Thursday, 6 March 2008

EU TFEU: Citizenship of the Union

NOTICE 7 MARCH 2008 (9.15 EET):

I have noticed that I made a mistake, for which I apologise. The 'contamination' I ascribe to the English consolidated version of the TEC of 2006, was caused by me while working with the different versions. Read with a grain (or more) of salt.

When I have the time, I intend to either edit this post or to post a corrected version.

Humbly,
Ralf Grahn

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Is the Treaty of Lisbon going to foist a new, unwanted, EU citizenship upon 490 million unsuspecting Europeans?

Does a change from a ‘complementary’ to an ‘additional’ EU citizenship materially alter our status, including our national citizenship?

Some of the wilder allegations in the blogosphere seem to contend that both (mutually exclusive) contentions are true.

Let us look at the legal issues at stake.

Most readers of this blog have been citizens of the European Union since the Treaty on European Union (TEU) entered into force, in November 1993. Some became EU citizens later, through enlargement, while a considerable number of readers are citizens of another Union, with somewhat longer traditions, the United States of America.

Today, we take a look at the legal basics of the “bonus citizenship” of the European Union, in the light of the Treaty of Lisbon (ToL).

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The intergovernmental conference (IGC 2007) reordered and amended the existing treaties by the Treaty of Lisbon. The Treaty establishing the European Community (TEC) was renamed the Treaty on the Functioning of the European Union (TFEU), and Part Two of the TFEU is now called Non-discrimination and citizenship of the Union.

Point 34 of the Lisbon Treaty (Article 2) sets out the reception and marginal amendments of our status as citizens of the EU (Official Journal, OJ, 17.12.2007 C 306/51):

34) Article 17 shall be amended as follows:

(a) in paragraph 1, the word ‘complement’ shall be replaced by ‘be additional to’;

(b) paragraph 2 shall be replaced by the following:

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.

***

As usual, the text of the IGC 2007 makes sense only in conjunction with the current treaty, in this case the TEC (the latest consolidated version in OJ 29.12.2006 C 321 E/49):

PART TWO
CITIZENSHIP OF THE UNION

Article 17 TEC

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 conferred by this Treaty and shall be subject to the duties imposed thereby.

***

The following step is a merger of the existing text with the agreed amendments, which should lead to the following new Article:

Article 17 TFEU (ToL), after renumbering Article 20 TFEU

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.

***

Someone may think that the present ‘locus’ of Union citizenship is odd. The Maastricht Treaty established citizenship ‘of the Union’, but placed the provisions in the Community treaty.

Possibly, some misunderstandings concerning citizenship of the EU have to do with the less than natural language of hereby establishing a status, which has existed since 1993, in the same way as the Treaty establishing the European Economic Community (EEC) and later the European Community (EC) has kept on ‘establishing’ through various treaty reforms.

In short, citizenship of the EU was established more than 14 years ago.

In my humble opinion, the Reform Treaty should have been clearer.

***

Then, the attentive reader spots a problem. How can the Lisbon Treaty replace the word ‘complement’ by ‘be additional to’, when the consolidated TEC we just read already uses ‘be additional to’?

On the other hand, our leaders have made clear that consolidated versions are made public for illustrative purposes only, and that they have no legal value.

Piqued by this inconsistency, I checked Article 17 TEC in the handy Blackstone’s EC Legislation, where ‘complement’ is used.

Going back to the Maastricht Treaty, as presented on the Eur-Lex Treaties web pages, does not help us that much, since the original 1992 wording is different (although it should reassure us that citizenship of the Union was established back then):

http://eur-lex.europa.eu/en/treaties/index.htm

Article 8

1. Citizenship of the Union is hereby established.

Every person holding the nationality of a Member State shall be a citizen of the Union.

2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.

***

The following reform was the Treaty of Amsterdam, where we make a discovery:

9. Article 8(1) shall be replaced by the following:

‘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 complement and not replace national citizenship.’

While the preceding Maastricht Treaty had boldly stated that each citizen of a member state is a citizen of the Union, the Amsterdam Treaty seemingly wanted to reassure all and sundry that nothing replaced national citizenship. The word ‘complement’ had made its appearance.

In the 1997 consolidated version of the Amsterdam Treaty, we find the renumbering from Article 8 to Article 17 TEC, and the citizenship of the Union ‘shall complement’:

Article 17 (ex Article 8) TEC

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 complement and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.

***

I failed to find any relevant mention of ‘citizenship’ in the Treaty of Nice, but in the latest consolidated version (2006) an ‘additional’ Union citizenship seems to have introduced itself.

Is this the spectre of self-reforming treaties that some fear?

The unannounced change remains a mystery, but a little later we are going to look at the intermediary stages of treaty reform, the Convention’s draft Constitution 2003 and the IGC 2004’s Constitution. Is it possible that a slip through ‘contamination’ occurred during the 2006 consolidation?

***

The most striking difference between the current TEC and the new TFEU Article is the added text and detail in paragraph 2, but the difference is mainly systematic and presentational, not substantial. The new Article offers us the main contents at a glance, where we presently have to read the following Articles to get a general picture of our rights.

For more detail, you have to go to the following Articles of the Lisbon Treaty, too.

Some details change with the Treaty of Lisbon, but we will get back to them when we have looked at the intermediary stages of the treaty reform process.

***

The European Convention, led by Valéry Giscard d’Estaing, proposed the following Article I-8 Citizenship of the Union, in Part I, Title II Fundamental rights and citizenship of the Union, of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/9-10):

Article 8 Draft Constitution
Citizenship of the Union

1. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship; it shall not replace it.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Constitution. They shall have:

— the right to move and reside freely within the territory of the Member States;

— 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;

— 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;

— 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 Constitution's languages and to obtain a reply in the same language.

3. These rights shall be exercised in accordance with the conditions and limits defined by the Constitution and by the measures adopted to give it effect.

***

The IGC 2004 agreed on the following text, in Part I , Title II Fundamental rights and citizenship of the Union (OJ 16.12.2004 C 310/13-14):

Article I-10 Constitution
Citizenship of the Union

1. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the
Constitution. They shall have:

(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 Constitution's 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
Constitution and by the measures adopted thereunder.

***

We notice that the draft Constitution elevated citizenship of the Union to the ‘constitutional’ and visible part of the proposed treaty. At the same time, the proposed Article I-8 gave an overview, with legal bases detailed in Articles III-9 to III-13.

Article I-10 of the Constitution was almost identical to the draft. Detailed provisions allowing secondary legislation followed in Articles III-125 to III-129.

The IGC 2007 left the presentation of citizenship of the Union in the old Community treaty, now TFEU, but compensated by mentioning citizenship in the TEU:

The TEU Preamble refers to the establishment of ‘a citizenship common to the nationals of their [the signatories’] nationals’, as presently.

The bare essentials of citizenship are laid out in Article 8 TEU (ToL), renumbered Article 9 TEU:


“In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.”

In addition, there are a number of references to ‘citizen’, ‘citizens’ and ‘citizenship’ in the new TEU, marking one step along the road towards more developed citizens’ rights within the European Union.

***

The IGC 2007 reverted to the formula “Citizenship of the Union is hereby established” in Article 17 TFEU (ToL), renumbered Article 20 TFEU, which seems to have caused some consternation.

In paragraph 1, EU citizenship is a complement to national citizenship in the present TEC according to the Amsterdam Treaty (but ‘additional to’ in the 2006 consolidation), and ‘additional to’ was used in both the draft Constitution and the Constitution. The Lisbon Treaty replaces the Amsterdam Treaty wording with a Union citizenship, which ‘be additional to’ national citizenship.

Does the different choice of words lead to any real difference in meaning? Since there is an express change, one has to start with the presumption that it has some meaning.

Let us start with a basic dictionary check (The New Penguin English Dictionary):

‘Additional’ is explained as ‘added, extra or supplementary’.

‘Complement’ (verb) is described as being ‘complementary to (something)’, whereas the noun ‘complement’ is given the primary meaning ‘something that fills up or completes a whole, or adds extra features to enhance it’.

I find it hard to see any significant difference between the concepts.

***

I failed to find any mention in the IGC 2007 Mandate.

***

Would we be wiser if we looked at another language version of the Lisbon Treaty?

The Treaty of Lisbon was drafted in French. Even if all the language versions are ‘equally authentic’, French is our logical first choice for a comparison:

a) au paragraphe 1, le mot «complète» est remplacé par «s'ajoute à»;

It looks the same as the English ToL version.

The French draft Constitution Article I-8 employed the wording:

« La citoyenneté de l'Union s'ajoute à la citoyenneté nationale et ne la remplace pas. »

The Constitution Article I-10 in French did the same:

« La citoyenneté de l'Union s'ajoute à la citoyenneté nationale et ne la remplace pas. »

The French rendering of the Lisbon Treaty is correct, since the current Article 17 TEC being amended uses the words:

« La citoyenneté de l’Union complète la citoyenneté nationale et ne la remplace pas. »

Even the French consolidated version from 2006 uses the same words.

We have now followed the French and the English versions of the provision on EU citizenship side by side, and the only ‘odd man out’, with its anticipatory use of ‘additional to’ is the latest consolidated version in English.

***

Did the European Convention have anything particular in mind, when it made the original change?

Étienne de Poncins, who worked in the Convention Secretariat, makes no comment in his book other than that the substance of Article I-8 « n’est pas fondamentalement nouvelle » (page 98).

The Praesidium document 528/03 of 6 February 2003 used the word ‘additional’ in the English version of then Article 7, and the Explanatory note stated:

“The definition of citizenship of the Union in paragraph 1 follows that given in the current
EC Treaty. This paragraph also establishes the principle of equality between all European citizens.”

The French version of Article 7(1) employed the new words ‘s’ajoute’, as you can see in the Note de Praesidium à la Convention:

« 1. Possède la citoyenneté de l'Union toute personne ayant la nationalité d'un Etat membre. La
citoyenneté de l'Union s'ajoute à la citoyenneté nationale et ne la remplace pas. Toutes les
citoyennes et tous les citoyens de l'Union sont égaux devant la loi. »

The Praesidium Note explicative in CONV 528/03 (page 14) states:

« Article 7:

La définition de la citoyenneté de l'Union donnée au premier paragraphe suit celle du présent traité CE. Ce paragraphe consacre en outre le principe d'égalité entre toutes les citoyennes et tous les citoyens européens. »

***

Based on the material presented, I conclude that the European Convention intended no material change by employing the slightly different wording ‘s’ajoute’ instead of ‘complète’. Had any material change been the aim, it would have been contrary to the Explanatory note.

In addition, the experienced UK diplomat Sir John Kerr, who was the Secretary General of the European Convention, and who himself translated a number of the Praesidium documents which were confidential before publishing, would most probably have reacted if the change of words had aimed at substantial change.

Therefore, the conclusion seems to be that a minor change of nuance made in French and in English during the Convention has worked its way through to the Treaty of Lisbon, although the consolidated English version from 2006 somehow made anticipatory use of the Convention and Constitution wording, a slip now legalised by the Lisbon Treaty.

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Why did I trouble you (and myself) with this?

As far as I see, two misconceptions about the citizenship of the EU have been spread in the blogosphere, and presumably these allegations may mislead the public.

First, the Treaty of Lisbon does not, in reality, establish an EU citizenship, which exists since 1993, in spite of the Treaty’s express but unfortunate wording.

Second, allegations that replacing ‘complement’ by ‘be additional to’ is to have material (and sinister) effects are rubbish, and we may suppose that few readers of the English 2006 consolidation have been disturbed in the least.

***

Finally, one substantial aspect of Union citizenship, starting with a quote from the UK House of Commons Library Research Paper 07/86 (page 24):

‘The ECJ has indicated on several occasions that “citizenship of the Union is destined to be the
fundamental status of nationals of the Member States”.’

This is succinctly put, the evolving state of citizens of the European Union from mere ‘market operators’ (workers, entrepreneurs, investors) to more fully-fledged citizens, something Rudolf Streinz describes as the progress from “Marktbürgerschaft” towards Unionsbürgerschaft” (page 379).


Ralf Grahn


Source:

Étienne de Poncins: Vers une Constitution européenne; Éditions 10/18, 2003

UK House of Commons Library Research Paper 07/86: The Treaty of Lisbon: amendments to the Treaty establishing the European Community; 6 December 2007

Rudolf Streinz: EUV/EGV Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft; Verlag C. H. Beck, München 2003