The free movement of people has been an aim since the 1957 EEC Treaty. Discrimination on grounds of nationality has been prohibited for as long. Directive 2004/38 on the right of the citizens of the (European) Union and their family members to move and reside freely within the territory of the Member States is supposed to enhance and protect these rights.
However, restrictive and discriminatory practices persist in the EU member states, making a mockery out of citizens’ rights. A short blog post on Talking about the EU – Moving on up (21 January 2010) – started a revealing discussion about Kafkaesque experiences of absurd practices facing people who move from one EU country to another (Britain).
From Sainsbury’s not accepting EU identity cards to problems opening a bank account, renting a flat or getting a contract for a mobile phone or broadband access, the ingenuity of private firms and landlords to frustrate movers seems endless.
This is an important discussion about the everyday experiences of EU citizens. You can contribute to the discussion on Talking about the EU.
What have you or your expat friends experienced?
What should be done?
Ralf Grahn
P.S. Educate yourself and brush up your language skills by reading Euroblogs. On Bruxelles2 (in French) the journalist Nicolas Grosverheyde writes expertly about the security and defence issues facing the European Union.
Bruxelles2 is listed with more than 500 great Euroblogs on growing multilingual Bloggingportal.eu, your useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, communication, economics, finance, business, civil society and law. You can also subscribe to the RSS feed for new blog posts appearing on Bloggingportal.eu.
By the way, I also discuss European issues in Finnish on Eurooppaoikeus and in Swedish on Grahnblawg.
Showing posts with label nationality. Show all posts
Showing posts with label nationality. Show all posts
Friday, 22 January 2010
Saturday, 27 December 2008
EU procurement: Exclusive rights and non-discrimination
When a contracting authority (a body governed by public law) grants a special or exclusive right to carry out a public service activity to another entity, which is not a contracting authority, the latter must comply with the principle of non-discrimination on the basis of nationality.
The EC (EU) Procurement Directive 2004/18/EC tries to ensure this through Article 3. The act by which the special or exclusive right is granted shall provide that the entity complies with the principle of non-discrimination on the basis of nationality, when it awards contracts to third parties as part of its activities:
Article 3
Granting of special or exclusive rights: non-discrimination clause
Where a contracting authority grants special or exclusive rights to carry out a public service activity to an entity other than such a contracting authority, the act by which that right is granted shall provide that, in respect of the supply contracts which it awards to third parties as part of its activities, the entity concerned must comply with the principle of non-discrimination on the basis of nationality.
***
ECJ Case C-275/98.
In the Case C-275/98 Unitron Scandinavia A/S and 3-S A/S, Danske Svineproducenters Serviceselskab v Ministeriet for Fødevarer, Landbrug og Fiskeri, the ECJ’s preliminary ruling based on the old Directive 93/36 neatly laid out two principles. The tendering procedures need not apply, but the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively (and it implies an obligation of transparency):
30 A systematic interpretation of that provision therefore shows that the contracting authority is not required to demand that the body in question comply with the tendering procedures laid down by Directive 93/36.
31 It should be noted, however, that the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively. It implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that it has been complied with.
Ralf Grahn
The EC (EU) Procurement Directive 2004/18/EC tries to ensure this through Article 3. The act by which the special or exclusive right is granted shall provide that the entity complies with the principle of non-discrimination on the basis of nationality, when it awards contracts to third parties as part of its activities:
Article 3
Granting of special or exclusive rights: non-discrimination clause
Where a contracting authority grants special or exclusive rights to carry out a public service activity to an entity other than such a contracting authority, the act by which that right is granted shall provide that, in respect of the supply contracts which it awards to third parties as part of its activities, the entity concerned must comply with the principle of non-discrimination on the basis of nationality.
***
ECJ Case C-275/98.
In the Case C-275/98 Unitron Scandinavia A/S and 3-S A/S, Danske Svineproducenters Serviceselskab v Ministeriet for Fødevarer, Landbrug og Fiskeri, the ECJ’s preliminary ruling based on the old Directive 93/36 neatly laid out two principles. The tendering procedures need not apply, but the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively (and it implies an obligation of transparency):
30 A systematic interpretation of that provision therefore shows that the contracting authority is not required to demand that the body in question comply with the tendering procedures laid down by Directive 93/36.
31 It should be noted, however, that the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively. It implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that it has been complied with.
Ralf Grahn
Friday, 26 December 2008
EU procurement: Equal treatment, non-discrimination and transparency
Cavalier or corrupt contracting authorities are a menace to the public purse, taxpayer value and competitive businesses.
Is the European Community (European Union) concerned with public procurement only above certain threshold levels?
For those interested in good public governance and value for money, it is a relief to know that some common principles apply to all public contracts within the European Economic Area (EEA).
***
Article 2 principles
Article 2 of the Procurement Directive 2004/18/EC reminds us of three principles, which apply to public procurement, namely equal treatment, non-discrimination and transparency:
Article 2
Principles of awarding contracts
Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.
***
Recital 2
Recital 2 of the Procurement Directive 2004/18/EC, also known as the Classic Directive, explains that the provisions of the Treaty establishing the European Community (TEC) apply to all public procurement contracts. However, above certain threshold levels more detailed harmonised EC (EU) secondary legislation kicks in:
(2) The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty.
***
Treaty provisions
Here we look briefly at some of the main treaty provisions, which apply to public procurement contracts. (More detail can be found, in the light of the Lisbon Treaty, in previous blog posts on individual Articles.)
***
Article 2 TEC Common market
Article 2 of the Treaty establishing the European Community (TEC) states:
The Community shall have as its task, by establishing a common market…
The common market is the original concept enshrined in the Treaty of Rome (EEC Treaty). Since the Single European Act (SEA) it has gradually been replaced by the term internal market in the treaty and secondary legislation. (The Commission seems to favour the single market.) The Treaty of Lisbon would replace the common market by the internal market throughout.
***
Article 3 TEC Community activities
Article 3 TEC sets out Community activities based on the objectives (tasks) mentioned in the previous Article. At least the following are relevant to the common market (internal market) and consequently to public procurement:
Article 3 TEC (parts)
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
-----
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
-----
***
Four freedoms
The four market freedoms – free movement of goods, persons, services and capital – meet the material scope of the Procurement Directive, which concerns the execution of works (buildings and civil engineering works), the supply of products (goods) and the provision of services.
The ECJ has given the fundamental treaty principles concrete meaning based on the specific treaty provisions.
***
Free movement of goods
TEC Articles 23 to 31 contain the main principles regarding the free movement of goods.
Article 28 TEC prohibits all restrictions on imports an all measures having equivalent effect between member states.
***
Free movement of services
The free movement of services is set out in Articles 49 to 55 TEC.
Article 49 TEC prohibits restrictions on the freedom to provide services in another member state.
***
Right of establishment
Restrictions on the freedom of establishment of nationals of a member state in another member state are prohibited according to Article 43 TEC (to Article 48 TEC).
***
Free movement for workers
Articles 39 to 42 TEC aim at securing the free movement for workers within the Community.
***
Non-discrimination
The four freedoms can be seen as expressions of a principle of equal treatment of all economic actors and persons within the internal market.
Equality comprises both (active) equal treatment and (passive) absence of discrimination.
Normally, acts in breach of the specific market freedoms also constitute discrimination on grounds of nationality, but in any case the fundamental prohibition against discrimination on grounds of nationality stands as a reminder to contracting authorities and as an anchor for economic operators from other member states:
Article 12 TEC
Within the scope of application of this Treaty, and without prejudice to any special provisions
contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules
designed to prohibit such discrimination.
***
Interpretative Communication
If a public contract falls within the scope of the Procurement Directive 2004/18/EC, the detailed rules apply to the award procedure above the thresholds.
The Commission has offered guidance on public procurement procedures in cases where the specific rules of the Directives do not apply:
Commission Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives (OJ 1.8.2006 C 179/2).
The Interpretative Communication refers to the EU-wide competitive tendering procedures set up in the Procurement Directive 2004/18/EC and the Utilities Directive 2004/17/EC, but refers to two kinds of contracts that are not or only partially covered by the Directives:
— Contracts below the thresholds for application of the Public Procurement Directives;
— Contracts for services listed in Annex II B to Directive 2004/18/EC and in Annex XVII B to Directive 2004/17/EC that exceed the thresholds for application of these Directives.
(Concessions are a third such category, mentioned in footnote 3 on the first page.)
***
Obligation of transparency
After summarizing the EC Treaty rules and the basic standards for the award of contracts, the Communication reminds the contracting entities (authorities) of the obligation to evaluate if an intended contract might potentially be of interest to economic operators located in other member states.
The Commission proceeds to deal with adequate advertising:
According to the ECJ, the principles of equal treatment and of non-discrimination imply an obligation of transparency which consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the market to be opened up to competition.
The obligation of transparency requires that an undertaking located in another Member State has access to appropriate information regarding the contract before it is awarded, so that, if it so wishes, it would be in a position to express its interest in obtaining that contract.
Ralf Grahn
Is the European Community (European Union) concerned with public procurement only above certain threshold levels?
For those interested in good public governance and value for money, it is a relief to know that some common principles apply to all public contracts within the European Economic Area (EEA).
***
Article 2 principles
Article 2 of the Procurement Directive 2004/18/EC reminds us of three principles, which apply to public procurement, namely equal treatment, non-discrimination and transparency:
Article 2
Principles of awarding contracts
Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.
***
Recital 2
Recital 2 of the Procurement Directive 2004/18/EC, also known as the Classic Directive, explains that the provisions of the Treaty establishing the European Community (TEC) apply to all public procurement contracts. However, above certain threshold levels more detailed harmonised EC (EU) secondary legislation kicks in:
(2) The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty.
***
Treaty provisions
Here we look briefly at some of the main treaty provisions, which apply to public procurement contracts. (More detail can be found, in the light of the Lisbon Treaty, in previous blog posts on individual Articles.)
***
Article 2 TEC Common market
Article 2 of the Treaty establishing the European Community (TEC) states:
The Community shall have as its task, by establishing a common market…
The common market is the original concept enshrined in the Treaty of Rome (EEC Treaty). Since the Single European Act (SEA) it has gradually been replaced by the term internal market in the treaty and secondary legislation. (The Commission seems to favour the single market.) The Treaty of Lisbon would replace the common market by the internal market throughout.
***
Article 3 TEC Community activities
Article 3 TEC sets out Community activities based on the objectives (tasks) mentioned in the previous Article. At least the following are relevant to the common market (internal market) and consequently to public procurement:
Article 3 TEC (parts)
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
-----
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
-----
***
Four freedoms
The four market freedoms – free movement of goods, persons, services and capital – meet the material scope of the Procurement Directive, which concerns the execution of works (buildings and civil engineering works), the supply of products (goods) and the provision of services.
The ECJ has given the fundamental treaty principles concrete meaning based on the specific treaty provisions.
***
Free movement of goods
TEC Articles 23 to 31 contain the main principles regarding the free movement of goods.
Article 28 TEC prohibits all restrictions on imports an all measures having equivalent effect between member states.
***
Free movement of services
The free movement of services is set out in Articles 49 to 55 TEC.
Article 49 TEC prohibits restrictions on the freedom to provide services in another member state.
***
Right of establishment
Restrictions on the freedom of establishment of nationals of a member state in another member state are prohibited according to Article 43 TEC (to Article 48 TEC).
***
Free movement for workers
Articles 39 to 42 TEC aim at securing the free movement for workers within the Community.
***
Non-discrimination
The four freedoms can be seen as expressions of a principle of equal treatment of all economic actors and persons within the internal market.
Equality comprises both (active) equal treatment and (passive) absence of discrimination.
Normally, acts in breach of the specific market freedoms also constitute discrimination on grounds of nationality, but in any case the fundamental prohibition against discrimination on grounds of nationality stands as a reminder to contracting authorities and as an anchor for economic operators from other member states:
Article 12 TEC
Within the scope of application of this Treaty, and without prejudice to any special provisions
contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules
designed to prohibit such discrimination.
***
Interpretative Communication
If a public contract falls within the scope of the Procurement Directive 2004/18/EC, the detailed rules apply to the award procedure above the thresholds.
The Commission has offered guidance on public procurement procedures in cases where the specific rules of the Directives do not apply:
Commission Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives (OJ 1.8.2006 C 179/2).
The Interpretative Communication refers to the EU-wide competitive tendering procedures set up in the Procurement Directive 2004/18/EC and the Utilities Directive 2004/17/EC, but refers to two kinds of contracts that are not or only partially covered by the Directives:
— Contracts below the thresholds for application of the Public Procurement Directives;
— Contracts for services listed in Annex II B to Directive 2004/18/EC and in Annex XVII B to Directive 2004/17/EC that exceed the thresholds for application of these Directives.
(Concessions are a third such category, mentioned in footnote 3 on the first page.)
***
Obligation of transparency
After summarizing the EC Treaty rules and the basic standards for the award of contracts, the Communication reminds the contracting entities (authorities) of the obligation to evaluate if an intended contract might potentially be of interest to economic operators located in other member states.
The Commission proceeds to deal with adequate advertising:
According to the ECJ, the principles of equal treatment and of non-discrimination imply an obligation of transparency which consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the market to be opened up to competition.
The obligation of transparency requires that an undertaking located in another Member State has access to appropriate information regarding the contract before it is awarded, so that, if it so wishes, it would be in a position to express its interest in obtaining that contract.
Ralf Grahn
Wednesday, 16 April 2008
EU TFEU: Remaining restrictions on services
In many cases the Treaty of Lisbon does little else than renumbering existing treaty provisions for coming consolidated versions of the revised Treaty on European Union and the renamed Treaty on the Functioning of the European Union.
***
The Treaty of Lisbon (ToL) presents no specific amendments concerning Article 54 of the Treaty establishing the European Community (TEC). Cf. points 59 and 60 in OJ 17.12.2007 C 306/55.
***
The latest consolidated version of the existing treaties gives us the wording of Article 54 TEC in force (OJ 29.12.2006 C 321 E/63):
Article 54 TEC
As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49.
***
There seem to be no horizontal amendments, but the renumbering of the provision has to be checked, and we add the location of the Article within the Treaty on the Functioning of the European Union (TFEU):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV TFEU) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 54 TFEU (ToL), renumbered Article 61 TFEU
As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49 [ToL, renumbered Article 56 TFEU].
***
Article III-34 of the draft Treaty establishing a Constitution for Europe added an ‘of’, and the referral was different, but otherwise it was a clone of the current TEC Article (OJ 18.7.2003 C 169/33).
***
In Article III-149 of the Treaty establishing a Constitution for Europe ‘each Member State’ became ‘the Member States’ but the IGC 2004 accepted the ‘of’ added by the European Convention before ‘residence’. Naturally, the referral was different.
***
We can conclude that, from the TEC to the Lisbon Treaty, no substantial change has been proposed to the provision.
***
We see that restrictions on grounds of nationality or of residence are forbidden, which narrows the scope of legitimate remaining restrictions considerably. In addition, new restrictions would seem to go against the aim to achieve free movement of services.
The ‘sunset feeling’ evoked by Article 54 TEC has not inspired writers unduly, which a quick look at a number of textbooks validated. Müller-Graff explains why, in Streinz, EUV/EGV Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft (Verlag C.H.Beck, München 2003; page 742):
„Sein Regelungsgehalt wird von Art. 49 EGV mitumfasst, so dass er gestrichen werden könnte.“
In other words, Article 54 ToL (and 61 TFEU) is redundant, due to Article 49 TEC (and ToL, renumbered Article 56 TFEU).
This serves as a reminder, if one is needed, of how focused on institutional questions the later cycles of treaty reform have been and of how technical most of the modifications of the ‘Community’ policy areas have been, or to use the term preferred for the future ‘policies and internal actions of the Union’.
Ralf Grahn
***
The Treaty of Lisbon (ToL) presents no specific amendments concerning Article 54 of the Treaty establishing the European Community (TEC). Cf. points 59 and 60 in OJ 17.12.2007 C 306/55.
***
The latest consolidated version of the existing treaties gives us the wording of Article 54 TEC in force (OJ 29.12.2006 C 321 E/63):
Article 54 TEC
As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49.
***
There seem to be no horizontal amendments, but the renumbering of the provision has to be checked, and we add the location of the Article within the Treaty on the Functioning of the European Union (TFEU):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV TFEU) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 54 TFEU (ToL), renumbered Article 61 TFEU
As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49 [ToL, renumbered Article 56 TFEU].
***
Article III-34 of the draft Treaty establishing a Constitution for Europe added an ‘of’, and the referral was different, but otherwise it was a clone of the current TEC Article (OJ 18.7.2003 C 169/33).
***
In Article III-149 of the Treaty establishing a Constitution for Europe ‘each Member State’ became ‘the Member States’ but the IGC 2004 accepted the ‘of’ added by the European Convention before ‘residence’. Naturally, the referral was different.
***
We can conclude that, from the TEC to the Lisbon Treaty, no substantial change has been proposed to the provision.
***
We see that restrictions on grounds of nationality or of residence are forbidden, which narrows the scope of legitimate remaining restrictions considerably. In addition, new restrictions would seem to go against the aim to achieve free movement of services.
The ‘sunset feeling’ evoked by Article 54 TEC has not inspired writers unduly, which a quick look at a number of textbooks validated. Müller-Graff explains why, in Streinz, EUV/EGV Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft (Verlag C.H.Beck, München 2003; page 742):
„Sein Regelungsgehalt wird von Art. 49 EGV mitumfasst, so dass er gestrichen werden könnte.“
In other words, Article 54 ToL (and 61 TFEU) is redundant, due to Article 49 TEC (and ToL, renumbered Article 56 TFEU).
This serves as a reminder, if one is needed, of how focused on institutional questions the later cycles of treaty reform have been and of how technical most of the modifications of the ‘Community’ policy areas have been, or to use the term preferred for the future ‘policies and internal actions of the Union’.
Ralf Grahn
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
___________________________________________________________________
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).
***
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.
***
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
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
___________________________________________________________________
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).
***
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.
***
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
Tuesday, 4 March 2008
EU TFEU: Nationality and non-discrimination
The declaration by the French foreign minister Robert Schuman on 9 May 1950 started the ongoing quest to build Europe “through concrete achievements which first create a de facto solidarity”.
Already the Treaty establishing the European Coal and Steel Community (ECSC) prohibited discriminating practices (Article 4).
Since the then Article 7 of the Treaty establishing the European Economic Community (EEC), non-discrimination on the grounds of nationality has been a fundamental principle of the common market, enriched by the landmark decisions of the European Court of Justice.
Today, the prohibition of discrimination on grounds of nationality is found in Article 12 of the Treaty establishing the European Community, but achieving the mindset expressed by ‘de facto solidarity’ is a never ending challenge for both national governments and citizens.
***
We start to look at Part Two of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) gave Part Two a new headline: Non-discrimination and citizenship of the Union (adding ‘Non-discrimination and’). See Official Journal (OJ) 17.12.2007 C 306/50:
NON-DISCRIMINATION AND CITIZENSHIP
31) The heading of Part Two shall be replaced by the following heading: ‘NON-DISCRIMINATION AND CITIZENSHIP OF THE UNION’.
32) An Article 16 D shall be inserted, with the wording of Article 12.
***
We are sent scurrying for Article 12 TEC, currently in Part One, Principles. The provision can be found in the latest consolidated version of the present TEU and TEC, in OJ 29.12.2006 C 321 E/48:
Article 12 TEC
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination.
***
After the obligatory horizontal amendments, we have the text of the Lisbon Treaty provision before our eyes:
Part Two – Non-discrimination and citizenship of the Union
Article 16d TFEU (ToL), after renumbering Article 18 TFEU
Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination.
***
The European Convention proposed to give the fundamental principle of non-discrimination on grounds of nationality the visibility it deserved by placing the provision in Article I-4(2) of Part I, Title I Definition and objectives of the Union, of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/8):
Article I-4 Draft Constitution
Fundamental freedoms and non-discrimination
1. Free movement of persons, goods, services and capital, and freedom of establishment shall be guaranteed within and by the Union, in accordance with the provisions of the Constitution.
2. In the field of application of the Constitution, and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited.
***
Article III-7 of the draft Constitution contained the basis for legislation (OJ 18.7.2003 C 169/29):
TITLE II
NON-DISCRIMINATION AND CITIZENSHIP
Article III-7 Draft Constitution
European laws or framework laws may lay down rules to prohibit discrimination on grounds of nationality as referred to in Article I-4.
***
The IGC 2004 followed the same approach in the Treaty establishing a Constitution for Europe, where Title I Definition and objectives of the Union, of Part I, contained Article I-4(2) (OJ 16.12.2004 C 310/12):
Article I-4 Constitution
Fundamental freedoms and non-discrimination
1. The free movement of persons, services, goods and capital, and freedom of establishment shall
be guaranteed within and by the Union, in accordance with the Constitution.
2. Within the scope of the Constitution, and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited.
***
The legal basis is found in Article III-123 of the Constitutional Treaty (OJ 16.12.2004 C 310/56):
TITLE II
NON-DISCRIMINATION AND CITIZENSHIP
Article III-123 Constitution
European laws or framework laws may lay down rules to prohibit discrimination on grounds of nationality as referred to in Article I-4(2).
***
A few remarks by your glossator:
The position of the prohibition of discrimination on grounds of nationality may be less dignified in the Lisbon Treaty than in the Constitution, but the fundamental principle is preserved and its scope widens from the ‘Community’ to encompass the treaties as a whole.
Specific provisions against discrimination and the (gradual) establishment of EU citizenship as a fundamental status for equal rights bolster the classical non-discrimination requirement on the basis of nationality.
The ordinary legislative procedure applies, replacing the co-decision procedure (Article 251 TEC), although many problems relate to partial practices rather than lack of legislation.
***
An introduction to the inventiveness concerning discrimination on grounds of nationality is offered, free of charge, by the ECJ’s Digest of case-law (available only in French).
Ralf Grahn
Sources:
Declaration of 9 May 1950 (the Schuman declaration)
http://europa.eu/abc/symbols/9-may/decl_en.htm
European Court of Justice: Répertoire de jurisprudence communautaire (Digest of Community case-law), B – The European Community (EEC/EC), B-01.05 Interdiction de discrimination en raison de la nationalité (Derniére mise à jour au 02/03/2008), 83 summaries
http://curia.europa.eu/common/recdoc/repertoire_jurisp/bull_cee/data/index_B-01_05.htm
Already the Treaty establishing the European Coal and Steel Community (ECSC) prohibited discriminating practices (Article 4).
Since the then Article 7 of the Treaty establishing the European Economic Community (EEC), non-discrimination on the grounds of nationality has been a fundamental principle of the common market, enriched by the landmark decisions of the European Court of Justice.
Today, the prohibition of discrimination on grounds of nationality is found in Article 12 of the Treaty establishing the European Community, but achieving the mindset expressed by ‘de facto solidarity’ is a never ending challenge for both national governments and citizens.
***
We start to look at Part Two of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) gave Part Two a new headline: Non-discrimination and citizenship of the Union (adding ‘Non-discrimination and’). See Official Journal (OJ) 17.12.2007 C 306/50:
NON-DISCRIMINATION AND CITIZENSHIP
31) The heading of Part Two shall be replaced by the following heading: ‘NON-DISCRIMINATION AND CITIZENSHIP OF THE UNION’.
32) An Article 16 D shall be inserted, with the wording of Article 12.
***
We are sent scurrying for Article 12 TEC, currently in Part One, Principles. The provision can be found in the latest consolidated version of the present TEU and TEC, in OJ 29.12.2006 C 321 E/48:
Article 12 TEC
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination.
***
After the obligatory horizontal amendments, we have the text of the Lisbon Treaty provision before our eyes:
Part Two – Non-discrimination and citizenship of the Union
Article 16d TFEU (ToL), after renumbering Article 18 TFEU
Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination.
***
The European Convention proposed to give the fundamental principle of non-discrimination on grounds of nationality the visibility it deserved by placing the provision in Article I-4(2) of Part I, Title I Definition and objectives of the Union, of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/8):
Article I-4 Draft Constitution
Fundamental freedoms and non-discrimination
1. Free movement of persons, goods, services and capital, and freedom of establishment shall be guaranteed within and by the Union, in accordance with the provisions of the Constitution.
2. In the field of application of the Constitution, and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited.
***
Article III-7 of the draft Constitution contained the basis for legislation (OJ 18.7.2003 C 169/29):
TITLE II
NON-DISCRIMINATION AND CITIZENSHIP
Article III-7 Draft Constitution
European laws or framework laws may lay down rules to prohibit discrimination on grounds of nationality as referred to in Article I-4.
***
The IGC 2004 followed the same approach in the Treaty establishing a Constitution for Europe, where Title I Definition and objectives of the Union, of Part I, contained Article I-4(2) (OJ 16.12.2004 C 310/12):
Article I-4 Constitution
Fundamental freedoms and non-discrimination
1. The free movement of persons, services, goods and capital, and freedom of establishment shall
be guaranteed within and by the Union, in accordance with the Constitution.
2. Within the scope of the Constitution, and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited.
***
The legal basis is found in Article III-123 of the Constitutional Treaty (OJ 16.12.2004 C 310/56):
TITLE II
NON-DISCRIMINATION AND CITIZENSHIP
Article III-123 Constitution
European laws or framework laws may lay down rules to prohibit discrimination on grounds of nationality as referred to in Article I-4(2).
***
A few remarks by your glossator:
The position of the prohibition of discrimination on grounds of nationality may be less dignified in the Lisbon Treaty than in the Constitution, but the fundamental principle is preserved and its scope widens from the ‘Community’ to encompass the treaties as a whole.
Specific provisions against discrimination and the (gradual) establishment of EU citizenship as a fundamental status for equal rights bolster the classical non-discrimination requirement on the basis of nationality.
The ordinary legislative procedure applies, replacing the co-decision procedure (Article 251 TEC), although many problems relate to partial practices rather than lack of legislation.
***
An introduction to the inventiveness concerning discrimination on grounds of nationality is offered, free of charge, by the ECJ’s Digest of case-law (available only in French).
Ralf Grahn
Sources:
Declaration of 9 May 1950 (the Schuman declaration)
http://europa.eu/abc/symbols/9-may/decl_en.htm
European Court of Justice: Répertoire de jurisprudence communautaire (Digest of Community case-law), B – The European Community (EEC/EC), B-01.05 Interdiction de discrimination en raison de la nationalité (Derniére mise à jour au 02/03/2008), 83 summaries
http://curia.europa.eu/common/recdoc/repertoire_jurisp/bull_cee/data/index_B-01_05.htm
Friday, 11 May 2007
Discrimination of EU nationals
One of the most important provisions of the Treaty Establishing the European Community is Article 12, which prohibits discrimination on grounds of nationality:
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination.
This prohibition of discrimination on grounds of nationality is a fundamental principle of the European Community. Without it the exercise of the four fundamental freedoms would be impaired.
EC nationals have a right to expect to be treated in a non-discriminatory manner in other Member States.
On the other hand, we have to treat nationals of other EC countries fairly.
The principle is clear, but as in many other cases it takes a lot of effort to change attitudes and habits.
Ralf Grahn
One of the most important provisions of the Treaty Establishing the European Community is Article 12, which prohibits discrimination on grounds of nationality:
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination.
This prohibition of discrimination on grounds of nationality is a fundamental principle of the European Community. Without it the exercise of the four fundamental freedoms would be impaired.
EC nationals have a right to expect to be treated in a non-discriminatory manner in other Member States.
On the other hand, we have to treat nationals of other EC countries fairly.
The principle is clear, but as in many other cases it takes a lot of effort to change attitudes and habits.
Ralf Grahn
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