Brexit as an opportunity to move towards a trans-national EU citizenship
Months after Britain’s referendum on membership of the European Union (EU), the eyes of millions across Europe remain glued to the news to catch every last update on Brexit. The key divisive issue at centre stage in the Brexit debate is the Freedom of Movement (FoM), with an entire country literally split in two at the polling stations over whether they love it or hate it. As recently as October 2015, 59% of Britons agreed that FoM brings overall benefits to the economy of the UK, and the extraordinarily close result of the referendum on 23rd June 2016 has left 48.1% of the British electorate distraught at their loss of this freedom, at the loss of their citizenship of the EU. Thousands of the 16.1 million ‘Remain’ voters have in fact since been mobilised to protest against this forced stripping of their EU citizenship, with abundant petitions, campaigns and European Citizens’ Initiatives (ECIs) created to search for alternative solutions that would allow dismayed Britons to retain their EU citizenship.
EU citizenship was first conferred upon member states’ citizens in the 1993 Maastricht Treaty. Since the Lisbon Treaty, Article 9 of the TEU and Article 20 of the TFEU have stated that ‘Citizenship of the Union shall be additional to and not replace national citizenship’, which marks a slight departure from the previous wording of ‘shall complement’ in the Maastricht Treaty. Professor Annette Schrauwen has suggested that this new wording in the treaties supports ‘a new direction in EU citizenship: an evolution from a complementary towards a more independent citizenship’. In light of recent events, I now argue that the citizenship dilemma provoked by Brexit actually offers the EU an excellent opportunity to assert itself in the arena of citizenship and take that step towards a more ‘autonomous and trans-national’ citizenship, which is separate to national citizenship. This could be achieved through an ECI and a subsequent extension of existing instruments or a treaty modification to create an EU citizenship, also available to former EU citizens, which is independent of the member states.
Firstly, it is feasible that the EU could take steps towards an independent citizenship without infringing upon the sovereignty of the member states. A new independent EU citizenship for former EU citizens would not be particularly onerous to implement, but it would require some action. As stated by Sionaidh Douglas-Scott, Article 70 of the Vienna Convention confirms that, in a post-Brexit scenario, EU citizenship for Britons could not continue under the guise of an acquired right, as all EU law will cease to apply to the UK. Therefore the status quo will be lost and new measures will certainly be required.
Sovereignty over the conferral of citizenship is currently a member state competence in which the EU cannot act. Fortunately however, there are already a number of other instruments at the disposal of the EU in this field. As per Council Regulation No. 1417/2013, EU institutions already issue a laissez-passer travel document to civil servants to grant them freedom of movement, and in Article 4 of said regulation there is provision to extend this laissez-passer document ‘on exceptional basis and upon due motivation, to special applicants’, which I argue could be considered to include this new category of former EU citizens: the British population. Alternatively, there is also the option to include Britons in the Commission’s recent proposal to establish a European Travel Document on Return, originally intended for irregularly migrating third-country nationals.
Neither of these two solutions would encroach on the member states’ prerogative to grant citizenship, nor would they be particularly difficult to implement. On the other hand, the EU could also choose an entirely new solution to create an independent citizenship for those who fulfil specific criteria, for example, former EU citizens. The creation of an independent EU citizenship would also solve the imminent dilemma of how to treat UK nationals already residing in other EU countries.
Secondly, I agree with Schrauwen in my strong belief that the creation of an independent EU citizenship would fulfil the EU’s promise of being a union of nation states and citizens. The Lisbon Treaty aspired to bring citizens closer to the Union, through introducing mechanisms such as the ECI, but even with these measures in force, in 2015 88% of respondents still believed that the EU should give a stronger voice to citizens. The Union’s approach to citizenship and to enlargement thus far has been conducted at an entirely intergovernmental level and frankly it has neglected the role of the citizen, with serious consequences.
We can clearly see that this is an inadequate approach by looking at the division of votes at a regional level in the UK referendum, with Scotland and Northern Ireland both voting strongly to remain in the EU. That significant regions such as Scotland and Northern Ireland are facing the forceful withdrawal of their EU citizenship against their will, demonstrates that the current status of EU citizenship prioritises nation states and is actually failing to serve its citizens. The fact that Scotland’s First Minister has called for a second referendum on Scottish independence and that applications for Irish passports from Northern Ireland increased in August 2016 by nearly 80% year-on-year shows the devastating extent to which the EU has failed its citizens in these two countries, and demonstrates why the EU needs to rethink its approach to membership and citizenship.
The creation of an additional state-independent citizenship of the EU would better represent all citizens of the EU, thus not only benefitting those Britons who wish to retain their EU citizenship after Brexit, but also benefitting all EU citizens by assigning them a legal status separate to and not inferior to that of their member state. Seen in this light, Brexit could actually be the catalyst needed to prompt transformation of the EU’s approach to membership and citizenship, bringing the Union closer and giving the EU additional legitimacy in terms of a direct bond to its citizens, not interrupted by the member states as it currently stands. In future, this new approach could even be considered as an alternative enlargement strategy for the EU, enlarging the Union to individual citizens rather than solely to nation states.
Thirdly, on a psychological level, as suggested by Schrauwen, by offering a form of trans-national citizenship to satisfy a visible demand from 16.1 million Britons, it would attribute value to EU citizenship and demonstrate to the remaining EU citizens what a prized asset they possess. This newfound appreciation of their own EU citizenship would contribute to the formation of a European identity and a sense of belonging in the EU, having the positive impact of combating criticism and euroscepticism, and preventing further disintegration, which the EU must avoid at all costs.
Eurosceptics would no doubt demonstrate their resistance to this proposal of a trans-national citizenship and would express objections. If one objection were that such a mechanism could eventually open up the EU (and effectively its borders) to anybody in the world, then the EU could enforce strict eligibility criteria, for example limiting citizenship solely to those who had British citizenship prior to the date of Britain’s exit from the EU.
If a further objection were a demand for former EU citizens to contribute financially into the EU budget in order to continue accessing the benefits of EU citizenship, then a per capita contribution could be introduced for those applicants willing to pay for the associated benefits, rights and FoM. Here again this argument may encounter opposition, with critics denouncing the sale of citizenship as undemocratic. The ethics of selling citizenship have been debated at length at the EUDO Citizenship, but ultimately the current example of two EU members, Malta and Cyprus, offering Naturalisation by Exception programmes to high-net-worth individuals in return for large sums of investment, provides a precedent that would allow such a per capita financial contribution in return for EU citizenship.
I believe that the creation of an independent EU citizenship would be both feasible and beneficial to the EU and its citizens for a number of reasons.
Regarding feasibility, there is already demand for such an initiative, both from citizens, as demonstrated by various ECIs created since the UK referendum, and from the EU itself, as indicated by the change in wording of the TEU and TFEU as identified by Schrauwen. I also believe it would be technically possible, through extending the pre-existing use of the laissez-passer document or the European Travel Document for Return to special applicants, such as former EU citizens. Furthermore, there is even the precedence of offering EU citizenship to non-EU nationals, in the cases of Malta and Cyprus.
Regarding the benefits of such an initiative, I believe a trans-national citizenship would fulfil the EU’s promise of being a union of nation states and citizens, by assigning citizens a legal status independent of their nation state. This would create a direct bond between the citizen and the EU and address the current failure of the EU to adequately serve its citizens in regions such as Scotland and Northern Ireland. Related to this, I believe that a subsequent appreciation of the attractiveness of EU citizenship could actually contribute to fostering a sense of European identity among the remaining EU citizens, thus protecting the Union against the threat of euroscepticism and further disintegration.
A plan of action to implement such a EU citizenship already exists, in the form of an ECI created in the UK. Once the prerequisite one million signatures from seven member states have been collected, the EU institutions can turn to a number of pre-existing instruments to implement this citizenship. I believe a transformation of the way the EU approaches membership and citizenship is badly needed in the current context to prevent further disintegration, and that Brexit actually offers the EU the impetus to bring about such a transformation.
This position paper was written in November 2016 for a course in ‘Political Construction of Europe’, completed as part of the University of Groningen’s Master’s degree in Euroculture: European Society, Politics and Culture in a Global Context. In the following weeks this essay, this very proposal of ‘associate EU citizenship’ was debated in the European Parliament, so it remains an interesting topic to watch.
Footnotes and sources:
 “Flash Eurobarometer 430 – European Union Citizenship,” European Commission, accessed November 3, 2016.
 Annette Schrauwen, “European Union Citizenship In The Treaty Of Lisbon: Any Change At All?,” Maastricht Journal of European and Comparative Law 15, no.1 (2008): 55.
 Ibid., 64.
 Sionaidh Douglas-Scott, “What Happens to ‘Acquired Rights’ in the Event of a Brexit?,” UK Constitutional Law Blog, last modified May 16, 2016.
 “Statement by Commissioner Avramopoulos on the adoption by the Council of the Commission’s proposal to create a European Travel Document for Return,” European Commission, last modified October 13, 2016.
 Schrauwen, 63.