if it is not a relationship of belonging to a people. This political connection unites the peoples of Europe. It is based on their mutual commitment to open their political communities to other European citizens and to build a new form of civic and political solidarity on a European scale» (Opinion AG Poiares Maduro, in ECJ, Janko Rottmann v. Freistaat Bayern, Case C-135/08, 30 September 2009, para. 23).

Union citizenship is therefore definable as sui generis or a «citizenship without nationality» (Rossi, 2006, 116), as it assumes as its sole attribution prerequisite the possession of the citizenship of another order. It is therefore up to states to determine who their citizens are and the criteria for acquiring national citizenship, from which European citizenship automatically derives, as affirmed by the Court of Justice (CJEU) in Kaur (C-192/99) of February 2001. In fact, the CJEU had already ruled on this point in Micheletti (C-369/90), almost ten year before, where the judges stated that the «determination of the ways in which nationality may be acquired falls [...] within the competence of each Member State, a competence that must be exercised in compliance with Community law» (ECJ, Mario Vicente Micheletti and others v. Delegación del Gobierno en Cantabria, Case C-369/90, 7 July 1992, para. 10). In E.P. v. Préfet du Gers and Instutut national de la statistique et des études économiques case (C-673/20), the CJEU recalled, on the contrary, that the loss of European citizenship results not only from the loss of national citizenship status at the national level, but also, as with Brexit, in the case of the withdrawal of a Member State from the Union, on the basis of Article 50 TEU. Otherwise, the status of European citizen remains as long as the state of which one is a citizen is a member of the Union.

With Articles 9 TEU and 20 TFEU Lisbon Treaty, European citizenship turned from being “complementary” to “additional” to national citizenship. This has led to European citizenship being considered as a true second citizenship, endowed with an autonomous meaning, whereby this status is destined to become fundamental with reference to the possibility of asserting one's rights vis-à-vis both the Euro-Union order and one's own State. Therefore, at least for the time being, arguing for the existence of a European citizenship that is independent of national citizenship is going too far.

 

The Court of Justice has played a central role in the evolution of the concept of citizenship, especially in relation to the issue of the enjoyment of rights. For instance, in Marie-Nathalie D'Hoop v Office national de l'emploi (C-224/98), the Court stated that «a citizen of the Union is entitled to be accorded in all Member States the same treatment in law as that accorded to nationals of those Member States who find themselves in the same situation» (ECJ, Marie-Nathalie D'Hoop v Office national de l'emploi, Case C-224/98, 11 July 2002, para. 30). It also added that «it would be incompatible with the right to freedom of movement if he were to be treated less favourably in the Member State of which he is a national than he would be if he had not availed himself of the facilities granted by the Treaty in respect of movement» (ECJ, Marie-Nathalie D'Hoop, C-224/98, para. 30).

The main objective of European citizenship was to protect citizens who moved to another state, which is confirmed by the exclusion of its operation in situations de facto limited to a single Member State ('purely internal' situations). Over the years and in cases involving European citizenship, the Court of Justice has broadened its consideration of the connecting factor to EU law, moving from the traditional approach, which required the presence of a cross-border situation, to the extension of its scope. The Court of Justice thus ended up declaring that European citizens can claim certain rights vis-à-vis their country of nationality, even in the absence of the exercise of the right of movement and residence. The potential of this new approach became evident in Zambrano (C-34/09), declaring that Article 20 TFEU precludes national measures that may deprive citizens of the Union «of the genuine enjoyment of the rights attaching to the status of citizen of the Union» (ECJ, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), Case C-34/09, 8 March 2011, para. 45). Precisely, the Court concluded that a third-country national present in a Member State, whose dependent minor children are nationals of that country, has the right to reside and work in that Member State. A refusal to grant the parent such rights would, for the CGEU, deprive the children of the «real and effective enjoyment of the rights attaching to the status of citizen of the Union» (ECJ, Gerardo Ruiz Zambrano, C-34/09, para. 45), forcing them to leave the EU territory. The Court further specified the validity of this criterion even if the children have never exercised their right to free movement within the EU. This means, in other words, that states are increasingly limited in the modes of treating their own citizens, having the latter rights (and the status of European citizens) that derive directly from the treaties.

 

All this has led part of the doctrine to believe that we are facing an important achievement in the process of European integration, also because of the symbolic value that this citizenship would assume. The institution of European citizenship therefore represents not only a project of political union but also an attempt to build a European identity in the consciousness of the citizens of the member states.

 

(Focus by Edin Skrebo)

 

Essential bibliography:

 

P. Costanzo, L. Mezzetti, A. Ruggeri, Lineamenti di diritto costituzionale europeo, Turin, 2022, 469

 

D.U. Galetta, Riflessioni sull’ambito di applicazione dell’Art. 41 della Carta dei diritti UE sul diritto ad una buona amministrazione, anche alla luce di alcune recenti pronunce della Corte di giustizia, in Il diritto dell’Unione europea, 2013, 133

 

E. Guild, S. Peers, J. Tomkin, The EU citizenship directive: a commentary, Oxford, 2014

 

K. Hyltén-Cavallius, K., EU citizenship at the edges of freedom of movement, Oxford, 2020

 

A. Lang, Il soggiorno del cittadino dell’Unione europea in Italia, Milan, 2017

 

M.C. Marchetti, L’Europa dei cittadini: cittadinanza e democrazia nell’Unione europea, Milan, 2015

 

C. Margiotta, Cittadinanza europea: istruzioni per l’uso, Rome, 2014

 

P. Mindus, European citizenship after Brexit: freedom of movement and rights of residence, London, 2017

 

C. Morviducci, I diritti dei cittadini europei, Turin, 2017

 

E. Poli, Unione europea: cittadinanza e beni comuni europei, Rome, 2022

 

E. Politi, Diritto costituzionale dell’Unione Europea, Turin, 2021, 140

 

P. Provenzano, Art. 41 della Carta dei diritti fondamentali dell’Unione europea e integrazione postuma della motivazione, in Rivista italiana di diritto pubblico comunitario, 2013, 1118

 

L.S. Rossi, I cittadini, in A. Tizzano (a cura di), Il diritto privato dell’Unione Europea, Turin, 2006, 116

 

A. Simonicini, E. Longo, Il primo scoglio del diritto di iniziativa dei cittadini europei, in Osservatorio sulle fonti, 2013, 18

 

A. Tomaselli, Cittadinanza europea e tutela dei diritti fondamentali, Rome, 2017

 

F. Vecchio, Il caso Ruiz Zambrano tra cittadinanza europea, discriminazioni a rovescio e nuove possibilità di applicazione della Carta dei diritti fondamentali dell’Unione, in Diritto pubblico comparato ed europeo, 2011, 1249

 

J. Venturi, Unione europea oltre il trauma: seconda dialogo di cittadinanza dul futuro dell’Europa, Rome, 2022

 

Related essential case law:

 

ECJ, E.P. c. Préfet du Gers e Instutut national de la statistique et des études économiques, Case C-673/20, 9 June 2022

 

ECJ, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), Case C-34/09, 8 March 2011

 

ECJ, Janko Rottmann v. Freistaat Bayern, Case C-135/08, 2 March 2010

 

ECJ, Marie-Nathalie D'Hoop v Office national de l'emploi, Case C-224/98, 11 July 2002

 

ECJ, Mario Vicente Micheletti and others v. Delegación del Gobierno en Cantabria, Case C-369/90, 7 July 1992

 

ECJ, R v. Secretary of State for the Home Department, ex parte Kaur, Case C-192/99, 20 Feruary 2001