The European Union? - The Case of The United Kingdom.: Dhr. Dr. C.U. Noack

Master Thesis - What are the consequences for EU citizenship when a Member State leaves
the European Union? – The case of the United Kingdom.
Research question - What are the consequences for EU citizenship when a Member State
decides to withdraw from the European Union, and for their citizens living in another Member
State?
Student: Tim Blijham
Supervisor: mr. dr. A.C. van Wageningen

Second supervisor: dhr. dr. C.U. Noack
Master: Governing Europe
Word count: 20.337

Index
Introduction p. 4
Chapter 1 – Citizenship p. 6
1.1 Introduction to citizenship p. 6
1.2 Citizenship and nationality p. 6
1.2.1 Recognition of citizenship under international law p. 7
1.3 Roots of modern citizenship p. 8
1.3.1 Political citizenship p. 8

1.3.2 Civil citizenship p. 10
1.4 Modern citizenship p. 11
1.5 Concluding remarks p. 12
Chapter 2 – European Union citizenship p. 14
2.1 Introduction Union citizenship p. 14
2.2 Legal status Union citizenship p. 15
2.2.1 Union citizenship and the rights of free movement and residence
p. 15
2.2.2. Direct effect of article 21 TFEU p. 16
2.2.3. Union citizenship and member state nationality law p. 17
2.2.4. Union citizenship and ‘wholly internal situations’ p. 19
2.3 Political rights Union citizenship p. 21
Chapter 3 – Union citizenship and treaty withdrawal by Member States
3.1 Introduction p. 24
3.2 Consequences of treaty withdrawal for EU citizens p. 25
3.3 EU Legal solutions to protect citizenship p. 27
3.3.1 Categories of British citizens and their right to reside after Brexit
p. 27
3.3.2 Union legislative measures p. 28
3.3.3 The case of Rottmann p. 29
2
3.4 International law solutions p. 31
3.4.1 Residence rights, human rights and the ECHR: the Kurić formula
p. 31
3.4.2 Acquired rights and the Vienna Convention on the law of Treaties
p. 34
Conclusion p. 40
Bibliography p. 45
3
Introduction
In this MA thesis, I examine the form of citizenship that all European Union (EU) nationals
have in common, that of EU citizenship. The aim of this thesis is to research the event of a
Member State leaving the EU, and what happens to the EU citizenship possessed by their
nationals. On 23-06-2016, the United Kingdom (UK) decided to leave the EU by a democratic
referendum. Following this decision, the UK government handed over their letter of resignation
on 29-03-2017, and for the first time set the wheels of Article 50 TEU in motion.1 The use of
Article 50 TEU set in motion a whole array of complex mechanisms, challenging the forward
motion of deeper EU integration. On the individual level, this leaves us with the question what
is going to happen to the EU citizenship rights of UK nationals. The main focus of this thesis
is the situation of UK citizens in the EU and their Union citizenship rights, not the situation of
EU citizens living in the UK, although this will be alluded to if relevant.
During interviews conducted in Brussels, the current public debate assumes that EU citizenship
is automatically lost for British citizens after the Brexit. In this thesis however I will discuss
scenarios where this would not necessarily be the case, and research how EU citizens could
legally see their rights protected. What for example happened to EU citizenship as a
fundamental status of the citizens of the Union, as first uttered in Grzelczyk? Is EU citizenship
a status so profound, that it transcends mere institutional arrangements, and becomes almost a
fundamental right? Or do we, as Davies puts it, see citizenship as a ‘Contingent status of
convenience, a discount card in the supermarket that is Europe’?2 As observed in the media,
there are loud calls for the preservation of EU citizenship rights coming from both the UK and
EU side.3 It is however evident that the loss of EU citizenship would result in the loss of
substantive rights for the former EU citizens.
The withdrawal of the UK from the EU will reduce the size of the EU legal order, raising issues
for the 1.2 million Britons living in the EU, and the 2.1 million EU citizens living in the UK.4
The reduction in size of the EU legal order represents the de-application of all the norms of this
legal order in the territory of the withdrawing Member State, and the loss of rights for the
citizens of the withdrawing Member State still residing in the Union. This leads to the main
research question: What are the consequences for EU citizenship when a Member State decides
to withdraw from the European Union, and for their citizens living in another Member State?
To answer this research question, I will first examine the history of citizenship, going back as
far as ancient Greece to explain the different forms of citizenship as they developed over time,

1
A. Hunt, ‘Brexit: All you need to know about the UK leaving the EU’,
http://www.bbc.com/news/uk-politics-32810887 retrieved on 29-05-2017.
2
D. Davies, ‘Union Citizenship – Still Europeans’ Destiny after Brexit?’,
http://europeanlawblog.eu/2016/07/07/union-citizenship-still-europeans-destiny-after-brexit/
Retrieved on 29-05-2017.
3
O. Garner, ‘After Brexit: Protecting European citizens and citizenship from fragmentation’,
EUI Working Papers, nr. 2016/22, p. 19.
K. Allen, ‘UK business groups call for economy to be put first in Brexit talks’
https://www.theguardian.com/politics/2017/jun/18/uk-business-groups-call-for-economy-to-
be-put-first-in-brexit-talks-single-market retrieved on 16-06-2017.
4
British Future, ‘Report of the Inquiry into securing the status of EEA+ nationals in the UK’,
http://www.britishfuture.org/wp-
content/uploads/2016/12/EUNationalsReport.Final_.12.12.16.pdf retrieved on 23-05-2017.
4
from political citizenship, to civil citizenship and social citizenship. Putting EU citizenship in
context with other forms of citizenship is necessary to be able to analyse the concept. The
different forms of citizenship discussed will lay the base for interesting parallels and analyses
in connection with the notion of EU citizenship that is central to this thesis.
In the second chapter, the legal meaning of EU citizenship will be discerned, providing the
basis needed to in the final part answer the question what happens to EU citizenship if a Member
State decides to leave the EU. The official introduction of EU citizenship in the treaty of
Maastricht in 1992 has not brought about a notion that remained static, but one that has grown
along in importance with the further development of the EU. Key features and rights of EU
citizenship will be examined, both legal and political, along with landmark CJEU rulings that
have altered our understanding of EU citizenship. The analysis of jurisprudence is paramount
to grasp the notion of EU citizenship, as this notion was not only developed by legislators, but
has been defined by the CJEU as well.
The third chapter will research the consequences of a Member States withdrawing from the EU.
To do so, this thesis will assume that no deal is struck between the EU and the UK concerning
EU citizenship. The consequences of such a hard Brexit are discussed. The 1.2 million UK
citizens living in the EU are not a homogenous group, so first a distinction between them and
the potential consequences of this distinction are made. Various scenarios and legal options,
both on the EU and international level, are discussed to provide potential solutions to the EU
citizenship conundrum.
Three main developments and observations will be discerned in this paper. Firstly, that of EU
citizenship and Member State citizenship being compared to the ancient civil and political
forms of citizenship. Interesting parallels are discerned, displaying an intriguing relationship
between the contemporary notions of EU and Member State citizenship. Secondly, the new
paradigm that EU citizenship was ushered into by the post-Maastricht Treaty case law. This
marks a new development where the EU is moving away from being a sole instrument for the
integration of the internal market, and is moving towards a Union where the rights and interests
of its citizens are protected as well. Finally, it will be researched how the different groups of
(ex) EU citizens could see their citizenship rights protected post-Brexit. This thesis will show
that citizens in multiple situations will potentially see their EU citizenship rights safeguarded
by EU and international law.
5
Chapter 1 – Citizenship
1.1 Introduction to citizenship
This chapter of the paper aims to give the notion of citizenship some substance, by researching
what the notion of citizenship entails in comparison with nationality, in relation with
international law and the historical development of citizenship. Being able to grasp the notion
of citizenship is paramount to the further research of this paper, and will provide context to the
notion of Union citizenship and how Union citizenship will develop if a member state decides
to leave the European Union.
In the first section of this chapter, the difference between citizenship and nationality will be
explained. While often understood as being very similar to one another, two different legal
frameworks are reflected in these notions. This section continues to explain citizenship and its
recognition by other states according to international law by discussing the Nottebohm case.
The clarification of the concept of citizenship in this section will provide useful insights when
comparing it to Union citizenship later on in this paper.
In the second section, this paper will explore the roots of modern citizenship, that can be traced
back all the way to ancient Greece. The ancient definition of a citizen as ‘one who rules and is
ruled’5 may still apply, but has evolved over time. The politcal form of citizenship found in
ancient Greece can still be seen as the cornerstone of modern citizenship, albeit in a different
and less direct form. The model of direct democracy would no longer be manageable in the
contemporary world, as this would put too much of a strain on the citizens of the states. This is
why the legal notion of citizenship provides a counterbalance to political citizenship, by
ensuring that the citizens of a state are able to see to their private interests and are safeguarded
by the law whilst doing this.
In the final section of this chapter, the modern notion of citizenship as it is known in the nation
state and combines the political and civil form whilst adding the social citizenship dimension,
is discussed. The theory of T.H. Marshall has been very influential in the post-war research on
citizenship, and has laid the foundation of modern citizenship. This chapter discusses the
foundations of the notion of citizenship, and by doing so stresses the unique position of Union
citizenship, the only successful form of citizenship beyond the nation state.6 National
citizenship proved to be one of the determining factors of the bond between a citizen and their
state, and for the European Union to continue its relevance to their citizens, notes need to be
taken from national citizenship.
1.2 Citizenship and nationality
Sometimes used interchangeably, the terms citizenship and nationality are different in the
technical legal sense. The concepts of both notions are rather similar, but citizenship and
nationality reflect two different legal frameworks. While both terms identify the legal status of
an individual in relation to the state membership of the individual, the term citizenship is

5
J.G.A. Pocock, ‘The Ideal of Citizenship Since Classical Times’, in R. Bellamy and A.
Palumbo ed., Citizenship, Farnham: Ashgate 2010, p. 5.
6
K. Rubenstein, ‘Globalisation and Citizenship and Nationality’, University of Melbourne
Law School Legal Studies Research Paper Series, nr. 69 (2004), p. 14.
6
confined to domestic legal forums, and the term nationality to the international law forum.7
According to Weis, ‘conceptually and linguistically, the terms citizenship and nationality
emphasize two different aspects of the same notion. Nationality stresses the international,
citizenship the national, municipal aspect’.8
Nationality refers to the legal bond with a state, under international law. In practice, this means
that nationality can ensure rights of entry for a national, and the possibility of diplomatic
protection on the international plane.9 Furthermore, nationality also means that states have the
general right to refuse to extradite their own nationals to other states who request their
surrender.10 In the Nottebohm case, the International Court of Justice referred to nationality as
a ‘’legal bond having as its basis a social fact of attachment, a genuine connection of existence,
interests and sentiments, together with the existence of reciprocal rights and duties’’.11 As
nationality is understood under international context, citizenship is understood to fall under
domestic law. In for example the United States, a distinction is made between nationals that are
citizens, and nationals that are not.12 Citizenship can give an individual the right to vote, or
participate in the political life of the state, but citizenship alone is not a guarantee for these
prerogatives. This leads to a situation where under international law, an individual who
possesses a nationality has a legal bond to the state, whether this individual is a citizen of this
state or not. Nationality is the demarcation of nationals from aliens, this does not however imply
the enjoyment of rights. Citizenship is a set of entitlements conferred or denied often
irrespective of nationality.
1.2.1 Recognition of citizenship under international law
In general, international law does not impose restrictions on the discretion of a state to grant
nationality. States have a wide range of discretion regarding how they award an individual with
their nationality, and other states will generally presume that the grand of nationality is
effective. According to international law however, states are not obliged to recognize and give
legal effects to an act of granting nationality by another state, when the grant of nationality by
said state is not in accordance with international law. This notion is elaborated in the
aforementioned case of Nottebohm. This case concerned a German national, who conducted
business in Guatemala and has also lived there for most of his adult life.13 After Germany
initiated the second world war in 1939, Nottebohm applied for the Liechtenstein nationality,
and was granted this nationality in October of 1939. After the acquisition of his new found
Liechtenstein nationality, Nottebohm resided in Liechtenstein for seven weeks, before returning
to Guatemala. Despite his Liechtenstein nationality, Nottebohm was declared an enemy alien
by Guatemala and deported back to Liechtenstein, while his property was confiscated.
Liechtenstein responded by going to court, asserting that Guatemala had broken international

7
8
P. Weis, Nationality and Statelessness in International Law, London: Stevens 1956, p. 5.
9
P. Weis, Nationality and Statelessness in International Law, London: Stevens 1956, p.29
10
11
Nottebohm Case, 1955.
12
13
7
law in relation to their national, Nottebohm. At the hearing, the International Court of Justice
held that Nottebohm’s new nationality was not effective in accordance to international law.14
Nationality, according to the Court, was ‘a legal bond having as its basis a social fact of
attachment, a genuine connection of existence, interests and sentiments, together with the
existence of reciprocal rights and duties’.15 Continuing, the Court stated that nationality may
only need to be recognized in the international arena when ‘the legal bond of nationality accords
with the individual’s genuine connection with the state which assumes the defence of its citizens
by means of protection against other states’.16 Citizenship is therefore left to the state to grant,
and is binding in the state once recognized. For nationality, to be recognized in the international
arena, the grant of nationality has to fulfil the obligations as laid out by the Court in the
Nottebohm case. States are thus not always obliged to recognize the nationality granted by other
states.
1.3 Roots of citizenship
1.3.1 Political citizenship
The republican and political definition of citizenship stems from ancient Greece, and is
described in Aristotle’s Politics. In this book, the model for republican citizenship are the
members of the Athenian Polis, a small society compared to the great co-ordinated societies
that could be found in the river valleys of Mesopotamia, China or Egypt. According to Aristotle,
human beings were political animals, because it is our nature to live in political communities.17
This did however not mean that everyone was entitled to be a citizen in the Polis. People played
the roles appropriate to their natural station in life. The citizen is the one who both rules and is
ruled.18 The citizen of the Polis is the highest order, as it does not only rule over things, animals,
slaves and women, but a citizen also rules over one’s equal, namely other citizens.19 Citizens
join each other in making decisions, and citizens respect the authority of the other fellow
citizens once a decision, better known as a law, has been made.
Equality is thus a key notion of citizenship, notwithstanding that in ancient Greece the greater
part of the human species was excluded from access to this equality. Equality was something
of which only few are capable, and even today equality has prerequisites that are not always
easy to achieve. In the Polis, a citizen must be a male of at least 20 years of age, of known
genealogy as to being born in an Athenian citizen family, a patriarch of a household, a warrior
and a master of the labour of others, most notably slaves.20 The Aristotle understanding of
citizenship is thus defined by class, gender, and race, conditions that have persisted in Western
culture ever since and are now attacked to create true equality among the citizens of the world.

14
15
Nottebohm Case, 1955, para 23.
16
Nottebohm Case, 1955, para 23.
17
R. Bellamy, ‘Citizenship’, in G. Klosko ed., The Oxford Handbookof the History of
Political Philosophy, Oxford: Oxford Handbooks Online 2011, p. 2.
18
19
20
8
Citizenship was not something to be taken lightly, expectations for the citizens where high,
leading to a rigorous separation of public and private life, from Polis and Oikos.21 The private
life of the citizens was to be looked after by the women and the slaves of said citizen, leaving
them free to engage in political relationships with his equals.22 As citizens are those who rule
and are ruled by in turns, many citizens could not avoid holding public office at some point in
their lives.23 Holding public office however was a fairly full time occupation, leaving a citizen’s
slave and women to maintain his household.24 Politics was seen as a good in itself, not the
prerequisite of the public good. What is of importance is the freedom to take part in public
decisions, not the content of the decisions taken.25 Citizenship is not just the means of being
free, but is the way of being free itself.26
While the Greek model of citizenship was a privilege to a selected minority, the model did
provide a considerable degree of popular control over government by the people. It gave us the
word democracy from the Greek words Demos, people and Kratos, rule. This model however
can be considered to be double oppressive, in the sense that it not only oppresses individuals
who were not citizens, such as women and slaves, but was also oppressive of its citizens by
demanding that they sacrifice their private interests to the service of the state.27 This also left
these two forms of oppression invariably linked, in the way that citizens could only dedicate
themselves to the public life if their private lives were maintained by their women and slaves.
Equality among the citizens and participation in public life are key aspects for the republican
model of citizenship. To the republican account, citizenship must involve rights and practices
of political participation to achieve common goods.28 The people are not property of their states,
but a part of it because the government of the state is a public matter and therefore are the rulers
themselves.29 Liberty is seen as a civic achievement that stems from the fact that all citizens
have an equal say in ruling the polity.30 The contemporary notion is a more inclusive definition
of citizenship. A change in the form of self-government can also be discerned, from direct

21
22
23
24
25
26
27
28
R.M. Smith, ‘Modern Citizenship’, in E.F. Isin and B.S. Turner ed., Handbook of
Citizenship Studies, London: Sage 2002, p. 109.
29
R. Dagger, ‘Republican Citizenship’, in E.F. Isin and B.S. Turner ed., Handbook of
30
9
participation to indirect representation.31 The rule of law is also evident in republican
citizenship, with the people abiding to the rules that they themselves had a voice in making.
1.3.2 Civil citizenship
Aristotle described human beings as political animals, who emancipated themselves from their
personal possessions in order to engage in public life among equals. The Roman jurist Gaius
took a different approach to human beings, them not being political and aspiring to an ideal,
but to a citizen being a legal being, existing in a world of actions, persons and things regulated
by law.32 Civil or legal citizenship has private interests and their protection by the law at its
core. In the case of Roman law, legal status and thus citizenship belonged to the owners of
property, and extended to their possessions.33 Since possession also included slaves, a free man
was someone who owned himself.34 A citizen became someone who was free to act by law,
free to request and expect to receive the law’s protection, a citizen of a legal community, and
of a legal standing in that community.35
As Rome expanded over the ages, culminating into an empire, Roman citizenship also changed,
being reduced to a legal status. The population of conquered territories were given a version of
Roman citizenship, while being allowed to retain any form of citizenship status that was already
in place in their territory. The Roman citizenship was merely a legal one, one without the right
to vote, additional to the political form of citizenship that might already be in place. This
development created a situation where the political and the legal community were pulled apart,
a development that perhaps could also be discerned in contemporary Europe. The scope of law
encompassed the entire empire, and thus went beyond the political borders of the conquered
territories. This situation is explained by the famous case of St Paul, who announced himself to
be a Roman citizen, and thus possesses a legal status that results in him being immune to
arbitrary punishment while not being a member of the political citizenship of the area. In the
case of St Paul, citizenship does not entail taking part in public life, but being able to claim
certain legal rights that encompass the entire empire. This means that he is protected by rights
and immunities that are outside the jurisdiction of the political communities.
Legal citizenship became a notion that meant that someone was free to act by law, free to ask
and expect the protection of the law, thus becoming a citizen of a legal community. This is
something that is now safeguarded by Articles 19, 263 and 267 TFEU. This draws on the
various legally defined uniform rights and immunities available to the citizens of this legal
community, that in itself is made up of many political communities.36 Hence, law was denoted

31
R. Dagger, ‘Republican Citizenship’, in E.F. Isin and B.S. Turner ed., Handbook of
32
33
34
35
36
10
to be something imperial, universal and multiform.37 Legal citizenship entailed the right to sue
and be sued in given courts, as opposed to the republican citizenship notion of rule and be ruled.
This detachment of rulemaking from the public creates advantages as well as disadvantages.
The advantage of the legal community, as described above, is that it is able to encompass
political communities, and hold their officers and rulers to account for their actions through the
law, limiting the possibility for arbitrary action. Through the law, citizens are able to pursue
their private interests by exchanging and engaging with each other through the channels
provided by the law. The disadvantage lies in the situation that the citizen no longer rules or is
ruled by its equals, but becomes subjects of the law’s empire, and are ruled by it rather than
ruling themselves.
1.4 Modern citizenship
Between notions of the public, political citizen and the private, legal citizen, rests the tension
that the former expects citizens to fully immerse themselves in the public life to rule, and the
latter places the private life on the central stage and thereby leaving its citizens to be ruled. In
the modern democratic era, set off by two great revolutions in America in 1776 and France in
1789, this tension between political and legal citizenship was confronted. A dualism can be
observed, where the political citizen acts as a collective agent, referred to as the ‘nation’, or the
‘people’ in the constitutions of these modern democracies. The public duty of the political
citizen gets assigned to a single, constitutional moment that enables them to elect the institutions
who rule them. This leaves the citizen to pursue their personal, private interests under the law,
safeguarded by the legal rights of liberty, property, and the pursuit of happiness.
The nation states that emerged during the nineteenth and twentieth century struggled with this
tension between political and legal citizenship. Every nation state had its own way of mixing
and implementing elements of both these forms of citizenship. The nation state was something
that was in itself a mix between the city state and the empire, and tried to combine key
advantages of legal and political citizenship whilst avoiding their disadvantages. The city state
was seen to be too small to survive military aggression of empires, while the empire was too
large to allow for meaningful participation politically. Although not providing an as
participatory form of rule as the Polis, the nation state did have a credible form of democracy,
leaving the citizens to pursue their own interests.
Modern democratic citizenship, combining political and legal citizenship, was not something
that citizens received overnight. The sociologist T.H. Marshall established the standard
narrative of the evolution of this notion. Citizenship was seen as the product of the interrelated
processes such as state building, emergence of the commercial and industrial society, and the
creation of a national conscience, or an ‘imagined community’, a phenomena described by B.
Andersson.38 These three developments were driven forward by class struggle and war. These
developments are attained by the citizens in three periodic stages, according to Marshall,
identified as the civil, political and social.39 Marshall neglected the external side in his analysis,
what separates the citizens from the non-citizens, taking for granted that the territory of the state

37
38
39
M. Ferrera, The Boundaries of Welfare: European Intergration and the New Spatial
Politics of Social Protection, Oxford: Oxford University Press 2011, p. 38.
11
was already in place.40 Civil citizenship appeared in the 18th century. These rights are necessary
for individual freedom, and are comprised of liberty of the person, freedom of speech, thought
and faith, the right to own property and to conclude valid contracts, and the right to justice.41
Political citizenship emerged in the 19th century, and is described as the right to participate in
political life, through the political institutions in place, both active and passive.42 The third and
final stage appeared in the 20th century, called social citizenship. These social rights gave
citizens right to social welfare, and to be enabled to live a civilized existence in accordance to
the standards prevailing in society.43 Social citizenship provides us with what we now refer to
as the welfare state and social democracy.
Marshall saw citizenship as a shared identity, that would be able to integrate groups that were
previously excluded from society, to provide a source of national unity.44 Marshall especially
focused on the working classes, because their lack of economic resources and education left
them excluded from common culture, something that should be a common possession and
heritage of a nation and its citizens.45 Marshall’s view that citizenship would culminate in an
ever more inclusive and egalitarian form is however contested.46 This view stems from the post
war period, where the economies of the Western European countries where in the ascendant
and the welfare state was not only consolidating but expanding. The economic downturn and
recessions that occurred ever more frequently from the 1970s onwards, showed that the process
of an ever more inclusive and egalitarian citizenship was not an irreversible process. The oil
crises of the 1970s showed that welfare state and social citizenship prerogatives are clearly
reversible and not to be taken for granted.47
1.5 Concluding remarks
In this chapter, the ground notion of citizenship and its history has been discerned. First the
notions of citizenship and nationality, which are often used interchangeably, have been
disentangled, as citizenship signifies the domestic legal forum, and nationality is confined to
the international legal forum. Citizenship is for the state to acknowledge to their nationals,
whilst nationality is bound to rules of international law, as the Nottebohm case has illustrated.
The political notion of citizenship as described by Aristotle describes the republican, public

40
M. Ferrera, The Boundaries of Welfare: European Intergration and the New Spatial
Politics of Social Protection, Oxford: Oxford University Press 2011, p. 38.
41
M. Mann, ‘Ruling Class Strategies and Citizenship’, in R. Bellamy and A. Palumbo ed.,
Citizenship, Farnham: Ashgate 2010, p. 28.
42
43
44
W. Kymlicka, W. Norman, ‘Return of the Citizen: A Survey of Recent Work on
Citizenship Theory’, in R. Bellamy and A. Palumbo ed., Citizenship, Farnham: Ashgate 2010,
p. 60.
45
W. Kymlicka, W. Norman, ‘Return of the Citizen: A Survey of Recent Work on
Citizenship Theory’, in R. Bellamy and A. Palumbo ed., Citizenship, Farnham: Ashgate 2010,
p. 60.
46
47
B.S. Turner, ‘Outline of a Theory of Citizenship’, in R. Bellamy and A. Palumbo ed.,
12
form of citizenship where the members of a state are not ruled, but rule themselves and are only
ruled by those to whom they are equal. These notions still are the backbone of the current
citizenship as it is known all across the EU, albeit more inclusive than back in ancient Greece
and changed to a form of indirect representation to keep it manageable.
Legal citizenship is one where the citizen is seen as a legal being, that is regulated by law in a
world of actions, persons and things. During the Roman empire, citizenship changed along with
the empire as it further expanded. Roman citizenship was additional to any form of citizenship
status already in place, and provided a legal basis to fall back on regardless of where the Roman
citizen would find himself in the empire, creating a situation where political and legal
citizenship were pulled apart.
The combination of the political and legal citizenship is a trend that can be discerned with the
emergence of nation states, and is referred to as modern democratic citizenship. It added a third
layer to citizenship, a social dimension that gave citizens’ rights to social welfare schemes, and
provided another source of national unity as Marshall referred to it as a shared identity,
integrating groups previously left out from society.
13
Chapter 2 – European Union Citizenship
2.1 Introduction Union citizenship
Citizenship of the European Union (EU), was officially introduced by the signing of the
Maastricht treaty in 1992. Back then, article 8(1) EC described Union citizenship as:
‘’Citizenship of the Union is hereby established. Every person holding the nationality of a
Member State shall be a citizen of the Union’’.48 Albeit that Union citizenship is complimentary
to national citizenship, Union citizenship is still understood to be the first post-national
citizenship in the world.49 As opposed to the ius soli or ius sanguinis practiced by the Member
State, Union citizenship can be best referred to as ius tractum, as Union citizenship is purely
derivative.50 The rights that are conferred onto EU nationals by Union citizenship have been
expanded, modified and reinterpreted in the light of the EU integration process. The current
rights of Union citizenship are laid down in articles 20 to 25 of the Treaty of the Functioning
of the European Union (TFEU), and comprise the following rights:
• To non-discrimination on the basis of nationality when the Treaty applies51

• To move and reside freely within the EU52
• To vote and stand as a candidate in the European Parliament and municipal elections53
• To be protected by the diplomatic and consular authorities of any other EU country54
• To petition the European Parliament and complain to the European ombudsman55
• To contact and receive response from any EU institution in one of the EU’s official
languages as laid down in article 55 TEU56
• To access the European Parliament, European Commission and Council documents
under certain conditions.
• To directly call upon the European Commission (EC) to bring forward an initiative of
interest to the citizens, using the citizen’s initiative57
Since its introduction, the importance of Union citizenship has grown over time, as citizenship
is a key mechanism for inclusion and exclusion, a concept that distinguishes insiders from
outsiders. In this ever-globalizing world, where international migration flows are driven upward
by political, demographic, economic and climate factors, citizenship is ever more important to
define the demos of a nation and indeed the EU itself. 2.9 percent of the current world
population lives outside their country of origin, and in 2011, 6.6 percent of the EU population
was foreign born.58 An interesting observation is the inability for an individual to renounce his

48
G.R. de Groot, N.C. Luk, ‘Twenty Years of CJEU Jurisprudence on Citizenship’, German
Law Journal, nr. 15 (2014), p. 822.
49
P. Mindus, ‘Dimensions of Citizenship’, German Law Journal, nr. 15 (2014), p. 735.
50
D. Kochenov, ‘Ius Tractum of Many Faces: European Citizenship and the Difficulut
Relation Between Status and Rights’, The Columbia Journal of European Law, nr. 2 (2009),
p. 181.
51
Art. 18 TFEU
52
Art. 21 TFEU
53
Art. 22 TFEU
54
Art. 23 TFEU
55
Art. 24 TFEU
56
Art. 24 TFEU
57
Art. 11 TEU, Art. 24 TFEU
58
P. Mindus, ‘Dimensions of Citizenship’, German Law Journal, nr. 15 (2014), p. 736.
14
or her Union citizenship, even though this is considered to be a fundamental right across the
globe.59 The foundation of the European citizen being a bearer of legal rights and the centre of
deepening integration can be traced back not only to the wording of the treaties, but to the
rulings of the Court of Justice of the European Union (CJEU). In the Van Gend en Loos case,
the CJEU ruled that EU law ‘’…Community law therefore not only imposes obligations on
individuals but is also intended to confer upon them rights which become part of their legal
heritage’’.60 With his ruling, the CJEU ensured that European citizens were able to use primary
and secondary Union law for their fulfilment, conferring upon them ‘direct effect’ for
individuals. With cases such as Francovich v Italy, a refined construction has been established
to make these norms enforceable in the member states’ their legal orders, and on top of this it
has been justiciable by the national courts,61 and by the CJEU itself.62 This construction has
culminated into the creation of a community space where the citizens of the European Union
can pursue life plans, supported by the guarantee that similar to their domestic legal orders, an
extensive degree of promotion and protection of their legal rights is ensured. In the Charter of
Fundamental Rights of the European Union, these aspects are even explicitly listed and
guaranteed, through the ‘’creation of an area of freedom, security, and justice.63
2.2 Legal status EU citizenship
In the case of Grzelczyk , the CJEU first uttered the phrase that ‘Union citizenship is destined
to be the fundamental status of nationals of Member States’.64 This ruling is exemplary for the
development of the legal concept that is Union citizenship, from a merely symbolic gesture at
its conception towards an independent source of rights for member state nationals and their
family members.65 From the outset however, the CJEU also made abundantly clear that it does
not intend to use Union citizenship ‘to extend the scope rationae materiae of the Treaty also to
internal situations which have no link with Union law’.66
2.2.1 Union citizenship and the rights of free movement and residence
Legally, the introduction of Union citizenship has changed little relating to the laws of the free
movement of persons.67 The right to move and reside freely in the territory of another member
state that is linked to Union citizenship in article 21 TFEU, is still subject to limitations and
conditions as laid out by the treaty and secondary law, such as for example the directive
2004/38. The Court has however made an effort to, within the current ambit of the law, create
a general right of free movement for Union citizens. The CJEU has continued its effort to give
substance to Union citizenship through its rulings such as Baumbast, Chen, Rottmann,

59
W.T. Worster, ‘The constitutionality of the Taxation Consequences for Renouncing U.S.
Citizenship’ Florida Tax Review nr. 9(11) 2010, p. 931.
60
Case 26/62 Van Gend en Loos, p. 12.
61
TFEU art. 267.
62
TEU Art. 19.
63
Charter of Fundemental Rights of the European Union (2000)
64
Case C-184/99, Grzelczyk, para 31.
65
P. van Elsuwege, ‘Shifitng the Boundaries? European Union citizenship and the Scope of
Application of EU Law’, Legal issues of Economic Integration, nr. 38(3) (2011), p. 263.
66
Cases C-64/96 and C-65/96, Kari Ueacker and Vera Jacquet v. Land Nordrhein Westfalen
(1997), para 23.
67
F. Amtenbrink, H.H.B. Vedder, Recht van de Europese Unie, Boom juridische
studieboeken, p. 293.
15
Zambrano and McCarthy. These cases track the development of the notion of Union citizenship
by the CJEU, evolving Union citizenship beyond its internal market roots. Union citizenship
has come to mean more than just solving problems for citizens who encounter problems and
irregularities when crossing intra-European borders, but the Courts less functional approach has
showed that the cross-border element is no longer the sole ground for application of EU law,
but that the effective enjoyment of Union citizenship now takes the central stage.68
2.2.2 Direct effect of article 21 TFEU
The first step was to recognize the direct effect of article 21 TFEU, that made it possible for
EU citizens to appeal to this article.69 This meant a departure from existing law, namely the
three former resident directives that were later replaced by directive 2004/38. The introduction
of Article 20 TFEU did not only mean that the rights of residence of citizens covered by the
citizens’ directives were moved from a legislative footing to a Treaty footing, but also had some
significant legal consequences.70 In Baumbast, the Court ruled that a citizen of the Union who
no longer enjoys a right of residence as a migrant worker in the host member state, thus no
longer falls under the scope of what is now directive 2004/38, can still enjoy a right of residence
in the host member state as he is a citizen of the Union, and can directly apply for article 21
TFEU.71 The limitations and conditions that article 21 TFEU is subject to according to the
Treaty, must be interpreted and applied in accordance with Union law, in particular the principle
of proportionality.72
After the Baumbast ruling, the Court confirmed in the Chen ruling that article 21 TFEU confers
a directly effective right of residence on Union citizens, even when they do not fall within any
other existing EU status category, as the citizen central to this case was a new born baby. The
Chen case revolved around the granting of residence rights to a Chinese mother in the United
Kingdom on the basis of the Irish nationality of her baby daughter. It was more usual for
dependent relatives in accordance with article 2(2)(d) and 7(2) of 2004/38 to derive a right of
residence through the EU citizenship of their provider, but in the case of Chen the reality was
the other way around, with the EU citizen being dependent on a third country relative to reside
in the member state. The Court eventually ruled that a refusal to grant a right of residence to
the mother of a EU citizen, who is the primary caretaker of this citizen and enjoys sufficient
resources and health insurance, ‘would deprive the child’s right of residence of any useful
effect’.73
To recapitulate, the Chen ruling confirms the earlier discussed Baumbast ruling in two ways.
For starters, it confirmed that the rights of movement and residence derived from Union
citizenship as laid down in article 21 TFEU are directly effective, autonomous, and do not
depend on possession of any previously existing EU status category.74 Secondly, the conditions
and limitations that the right to move and reside freely within the member states are subject to,

68
Case C-34/09, Zambrano, para 42.
69
C-413/99 Baumbast, para 84.
70
P. Craig, G. de Burca, EU Law: text, cases and materials, Oxford: Oxford University Press
2011, p. 826.
71
72
73
Case C- 200/02 Chen, para 45.
74
2011, p. 828.
16
must be interpreted and applied in a proportionate manner that ensures that they are not unduly
restricted in their exercise.
As can be discerned from this case law, article 21 TFEU does create and confer a directly
effective right for Union citizens to appeal to. This directly effective right expands the rights
conferred to Union citizens, making it possible for non-economically active persons to move
and reside in another member state because of their capacity as Union citizens. This marks a
change for Union citizenship that is far from symbolic, but instead creates a Union citizenship
more inclusive and less market oriented, and additionally makes the European project more
social and less market oriented too.
2.2.3 Union citizenship and Member State nationality law
The importance of the principle of proportionality also became apparent in other case law
concerning EU citizenship law. Up until the Rottmann case, nationality matters such as the
acquisition and loss of the nationality of a Member State, were in the strict competence of the
Member States themselves and not regulated by EU law.75 Member States use different
admission criteria that could be both over and under inclusive.76 In practice, this leads to a
situation where some Member States like Cyprus and Malta have lenient criteria for the
acquisition of their nationality and thus Union citizenship, whilst other Member States may
have restrictive naturalisation criteria and may exclude large groups of third country nationals
from EU citizenship. These conflicting regulatory practices could lead to perceived inequalities
and injustice.77
The case of Rottmann concerned the by birth Austrian national Dr. Janko Rottmann. Rottmann
was facing prosecution in Austria on suspicion of fraud, and fled to Germany in 1995. Settling
in Munich, Rottmann applied for the German nationality, which he was granted in 1999 through
naturalization. By becoming a German national, Rottman lost his Austrian nationality in
accordance with Austrian nationality law.78 In the month of August in 1999 however, the
German authorities were informed by their Austrian counterparts that a warrant for Rottmann’s
arrest was still out in Austria, causing the German authorities to revoke Rottmann’s new found
German nationality by administrative decision in 2000.79 By not informing the German
authorities about the ongoing investigation in Austria, Rottmann obtained the German
nationality by deception, resulting in its revocation. Rottmann’s legal status thus underwent a
dramatic change, as he went from a notional of an EU Member State and thus an EU citizen, to
someone who is now stateless. Additional to being stateless, Rottmann also lost his EU
citizenship, causing the German court where he challenged his nationality loss to turn to the
CJEU with two preliminary questions: first, does Community law preclude the loss of Union
citizenship due to the by internal law of a Member state lawful revocation of its nationality,
with statelessness as a consequence? And second, if the aforementioned is the case, which state
is required to readjust its nationality law, the naturalizing state or the original one?

75
Law Journal, nr. 15 (2014), p. 826.
76
E. Ersboll, ‘Nationality and Identity Issues - A Danish Perspective’, German Law Journal,
nr. 15 (2014), p. 835.
77
E. Ersboll, ‘Nationality and Identity Issues - A Danish Perspective’, German Law Journal,
nr. 15 (2014), p. 852.
78
Case C-135/08, Rottmann v Freistaat Bayern, para. 26.
79
17
The Rottmann case stirred up a lot of debate, as the Member States felt that the EU had no
competence to meddle in the nationality laws of the Member States, as they can point to
Declaration no. 2 that is attached to the Maastricht Treaty. The Court however argued
differently, stating that in accordance with the cases of Grzelczyk and Baumbast, Union
citizenship is to be regarded as a fundamental status of nationals of the Member States, and that
as the case of Michelletti already made clear, Member States must have due regard to EU law,
when exercising their powers concerning nationality law.80 Member States still have the
competence to decide how their nationality is acquired or lost, especially if it has been acquired
on fraudulent terms such as in the case of Rottmann. In its ruling however, the CJEU stated that
a principle of proportionality needs to be applied to the decision that withdraws the nationality
of a Union citizen.81 The principle of proportionality entails taking into account the
consequences of the decision for his family and his rights as a Union citizen, and if it is possible
for the individual to recover its original nationality, and that the loss of nationality is justified
in relation to the gravity of the offence committed.82 The principle of proportionality in relation
with EU law is also additional to any principle of proportionality already in place at the national
level.83
Member State nationality law and its relation to EU law has undergone perhaps a minor, but
very important change. No longer are Member States completely sovereign concerning their
nationality law, as is first observed by the Court in Micheletti, as nationality law must always
be in due regard with EU law. This road set out by the CJEU in this case is followed by the
Rottmann case, where a principle of proportionality must be applied when someone stands to
lose his or hers Union citizenship. The Rottmann ruling is thus a controversial one, especially
for the Member States. These argued that the CJEU was overstepping its bounds in the case of
Rottmann, as the Member States referred to Declaration no. 2 that is attached to the Treaty of
Maastricht, which reads that: ‘The question whether an individual possesses the nationality of
the Member State shall be settled solely by reference to the national law of the Member State
concerned’.84
With the introduction of EU citizenship the Member States probably already saw some issues
arise concerning their autonomy regarding nationality matters in conjunction with EU
citizenship. Member States feel that determining who its nationals are should be left exclusively
to the Member States, and are not keen to share this with the EU level. In the case of Rottmann
however, the CJEU waivers the right of the Member States that they are solely responsible for
the acquisition and loss of nationality, by adding the principle of proportionality. The argument
of the CJEU is that Member States have the right to shape their own nationality law, insofar as
this is done with due regard to EU law, with the principle of proportionality applying when an
individual is prone to lose his or hers EU citizenship. The exclusive domain and competence of
the member states to be completely sovereign concerning nationality matters is thus declining,
as the Court extends the scope of EU law. This grants the EU influence or indirect influence on
the reserved domain of nationality law, thereby changing and making the reserved domain for

80
Case C-184/99 Grzelczyk, para. 31, Case C-413/99 Baumbast and R, para. 82, Case C-
135/08, Rottmann v Freistaat Bayern, para. 43.
81
82
83
84
OJ 1992 C 191, p.98.
18
Member States smaller.85 Similar to the Baumbast case, the principle of proportionality must
also be observed when article 20 TFEU comes into play concerning nationality matters.
2.2.4 Union citizenship and ‘wholly internal situations’
The case law discussed thus far, always contained a cross border element that enabled the CJEU
to rule on the matter at hand. Before the introduction of EU citizenship, EU law and rights could
not be invoked in a ‘wholly internal situation’ as the cases of Saunders and Morson and Jhanjan
have showed in practice.86 After the introduction of Union citizenship, there were cases that
tried to challenge the ‘wholly internal situation’ approach by the Court, such as in the cases of
Kremzow and Uecker, where the factual contexts were similar to those of Saunders and Morson
and Jhanjan. The Court ruled however, that EU citizenship law still did not extend the scope
of the Treaty to cover ‘wholly internal situations’ which otherwise had no link to EU law.
However, another development concerning Union citizenship and ‘wholly internal situations’
can be discerned.
The Case of Ruiz Zambrano concerns Colombian, non-EU parents of two EU-citizens born and
residing in Belgium. These children possess the Belgian nationality, and have never left the
state. The parent and main provider for the family, Mr. Zambrano, gets denied a permit to
continue his residence in the Belgian state, and is also not allowed to continue his employment.
The consequences of this decision by the Belgian state is that the Zambrano family will have
to leave Belgium and return to Colombia, but Zambrano argues that this is conflict with the
right of his two children to enjoy the rights Union citizenship confers upon them. Eight Member
States intervened in the case, arguing that the case at hand concerned a ‘wholly internal
situation’ and that EU law on citizenship was not applicable. The Court however, ruled
otherwise. After having ascertained that directive 2004/38 is not applicable to the situation of
the Zambrano family, as this directive can only be applied to a cross-border situation, the CJEU
continued by citing article 20 TFEU. According to the Court, ‘Article 20 TFEU precludes
national measures which have the effect of depriving citizens of the Union of the genuine
enjoyment of the substance of the rights conferred by virtue of their status as citizens of the
Union’.87
The notion of ‘genuine enjoyment’ is what is crucial to the reasoning of the Court, and
something that supersedes the presence of a cross-border element. If, like in the Zambrano case,
a Member State refuses to grant a right of residence to a third country national with dependent
minor children who are nationals of said Member State and also have their place of residence
in this member state, this refusal would impede the genuine enjoyment of the substance of the
rights conferred on these children by the virtue of their status as citizens of the Union. In other
words, preventing Union citizens to enjoy their genuine enjoyment of the Union citizenship
rights, takes precedent over whether or not a cross-border element is present. This leads to a
situation where the Member States remain exclusively competent to grant nationality and to
handle purely internal situations, but that the exercise of this competence may never undermine

85
H.U.J. d’Oliveira, ‘Court of Justice of the European Union Decision of 2 March 2010, Case
C-315/08 Janko Rottman v. Freistaat Bayern Case Note 1 Decoupling Nationality and Union
Citizenship?’, European Constitutional Law Review, nr. 7(1) (2011), p. 148.
86
2011, p. 829.
87
Case C-34/09, Ruiz Zambrano, para 42.
19
the very essence of Union citizenship as in the case of Zambrano.88 By not only employing the
cross-border element to decide whether or not EU law can be applied, but by using the
implications for the effective benefits of EU citizenship rights as the yardstick, this approach
counterbalances the most problematic examples of reverse discrimination.89 This prevents a
situation from taking place where EU law is only applicable to those who can afford to create,
a sometimes tenuous, cross-border link and those who do not have these resources. It could also
be argued that the Union has moved beyond the uniquely economic reasoning of cross border
thinking, and given EU citizenship and the rights associated a life of its own.90 This approach
by the CJEU constitutes another step towards what Advocate General Sharpston refers to in her
opinion as ‘true citizenship’.91 No longer are EU citizenship and rights conditional by a citizen’
travelling history, service provision in other member states, or the thickness of their wallet.92
The dismissal of the cross-border element can be seen as a paradigm shift in EU citizenship
law.
However, the Court does not award just any situation with the label ‘impediment of genuine
enjoyment of the substance of rights attaching to the status of European Union citizen’, the
gates to unconditional application of EU citizenship legislation have not been opened by the
Zambrano case. Just two months later, in the case of McCarthy, the Court rejected the claim of
an Union citizen who had both the Irish and British nationality, and who for her entire life lived
in the UK, and argued that she and her Jamaican husband had a right of residence deriving from
EU law.93 McCarthy argued that because of her Union citizenship, her husband, who was a
third country national, would enjoy derived residence rights. The CJEU rejected McCarthy’s
claim, distinguishing it from the Zambrano case by arguing that UK law in her case did not
have the effect of obliging her to leave the territory of the EU, and thus not depriving her of the
genuine enjoyment of the substance of rights conferred by the virtue of the status as a Union
citizen.
The crucial factor in determining whether EU law is applicable in internal situations is thus that
of the perceived difference in the degree of dependence and vulnerability of the EU citizen
family member.94 In the case of McCarthy, the fact that the person seeking a derived residence
status was het adult spouse, as opposed to Ruiz Zambrano where it was the parent of two
dependent children, evidently made a difference for the Court when reaching its verdict. Even
though in both cases the family life of the Union citizen would be greatly affected, it was only
in the Ruiz Zambrano case that the Court was willing to treat it as a deprivation of the genuine
enjoyment of the substance of the rights of EU citizenship. The case law thus brings us to the
conclusion that the introduction of Union citizenship in articles 20 and 21 TFEU have conferred
more legal protection onto its bearers, up to the point where even a ‘wholly internal situation’

88
89
90
D. Kochenov, ‘The Right to Have What Rights? EU Citizenship in Need of Clarification’,
ELJ nr. 19 2013, p. 9.
91
Opinion of A-G Sharpston, Case C-34/09, Ruiz Zambrano, para. 3.
92
ELJ nr. 19 2013, p. 9.
93
Case C-434/09 McCarthy
94
2011, p. 833.
20
is not enough to stop EU law from protecting it citizens. The notion of the ‘genuine enjoyment
of the substance of rights conferred by virtue of the status as a Union citizen’ however, could
use some determination as to demarcate the exact meaning of the notion.95 So far, the CJEU
only clarified that if the ‘genuine enjoyment’ of the rights conferred by Union citizenship are
breached, EU law directly applies, regardless of the existence of a cross-border situation. The
question that remains however, and is unanswered by the McCarthy case, how this ‘genuine
enjoyment’ is exactly defined by the Court, to ensure legal certainty for Union citizens. So far,
the main emerging element is found in the Zambrano case, and is that the ‘genuine enjoyment’
of EU citizenship is confined to not being forced to leave the territory of the Union. If this one
element however, would turn out to be the all right that defines the ‘genuine enjoyment’, this
would seriously undermine the potential of EU citizenship.96
2.3 Political rights Union citizenship
In the previous section of this chapter, we have only examined articles 20-21 TFEU concerning
the right of free movement and residence. The other articles concerning Union citizenship are
articles 22-25 TFEU, that confer a number of rights that are more of a political citizenship
footing. The most critical of these are the rights of alien suffrage, and the rights for EU citizens
to actively and passively make use of electoral rights in their host Member State.97 Article 22
TFEU provides that individuals in possession of Union citizenship shall have the right in a
Member State other than the state of their nationality to vote and stand as candidates both in
municipal and European Parliament elections, under the same conditions as the nationals of the
host Member State.98 It should however be noted that article 22 TFEU does allow for the
possibility of derogations.99
An important case concerning these active and passive electoral rights is the case of Eman and
Sevinger, concerning two Dutch nationals resident of the Dutch island of Aruba, who were
denied their application to be enrolled on the register of electors for the election of members of
the EP, on the ground of their habitual residence in a territory of an overseas countries and
territories.100 The CJEU argued that every person who holds the nationality of a Member State,
is a citizen of the Union as laid down in article 20 TFEU. Continuing, the Court argued that this
status is possessed regardless of whether this Union citizen is resident in an overseas country
or territory, and Eman and Sevinger thus enjoy the rights conferred to them by the Treaty.101 In
the judgement however, the CJEU declined to determine the rules regarding passive and active
election rights in overseas countries and territories, observing that the then articles 189 and 190

95
ELJ nr. 19 2013, p. 10.
96
ELJ nr. 19 2013, p. 16.
97
2011, p. 848.
98
Directive 93/109/EC concerning the EP, directive 94/80 concerning municipal elections.
99
2011, p. 848.
100
Law Journal, nr. 15 (2014), p. 825.
101
Case C-300/04, Eman and Sevinger, para. 27-28.
21
EC Treaty do not apply to these overseas countries and territories.102 Continuing, the Court held
that the current situation in the Overseas territories of the Netherlands, where Dutch nationals
are not allowed to vote for the EP elections, while other Dutch nationals residing in a non-
Member State are accorded this right, is a violation of the principle of equal treatment, and thus
in violation of community law.103 European citizens thus have a right to vote for the EP, the
parliament that represents them at the European level, and the ruling of the Court that
safeguarded these rights shows that the right to vote for EP elections is in fact a normal incident
of EU citizenship.104
The actual exercise of electoral rights by Union citizens has however not been very substantial,
as the Commission noted very low rates of voter registration and low number in exercising the
right to vote as well. The Commission is however attempting to cut the red tape concerning the
exercising of electoral rights, as the Commission criticised provisions in several Member States
that restrict or prohibit non-nationals from establishing or joining political parties, as they are
incompatible with the rights of EU citizenship.105
Article 23 TFEU, which provides that Union citizens have the right to the protection of the
diplomatic authorities of any Member State if in a third country where their own Member State
is not represented, has been part of the 2007-2009 Commission action plan to ensure and
enhance legal protection in this area.106 The Lisbon treaty also added a new paragraph to article
23 TFEU, providing a legal basis to use a special legislative procedure to establish measures
necessary to facilitate diplomatic and consular protection.107
The provisions of Article 24 TFEU enabling the citizen’s initiative has a lot of democratic
potential, but it remains to be seen if it becomes an effective means of democratic engagement
and mobilisation within the EU, as the Commission is not legally obliged to follow up on these
initiatives.108
This chapter has established a brief and concise overview of the legal notion of EU citizenship.
When compared to the first chapter and the historical notion of citizenship, an interesting
analogy can be discerned. The nationality of a Member State, and the citizenship that is derived
from this notion, has become a striking resemblance of the political ideal of citizenship that has
its roots in the Greek Polis. It enables the citizen to become someone who governs instead of
being governed, and to fulfil their public duty. European citizenship, especially up to the point
of the Rottmann and Zambrano rulings, with its internal market roots can be seen as a more
legal form of citizenship, with its roots in the Roman empire.

102
Law Journal, nr. 15 (2014), p. 825.
103
104
J. Shaw, The Transformation of Citizenship in the European Union, Cambridge,
Cambridge University Press (2007), p. 10.
105
Com(2008)85, para. 4.4.
106
Com(2007)767.
107
2011, p. 849.
108
2011, p. 849.
22
EU citizenship is, as laid down in the Treaties, an additional form of citizenship. This is similar
to the Roman legal form of citizenship, that also was additional to any form of political
citizenship that might already be in place in a local community. One could see the realm of
national citizenship and EU citizenship as one where the political and legal community are
pulled apart, where through its competence in creating a single market EU citizenship and the
four freedoms it safeguards can be seen as the legal, overarching form of citizenship. The case
of St Paul described earlier in this paper, where because of his legal citizenship of the Roman
empire St. Paul was protected in one of its conquered territories, can be seen as the resemblance
of many cases that have come before the CJEU where citizens of the Member States called
upon their Union citizenship to be protected by EU law if their substance of rights was violated
or they could argue that a cross-border situation was in play. A free man was once someone
who owned himself according to Roman law, but in contemporary Europe it is someone who
is able to enjoy their substance of rights. Through Union citizenship, EU law encompasses the
entire European Union and without interfering with the political citizenship of the Member
states, protected the Union citizens by law. Union citizenship can be seen as something that is
universal and multiform once acquired.
The synergy between political and civil citizenship is thus leading to a situation that can be
found similar to the relationship between EU citizenship and the Member State citizenship,
albeit that there are some fundamental differences. For example, Roman citizenship was
granted regardless of the possession of any other form of citizenship, whilst EU citizenship
explicitly depends on Member State nationality.109 Roman citizenship can thus be considered
to be a top down form of citizenship, granted to you by the Roman empire whilst EU citizenship
takes a bottom up approach, as it depends on an individual possessing Member State nationality.
Furthermore, as the next chapter will show, EU citizenship consists of more than just a merely
legal form of citizenship, as it also brings along political rights that can be found in articles 22-
25 TFEU.
This chapter also saw the emergence of the so called ‘substance of rights’, created by the CJEU
in the cases of Rottmann and Ruiz Zambrano. This development can be seen as a paradigm
shift, one where no longer only cross-border situations could apply for the protection of EU
law, but extended the scope of EU law through EU citizenship towards internal situations where
the substance of rights of the individual are violated. This resembles a landmark in the
development of Union citizenship, as its prerogatives are now potentially much better protected,
both in the case of loss of citizenship, or in the case of a violation of Union citizenship rights
in an internal situation. Some questions regarding the scope of this new development of
protection of Union citizens, remain unanswered by the Court. So far, the violation of the
substance of rights conferred to Union citizens by the treaty is only the case if this means that
one has to leave the territory of the Union, still leaving much space for problematic examples
such as presented in the McCarthy case, that means that the protection of Union citizens by EU
citizenship law is still not fully developed. The current situation created by the Court can be
seen as a leap forward in the development of EU citizenship law, but still too often calls for an
artificial cross-border situation, that could bring one to the conclusion whether the right to move
as laid down in the Treaty has perhaps become an obligation if one wants to be fully protected
by EU law. This obligation to move could potentially become obsolete by in the new post-
Rottmann/Zambrano legal order, but it is now up to the Court to follow through on these rulings
to ensure better protection for Union citizens.

109
Article 20(1) TFEU.
23
Chapter 3 – Union citizenship and treaty withdrawal by Member States
3.1 Introduction
As of now, approximately 2.8 million EU citizens are living and working in the United
Kingdom. Vice versa, around 1.2 million UK nationals and thus EU citizens have chosen make
their life in continental Europe or Ireland.110 When the UK is officially no longer a member of
the EU on the 29th of March 2019, these people will no longer see their rights protected by EU
citizenship law, unless arrangements are made in the divorce negotiations.111 The UK will no
longer be a party to the EU Treaties and thus no longer a member of the Union. Therefore, the
UK nationality does no longer qualify for EU citizenship as laid down in article 20 TFEU.
Unless an agreement is reached in the Article 50 TEU negotiations. This chapter however will
assume the worst-case scenario, where an agreement has not been reached between the UK and
the EU, and will research with this assumption in mind. UK nationals will thus become Third
County Nationals (TCN’s) to EU law. The scenario where the EU and the UK have not reached
a deal is also referred to as ‘Brutal Brexit’, as some European leaders are afraid that the political
chaos in Westminster might lead to no deal being made.112
It is obvious that an individual who is granted British nationality after the exit of GB from the
EU will not be eligible to receive the status of an EU citizen, but what is the consequence for
British citizens who have already acquired EU citizenship during the membership of the UK of
the European Union? In the Treaties of the EU there aren’t any rules on the loss of EU
citizenship in the event of the withdrawal of a Member State from the Union, other than
referring to Member State nationality law in case of citizenship matters. On the UK level, there
are not any laws on the loss of EU citizenship as well. However, as seen in the case of Ruiz
Zambrano, the CJEU held that EU law prohibits any measures that have the effect of depriving
citizens of the Union of the genuine enjoyment of the substance of the rights conferred by the
Treaty. If EU citizenship truly is the fundamental status that the Court attributed to it in the case
of Grzelczyk, it is difficult to imagine how a state, even the state of one’s nationality, can revoke
Union citizenship against the will of an individual, even when this is achieved by treaty. This
chapter sets out to examine whether it is possible for a Member State to successfully leave the
EU, but yet search for possibilities for citizens to retain the rights conferred to them by EU
citizenship.
In this chapter, the potential consequences when a member state leaves the EU, in the case at
hand the UK are examined and various scenarios are considered. First off, this chapter will start
to consider the consequences of the loss of EU citizenship.

110
British Future, ‘Report of the Inquiry into securing the status of EEA+ nationals in the
UK’, http://www.britishfuture.org/wp-
111
A. Asthana, ‘May triggers article 50 with warning of consequence for UK’,
https://www.theguardian.com/politics/2017/mar/29/theresa-may-triggers-article-50-with-
warning-of-consequences-for-uk retrieved on 23-05-2017
112
D. Roberts, ‘EU leaders fear that fragile state of Tories will lead to brutal Brexit’,
https://www.theguardian.com/politics/2017/jun/19/eu-leaders-fear-that-fragile-state-of-tories-
will-lead-to-brutal-brexit retrieved on 23-05-2017.
24
3.2 Consequences of treaty withdrawal by Member States for Union citizenship
The de-application of the European Treaties in the withdrawing Member State will mean that
their citizens will lose their Union citizenship, and thus will lose their rights to move and reside
freely across the European Member States, lose their electoral rights to both vote and stand for
election themselves in EP and municipal elections, lose the right of diplomatic protection of
any consular authorities of any Member State in a third country, and the right to petition the
institutions. The legal order of the EU as described in the previous chapter, with the benefits of
the common legal order created by article 20 TFEU and which extends beyond the territory of
one nation, is lost for citizens of the withdrawing Member State, in casu GB. Nationals of the
withdrawing Member State can no longer rely on EU law to be able to pursue their particular
life plans which might span the space of the European community, leaving the EU legal order
and its consequent benefits to be more than fragmented, but reduced in size.113 Fragmentation
of the EU legal order and the consequent benefits is something that can occur from the failure
from a Member State to implement a Directive.114 The consequence of fragmentation is that the
affected individuals are not able to rely on the rights conferred on them by the EU legal order,
as they would have been able to do if the EU legal order were functioning in a harmonious and
coherent matter.115
As a result of the reduction in size of the EU legal order, it will be difficult for the citizens of
the withdrawing state to move and establish themselves freely through the territory of the Union
and the societies of its Member States. Likewise, the citizens of the Union will encounter the
same difficulties when trying to establish themselves in the territory and society of the
withdrawn Member State. No longer will the former EU citizens be able to invoke article 21
TFEU to be able to move and reside freely within another Member State, but they will be subject
to 27 different limitations and conditions as laid down per Member State. Also, the right to exit
and enter a Member State and reside for up to three months without any conditions other than
an identity card or passport as is laid down in directive 2004/38 will be de-applied. Furthermore,
the de-application of Union law will also affect the possibility of using services while moving
through Europe.
But not only this category of citizens who wishes to exercise the nomadic rituals of EU
citizenship are affected, but the sedentary citizens of the withdrawing Member State will also
find that the de-application of EU law through the loss of their EU citizenship will change their
position, as they are now entirely dependent on domestic political processes to ensure a similar
level of protection. As cases of Ruiz Zambrano have shown, EU citizens who did not exercise
their right of free movement, are also protected by the Treaty of the Union, as their genuine
enjoyment cannot be impeded by domestic law. Additional to this form of protection, many
rights have been implemented in the national legal order through Directives, and are now a
component of domestic legislation.116 These rights derived from the Union include the directive
on Maternity Leave and Parental leave, and the directive 2003/99/EC which concerns the
organisation of working time, providing limitations on working hours, and daily and weekly

113
O. Garner, ‘After Brexit: Protecting European citizens and citizenship from
fragmentation’, EUI Working Papers, nr. 2016/22, p. 4.
114
Case C-6/90 Francovich.
115
116
25
rest periods117 When a Member State is no longer a part of the EU, it is up to their discretion to
ascertain whether to retain, amend or repeal such legislation derived from Union directives. The
former Member State citizens would also no longer have the right to judicial procedures at the
supranational level to vindicate their rights, as articles 19 TEU, 263 and 267 TFEU no longer
apply.118 These are rights that do not require a life plan outside of the Member State borders,
but are rights that provide a minimum standard that a Member State cannot deviate from. It
provides legal guarantees for the pursuit of fulfilment for EU citizens within the territory of
their own Member State.
However, there already is a case of a territory that has been part of the EU, and has left it whilst
its inhabitants have retained EU citizenship, the case of Greenland. More than half of what used
to be the territory of the Member States has ‘left’ since the creation of the Communities.119
When Denmark joined the EU on 1 January 1973, Greenland as a Danish territory automatically
also joined the EU, with its Danish inhabitants also becoming EU citizens. Later on, however,
Greenland requested to be excluded from the EU, something that was effected by treaty.
Interestingly enough however, even though Greenland is no longer to be considered EU
territory, its nationals are still considered to be EU citizens.120 Like those citizens of GB, the
56.238 inhabitants of Greenland acquired EU citizenship because they met the criteria as they
were laid down in the Treaties, and EU citizenship was not lost after Greenland had left the
EU.121 In the case of Greenland however, this was connected to the fact that the inhabitants of
Greenland still possessed the nationality of a Member State, in this case Denmark, even though
they no longer resided on EU territory. Like the case of Eman and Sevinger, every person who
holds the nationality of the Member State, is a citizen of the Union as laid down in article 20
TFEU. This status is possessed by the Member State national regardless of him or her being
resident in an overseas country or territory.122 However, the territorial changes reviewed in this
paragraph do not set a relevant precedent, which can be applied in strict analogy with the Brexit
of the UK.123
Contrary to the case of Greenland, the independence of Algeria caused Algerian nationals to
lose their status of Member State nationals for the purposes of EC law.124 As Algerian
independence meant that it ceased to be EU territory, from an EU perspective Algeria was a
Third Country in which EU law is not valid.125 Algerian nationals thus ceased to be EU Member

117
118
119
P. Mindus, ‘European Citizenship After Brexit’,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2842500 retrieved on 14-06-2017.
120
W.T. Worster, ‘Maintaining European Union Citizenship by Member State Nationals After
Their State Leaves the Union’, p. 27.
121
Greenland population, http://www.worldometers.info/world-population/greenland-
population/ Retrieved on 26-06-2017.
122
123
124
125
26
State nationals, and thus EU citizens. Aforementioned cases cannot be fully compared to the
situation of UK and the Brexit, and comparative legal readings are therefore inappropriate when
reviewing these cases.126
3.3 EU Legal solutions to protect citizenship
Before this thesis moves on to solutions regarding the loss of EU citizenship rights, first a
distinction needs to be made between the 1.2 million UK citizens living in the EU. As these for
now EU citizens all share the British nationality and the derivative EU citizenship, other factors
may differ. For example, some might be living in Spain, enjoying retirement and sipping
mojitos with their Irish spouse, whilst others might be living alone in Germany. These situations
pose considerable differences with regard to their right of residence after the UK has left the
EU. At this moment, UK citizens still possess EU citizenship, but as the UK leaves the EU,
four different categories of UK citizens living in the EU will emerge.
Simply put, UK citizens living in the EU can be divided in the following categories: firstly,
there are the UK citizens living on their own in a member state. Secondly, there are the UK
citizens who are married to another UK citizen who are living in a Member State. Thirdly, there
are those UK citizens who are married to a citizen from one of the remaining 27 member states.
Finally, there are those UK citizens living with their relatives who possess the nationality of
one of the Member States. Within these categories are those who have resided legally in a
Member State for over five years, and have obtained their long-termed resident status.
3.3.1 Categories of British citizens and their right to reside after Brexit
If the UK citizen is of the latter two categories, thus married to an EU national or a relative of
an EU national, then the newly TCN could fall within the scope of the Citizenship Directive,
that allows for residence rights if such a link exists. As a family member of an EU citizen, UK
nationals have a derived right of residence.127 Their position will thus largely remain the same,
although they will lose some rights due to Articles 12 and 13 of the Citizenship directive, their
right to continue residence in the event of death or departure of the EU citizen, or in the event
of termination of the relationship or divorce will require a certain period of residence with the
EU citizen in the host state.128 There is however a draw, because for the citizenship directive to
become active, the EU citizen needs to have exercised his or her free movement rights.129 If
there is not a family tie, whether through marriage or through blood, or the EU national has not
exercised its movement rights, the citizenship directive is not applicable.
This raises the question of a TCN, who is a long-term resident and how this individual might
acquire a long-term residency permit. This is relevant to the former two of UK national’s
categories, as they do not have an EU-national relation to fall back on. Council directive
2003/109 concerns the long-term residence of TCN’s , and stipulates how TCN’s may retain a
Long-term residence permit. Both the Council directive and the Citizenship Directive refer to

126
127
A., Schrauwen, ‘(Not) losing out from Brexit’
http://discovery.ucl.ac.uk/1559542/1/Schrauwen%20article.pdf retrieved on 15-06-2017.
128
A., Schrauwen, ‘(Not) losing out from Brexit’
129
Directive 2004/38, Article 3.
27
the same quantitative and qualitative requirements regarding the prerequisites to acquire
permanent residence or long term residency status: legal and continuous residence, and five
years of residence.130 Advantageous to obtaining a long-term residence permit is that TCN’s
are also allowed to reside in the territory of a Member State other that the one that granted the
permit.131 However, EU citizens are not subject to the conditions required by TCN’s to acquire
long term residency, as laid down in article 5 of the Council Directive:
‘Stable and regular resources which are sufficient to maintain himself/herself and the members
of his/her family, without recourse to the social assistance system of the Member State
concerned and sickness insurance in respect of all risks normally covered for his/her own
nationals in the Member State concerned’.132
These requirements are similar to those imposed on EU citizens to acquire the right of residence
on the territory of another Member State for a period longer than three months and less than
five years.133 This could prove to be useful for UK nationals who have acquired the right of
permanent residence in another EU Member State, as he or she has already fulfilled the
requirements to acquire a long term residence permit once he or she becomes a TCN.134 It is
therefore uncomplicated for the EU Member State where the UK national resides to assess
whether the conditions as laid down in the Council directive are still being met, and whether
the status of long term residence should be granted automatically.135 Those who have obtained
this status in accordance with chapter IV of the Citizenship directive, the change of status from
an EU citizen with the right of permanent residence to a TCN with a long-term residence permit
should be granted almost immediately.136 Difficulties for UK citizens becoming TCN’s could
be encountered however because of article 5(2) of the Council directive, stating that ‘Member
States may require third-country nationals to comply with integration conditions, in accordance
with national law’.137 Integrational conditions as laid down by domestic legislation are not
mentioned in the 2004/38 Directive, and may cause hinder for UK nationals who seek residence
in an EU Member State after their country has withdrawn from the EU.138
3.3.2. Union legislative measures
When the UK has withdrawn from the Union and an agreement has not been reached, UK
nationals who have not acquired long-term residence would fall within the category of TCN’s.
Regarding TCN’s, the Union is competent to ‘… develop a common integration policy aimed
at ensuring, at all stages, the efficient management of migration flows, fair treatment third

130
Directive 2003/109, Article 4(1).
131
G.M. Gonzalez, ‘Brexit: consequences for Citizenship of the Union and Residence Rights’,
MJ nr. 5 (2016), p. 808.
132
Directive 2003/109, Article 5.1(a).
133
Directive 2004/38, Article 7.
134
MJ nr. 5 (2016), p. 808.
135
MJ nr. 5 (2016), p. 807.
136
MJ nr. 5 (2016), p. 807.
137
Directive 2003/109, Article 5(2).
138
MJ nr. 5 (2016), p. 808.
28
country nationals residing legally in the Member States’.139 This competence as laid down in
article 79 TFEU permits the EP and Council to adopt measures concerning the conditions of
entry and residence and standards on the issue by Member States of the long term visas and
residence permits for TCN’s, and the definition of the rights of a TCN residing legally in a
Member State.140 This competence goes as far as to determine the conditions of governing
freedom of movement and of residence in other Member States.141 An arrangement in
accordance with article 79 TFEU would greatly ameliorate the rights for UK citizens looking
to reside in the EU Member States, as it would provide a co-ordinated set of rules for all 27
Member States. UK nationals thus no longer have to deal with 27 different rule sets when
moving to a Member State, and can expect more clarity. Moreover, UK nationals looking to
reside in the EU would also benefit from the protection of rights found in pre-existing
legislation that has been concluded under the treaty base of article 79 TFEU.142 These rights
include the conditional right of entrance for immediate family members, allowing them to
reside with the UK national.143 Furthermore, individuals who enter the EU under 79 TFEU are
eligible for the conditional right to acquire long-term resident status after five years continuous
legal residence.144 Finally, it would allow Third Country students to enter and reside in a
Member State for more than 90 days.145 It does need to be noted however that legislation
concluded under the footing of article 79 TFEU would not have effect in Denmark, due this
country’s opt-out from Area of Freedom, Security and Justice (AFSJ) measures, and that Ireland
has the position to choose whether or not it desires to opt-in to the measures.146
However, the EU does not possess full competence regarding TCN’s in accordance with article
79 TFEU, as 79 (5) TFEU outlines ‘This Article shall not affect the right of Member States to
determine volumes of admission of third-country nationals coming from third countries to their
territory in order to seek work, whether employed or self-employed’. This leads to the situation
where article 79 TFEU will probably crystallize and define the rights of those UK citizens who
already legally reside in one of the Member States, but that UK nationals who wish to settle in
a Member State after the UK leaves the EU will not be guaranteed unfettered access to the
territory of the Member States as they still retain the competence to determine the volumes of
admission of TCN’s. Article 79 TFEU does not provide the same level of protection as EU
citizenship has to offer, as access to Member State territory is restricted not only by the
conditions of EU law, but by national immigration law as well.147
3.3.3 The case of Rottmann
Will the aforementioned Rottmann ruling provide solace for the 60 million British citizens who
stand to lose their EU citizenship? This ruling could potentially apply to all UK citizens, both
sedentary or exercising their citizenship rights. Central in this argument if the case of Rottmann

139
Article 79(1) TFEU.
140
Article 79(2) TFEU.
141
Article 79(2)(b) TFEU.
142
143
Council Directive 2003/86/EC
144
Council Directive 2003/109/EC
145
Directive (EU) 2016/801
146
TFEU, protocol (No 22) on the position of Denmark, TFEU, protocol (No 21).
147
29
could potentially prevent British citizens who have acquired EU citizenship to lose this status,
is that if the Brexit would result in the deprivation of the genuine enjoyment of the substance
of rights of EU citizens. Could the doctrine of the Rottmann case, that clearly stated that a
situation of an EU citizen where it could potentially lose the status as is conferred to him by
article 20 TFEU and the rights attached to this article, falls within the ambit of EU law.148 Could
this also mean that article 50 TFEU is subject to the doctrine as laid out in the Rottmann case?
There is however, a fundamental difference between situations as described in the Rottmann

case and the situation that is created by the withdrawal from the EU by a Member State. In
Rottmann, the German nationality was lost by mr. Rottmann by an individual decision by the
German government, affecting merely one EU citizen. This means that the Rottmann situation
concerned a Member State of the EU, and therefore concerned the application of EU law.149 If
the UK leaves the EU on 29-03-2019 and has before this date not yet reached an agreement
with the EU, it means that the UK is no longer subject to EU law. Once the UK is no longer
under any obligation to apply or respect EU law, this would leave no legal basis under EU law
to challenge the outcome of any national legislation by the UK that affects the rights and
privileges of the Former Union Citizens (FUCs).150
Secondly, as mentioned, the Rottmann situation was an individual one, whereas the Brexit
situation concerns around 60 million British nationals. This loss of EU citizenship is derived
from a decision made by the government of these nationals, after consulting the people by
referendum. By applying the Rottmann situation to the situation of the Brexit, this would enable
individuals to challenge and meanwhile greatly undermining the outcome of a democratic
decision.151 Additional to undermining the democratic process, it would also run counter to the
wording and system of Article 50 TEU, that speaks of national constitutional requirements
when a state decides to leave the Union.152 If the CJEU would rule that British nationals could
invoke the Rottmann doctrine to challenge their loss of EU citizenship, the CJEU would
effectively erode the purpose of article 50 TEU.153 By inserting article 50 into the TEU, the
Member States as well as the EP have agreed on the possibility of a departure from the EU by
a Member State, and therefore have agreed to the Union citizenship that is associated with the
nationality of a Member state.154 The Rottmann case was also one where the individual was

148
149
G. Davies, ‘Union citizenship – still Europeans’ destiny after Brexit?’,
retrieved on 06-06-2017.
150
151
H. Van Eijken, ‘EU citizenship: a slipping anchor to hold on to rights? Brexit and the
consequences for EU citizens with British nationality’, http://beucitizen.eu/eu-citizenship-a-
slipping-anchor-to-hold-on-to-rights-brexit-and-the-consequences-for-eu-citizens-with-
british-nationality/#_ftn2 retrieved on 07-06-2017.
152
Article 50 TEU.
153
154
30
rendered stateless by the national decision, something which is not the case for British nationals,
who fall back on their British or other nationalities.
Finally, it is important to bear in mind that in the Rottman case, the CJEU ruled that the loss of
EU citizenship must be proportionate. It therefore did not rule that the withdrawal of nationality
and therefore EU citizenship is principally prohibited by EU law, only that a principle of
proportionality must be observed.155 In this sense, it seems implausible that the Court would
rule that a Brexit would not be proportionate, since the decision to withdraw was initiated by a
referendum and the Prime Minister, and therefore Brexit is a decision taken with a democratic
legitimation. If the CJEU wants to apply the Rottmann doctrine to the loss of EU citizenship as
a result of Brexit, it would imply a decoupling of nationality and EU citizenship. As Article 20
TFEU states that only those who are in possession of Member State nationality receive EU
citizenship, only a decoupling of these two notions would facilitate an EU citizenship for UK
citizens after Brexit, which from a democratic point of view, is not a decision for the CJEU to
make.156
3.4 International law solutions
3.4.1 Residence rights, Human rights and the ECHR: the Kurić formula
Another way to protect the rights of UK nationals’ resident in any of the EU Member States or
EU nationals who live in the UK is to apply the rights as laid down in the European Convention
of Human Rights (ECHR). More specifically the residence rights as described in article 8 of the
ECHR, also found in the Charter of Fundamental Rights of the EU (the Charter) article 52, that
protects the right to respect for family and private life. All Member States of the Union,
including the UK, have acceded to the ECHR.157 The legal uncertainty that befalls on UK and
EU citizens when the UK leaves the EU could potentially be alleviated by the European Court
of Human Rights (ECtHR), which provided the case of Kurić and others v. Slovenia.158
The facts of the case are as follows. During the years of the Socialist Federal Republic of
Yugoslavia (SFRY), Slovenia was one of six republics that made up the SFRY, combined with
Croatia, Serbia, Montenegro, Bosnia Herzegovina, and Macedonia. Citizens of the SFRY
enjoyed a dual citizenship, that ensured that they were both citizens of the federation and one
of the six republics.159 Citizens of the SFRY possessed freedom of movement within the
federation, and had the were able to acquire permanent residence in any of the six republics.160
Only when permanent residence was achieved in one of the six republics, could an individual
fully enjoy political, civil, social and economic rights in the SFRY.161 The resemblance of the
situation in the SFRY is striking when compared to that of the EU, with a dual form of
citizenship and the rights of freedom of movement and establishment. This makes the Kurić

155
156
A. Schrauwen, ‘(Not) losing out from Brexit’
157
MJ nr. 5 (2016), p. 800.
158
ECtHR, No. 26828/06, Kurić and others v. Slovenia.
159
M. Tratnik, Het nationaliteitsrecht in de Oosteuropese landen, Deventer: Kluwer 1989.
p. 217.
160
M. Tratnik, Het nationaliteitsrecht in de Oosteuropese landen, Deventer: Kluwer 1989.
p. 218.
161
ECtHR No. 26828/06, Kurić and others v. Slovenia, para. 19.
31
case even more compelling when compared to the current situation of the UK leaving the Union.
Then, on 25 June 1991 Slovenia declared independence from the SFRY as a successor state,
and left the SFRY citizens who had established Slovenia to be their republic of permanent
residence whilst originating from another one of the six republics in a predicament, as they
became illegally residing persons in this new found Slovenian state.
At the time that the case was brought forward to the ECtHR, two of the applicants were stateless
and the rest retained the nationality of one of the other successor states of the SFRY. None of
these applicants retained their status of permanent residency upon the independence of
Slovenia, that they had acquired during their time as SFRY nationals. According to the statistics
considered in the case, 200.000 Slovenian residents were former citizens of the SFRY, making
up approximately 10 percent of the Slovenian population. 171.132 of these individuals applied
for and were granted Slovenian citizenship, 11.000 individuals left Slovenia, but 25.671 of these
individuals became ‘erased’ persons and thus became illegally residing persons despite having
previously possessed permanent residence status during the SFRY.162
The applicants of the case argued that their rights as laid down in articles 8, 13 and 14 of the
ECHR were breached by the Slovenian government, and the ECtHR Chamber ruled that there
was a violation of Articles 8 and 13 of the ECHR. Regarding article 14, the Chamber concluded
that due to the violation of article 8 of the ECHR it was not necessary to rule on the applicants
their complaint under article 14. The ECtHR reiterated that the ECHR does not give citizens of
a state that is party to the ECHR a right of residence on the territory of another state that is party
to the ECHR.163 It also reaffirmed that it is the prerogative of a state to control the entry of
aliens into its territory, and to control their residence there, as a matter of international law.164
In some circumstances, these restrictions on the right to reside may even interfere with the right
to private and family life.165 But as the facts of the case, Slovenia denied the continued right of
residency to a number of citizens of the former SFRY state, who at the time of the former SFRY
federation established their permanent residence in Slovenia. Article 8 of the ECHR protects
the right to respect for private and family life, and ruled that ‘It must be accepted that the totality
of social ties between settled migrants and the community in which they are living constitute
part of the concept of private life within the meaning of Article 8’.166 The expulsion of a settled
migrant thus constituted a breach of the right to respect private and family life, the ECtRH
ruled.
To ascertain whether the applicants had a family and/or private life in Slovenia within the ambit
of Article 8 of the ECHR, the ECtHR stated that the applicants, before the independence of
Slovenia, had lived in its territory for several years, most of them even for decades, and that all
of the applicants had established a lawful form of permanent residence in Slovenia under SFRY
legislation at the material time. As the applicants settled in Slovenia as SFRY citizens, and
registered their permanent residence in the same fashion as citizens of the then Socialist
Republic of Slovenia, the ECtHR ruled that these former SFRY citizens possessed ‘a stronger
residence status than long-term migrants’.167 This is again an important parallel to the current
UK-EU situation, as UK nationals who have settled in an EU member state whilst their nation

162
ECtHR No. 26828/06, Kurić and others v. Slovenia, para. 23, 26, 32 and 69.
163
164
165
166
167
32
was still a member of the EU, thus possess a stronger residence status than other long-term
migrants after the withdrawal of the UK from the EU, as well as EU citizens having established
themselves in the UK. In the Kurić case, the applicants developed a network of personal, social,
cultural, linguistic and economic relations during their residence that make up the private life
of every human, and most of them also developed a family life in Slovenia, with close ties with
their family who lives there.168 The ECtHR considered the interference posed by the Slovenian
government that ‘erased’ the status of these applicants unjustifiable, and an interference of their
right to respect for their private and/or family life. In relation to article 13 of the ECHR, the
ECtHR ruled that ‘the respondent Government have failed to establish that the remedies at the
applicants’ disposal can be regarded as effective remedies’.169 This consequently resulted in a
violation of article 13 ECHR as well.
The Kurić case, can be argued to be very similar to the case of UK citizens living in the EU and
EU citizens living in Britain after the UK has left the Union. Similar to the case, many of the
1.2 million UK citizens living in the EU will have been lawfully resident in the EU and the
Member State for years or perhaps even decades, and as EU citizens, enjoy a range of social
and political rights. Applying the Kurić logic, once an individual has lawfully established its
residency on the territory of a particular state, this individual will retain the right to reside even
if the legal status of the home state or the host state changes, even if this results in a plight
where the nationality status of this individual would no longer entitle him to the right of
residence.170 To fall under the Kurić doctrine, it is an important factor that the individual
possessed that right of permanent residency at the moment of the leave date.
The Kurić case distinguishes itself from case such as Zhu and Chen, because the right to private
and family life is guaranteed in its own right, even for non-national residents, and a family
relation such as in Zhu and Chen is not necessary. British citizens residing in other EU Member
States would thus retain their present residence rights, acquired when they were still EU
citizens, even after the Brexit. The same goes for EU citizens living in the UK. In accordance
with the Kurić doctrine, the residence status will be frozen, protecting the right of residence of
those British citizens who are lawfully resident on the territories of the remaining EU Member
States and EU citizens living in the UK, even after the leave date of 29-03-2019.171 This
‘freezing’ of existing residence rights however only apply in the Member State where the
British national resides on the day that the UK leaves, and does not extend the right of freedom
of movement onto UK nationals.
Furthermore, for EU citizens living in the UK, the Kurić formula would also apply to them and
ensure their right of residence in the UK, but will not entail that the applicability of EU law will
be extended into the territories exiting the EU.172 EU citizens residing in the UK will de facto
become foreigners, and will not be able to exercise their EU citizenship rights in the UK is it is
no longer a member of the EU. The exception however are the conditions established in article

168
169
170
MJ nr. 5 (2016), p. 805.
171
MJ nr. 5 (2016), p. 805.
172
J. Vidmar, ‘The Scottish Independence Referendum in an International Context’ CYIL nr.
51 (2013), p. 284.
33
20(2)(c) TFEU, the right to enjoy the protection of the diplomatic and consular services
authorities of any other Member State.
3.4.2 Acquired rights and the Vienna Convention on the law of Treaties
Other forms of international law is also relevant to the scenario of Britain and the EU divorcing
without reaching an agreement, such as the Vienna Convention on the law of Treaties, in
particular article 70 of this convention. Article 70 of the Vienna Convention reads:
‘1. Unless the treaty otherwise provides or the parties otherwise agree the termination of a treaty
under its provisions or in accordance with the present Convention:
(a) Releases the parties from an obligation further to perform the treaty;
(b) Does not affect any right, obligation or legal situation of the parties created through the
execution of the treaty prior to its termination.
2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the

relations between that State and each of the other parties to the treaty from the date when such
denunciation or withdrawal takes effect.’.173
Great Britain has ratified the Vienna Convention and recognized its principles.174 All EU
Member States, with the exception of France and Romania, have ratified and recognized the
Vienna Convention as well.175 Article 70(1)(b) of the Vienna convention provides that the
termination of an international treaty, which the EU in essence is, ‘does not affect any right,
obligation or legal situation of the parties created through the execution of the treaty prior to its
termination’. Especially parties in favour of a Brexit have called upon this treaty to prove that
the 1.2 million UK citizens living across the EU still retain their citizenship and workers rights
after the UK leaves the EU, as article 70(1)(b) provides that ‘’acquired rights’’, also known as
‘’executed rights’’ or ‘’vested rights’’ continue to apply on UK citizens.176177 It is argued that
such rights established by a treaty will remain in force, even after a termination of this treaty
by an exit of the UK.178 The impact therefore of the UK leaving the EU will not be that
significant for those EU citizens already residing in the UK, or for British citizens living in the
EU. Those however who move to a different state after the withdrawal of the UK will
experience a different situation.

173
Article 70, Vienna Convention on the law of treaties.
174
United Nations,
https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII-
1&chapter=23&Temp=mtdsg3&clang=_en retrieved on 07-06-2017.
175
United Nations,
176
LeaveHQ, ‘Expats have nothing to fear from Brexit’,
http://leavehq.com/blogview.aspx?blogno=145 retrieved on 09-06-2017.
177
R. Buckle, T. Hewish, J.C. Hulsman, I. Mansfield, R. Oulds, ‘Brexit: Directions for Britain
outside the EU’, http://iea.org.uk/sites/default/files/publications/files/Brexit-interactive.pdf
178
34
Those who cite article 70 of the Vienna convention thus argue that those already exercising
their rights as EU citizens will retain those rights on ground of international law, while those
who have remained sedentary and decide to move to another Member State after Brexit will
experience difficulty. EU citizenship will thus be lost by the 60 million UK citizens, except for
those who have already exercised their rights. The view of executed rights is supported by the
constitutional expert Lord McNair, who concludes that these rights are considered to be
executed by the treaty, and ‘have an existence independent of it; the termination cannot touch
them’.179 The status of EU citizenship will thus be guaranteed as a result of the well-respected
principle of respect for acquired rights.180 These acquired rights have acquired the status of
‘’customary law’’, which indicates that it is regarded as a fundamental principle of international
law that takes precedence over national law.181 Would article 70 of the Vienna convention
apply, it would mean that it would only be operative in the international law plane, and therefore
not enforceable through the English courts, that begs the question on what basis it would be
enforceable.182
This presents a picture where the rights in relation with EU citizenship are protected for those
who have already exercised it, both those EU citizens living in the UK as UK citizens living in
the EU. The Vienna convention thus provides a reasonable solution to the EU citizenship rights
conundrum as it is discussed in this paper. However, the wording of article 70(1)(b) of the
Vienna Convention needs to be noted. Article 70(1)(b) is preceded by the words ‘Unless the
treaty otherwise provides or the parties otherwise agree’, that leaves the risk that the article
would not apply to the Brexit situation, if a withdrawal agreement is reached, and would
therefore override the general rule laid down in article 70 of the Vienna convention. This would
mean that if the withdrawal agreement withholds EU citizenship rights from UK nationals, this
would override the rights derived from the Vienna convention. Secondly, in the absence of a
withdrawal agreement, the ‘otherwise provides’ that is mentioned in the treaty would be held
to be article 50 TEU, that would therefore lead to the cessation of all rights and obligations
provided under the treaty, including EU citizenship.183
The crucial point in arguing that the Vienna convention extends rights to EU citizens both in
GB and in the Member States, is the reference to ‘the parties’ in article 70 of the Vienna
convention. Article 70 is thus not an article that directly addresses the EU citizenship rights of

179
L. McNair, The law of Treaties, Oxford: Clarendon Press 1961, p.531.
180
181
182
T. Eicke, ‘Could EU citizens living in the UK claim ‘acquired rights’ if there is a full
Brexit?’, http://101r4q2bpyqyt92eg41tusmj.wpengine.netdna-cdn.com/wp-
content/uploads/2016/04/Could-EU-citizens-living-in-the-UK-claim-acquired-rights-if-there-
is-a-full-Brexit.pdf retrieved on 07-06-2017.
183
T. Eicke, ‘Could EU citizens living in the UK claim ‘acquired rights’ if there is a full
35
individuals, but is a reference to the parties to the treaty, inter alia its states.184 The scope of
article 70.1(b) of the Vienna convention has been commentated by the International Law
Commission as only applying to the States that are party to the treaties:
‘by the words ‘’any right, obligation or legal situation of the parties created through the
execution of the treaty’’, the Commission wished to make it clear that paragraph 1(b) relates
only to the right, obligation or legal situation of the States parties to the treaties created through
the execution, and is not in any way concerned with the questions of the ‘’vested interests’’ of
individuals’.185
This portends that EU citizenship, as it applies to individuals, is not a right that is protected by
the Vienna convention, and that faith placed in this convention to ensure the protection of EU
citizenship rights by those who have already exercised it, may well be misplaced.
However, how does the Vienna Convention relate to the principle of direct effect as laid down
in the case of van Gend en Loos? As discussed earlier in this thesis, the CJEU ruled that EU
law ‘’…Community law therefore not only imposes obligations on individuals but is also
intended to confer upon them rights which become part of their legal heritage’’.186 In Article 3
(5) TEU it is declared that the EU shall contribute to ‘the strict observance and the development
of international law’.187 Does this also entail that individuals can call upon Article 70 of the
Vienna Convention, despite not being a party to the treaty as previously argued?
For starters, the CJEU has ruled that it is qualified to rule under rules of customary international
law, as the jurisdiction of the Court to give preliminary rulings under Article 267 TFEU
concerning the validity of acts of the EU institutions cannot be limited by the grounds on which
the validity of those measures may be contested.188 Having established its jurisdiction, the Court
is obliged to examine whether their validity may be affected by reason of the fact that they are
contrary to a rule of international law.189 As ruled by the CJEU in the case of Poulsen, the EU
must respect international law in exercise of its powers.190 It is therefore required to comply
with the rules of customary international law, that the Vienna Convention is considered to be.
In the case of Racke, the Court ruled that: ‘It follows that the rules of customary international
law concerning the termination of Treaty relations … are binding upon the Community
institutions and form part of the Community legal order.’.191 It should also be noted that the
Court has on previous occasions respected the Vienna Convention on the law of Treaties.192

184
S. Douglas-Scott, ‘What happens to ‘Acquired Rights’ in the event of a Brexit?’,
https://ukconstitutionallaw.org/2016/05/16/sionaidh-douglas-scott-what-happens-to-acquired-
rights-in-the-event-of-a-brexit/ retrieved on 07-06-2017.
185
United Nations, ‘Draft Articles on the Law of Treaties with commentaries’
http://legal.un.org/ilc/texts/instruments/english/commentaries/1_1_1966.pdf retrieved on 07-
06-2017.
186
Case 26/62 Van Gend en Loos, p. 12.
187
Article 3(5) TEU.
188
Joined Cases 21/72 and 24/72, International Fruit Company v Produktschap voor Groenten
en Fruit, para 5.
189
Joined Cases 21/72 and 24/72, International Fruit Company v Produktschap voor Groenten
en Fruit, para 6.
190
Case C-286/90 Poulsen and Diva Navigation, para. 9.
191
Case C-162/96 Racke, para 46.
192
Case C-386/08 Firma Brita, para 44.
36
Considering that customary international law is deemed to form a part of the EU legal order, as
considered by the CJEU in the Racke case, this thesis will argue that individuals can invoke
article 70 of the Vienna Convention, as the van Gend en Loos case confers direct effect. This
leads to a situation where when GB leaves the EU, its citizens who reside in one of the Member
States employing their EU citizenship, retain these rights because of article 70.1(b) of the
Vienna Convention, as ‘acquired rights’. EU citizenship rights would thus continue to apply to
those UK citizens exercising their right of free movement, even after the termination of the
Treaty by the UK. This means that the Vienna Convention does not only apply to the states
present to the Treaty, but because of the EU legal order and its direct effect, to individuals as
well. This would entail that the Vienna Convention and EU legal order are not only understood
with regards to the letter of the Treaty, but to the spirit of the Treaty as well. The rights conferred
to individuals by EU citizenship legislation could thus continue to apply, even after the
termination of the treaty, because of article 70 of the Vienna Convention is binding for the EU
legal order, where citizens can rely on direct effect to call upon the Vienna Convention. GB
nationals would retain the rights conferred on to them by EU citizenship, if they exercised them,
even after their Member State has terminated the Treaty.
The aim of this chapter was to research the situation of a ‘Brutal Brexit’, where the EU and the
UK have not reached an agreement during the negotiations of article 50 TEU, and the
consequences of such an event for Union citizenship. The withdrawal from the UK will leave
the EU legal order reduced in size, and will dramatically change the situation for UK citizens
living in the EU, and EU citizens living in the UK. UK citizens will lose their status of EU
citizenship, as they no longer qualify as a Member State national as laid down in article 20
TFEU. Both UK citizens who have exercised their EU citizenship rights as those who have
remained in the UK will be affected by the de-application of EU law.
This does not mean however, that there are no further options for those who stand to lose their
EU citizenship rights. It is important to first demarcate the 1.2 million UK citizens living in the
EU. Those who have a relationship with an EU national to fall back on, whether this is
established through blood or marriage, could fall within the scope of the Citizenship directive.
The applicability of the Citizenship directive however depends on whether the EU national has
exercised his or her freedom of movement. If this is not the case, the Zambrano doctrine might
also apply, this is however a very specific situation that is not commonly found.
For those who cannot fall back on an EU national through blood or marriage, but have acquired
a long-term residence permit, there is Council directive 2003/109 to fall back on. The change
of status from an EU citizen with the right of permanent residence to a TCN with a long-term
residence permit should be granted almost immediately. Member States however reserve the
right to lay down integrational conditions in accordance with national law, which may cause
hinder for UK nationals seeking residence in an EU Member State. Once a long-term residence
permit is acquired however, TCN’s are also allowed to reside in the territory of a Member State
other than the one that granted the permit.
Another safeguard for UK citizens that acquired a right of residence in an EU Member state is
the Kurić formula. EU citizenship is complementary to Member State nationality, similar to the
dual citizenship possessed by citizens of the SFRY. Once a Member State withdraws from the
EU, the citizens of the former Member State who have acquired long term residency in another
37
EU Member State will retain the right to reside, even though their nationality no longer gives
them the entitlement to permanent residency. Their residence status will be frozen, allowing
UK citizens living in the EU and EU citizens living in the UK to retain their rights of residence
acquired under EU citizenship law. The Kurić formula however does not extend the right of
freedom of movement onto UK nationals.
UK nationals who reside in the EU and have acquired long-term residency, are thus quite
effectively safeguarded from the consequences of the Brexit. They can rely on either Council
Directive 2003/109, or the Kurić case. The Kurić case also the applies to EU nationals living in
the UK, as the UK has acceded to the ECHR as well.
However, those who have not acquired a right of residence in the EU Member States, would de
facto become TCN’s. Are these UK nationals perhaps also protected by applying the formula
of the Rottmann case to retain their EU citizenship rights? The Rottmann case clearly stated
that the potential deprivation of the status of EU citizenship falls within the ambit of EU law,
but does this also mean that the Rottman doctrine could allow UK citizens to retain their EU
citizenship if they wish to do so? The Rottmann case will probably not provide UK citizens
with any protection regarding their EU citizenship, for various reasons. The UK is no longer
subject to EU law after it has withdrawn from the EU. If the CJEU decides to invoke the
Rottmann doctrine against Article 50 anyway, it would not necessarily mean that it would not
deem loss of EU citizenship through a democratic referendum disproportionate. Only if the EU
decides to decouple EU citizenship and Member States nationality, would facilitate EU
citizenship for UK citizens after Brexit, and that would not up to the CJEU to decide, from a
democratic point of view.
Those UK nationals who did not acquire permanent residence in an EU Member State, will
perhaps find assistance in Article 79 TFEU, that confers the EU the competence to develop a
common integration policy for TCN’s. A common policy from the EU level would greatly
ameliorate the situation of those UK citizens who have become TCN’s. Through article 79
TFEU legislation, a co-ordinated set of rules will be available across all 27 Member States. This
will provide clarity for UK citizens who have not yet acquired permanent residence in an EU
Member State, and could provide them with the conditional right to acquire long term residency
after five years of continuous residence. It would also allow UK students to enter and reside in
a Member State for more than 90 days, which is of great importance if both the EU and the UK
want to keep on growing to become the world’s most competitive knowledge based economy.
The only impediment to the benefits generated for UK nationals looking to continue their
residence in the EU is that article 79(5) TFEU leaves the right to determine the volume of
TCN’s that can be admitted to the Member States. UK nationals thus no longer have the same
unrestricted access to the EU that EU citizens have.
The case of Kurić is not the only form of international law that could prove to be important for
rights of UK citizens after the Brexit. Article 70 of the Vienna Convention on the law of Treaties
could also prove to be valuable for those UK citizens who have already exercised their rights
as EU citizens, as they could retain those rights on the ground of international law. The Vienna
Convention article 70(1)(b) provides that rights established by a treaty will remain in force, in
casu EU citizenship rights, even after the termination of this treaty by the UK withdrawing from
the EU. EU citizenship rights are considered to be acquired rights.
A crucial point in this argument however, is that Article 70 of the Vienna Convention refers to
‘the parties’ of the treaty. Article 70 of the Vienna Convention does not directly address the
38
rights of individuals, such as EU citizenship, but extends rights to the parties of the treaty, inter
alia its states. Per contra, how does the Vienna Convention relate to the van Gend en Loos
principle of direct effect, and could this engender a situation where it is possible for individuals
in the EU legal order to call upon article 70 of the Vienna Convention? In the case of Poulsen,
the Court already clarified that the EU must respect international law in exercise of its powers.
Following the Racke case, the CJEU ruled that rules of customary international law, what the
Vienna Convention on the law of Treaties is considered to be, are part of the EU legal order.
Following the logic of the Court, individuals could actually invoke article 70 of the Vienna
Convention, as the Vienna Convention can be considered part of the EU legal order, where the
van Gend en Loos case confers direct effect on individuals. In the legal argument, GB nationals
could who have exercised their EU citizenship rights can retain those rights in the CJEU,
invoking article 70(1)(b) of the Vienna Convention. Whether this is a politically desirable and
feasible solution, would be a completely different discourse.
39
Conclusion
European citizenship is at a crossroads. As this thesis has shown, EU citizenship is a developing

notion, from its conception at the Treaty of Maastricht to where it stands now, clarified by the
rulings of the CJEU. There are however, especially in conjunction with a Member State leaving
the EU, a lot of issues to be resolved concerning EU citizenship. For example, in the worst-case
scenario, where an agreement is not reached between the EU and GB, what happens to those
who possessed EU citizenship up until that moment? What are the consequences for EU
citizenship when a Member State decides to withdraw from the European Union, and for their
citizens living in another Member State? Can EU citizenship be seen as a right, and should it
be protected as such, even when the nationality from which it is derived no longer qualifies as
an EU Member State?
Before we can answer the research question, this paper first researched the notion of citizenship
in comparison to nationality. These two notions are sometimes used interchangeably, but entail
two different legal frameworks. Nationality represents the international legal framework, and
is the demarcation of nationals and aliens. In the Nottebohm case, it was proved that a nation
does not have to recognize the nationality of another state, as long as this is in accordance with
international law. Citizenship on the other hand, is a set of entitlements. But what do these
entitlements encompass? As demarcated by Marshall, three types of citizenship can be
discerned: political citizenship, civil citizenship and social citizenship.
Political citizenship is found to be first described by Aristotle in ancient Greece. He defines a

citizen to be one who rules, but also is ruled by his fellow citizens. The key aspects in the
political notion of citizenship are equality, as well as public participation. The political
citizenship in the days of ancient Greece may have evolved over the years, as fully immersing
oneself in the public life to rule without having time for a private life is on longer required, but
the key aspects have remained as relevant as ever. Developed democracies still take enormous
pride in the fact that their citizens participate in public life by voting, running for office and all
citizens being equal to one another in the eyes of the law.
Civil, or legal citizenship stems from ancient Rome, where it was found that people are not as
Aristotle claimed purely political animals, but also a legal being, existing in a world full of
actions, persons and things regulated by law. In the Roman empire, the political and legal
community were pulled apart, and Roman citizenship became merely a legal form of
citizenship, additional to the political form of citizenship that might already be in place derived
from one of the territories of the empire. Legal citizenship emphasizes the private life of
citizens, and leaves the citizens to be ruled.
Social citizenship is the third notion that completes the substance of the modern notion of
citizenship, which consists of these three elements. It emerged together with the nation state,
that confronted the tension between the two notions of political and legal citizenship, where the
political duty of the citizen is combined with room for citizens to pursue their personal, private
interests under the rule of law. Marshall noted that during the 20th century, social citizenship
was added to complete modern citizenship, as it gave social rights to citizens of a nation, such
as the right to social welfare, which would culminate in an ever more inclusive and egalitarian
form of citizenship.
The pulling apart of the political and legal community during the Roman empire, is something
that also can be observed in contemporary Europe, albeit with some distinctions. The nationality
40
of the Member State, and the citizenship that is derived from this notion, has become to
resemble something similar to the political form of citizenship as described in ancient Greece,
with the addition of a social aspect. Citizenship of a Member State enables citizens to fulfil
their public duty. EU citizenship on the other hand, provides an additional form of citizenship
where citizens can fall back on as the case law of the CJEU has shown. It is strikingly similar
to the Roman form of citizenship, which also was additional to any form of political citizenship
already in place. National citizenship and EU citizenship can be seen as forms of citizenship
that pull apart the political and legal community, as EU citizenship can be seen as the legal,
overarching form of citizenship, with the case of St. Paul being applicable to many EU citizens
today who call upon their EU citizenship to be protected by EU law if their substance of rights
is violated by a Member State. EU citizenship enables citizens to call upon law that
encompasses the entire EU, and makes them part of a legal community, but it does not interfere
with the political citizenship of the Member States. There are however some fundamental
differences. Roman citizenship was granted to individuals regardless of the possession of any
other form of citizenship, whilst EU citizenship as laid down in article 20(1) TFEU explicitly
depends on Member State nationality. Roman citizenship can thus be seen as more of a top
down form of citizenship, where EU citizenship takes a bottom up approach by depending on
Member State nationality. EU citizenship, as opposed to Roman citizenship, also grants the
citizen political rights, such as electoral rights and protection of diplomatic authorities of any
Member State. EU citizenship is thus not a purely legal form of citizenship, and therefore cannot
be compared one to one, but the connection is certainly there.
EU citizenship has certainly grown in importance over time. It has culminated into the creation
of a community space where its citizens can pursue their life plans, with their legal rights being
protected by EU law. As in the case of Grzelczyk, the CJEU has ruled that EU citizenship is
considered to be the fundamental status of nationals of the Member States. This mantra of EU
citizenship exemplifies the growth of the notion, from merely a symbolic gesture at its
conception towards an independent source of rights today.
EU citizenship can be considered to have entered into a new paradigm, as it has evolved beyond
its internal market roots where it was only relevant to citizens who crossed intra EU borders.
With the new case law however, citizens are no longer dependent on a cross-border element to
be able to create a link to Union law. To evolve beyond its internal market roots, EU citizenship
firstly became an article of direct effect, as illustrated in the cases of Baumbast and Chen. These
cases confirmed that the EU citizenship articles are directly effective, autonomous, and do not
depend on possession of any previously existing EU status category. It also made clear that the
conditions and limitations relating to the right of free movement and residence, must be
interpreted and applied in a proportionate manner. This expanded the rights for EU citizens,
making it possible for non-economically active persons to move and reside in another member
state in their sole capacity as EU citizens, creating a more inclusive, less market oriented
citizenship in the process. The cases that are one of the most important regarding the
development of EU citizenship, are those of Ruiz Zambrano and Rottmann. Both of these cases
can be considered to be landmark cases, as the rights of EU citizenship are now better protected
both in the case of loss of citizenship, and in the case of a violation of Union citizenship rights
in an internal situation.
In the Ruiz Zambrano case, for the first time the Court did not disregard the case as it was a
wholly internal situation, but argued that EU law still applied because the ‘genuine enjoyment
of the substance of rights’ of EU citizenship was at stake. This enabled the Court to protect EU
citizenship without a cross border element present, thereby counterbalancing the most
41
problematic examples of reverse discrimination. However, what does this genuine enjoyment
of the substance of the rights conferred to the Union citizen exactly entail? The scope of this
new development remains unclear, still allowing for problematic cases such as the McCarthy
one to not be protected by EU law. The protection of Union citizens by EU citizenship is thus
not yet fully developed, a further consolidation of the post Zambrano paradigm is necessary to
ensure that an often artificial cross-border situation is no longer needed, and that the freedom
of movement becomes a right, and not an obligation.
Where does that leave the rights of the 1.2 million UK citizens who live in the EU, and the 2.8
million EU citizens living in the United Kingdom after the divorce date 29 March 2019, if there
still has not been agreed upon the protection of EU citizenship rights? It will create a situation
where Article 20 TFEU will no longer provide UK citizens with EU citizenship, as they no
longer qualify as Member State nationals. The consequences are an obvious loss of rights for
the UK citizens bereft of their EU citizenship, but for EU citizens living in the UK the situation
has changed dramatically as well. It leaves the EU legal order reduced in size, as EU law will
no longer apply in the former Member State and to its citizens. UK citizens will lose their rights
to move and reside freely across the European Member States, lose their electoral rights to both
vote and stand for election themselves in EP and municipal elections, lose the right of
diplomatic protection of any consular authorities of any Member State in a third country, and
lastly the right to petition the institutions. Not only the 1.2 million UK citizens exercising their
right of free movement and residence will be affected, but the sedentary citizens as well. They
no longer can call upon protection derived from EU law, such as in the case of Zambrano, and
EU legislation protecting the citizens may be retained, amended or repealed by their
government after it has left the EU.
When the UK has left the EU, the UK citizens living in the EU are not all in the same situation.
UK citizens living with an EU citizens that is their partner of family member, could fall within
the scope of the Citizen directive. This could grant them a derived right of residence, and their
position would largely remain the same. The applicability of the Citizenship directive is
however dependent on whether the EU national has exercised his or her right of freedom of
movement. If this is not the case, the Zambrano doctrine might apply, but this is a very specific
situation not commonly found.
For those UK citizens who do not have a relation with an EU national to fall back on, Council
directive 2003/109 could provide them with the possibility of residing in the EU. This is
however subject to conditions, as the Member State may require the UK nationals who have
become TCN’s to comply with integration conditions, in accordance with national law. These
integration conditions must however be applied in accordance with the Kurić doctrine, in
conformity with article 8 of the ECHR. The Kurić doctrine may be similar to the rights granted
under the Council directive, but is important because it also grants rights of permanent residence
to EU citizens living in the UK, as well that it does not grant UK citizens the freedom of
movement, but instead ‘freezes’ their rights and keeps them territorially restricted. The freedom
of movement however does apply to those who have obtained permanent residence under the
Council directive.
The residence rights for UK and EU citizen who have acquired permanent residence in the EU
and the UK under EU law, or UK citizens who are affiliated to EU citizens are thus probably
quite effectively safeguarded. These safeguards thus can be found in the Citizenship directive,
the Council directive and in the Kuric case. However, other Union legislative measures may be
of assistance to UK nationals after Brexit as well, such as Article 79 TFEU.
42
As these UK nationals fall within the category of TCN’s, the Union would be competent to
develop a common integration policy for TCN’s. A policy from the EU based on Article 79
TFEU would greatly ameliorate the rights for UK citizens looking to reside in the EU member
states, so also those who have not acquired permanent residency can enjoy a co-ordinated set
of rules for all 27 Member States. This provides clarity to those UK citizens affected, and could
provide them with the conditional right to acquire long term residency after five years of
continuous residence. It would also allow UK students to enter and reside in a Member State
for more than 90 days, which is of great importance if both the EU and the UK want to keep on
growing to become the world’s most competitive knowledge based economy. It should however
be noted that article 79(5) TFEU leaves the right to determine the volumes of admission of
TCN’s with the Member States, so UK nationals would not have unfettered access to the EU as
EU citizens would have.
The case of Rottman does not provide any security for UK citizens seeking to retain their EU
citizenship, for multiple reasons. The case of Rottmann is fundamentally different compared to
the situation of UK citizens, as the Rottmann situation concerned the situation of an individual,
not an entire state. Furthermore, the UK will leave the EU on 29-03-2019, resulting in the fact
that the UK is no longer subject to EU law, taking away the legal basis to challenge UK law
that affects the rights and privileges of FUC’s. additionally, the CJEU is not likely to challenge
article 50 TEU through the Rottmann doctrine, as it will probably not deem the loss of EU
citizenship through a democratic referendum disproportionate. A potential solution would be
the decouplement of EU citizenship and Member State nationality, which is a solution that
should be implemented by the democratic institutions.
But for those UK citizens who do not qualify for any of the in this thesis discussed legal
solutions concerning the loss of their EU citizenship rights, either because they do not have a
permanent residence, or because they do not have a relation to an EU citizen, the Vienna
Convention of the law of Treaties might provide a solution. If these UK citizens have exercised
their EU citizenship rights, they could retain those rights on the basis of international law and
the notion of acquired rights. The crucial point when arguing that the Vienna Convention
extends rights to citizens is the reference to ‘the parties’ in the wording of article 70. This would
indicate that this article is in no way concerned with the acquired rights of individuals.
This thesis however argues that the Vienna Convention is applicable to individuals in the EU
legal order, because of the notion of direct effect as first applied in the case of van Gend en
Loos. The CJEU is found to be competent to rule under rules of customary international law
such as the Vienna Convention, and the Court has to rule with due regard to international law.
Customary international law is found to be binding upon the institutions and legal order of the
Community. As the Vienna Convention is part of the EU legal order, individuals should be able
to invoke article 70 of the Vienna Convention, as the van Gend en Loos case confers direct
effect. UK citizens living in the EU will thus be able to retain their citizenship rights, as they
are considered to be acquired rights in relation to the Vienna Convention. EU citizenship rights
will thus continue to apply to UK citizens living in the EU, even after the UK has terminated
the treaty.
This thesis’ aim was to contribute to the humongous task of the EU-UK divorce, and to create
some clarity in the chaos in which EU citizens might now find themselves, in the much-
discussed event of a ‘brutal Brexit’, where the Article 50 TEU talks collapse and no deal is
made. As this thesis has shown, the citizens of the withdrawing Member State can possibly call
43
upon provisions of both EU and international law. Especially those citizens who have an EU
national to fall back on, or have already acquired permanent residence in the other Member
State. But even those citizens who do not have this luxury, can invoke the Vienna Convention
of the law of Treaties and still see their rights retained. The biggest victims of the Brexit are
those citizens who have not yet exercised their EU citizenship rights, as these citizens cannot
fall back on their EU citizenship rights once the UK has left the EU.
44
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49

The European Union? - The Case of The United Kingdom.: Dhr. Dr. C.U. Noack

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Master Thesis - What are the consequences for EU citizenship when a Member State leaves

the European Union? – The case of the United Kingdom.

Student: Tim Blijham

Supervisor: mr. dr. A.C. van Wageningen

Word count: 20.337

1.1 Introduction to citizenship p. 6

1.2 Citizenship and nationality p. 6

1.2.1 Recognition of citizenship under international law p. 7

1.3 Roots of modern citizenship p. 8

1.3.1 Political citizenship p. 8

1.4 Modern citizenship p. 11

1.5 Concluding remarks p. 12

Chapter 2 – European Union citizenship p. 14

2.1 Introduction Union citizenship p. 14

2.2 Legal status Union citizenship p. 15

2.3 Political rights Union citizenship p. 21

2.4 Concluding remarks p. 22

Chapter 3 – Union citizenship and treaty withdrawal by Member States

3.2 Consequences of treaty withdrawal for EU citizens p. 25

3.3 EU Legal solutions to protect citizenship p. 27

1.1 Introduction to citizenship

1.2 Citizenship and nationality

1.2.1 Recognition of citizenship under international law

1.3 Roots of citizenship

1.3.1 Political citizenship

1.3.2 Civil citizenship

1.4 Modern citizenship

1.5 Concluding remarks

2.1 Introduction Union citizenship

• To non-discrimination on the basis of nationality when the Treaty applies51

2.2 Legal status EU citizenship

2.2.2 Direct effect of article 21 TFEU

2.2.3 Union citizenship and Member State nationality law

2.2.4 Union citizenship and ‘wholly internal situations’

2.3 Political rights Union citizenship

2.4 Concluding remarks

3.3 EU Legal solutions to protect citizenship

3.3.2. Union legislative measures

3.3.3 The case of Rottmann

There is however, a fundamental difference between situations as described in the Rottmann

3.4 International law solutions

2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the

3.5 Concluding remarks

European citizenship is at a crossroads. As this thesis has shown, EU citizenship is a developing

Political citizenship is found to be first described by Aristotle in ancient Greece. He defines a

Davies, G., ‘Union Citizenship – Still Europeans’ Destiny after Brexit?’,

Douglas-Scott, S., ‘What happens to ‘Acquired Rights’ in the event of a Brexit?’,

Greenland population, http://www.worldometers.info/world-population/greenland-population/

LeaveHQ, ‘Expats have nothing to fear from Brexit’,

McNair, L., The law of Treaties, Oxford: Clarendon Press 1961.

Mindus, P., ‘Dimensions of Citizenship’, German Law Journal, nr. 15 (2014).

Schrauwen, A., ‘(Not) losing out from Brexit’

Tratnik, M., Het nationaliteitsrecht in de Oosteuropese landen, Deventer: Kluwer 1989.

Turner, B.S., ‘Outline of a Theory of Citizenship’, in R. Bellamy and A. Palumbo ed.,

United Nations, ‘Draft Articles on the Law of Treaties with commentaries’

Case 26/62 Van Gend en Loos, ECLI:EU:C:1963:1.

Case C-6/90 Francovich, ECLI:EU:C:1991:428.

Case C-286/90 Poulsen and Diva Navigation, ECLI:EU:C:1992:453.

Case C-162/96 Racke, ECLI:EU:C:1998:293.

Case C-184/99, Grzelczyk, ECLI:EU:C:2001:458.

Case C-413/99, Baumbast, ECLI:EU:C:2002:493.

Case C- 200/02, Chen, ECLI:EU:C:2004:639.