ElectronicjOurnalofcomparativeLa,vol.8.3(october2004),<http://www.ejcl.or TOWARDS A EUROPEAN NATIONALITY LAWI Gerard-Rene de groot Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or othenwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use 1. Introduction Article 8(1)of the Draft Treaty establishing a Constitution for Europe prepared by the European convention chaired by Valery Giscard d'Estaing provides as follows: 2 Every nationalof a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to nationalcitizenship; it shall not replace it This provision of the Draft Constitution repeats, in slightly different wording, Article 17(1) EC(introduced in 1992 by the Treaty of Maastricht on the European Union): 3 Citizenship of the Union is hereby established. Every person holding the nationa lity of a Member State shall be a citizen of the union And since the Treaty of Amsterdam, Article 17(1) continues as follows Citizenship of the Union shall complement and not replace nationalcitizenship Several questions arise in respect of these provisions. The core part of this inaugural lecture will deal with the question as to whether the introduction of European citizenship has consequences for the autonomy of the member States in matters of nationality. However before going into this, I would like to briefly dwell on two other issues: 1)the precise relationship between the terms nationality'andcitizenship' and 2)the statement, which is Inaugural lecture delivered on 13 November 2003 on the occasion of the authors acceptance of the Pierre Harmel chair of professeur invite at the Universite de liege. a word of thanks is in order to Louise Rayar for her English rev ision work 2 As subm itted to the President of the European Council in Rome on 20 July 2003, OJC 169 of 18 July 2003 OJC224 of3 1 August 1992. Effective as of I Novem ber 1993. Before the Treaty of Amsterdam came into force, Article 17used to be article 8. See, inter alia, Closa(1992), Closa(1994): Closa(1995); Evans (1991); Evans(1995); Evans and Jessurun d' Oliveira(1991); Jessurun d' Oliveira(1994), Jessurun d'Oliveira (1995); Kojanec(1998), Lippolis(1994) Perez Vera(1993); Preuss(1995), Sauerwald(1996) OJC 340 of 10 November 1997, in force since I May 1999
Electronic Journal of Comparative Law, vol. 8.3 (October 2004), 1 TOWARDS A EUROPEAN NATIONALITY LAW1 Gerard-René de Groot Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. 1. Introduction Article 8 (1) of the Draft Treaty establishing a Constitution for Europe prepared by the European convention chaired by Valéry Giscard d’Éstaing provides as follows:2 Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship; it shall not replace it. This provision of the Draft Constitution repeats, in slightly different wording, Article 17 (1) EC (introduced in 1992 by the Treaty of Maastricht on the European Union):3 Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. And since the Treaty of Amsterdam, Article 17 (1) continues as follows:4 Citizenship of the Union shall complement and not replace national citizenship. Several questions arise in respect of these provisions. The core part of this inaugural lecture will deal with the question as to whether the introduction of European citizenship has consequences for the autonomy of the Member States in matters of nationality. However, before going into this, I would like to briefly dwell on two other issues: 1) the precise relationship between the terms ‘nationality’ and ‘citizenship’ and 2) the statement, which is 1 Inaugural lecture delivered on 13 November 2003 on the occasion of the author’s acceptance of the Pierre Harmel chair of professeur invitéat the Université de Liège. A word of thanks is in order to Louise Rayar for her English revision work. 2 As submitted to the President of the European Council in Rome on 20 July 2003, OJ C 169 of 18 July 2003. 3 OJ C 224 of 31 August 1992. Effective as of 1 November 1993. Before the Treaty of Amsterdam came into force, Article 17 used to be Article 8. See, inter alia, Closa (1992); Closa (1994); Closa (1995); Evans (1991); Evans (1995); Evans and Jessurun d’Oliveira (1991); Jessurun d’Oliveira (1994); Jessurun d’Oliveira (1995); Kojanec (1998); Lippolis (1994); Pérez Vera (1993); Preuss (1995); Sauerwald (1996). 4 OJ C 340 of 10 November 1997, in force since 1 May 1999
ElectronicjournalofcomparatiVeLa,vol.8.3(october2004), incorrect, that all nationals of a Member State are European citizens, as expressed in these provisions 2. Terminology First of all, the terminology of Article 8(1) Draft Constitution and Article 17 EC Treaty is remarkable. In the English text, two different terms are used: 'nationality and"citizenship The relationship between these two concepts expressed in the English language is not fully clear. In the United Kingdom, the term nationality is used to indicate the formal link between a person and the state. The statute that regulates this status is the british Nationality Act.b The most privileged status to be acquired under this act, however, is the status of British citizen. 'In Ireland, it is the Irish Nationality and Citizenship Act that regulates who precisely possess Irish citizenship. In the United States, the Immigration and Nationality Acts regulates who is an American citizen, but the Act also provides that the inhabitants of American Samoa and Swains island have the status of American nationals without citizenship In the context of the eC Treaty and the draft Constitution, however, it is obvious that nationality refers to the formal link between a person and a state, irrespective of how this link is called under national law, whereas citizenship of the Union' refers to the newly created status in Community law. In the sentence added to Article 17 EC in the Treaty of Amsterdam, national citizenship' is most probably to refer to possession and exercise of citizenship rights at the national level. It fails to explain what precisely is meant by national citizenship. Remarkable also is that Article 17 EC provides that citizenship of the Union"shall complement' national citizenship, whereas Article 8(1)Draft Constitution prescribes that it shall be additional. The question needs to be raised as to whether the word dditional was chosen to indicate that nationality(of a Member State)is to be the primary status of a person and citizenship of the Union a secondary, accessory status. The word complement places both notions almost at the same level and seems to be a better word seeing that citizenship of the Union is considered 'destined to be the fundamental status of The Draft Constitution uses the expression"Every national instead of " Every person holding the Enacted in 1981, in force since I January 1983. See also BNA( Commencement) Order 1982, Statt Instruments 1982,933. The BNA 1981 has been amended on several occasions, most recently by the nationa Immigration and asylum Act 2002 Other status are British Overseas Territories Citizen(SS. 15-25 BNA 1981, amended in 2002 by the British Overseas Territories Act 2002), British Overseas Citizen(SS. 26-29 BNA 1981), British Subject without Citizenship(SS. 30-32 BNA 1981)and British Protected Persons(Ss. 38 and 50()BNA 1981) Act of the Oireachtas 1956, 439(most recently amended by the Irish Nationality and Citizenship Act 2001(Act15/2001)of5June2001) Act of 27 June 1952. Pub. L 82 414. 66 Stat. 163. as amended. codified in 8 U.S. C. Sec. 1101 ff. migration and Nationality Act 1952, Section 308(8 U.S.C. 1408)regarding persons born in an outly ing possession of the United States
Electronic Journal of Comparative Law, vol. 8.3 (October 2004), 2 incorrect, that all nationals of a Member State are European citizens, as expressed in these provisions. 2. Terminology First of all, the terminology of Article 8 (1) Draft Constitution and Article 17 EC Treaty is remarkable. In the English text, two different terms are used: ‘nationality’5 and ‘citizenship’. The relationship between these two concepts expressed in the English language is not fully clear. In the United Kingdom, the term ‘nationality’ is used to indicate the formal link between a person and the state. The statute that regulates this status is the British Nationality Act.6 The most privileged status to be acquired under this Act, however, is the status of ‘British citizen’.7 In Ireland, it is the Irish Nationality and Citizenship Act8 that regulates who precisely possess Irish citizenship. In the United States, the Immigration and Nationality Act9 regulates who is an American citizen, but the Act also provides that the inhabitants of American Samoa and Swains Island have the status of American nationals without citizenship.10 In the context of the EC Treaty and the Draft Constitution, however, it is obvious that ‘nationality’ refers to the formal link between a person and a state, irrespective of how this link is called under national law, whereas ‘citizenship of the Union’ refers to the newly created status in Community law. In the sentence added to Article 17 EC in the Treaty of Amsterdam, ‘national citizenship’ is most probably to refer to possession and exercise of ‘citizenship rights’ at the national level. It fails to explain what precisely is meant by ‘national citizenship’. Remarkable also is that Article 17 EC provides that citizenship of the Union ‘shall complement’ national citizenship, whereas Article 8 (1) Draft Constitution prescribes that it ‘shall be additional’. The question needs to be raised as to whether the word ‘additional’ was chosen to indicate that nationality (of a Member State) is to be the primary status of a person and citizenship of the Union a secondary, accessory status. The word ‘complement’ places both notions almost at the same level and seems to be a better word, seeing that citizenship of the Union is considered ‘destined to be the fundamental status of 5 The Draft Constitution uses the expression ‘Every national’ instead of ‘Every person holding the nationality’. 6 Enacted in 1981, in force since 1 January 1983. See also BNA (Commencement) Order 1982, Statutory Instruments 1982, 933. The BNA 1981 has been amended on several occasions, most recently by the Nationality, Immigration and Asylum Act 2002. 7 Other status are British Overseas Territories Citizen (SS. 15-25 BNA 1981, amended in 2002 by the British Overseas Territories Act 2002), British Overseas Citizen (SS. 26-29 BNA 1981), British Subject without Citizenship (SS. 30-32 BNA 1981) and British Protected Persons (SS. 38 and 50 (1) BNA 1981). 8 Act of the Oireachtas 1956, 439 (most recently amended by the Irish Nationality and Citizenship Act 2001 (Act 15/2001) of 5 June 2001). 9 Act of 27 June 1952, Pub.L 82 414, 66 Stat. 163, as amended, codified in 8 U.S.C., Sec. 1101 ff. 10 Immigration and Nationality Act 1952, Section 308 (8 U.S.C. 1408) regarding persons born in an outlying possession of the United States
ElectronicJournalofcomparativeLaw,vol.8.3(october2004),chttp://www.ejcl.org/> nationals of the Member States,I It is very interesting to study the different language versions of the EC Treaty and the Draft Constitution. Like the English version, five other language versions also use two different terms in Article 17 EC to denote the concepts of nationality'and'citizenship'. th is, for example, the case in the French version, where the words nationalise and citoyennete 2 are used. See furthermore Dutch: nationaliteit- burgerscha German: Staatsangehorigkeir!4 Portugese: nacionalidade -cidadania Spanish: nacionalidad-ciudadania In four of these languages, the term for the formal link between a person and the state is evidently related etymologically to the English word nationality. In the German language the word Staatsangehorigkeit indicates that a person belongs(in German: gehort)to a state (German Staat) In French, Portuguese and Spanish, the terms denoting citizen'(citoyen, cidadao ciudadano )are closely related etymologically to the English language, which has citizen and city'(cite, cidade, ciudad). The Dutch and German terms are burger and burger respectively. Originally, the term was used to denote a person living in a fortified city. I5 In the Greek version, as many as three different terms are used UπnKooτnτa, leayEvEio,πoλ TEc In article 17(1)(1), citizenship of the Union'is expressed by teayEvEia tns Evoons, whereas in Article 17(1)(2)'citizen of the Union'is referred to as toteS ns Evoons National citizenship is referred to as seviN i0ayEveia, which could be slightly problematic because of the use of the adjective EOviKn In the Greek version of Article 17, Nationality of a Member State is expressed by unkootnta, but in Article 8(1)Draft Constitution unKootnta is no longer used; instead, again the expression seviN teaysveia is used In four other languages of the Union, a single term is used to denote the concepts of nationality'andcitizenship'. The Italian version uses cittadinanca for both. The Italian word nazionalita could not be used because of its obvious ethnic connotation The danish text refers to statsborger i en medlemsstat and unionsborgerskab, thus referring twice to borgerskab. The Danish word nationalitet had to be avoided also because of its ' ethnic connotation. Compare ECJ 2 October 2003(Case C-148/02), No 26, in re Garcia Avella On the relationship between these two French concepts throughout history, see Guiguet(1997; also 1998) Verwilghen(1999), pp 77. In Austria, Staatsangehorigkeit is called Staatsbuirgerschaft; from an Austrian perspective, therefore, European Buirgerschaft is acquired through Austrian Staatsbuirgerschaft Compare the title of the Austrian Nationality Act: Staatsbuirgerschaftsgeset=(Act of 15 July 1965, Bundesgesetzblatt(1965), 68) The German word Nationalitat is a voided because of its obvious ethnic dimension Kotalakidis(2000),p 45; Vink(2003), pp 23, 24. Compare borough, bourge, upyos
Electronic Journal of Comparative Law, vol. 8.3 (October 2004), 3 nationals of the Member States’.11 It is very interesting to study the different language versions of the EC Treaty and the Draft Constitution. Like the English version, five other language versions also use two different terms in Article 17 EC to denote the concepts of ‘nationality’ and ‘citizenship’. This is, for example, the case in the French version, where the words nationalitéand citoyenneté12 are used. See furthermore: Dutch: nationaliteit - burgerschap; German: Staatsangehörigkeit13 - Bürgerschaft14; Portugese: nacionalidade - cidadania; Spanish: nacionalidad - ciudadania In four of these languages, the term for the formal link between a person and the state is evidently related etymologically to the English word ‘nationality’. In the German language, the word Staatsangehörigkeit indicates that a person belongs (in German: gehört) to a state (German: Staat). In French, Portuguese and Spanish, the terms denoting ‘citizen’ (citoyen, cidadão, ciudadano) are closely related etymologically to the English language, which has ‘citizen’ and ‘city’ (cité, cidade, ciudad). The Dutch and German terms are burger and Bürger, respectively. Originally, the term was used to denote a person living in a fortified city.15 In the Greek version, as many as three different terms are used: . In Article 17 (1) (1), ‘citizenship of the Union’ is expressed by , whereas in Article 17 (1) (2) ‘citizen of the Union’ is referred to as . National citizenship is referred to as , which could be slightly problematic because of the use of the adjective . In the Greek version of Article 17, ‘Nationality of a Member State’ is expressed by , but in Article 8 (1) Draft Constitution is no longer used; instead, again the expression is used. In four other languages of the Union, a single term is used to denote the concepts of ‘nationality’ and ‘citizenship’. The Italian version uses cittadinanza for both. The Italian word nazionalitàcould not be used because of its obvious ethnic connotation. The Danish text refers to statsborger i en medlemsstat and unionsborgerskab, thus referring twice to borgerskab. The Danish word nationalitet had to be avoided, also because of its ‘ethnic’ connotation. Compare: 11 ECJ 2 October 2003 (Case C-148/02), No. 26, in re Garcia Avello. 12 On the relationship between these two French concepts throughout history, see Guiguet (1997; also 1998); Verwilghen (1999), pp. 77 ff. 13 In Austria, Staatsangehörigkeit is called Staatsbürgerschaft; from an Austrian perspective, therefore, European Bürgerschaft is acquired through Austrian Staatsbürgerschaft. Compare the title of the Austrian Nationality Act: Staatsbürgerschaftsgesetz(Act of 15 July 1965, Bundesgesetzblatt (1965), 68). 14 The German word Nationalität is avoided because of its obvious ethnic dimension. 15 Kotalakidis (2000), p. 45; Vink (2003), pp. 23, 24. Compare borough, bourge,
Electronic ofcomparative La 8.3(october2004),<http://www.ejcl.or Finnish kansalainen-kansalaisuus Swedish: medborgare ien medlemsstat-unionsmedborgare In almost all the candidate Member States which will join the European Union on 1 may tord is used in the text of article 8 Draft Constitution Estonian: kdanik-kodakondsus Latvian: pilsonis-pilsoniba Lithuanian pilietybe-Sajungos pilietybie ungarian: polgarsag-allampolgarsagot; Maltese: cittadinanza-cittadinanza ta'7-Unjoni Polish: obywatelstwva-obywatelstwo Slovak: statnemu obcianstyu-obcianstvo unie Slovenian: dr-cavljanstva-drzavljanstvo Unje a problem in nearly all of these languages was how to avoid words that referred to the ethnic dimension of persons. Only in the Czech-language version, two different words are used statni prislusnost-obcanstvi Unie, which more or less have the same relationship as Staatsangehorigkeit and Staatsburgerschaft in the german language. I It is remarkable that the Danish text does not use the danish word indfodsret for nationality,, whereas the danish Nationality Act'does The dual use of the word borgerskab in the Danish version may perhaps partly explain the Danish fear that the creation of European citizenship could be the first step towards the decline of their own(Danish) nationality. Compare the Danish declaration on citizenship of the Union on the occasion of the Danish ratification of the Maastricht Treaty: I 1. Citizenship of the Union is a political and legal concept which is entirely different from the concept of citizenship within the meaningof the Constitution of the Kingdom of Denmark and of the Danish legal system. Nothing in the Treaty on European Union implies or foresees an undertaking to create a citizenship of the Union in the sense of citizenship of a nation State. The question of Denmark participating in any such development does, therefore, not arise 2. Citizenship of the Union in no way in itself gives a nationalof another Member State the right to btain Danish citizenship or any of the rights, duties, privileges or advantages that are inherent in Danish citizenship by virtue of Denmarks constitutional, legal and administrative rules. Denmark will fully respect all specific rights expressly provided for in the Treaty and apply ing to nationals of the Mem ber States In reaction to this Danish statement, the Heads of State or Government 9in the European Information by lucas in an e-mail message of 8 October 2003 Lov om dansk indfodsret OJ1992C348/1l Decision of the Heads of State or Govemment, meeting within the European Council, concemil certain problems raised by Denmark on the Treaty on European Union(see OJ 1992C 348/1). On this decision e Curtin and Van Ooik(1994) 4
Electronic Journal of Comparative Law, vol. 8.3 (October 2004), 4 Finnish: kansalainen - kansalaisuus; Swedish: medborgare i en medlemsstat - unionsmedborgare In almost all the languages of the candidate Member States which will join the European Union on 1 May 2004, a single word is used in the text of Article 8 Draft Constitution: Estonian: kdanik - kodakondsus; Latvian: pilsonis - pilsoniba; Lithuanian: pilietybe - Sajungos pilietybie; Hungarian: polgarsag - allampolgarsagot; Maltese: cittadinanza - cittadinanza ta’l-Unjoni; Polish: obywatelstwa - obywatelstwo; Slovak: statnemu obcianstvu - obcianstvo únie; Slovenian: drzavljanstva - drzavljanstvo Unije. A problem in nearly all of these languages was how to avoid words that referred to the ethnic dimension of persons. Only in the Czech-language version, two different words are used: státní prislusnost - obcanstvi Unie, which more or less have the same relationship as Staatsangehörigkeit and Staatsbürgerschaft in the German language.16 It is remarkable that the Danish text does not use the Danish word indfødsret for ‘nationality’, whereas the Danish Nationality Act17 does. The dual use of the word borgerskab in the Danish version may perhaps partly explain the Danish fear that the creation of European citizenship could be the first step towards the decline of their own (Danish) nationality. Compare the Danish declaration on citizenship of the Union on the occasion of the Danish ratification of the Maastricht Treaty:18 1. Citizenship of the Union is a political and legal concept which is entirely different from the concept of citizenship within the meaning of the Constitution of the Kingdom of Denmark and of the Danish legal system. Nothing in the Treaty on European Union implies or foresees an undertaking to create a citizenship of the Union in the sense of citizenship of a nation State. The question of Denmark participating in any such development does, therefore, not arise. 2. Citizenship of the Union in no way in itself gives a national of another Member State the right to obtain Danish citizenship or any of the rights, duties, privileges or advantages that are inherent in Danish citizenship by virtue of Denmark’s constitutional, legal and administrative rules. Denmark will fully respect all specific rights expressly provided for in the Treaty and applying to nationals of the Member States. In reaction to this Danish statement, the Heads of State or Government19 in the European 16 Information by Lucas Bortel in an e-mail message of 8 October 2003. 17 Lov om dansk indfødsret. 18 OJ 1992, C 348/1. 19 Decision of the Heads of State or Government, meeting within the European Council, concerning certain problems raised by Denmark on the Treaty on European Union (see OJ 1992 C 348/1). On this decision, see Curtin and Van Ooik (1994)
ElectronicjournalofComparativeLaw,vol.8.3(october2004), Council session of 11 and 12 December 1992 reiterated the message contained in the declaration on nationality attached to the maastricht Treaty The provisions of Part Two of the Treaty establishing the Euro pean Community relating to citizenship of the Union give nationals of the Mem ber States add itionalrights and protection as specified in that Part. They do not in any way take the place of national citizenship. The question whether an indiv idual possesses the nationality of a Member State will be settled solely by reference to the national law of the Mem ber State concemed Danish hesitation ultimately led to amendment of Article 17 ec by the amsterdam Treaty, in which it was emphasised that citizenship of the Union complemented rather than replaced national citizenship It is noteworthy that, although the Italian text, like the Danish, uses both times the same expression(cittadinanza), Italian authorities and scholarly writers did not have the same reservations as the Danish. 0 This may be explained by a difference in approach by Denmark and italy in respect of Drafts published by the European Commission Denmark has always been very critical (as has been the United K ingdom)where details in the text of the drafts are concerned, whereas Italy tends to concentrate on the gist of a proposal, without paying too much attention to detail. Furthermore, in Danish, a second word, indfodsret, was available, whereas in the Italian language to the best of my knowled ge, there was not 3. Not all nationals of a Member State are european citizens In spite of the clear statement of Article 17 EC and Article 8 Draft Constitution that every national of a member State is a citizen of the union it can be observed that some nationals of Member States do not have this status. This is in particular the case in the United Kingdom Already on the occasion of its accession to the EC in 1972, the United Kingdom issued a special declaration, defining who is British for Community purposes As to the United Kingdom of great Brita in and Northem Ireland the terms nationa,,nationals of Mem ber States or ' nationa ls of mem ber States and overseas countries and territories' wherever used in the Treaty establishing the European Econom ic Community, the Treaty establishing the European Atom ic Energy Community or the Treaty esta blishing the European Coal and Steel Community or in any of the Community acts deriving from those Treaties, are to be understood to refer to a. persons who are citizens of the United Kingdom and Colonies or British subjects not possessing that citizenship or the citizenship of any other Commonwealth country orterritory, who, in either case, have the right of abode in the United Kingdom, and are therefore exempt from United Kingdom immigration b. persons who are citizens of the United Kingdom and Colonies by birth or by registration or naturalisation in Gibraltar, or whose father was so born, registered or naturalised It should be noted that at the time of signature of the Maastricht Treaty Finland and Sweden were not yet Member States of the Union See OJ(EC)1972L 73/196; BGBl ll, 1410; on this declaration, Evans (1982b); Evans(1984); Plender ( 1976), pp 42-45. Compare also Command Paper 9062, and Jessurun d'Oliveira(1999), pp 400, 401
Electronic Journal of Comparative Law, vol. 8.3 (October 2004), 5 Council session of 11 and 12 December 1992 reiterated the message contained in the declaration on nationality attached to the Maastricht Treaty: The provisions of Part Two of the Treaty establishing the European Community relating to citizenship of the Union give nationals of the Member States additional rights and protection as specified in that Part. They do not in any way take the place of national citizenship. The question whether an individual possesses the nationality of a Member State will be settled solely by reference to the national law of the Member State concerned. Danish hesitation ultimately led to amendment of Article 17 EC by the Amsterdam Treaty, in which it was emphasised that citizenship of the Union complemented rather than replaced national citizenship. It is noteworthy that, although the Italian text, like the Danish, uses both times the same expression (cittadinanza), Italian authorities and scholarly writers did not have the same reservations as the Danish.20 This may be explained by a difference in approach by Denmark and Italy in respect of Drafts published by the European Commission. Denmark has always been very critical (as has been the United Kingdom) where details in the text of the drafts are concerned, whereas Italy tends to concentrate on the gist of a proposal, without paying too much attention to detail. Furthermore, in Danish, a second word, indfødsret, was available, whereas in the Italian language, to the best of my knowledge, there was not. 3. Not all nationals of a Member State are European citizens In spite of the clear statement of Article 17 EC and Article 8 Draft Constitution that every national of a Member State is a citizen of the Union, it can be observed that some nationals of Member States do not have this status. This is in particular the case in the United Kingdom. Already on the occasion of its accession to the EC in 1972, the United Kingdom issued a special declaration,21 defining who is British for Community purposes: As to the United Kingdom of Great Britain and Northern Ireland, the terms ‘nationals’, ‘nationals of Member States’ or ‘nationals of Member States and overseas countries and territories’ wherever used in the Treaty establishing the European Economic Community, the Treaty establishing the European Atomic Energy Community or the Treaty establishing the European Coal and Steel Community or in any of the Community acts deriving from those Treaties, are to be understood to refer to: a. persons who are citizens of the United Kingdom and Colonies or British subjects not possessing that citizenship or the citizenship of any other Commonwealth country or territory, who, in either case, have the right of abode in the United Kingdom, and are therefore exempt from United Kingdom immigration control; b. persons who are citizens of the United Kingdom and Colonies by birth or by registration or naturalisation in Gibraltar, or whose father was so born, registered or naturalised. 20 It should be noted that at the time of signature of the Maastricht Treaty Finland and Sweden were not yet Member States of the Union. 21 See OJ (EC) 1972 L 73/196; BGBl. II, 1410; on this declaration, Evans (1982b); Evans (1984); Plender (1976), pp. 42-45. Compare also Command Paper 9062, and Jessurun d’Oliveira (1999), pp. 400, 401
ElectronicjournalofcomparatiVeLaw,vol.8.3(october2004),chttp://www.ejcl.org/> This declaration was replaced by another in 1981. 22 This was necessary because the rules on British nationality had been completely overhauled by the British Nationality Act 1981 which came into effect on 1 January 1983: 23 As to the United Kingdom of Great Britain and Northem Ireland, the terms nationals,, nationals of Member States 'nationa ls of Mem ber States and overseas countries and territories' wherever used in the Treaty establishing the European Economic Community, the Treaty establishing the European Atom ic Energy Community or the Treaty establishing the European Coaland Steel Community or n any of the Community acts deriving from those Treaties, are to be understood to refer to a. British citizens. b. Persons who are British subjects by virtue of Part IV ofthe British Nationality Act 19814and who have the right of abode in the United Kingdom and are therefore exempt from United Kingdom immigration control; British Dependent Territories citizens who acquire their citizenship from a connection with Gibraltar The reference in Article 6 of the third Protocol to the Act of Accession of22 January 1972, on the Channellslands25 and the Isle of Man, 26 to any citizen of the United Kingdom and Colonies'is to be understood as referring to any British citizen Because of these declarations, some categories of British nationals- in particular most British Dependent Territories Citizens', "British Overseas Citizens', "British Subjects without Citizenship and 'British Protected Persons'27-are excluded from European citizenship. One of these categories, the British Dependent Territories Citizens', merits some additional remarks. The British Dependent Territories were renamed British Overseas Territories' under Section 1 of the British Overseas Territories act 2002. which received Royal Assent on 26 February 2002. Under Section 1, British Dependent Territories Citizenship was renamed ' British Overseas Territories Citizenship. From then on, British Dependent Territories Citizen in the 1981 British declaration should be read as"British Overseas Territories Citizen. However, the British Overseas Territories Act 2002 produced yet another, even more important, modification. Section 3(1)of the Act provides as follows Any person who, immediately before the commencement of this section, is a British overseas territories citizen shall. on the commencement of this section become a british citizen The day of commencement was fixed at 21 May 2002.28 In respect of the formulation of the OJ1983.C23/1 23 See Bonner(1982); Evans(1981); Evans(1982a); De Groot(1989),p. 103; Simmonds(1984) I.e., British subjects without citizenship On the Channellslanders, see De Groot(2002c), p 70, Juarez Perez(1998), pp 170, 171 On the Manxmen, see De Groot(2002c), p 70; Juarez Perez(1998), pp 170, 171 On these different categories of British nationals, see De groot(1989), p. 103, with further references on p. 408 See British Overseas Territories Act 2002(Commencement)Order 2002, S 2(a) 6
Electronic Journal of Comparative Law, vol. 8.3 (October 2004), 6 This declaration was replaced by another in 1981.22 This was necessary because the rules on British nationality had been completely overhauled by the British Nationality Act 1981, which came into effect on 1 January 1983:23 As to the United Kingdom of Great Britain and Northern Ireland, the terms ‘nationals’, ‘nationals of Member States’ or ‘nationals of Member States and overseas countries and territories’ wherever used in the Treaty establishing the European Economic Community, the Treaty establishing the European Atomic Energy Community or the Treaty establishing the European Coal and Steel Community or in any of the Community acts deriving from those Treaties, are to be understood to refer to: a. British citizens; b. Persons who are British subjects by virtue of Part IV of the British Nationality Act 198124 and who have the right of abode in the United Kingdom and are therefore exempt from United Kingdom immigration control; c. British Dependent Territories citizens who acquire their citizenship from a connection with Gibraltar. The reference in Article 6 of the third Protocol to the Act of Accession of 22 January 1972, on the Channel Islands25 and the Isle of Man,26 to ‘any citizen of the United Kingdom and Colonies’ is to be understood as referring to ‘any British citizen’. Because of these declarations, some categories of British nationals - in particular most ‘British Dependent Territories Citizens’, ‘British Overseas Citizens’, ‘British Subjects without Citizenship’ and ‘British Protected Persons’27 - are excluded from European citizenship. One of these categories, the ‘British Dependent Territories Citizens’, merits some additional remarks. The ‘British Dependent Territories’ were renamed ‘British Overseas Territories’ under Section 1 of the British Overseas Territories Act 2002, which received Royal Assent on 26 February 2002. Under Section 1, British Dependent Territories Citizenship was renamed ‘British Overseas Territories Citizenship’. From then on, ‘British Dependent Territories Citizen’ in the 1981 British declaration should be read as ‘British Overseas Territories Citizen’. However, the British Overseas Territories Act 2002 produced yet another, even more important, modification. Section 3 (1) of the Act provides as follows: Any person who, immediately before the commencement of this section, is a British overseas territories citizen shall, on the commencement of this section, become a British citizen. The day of commencement was fixed at 21 May 2002.28 In respect of the formulation of the 22 OJ 1983, C 23/1. 23 See Bonner (1982); Evans (1981); Evans (1982a); De Groot (1989), p. 103; Simmonds (1984). 24 I.e., British subjects without citizenship. 25 On the Channel Islanders, see De Groot (2002c), p. 70; Juárez Peréz (1998), pp. 170, 171. 26 On the Manxmen, see De Groot (2002c), p. 70; Juárez Peréz (1998), pp. 170, 171. 27 On these different categories of British nationals, see De Groot (1989), p. 103, with further references on p. 408. 28 See British Overseas Territories Act 2002 (Commencement) Order 2002, S. 2 (a)
ElectronicJournalofcomparativeLaw,vol.8.3(october2004), 1981 British declaration, it can be concluded that former British Dependent Territories Citizens, who became British Overseas Territories Citizens by Royal Assent on 26 February 2002, on 21 May 2002 also received European citizenship through having been granted British citizenship. 29 However, there is one exception: British citizenship was not extended to persons who after 26 February 2002 were British Overseas Territories Citizens by virtue of a connection with the Sovereign Base Areas of Akrotiri and Dhekelia 3 These base areas, located on the island of Cyprus, are British Overseas Territories, but extending British citizenship was deemed to be inappropriate because of the military nature of these British possessions. For this reason, these British Overseas Territories Citizens do not possess British citizenship and are therefore definitely not European citizens Furthermore, it should be borne in mind that British citizenship is conferred to the other British Overseas Territories Citizens in addition to the status they possess. The consequent of this is that the persons in question may issue a declaration of renunciation in order to divest themselves of British citizenship If this happens, they are exclusively British Overseas Territories Citizens, not possessing European citizenship, of course These legal constructions show that the status of British Overseas Territories Citizen has not been abolished furthermore, acquisition of this status on the basis of the provisions of the amended British Nationality Act does not result in acquisition of British citizenship Persons who acquired British Overseas Territories Citizenship after 21 May 2002 can only apply to be registered as British citizens. Registration is at the discretion of the Secretary of State 31 In respect of all these changes concerning British Dependent Territories Citizens,it can be concluded that the United Kingdom is to review the 1981 declaration It is not the British Dependent Territories Citizens, but some British Overseas Territories Citizens(and some other categories such as British Overseas Citizens)who are now excluded. Furthermore it is useful to know whether the United Kingdom will preserve the statement that, for Community purposes, all British citizens are British, including those living in British Overseas Territories The validity of the exclusion of certain British nationals from European citizenship was challenged before the European Court of Justice in 2001 in the Manjit Kaur Case. 32 Manjit Kaur was a British Overseas Citizen(not a British Overseas Territories Citizen )of Indian extraction, who lived in East Africa. She argued that the British declaration deprived her of European citizenship. The European Court of Justice concluded that she was not deprived of European citizenship because she had never been a European citizen, according to the british declaration The numberof persons involved is approx 200,000, living in thirteen British overseas territories Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn Islands, St Helena and Dependencies, South Georgia and the South sandwich Islands and the Turks and Caicos islands Both base areas are located in the south of the island of Cyprus S. 4A BNA 1981, as amended by the British Overseas Territories Act 2002: . the Secretary of State may if he thinks fit cause the person to be so registered. Another category of British Overseas Territories Citizens without Brit ish cit izenship are the lois, covered by s. 63)of the Brit ish Overseas Territories Act 2002 ECJ 20 February 2001, Case 192/99, ECR I-1237
Electronic Journal of Comparative Law, vol. 8.3 (October 2004), 7 1981 British declaration, it can be concluded that former British Dependent Territories Citizens, who became British Overseas Territories Citizens by Royal Assent on 26 February 2002, on 21 May 2002 also received European citizenship through having been granted British citizenship.29 However, there is one exception: British citizenship was not extended to persons who after 26 February 2002 were British Overseas Territories Citizens by virtue of a connection with the Sovereign Base Areas of Akrotiri and Dhekelia.30 These base areas, located on the island of Cyprus, are British Overseas Territories, but extending British citizenship was deemed to be inappropriate because of the military nature of these British possessions. For this reason, these British Overseas Territories Citizens do not possess British citizenship and are therefore definitely not European citizens. Furthermore, it should be borne in mind that British citizenship is conferred to the other British Overseas Territories Citizens in addition to the status they possess. The consequence of this is that the persons in question may issue a declaration of renunciation in order to divest themselves of British citizenship. If this happens, they are exclusively British Overseas Territories Citizens, not possessing European citizenship, of course. These legal constructions show that the status of ‘British Overseas Territories Citizen’ has not been abolished: furthermore, acquisition of this status on the basis of the provisions of the amended British Nationality Act does not result in acquisition of British citizenship. Persons who acquired British Overseas Territories Citizenship after 21 May 2002 can only apply to be registered as British citizens. Registration is at the discretion of the Secretary of State.31 In respect of all these changes concerning British Dependent Territories Citizens, it can be concluded that the United Kingdom is to review the 1981 declaration. It is not the British Dependent Territories Citizens, but some British Overseas Territories Citizens (and some other categories such as British Overseas Citizens) who are now excluded. Furthermore, it is useful to know whether the United Kingdom will preserve the statement that, for Community purposes, all British citizens are British, including those living in British Overseas Territories. The validity of the exclusion of certain British nationals from European citizenship was challenged before the European Court of Justice in 2001 in the Manjit Kaur Case.32 Manjit Kaur was a British Overseas Citizen (not a British Overseas Territories Citizen!) of Indian extraction, who lived in East Africa. She argued that the British declaration deprived her of European citizenship. The European Court of Justice concluded that she was not deprived of European citizenship because she had never been a European citizen, according to the British declaration: 29 The number of persons involved is approx. 200,000, living in thirteen British overseas territories: Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn Islands, St Helena and Dependencies, South Georgia and the South Sandwich Islands, and the Turks and Caicos Islands. 30 Both base areas are located in the south of the island of Cyprus. 31 S. 4A BNA 1981, as amended by the British Overseas Territories Act 2002: ‘. . . the Secretary of State may if he thinks fit cause the person to be so registered.’ Another category of British Overseas Territories Citizens without British citizenship are the Ilois, covered by S. 6 (3) of the British Overseas Territories Act 2002. 32 ECJ 20 February 2001, Case 192/99, ECR I-1237
ElectronicjournalofcomparatiVeLaw,vol.8.3(october2004),<http://www.ejclor satisfy the definition of a nationalof the United Kingdom of rights to which that person might be or Furthermore, adoption of that declaration did not have the effect of depriv ing any person who did entitled under Community law. The consequence was rather that such rights never arose in the first place for such a person Furthermore the Court stressed that the british declaration was in conformity with the special Declaration(No 2)on national ity of a Member State, which is attached to the Maastricht Treaty. The Declaration reads as follows The Conference declares that, wherever in the Treaty esta blishing the European Community reference is made to nationals of the Member States, the question whether an indiv idual possesses the nationa lity of a Mem ber State shall be settled solely by reference to the national law of the Mem ber State concerned Member States may declare, for information, who are to be considered their nationals for ommunity purposes by way of a declaration lodged with the Presidency and may amend any such declaration when necessary Apart from the United Kingdom, only one other Member State issued a declaration on the definition of nationals for Community purposes. As far back as 1957, Germany declared that not only Germans within the meaning of the German Nationality Act (Reichs- und Staatsangehorigkeitsgeset: 1913, with amendments)-which already included all nationals of the Democratic Republic of Germany -are to be regarded as Germans for European Community purposes, but also Germans within the meaning of Article 116 German Constitution(Grundgeset), including ethnic Germans in Eastern Europe for instance the "Volga Germans, if they had entered Germany as refugees( vertriebene ).33 However, since 1 January 2000, this German declaration is no longer of practical relevance, because from this date onwards anyone recognised as a german within the meaning of Article 116 German Constitution simultaneously acquires German nationality ex lege on the basis of the revised German Nationality Act Nevertheless, there are several other categories of nationals of Member States with regard to whom it is doubtful whether they possess European citizenship. I do not intend to elaborate on these in this lecture but only wish to highlight some of the interesting borderline categories of European citizenship. 35 In spite of their Danish nationality, the Danish inhabitants of the Faroe Islands 6 are not European citizens. However, with regard to the Danish Greenlanders. 37 the Netherlands Antilleans the Arubans38 and the French inhabitants See Treaties establishing the European Communities, Office for Official Publications of the European Communities 1978, 573. Compare Bleckmann(1978; 1980). Furthermore: De Groot(1990); Jessurun d Oliveira (1999),p.400 34 Article 7 of the German Nationality Act, as amended by Act of 15 July 1999, Bundesgesetzblatt 1999I 1618. See also the transitional provision of Article 40(a) 35 For details, see De groot(1993b; 1998d; 2000b; 2002c) 36 De Groot(2002c), pp 74-76; Juarez Perez(1998), pp 169, 170 De groot(2002c), p. 73 De groot(1993a; 2000c). Compare also Burgers-Vos(1992)and Martha(1992)
Electronic Journal of Comparative Law, vol. 8.3 (October 2004), 8 Furthermore, adoption of that declaration did not have the effect of depriving any person who did not satisfy the definition of a national of the United Kingdom of rights to which that person might be entitled under Community law. The consequence was rather that such rights never arose in the first place for such a person. Furthermore, the Court stressed that the British declaration was in conformity with the special ‘Declaration (No 2) on nationality of a Member State’, which is attached to the Maastricht Treaty. The Declaration reads as follows: The Conference declares that, wherever in the Treaty establishing the European Community reference is made to nationals of the Member States, the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned. Member States may declare, for information, who are to be considered their nationals for Community purposes by way of a declaration lodged with the Presidency and may amend any such declaration when necessary. Apart from the United Kingdom, only one other Member State issued a declaration on the definition of nationals for Community purposes. As far back as 1957, Germany declared that not only Germans within the meaning of the German Nationality Act (Reichs- und Staatsangehörigkeitsgesetz 1913, with amendments) - which already included all nationals of the Democratic Republic of Germany - are to be regarded as Germans for European Community purposes, but also Germans within the meaning of Article 116 German Constitution (Grundgesetz), including ethnic Germans in Eastern Europe, for instance the ‘Volga Germans’, if they had entered Germany as refugees (Vertriebene).33 However, since 1 January 2000, this German declaration is no longer of practical relevance, because from this date onwards anyone recognised as a German within the meaning of Article 116 German Constitution simultaneously acquires German nationality ex lege on the basis of the revised German Nationality Act.34 Nevertheless, there are several other categories of nationals of Member States with regard to whom it is doubtful whether they possess European citizenship. I do not intend to elaborate on these in this lecture, but only wish to highlight some of the interesting borderline categories of European citizenship.35 In spite of their Danish nationality, the Danish inhabitants of the Faroe Islands36 are not European citizens. However, with regard to the Danish Greenlanders,37 the Netherlands Antilleans, the Arubans38 and the French inhabitants 33 See Treaties establishing the European Communities, Office for Official Publications of the European Communities 1978, 573. Compare Bleckmann (1978; 1980). Furthermore: De Groot (1990); Jessurun d’Oliveira (1999), p. 400. 34 Article 7 of the German Nationality Act, as amended by Act of 15 July 1999, Bundesgesetzblatt 1999 I, 1618. See also the transitional provision of Article 40 (a). 35 For details, see De Groot (1993b; 1998d; 2000b; 2002c). 36 De Groot (2002c), pp. 74-76; Juárez Peréz (1998), pp. 169, 170. 37 De Groot (2002c), p. 73. 38 De Groot (1993a; 2000c). Compare also Burgers-Vos (1992) and Martha (1992)
ElectronicjOurnalofcomparativeLa,vol.8.3(october2004), of French overseas territories(territoires outremer), it has to be concluded -with some hesitation-that they do possess European citizenship, although they reside in territories of the Member States which are not situated within the territory of the European Union Of interest as well is the position of those Spanish nationals, who, in addition to their Spanish nationality, possess the nationality of a Latin-American country pursuant to the Treaties on dual nationality, which Spain entered into with twelve Latin American countries. 40If resid ing in Spain, they are definitely European citizens; if they are living in Latin America or a third State, European citizenship depends on whether they are entitled to a Spanish passport. In the original versions of the various Treaties on dual nationality, they were not entitled to a Spanish passport, but recent amendments to several treaties grant this right, even to those resid ing in Latin America. If they hold a Spanish passport, they can presentI themselves as European citizens. 42 Remarkable also is the position of dual Italian-Argentinean citizens or their descendants, owing to the Italian-Argentinean treaty on dual nationality, 43 which was modelled on the Spanish-Argentinean treat In add ition to these borderline cases of European citizenship, it is worthwhile to study the rules in force in member States that allow descendants of former nationals living abroad to acquire the nationality of their ancestors. Considerable differences can be observed between these rules. Some Member States are very restrictive in respect of access to citizenship for descendants of former nationals resid ing abroad. Other States are extremely liberal. Since 9 J 2003,44 Spain, for example, grants a right to opt for Spanish nationality to all children born of a parent who originally possessed Spanish nationality and was born in Spain(Article 20(1)(b) Codigo civil). The declaration to opt for Spanish nationality can also be made outside Spain. The option right is not limited in respect of the ge of the person involved. The grand children of persons who originally possessed Spanish nationality, will be able to acquire Spanish nationality by naturalisation after a residence period of one year(Article 22(2)(f)Codigo civil). Italy offers rather similar access to Italian nationality for the children and grandchildren of italian emigrants 45 As a result of the new See De groot(2002 c), pp 74-76, with further references. For a different opinion, see Hartley(1978), pp 77-80: Mortelmans and Temmink(1991), in particular pp 63, 64 Argentina, Bolivia, Chile, Costa Rica, Dominican Republic, Ecuador, Guatemala, Honduras, Columba, Nicaragua, Paraguay and Peru; for further information, see Aznar Sanchez(1977)and, more recently, Alvarez Rodriguez(2000)and Coppa(2002) See Arts. 2 (1)and 6(a)Directive 73/148 (establishment and services)and Arts. 3 (1)and 4 (3)(a) Directive 68/360(workers) De groot(2002d) No/ Treaty of 29 October 1971; in Italy approved by Act of 18 May 1973, No.282 Gazetta Ufficiale 1973 Act 36/2002 of 9 October 2002. BOE 2002. 35638-35640On this new Act. see Alvarez ro (2002) ee Arts. 4 and 9 Legge sulla cittadinanza italiana of5 February 1992, Gazetta Ufficiale 15 February 1992. No. 38 and Art. 1 ofthe Act No. 379 of 14 Decem ber 2000. Gazetta Ufficiale No. 295 of 19 Decem ber 2000
Electronic Journal of Comparative Law, vol. 8.3 (October 2004), 9 of French overseas territories (territoires outremer), it has to be concluded - with some hesitation - that they do possess European citizenship39, although they reside in territories of the Member States which are not situated within the territory of the European Union. Of interest as well is the position of those Spanish nationals, who, in addition to their Spanish nationality, possess the nationality of a Latin-American country pursuant to the Treaties on dual nationality, which Spain entered into with twelve Latin American countries.40 If residing in Spain, they are definitely European citizens; if they are living in Latin America or a third State, European citizenship depends on whether they are entitled to a Spanish passport. In the original versions of the various Treaties on dual nationality, they were not entitled to a Spanish passport, but recent amendments to several treaties grant this right, even to those residing in Latin America. If they hold a Spanish passport, they can present 41 themselves as European citizens.42 Remarkable also is the position of dual Italian-Argentinean citizens or their descendants, owing to the Italian–Argentinean treaty on dual nationality,43 which was modelled on the Spanish–Argentinean treaty. In addition to these borderline cases of European citizenship, it is worthwhile to study the rules in force in Member States that allow descendants of former nationals living abroad to acquire the nationality of their ancestors. Considerable differences can be observed between these rules. Some Member States are very restrictive in respect of access to citizenship for descendants of former nationals residing abroad. Other States are extremely liberal. Since 9 January 2003,44 Spain, for example, grants a right to opt for Spanish nationality to all children born of a parent who originally possessed Spanish nationality and was born in Spain (Article 20 (1) (b) Código civil). The declaration to opt for Spanish nationality can also be made outside Spain. The option right is not limited in respect of the age of the person involved. The grandchildren of persons who originally possessed Spanish nationality, will be able to acquire Spanish nationality by naturalisation after a residence period of one year (Article 22 (2) (f) Código civil). Italy offers rather similar access to Italian nationality for the children and grandchildren of Italian emigrants.45 As a result of the new 39 See De Groot (2002c), pp. 74-76, with further references. For a different opinion, see Hartley (1978), pp. 77-80; Mortelmans and Temmink (1991), in particular pp. 63, 64. 40 Argentina, Bolivia, Chile, Costa Rica, Dominican Republic, Ecuador, Guatemala, Honduras, Columbia, Nicaragua, Paraguay and Peru; for further information, see Aznar Sanchez (1977) and, more recently, Alvarez Rodriguez (2000) and Coppa (2002). 41 See Arts. 2 (1) and 6 (a) Directive 73/148 (establishment and services) and Arts. 3 (1) and 4 (3) (a) Directive 68/360 (workers). 42 De Groot (2002d). 43 Treaty of 29 October 1971; in Italy approved by Act of 18 May 1973, No. 282, Gazetta Ufficiale 1973 , No. 152. 44 Act 36/2002 of 9 October 2002, BOE 2002, 35638-35640. On this new Act, see Alvarez Rodriguez (2002). 45 See Arts. 4 and 9 Legge sulla cittadinanza italiana of 5 February 1992, Gazetta Ufficiale 15 February 1992, No. 38 and Art. 1 of the Act No. 379 of 14 December 2000, Gazetta Ufficiale No. 295 of 19 December 2000
ElectronicjournalofcomparatiVeLaw,vol.8.3(october2004),chttp://www.ejcl.org/> Spanish option right for the children of former Spanish nationals born in Spain, Fidel Castro himself could immediately opt for European citizenship while continuing to reside in Cuba. 46 4. Autonomy in matters of nationality The special" Declaration(No 2)on nationality of a Member State quoted earlier, which was attached to the Maastricht Treaty, gives the impression that each Member State is fully autonomous in regulating nationality. The conclusion that Member States continue to have full autonomy cannot be maintained, however, in all circumstances We may first of all observe that the relation between the first and second sentence of the Declaration on nationality is not entirely clear. The first sentence grants the Member State in question the right to determine who is a national of that Member State. The nationality of a Member State is to be determined exclusively on the basis of the national law of that Member State and not by Community law. The second sentence, however, offers the Member States the possibility of issuing an additional declaration for information'regarding the persons who possess the nationality of a Member State. Does this second sentence entail that the Member States can exclude groups of their nationals from the rights under the EC Treaty? Can they grant these rights to groups of individuals who do not possess the nationality of these Member States under their nationality law? Or are they only permitted to offe authoritative explanation of their nationality laws as to who exactly is a national of the Member State involved in the case of reasonable doubt obviously, the other Member States need to know whether they should also regard British Overseas Citizens as British citizens for Community purposes. 47 Is it possible for the Netherlands, for example, to declare that all Netherlands citizens born outside the territory of the Kingdom of the Netherlands are not Netherlands citizens for Community purposes? Upon consultation of the Netherlands law of citizenship, there can be no reasonable doubt whether or not children of Netherlands citizens born abroad are Dutch. They acquire Netherlands citizenship at birth, jure sanguinis; a declaration to the contrary, therefore, addressed to the Presidency of the European Community, would be rather surprising. Would such a declaration perhaps violate the aim of Article 17 of the Treaty? The answer to this question depends, inter alia, on the interpretation of the second sentence of the add itional declaration. Does it allow total freedom to make any conceivable declaration regard ing the determination of the nationals of a Member State? And what exactly is the purport of the words for information'and when necessary'in that second sentence? However, I have already mentioned that two Member States, Germany and the United Kingdom, issued special declarations on the issue of who should be regarded as their nationals for Community purposes. Both Member States did not simply explain'their nationality legislation, but created a special, functional nationality for Community purposes This observation is of relevance to the interpretation of the words for information'in the idel Castros father, who was born in Galicia(Spain), went to Cuba at the end of the 19th century. See NoticiasdeCubaavailablethroughhttp://www.cubanetorg(lastvisitedon25October2003).accordingto Spanish estimations, some 80,000 persons residing in Cuba have this option Compare Jessurun d'Oliveira(1999),p. 440, who stresses that the United Kingdom and Germany had reasons for issuing a declaration, because they have non-standard nationality legislation
Electronic Journal of Comparative Law, vol. 8.3 (October 2004), 10 Spanish option right for the children of former Spanish nationals born in Spain, Fidel Castro himself could immediately opt for European citizenship while continuing to reside in Cuba.46 4. Autonomy in matters of nationality The special ‘Declaration (No 2) on nationality of a Member State’ quoted earlier, which was attached to the Maastricht Treaty, gives the impression that each Member State is fully autonomous in regulating nationality. The conclusion that Member States continue to have full autonomy cannot be maintained, however, in all circumstances. We may first of all observe that the relation between the first and second sentence of the Declaration on nationality is not entirely clear. The first sentence grants the Member State in question the right to determine who is a national of that Member State. The nationality of a Member State is to be determined exclusively on the basis of the national law of that Member State and not by Community law. The second sentence, however, offers the Member States the possibility of issuing an additional declaration ‘for information’ regarding the persons who possess the nationality of a Member State. Does this second sentence entail that the Member States can exclude groups of their nationals from the rights under the EC Treaty? Can they grant these rights to groups of individuals who do not possess the nationality of these Member States under their nationality law? Or are they only permitted to offer an authoritative explanation of their nationality laws as to who exactly is a national of the Member State involved in the case of reasonable doubt? Obviously, the other Member States need to know whether they should also regard British Overseas Citizens as British citizens for Community purposes.47 Is it possible for the Netherlands, for example, to declare that all Netherlands citizens born outside the territory of the Kingdom of the Netherlands are not Netherlands citizens for Community purposes? Upon consultation of the Netherlands law of citizenship, there can be no reasonable doubt whether or not children of Netherlands citizens born abroad are Dutch. They acquire Netherlands citizenship at birth, jure sanguinis; a declaration to the contrary, therefore, addressed to the Presidency of the European Community, would be rather surprising. Would such a declaration perhaps violate the aim of Article 17 of the Treaty? The answer to this question depends, inter alia, on the interpretation of the second sentence of the additional declaration. Does it allow total freedom to make any conceivable declaration regarding the determination of the nationals of a Member State? And what exactly is the purport of the words ‘for information’ and ‘when necessary’ in that second sentence? However, I have already mentioned that two Member States, Germany and the United Kingdom, issued special declarations on the issue of who should be regarded as their nationals for Community purposes. Both Member States did not simply ‘explain’ their nationality legislation, but created a special, functional nationality for Community purposes. This observation is of relevance to the interpretation of the words ‘for information’ in the 46 Fidel Castro’s father, who was born in Galicia (Spain), went to Cuba at the end of the 19th century. See ‘Noticias de Cuba’, available through http://www.cubanet.org (last visited on 25 October 2003). According to Spanish estimations, some 80,000 persons residing in Cuba have this option. 47 Compare Jessurun d’Oliveira (1999), p. 440, who stresses that the United Kingdom and Germany had reasons for issuing a declaration, because they have non-standard nationality legislation
