Member State nationality under EU law – To be or not to be a Union Citizen?

Published date01 June 2021
DOI10.1177/1023263X20986078
Date01 June 2021
Subject MatterArticles
Article
Member State nationality under
EU law – To be or not to be a
Union Citizen?
Lorin-Johannes Wagner*
Abstract
The question of who ought to be regarded as Union citizen is a central but not an easily answered
question.Drawing on an analysisof the ECJ’s case-lawand the underlyingconstitutionalset up of Union
citizenship, this article argues that the notion of nationality in EU law is based on a jurisdictional
conception that builds on the idea of a genuinelink and a territorial link with the EU. Relying on this
understandingthe article assesses the peculiar cases of Germany, the UKand Denmark, establishing
not only if and howMember States can reconfigurethe meaning of their nationalityunder EU law but
also highlighting that the notionof nationality as a peremptory markerfor Union citizenship is defined
within the constitutional realm of EU law. The understanding that Member States are free to define
their nationality within EU law, hence, is a misplaced overstatement of sovereignty. Against this
backdrop thelast part of the article turns to the case of Latviannon-citizens, arguingthat Latvian non-
citizens, who aregenerally not regarded as Union citizens, have been Union citizens all along.
Keywords
Union citizenship, nationality law, German nationality, British nationality, Danish nationality,
Latvian non-citizenship, nationality for the purpose of EU law
1. Framing the painting: Nationality and Union citizenship
Union citizenship is additional to the nationality of a Member State (MS).
1
The personal scope of
EU law – defined as the number of people who simply by relying on their status as Union citizens
* University of Graz, Universita
¨tspl. 3, 8010 Graz, Austria
Corresponding author:
Lorin-Johannes Wagner, Institute for European Law, University of Graz, Universita
¨tsstrasse 15/C1, 8010 Graz, Austria.
E-mail: lorin.wagner@uni-graz.at
1. Article 20 (1) of TFEU.
Maastricht Journal of European and
Comparative Law
2021, Vol. 28(3) 304–331
ªThe Author(s) 2021
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DOI: 10.1177/1023263X20986078
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MJ
MJ
are subjects of and subjected to EU law – is a variable dependent of how we understand MS
nationality for the context of EU law. Nationality for the purpose of EU law
2
thereby is construed
as the quintessential foundation that either does or does not exist.
Intriguingly, the notion of nationality for the purpose of EU law is, however, mostly treated as
somewhat self-evident.
3
‘[W]hether an individual possesses the nationality of a Member State’ is,
as Declaration No 2 of the Maastricht Treaty
4
sets out, solely to be settled ‘by reference to the
national law of the Member State concerned’. In a similar vein, also the ECJ has underscored that
nationality falls within the domaine reserv ´
eof MS, as ‘it is for each Member State having due
regard to Community law to lay down the conditions for the acquisition and loss of nationality’.
5
In
principle, it should therefore be relatively straightforward to determine the personal scope of EU
law and the ambit of Union citizenship by browsing through the respective nationality laws of MS.
As with so many other things, also the issue of who is and who is not a Union citizen becomes
more complicated if one takes a closer look. The notion of nationality, albeit intrinsically linked to
operations of nationality laws of the MS, is a notion enshrined in the treaties. Nationality for the
purpose of EU law thus is something purposefully construed; it is framed for and within EU law.
6
That is to say, albeit MSs remain sovereign to decide who their nationals are, the issue of nation-
ality for the purpose of EU law must be viewed through the prism of EU law and the very meaning
of this notion within this constitutional context. Metapho rically speaking, EU law nationality
hence can be configured as a single frame encompassing an array of paintings, each depicting the
emblematic colours and styles of the different n ationality regimes of the MSs. Crucially, the
following analysis, however, does not aim at indulging in these paintings but rather aims to take
a closer look at the frame itself, as it is this frame that is decisive for the size of the painting – and
hence determines who is and who is not encompassed within the personal scope of EU law.
To this end, the ensuing second part of this article provides an analysis of the very meaning of
the notion of nationality for the purpose of EU law and the nature of Union citizenship as a
derivative status of MS nationality. Against the backdrop of Article 20 TFEU and the relevant
case law, the analysis makes the case that Union citizenship and the underpinning status of
nationality for the purpose of EU law ought to be conceptualized from a jurisdictional rather than
a political perspective. Nationality for the purpose of EU law and Union citizenship by extension
thus are not dependent on the political status of citizenship within MSs but are construed on the
basis of nationality as understood in international law, reflecting the individual’s embeddedness
within the legal and social fabric of his/her MS. Additionally, the notion of nationality for the
purpose of EU law carries a peculiar territorial undertone, presupposing an unconditional right to
reside within the EU territory of the respective home MS. Against the ever more accentuated
citizenship rhetoric in the Treaties, this understanding therefore purports that the personal scope of
EU law is not delineated on the basis of political enfranchisement and equality but draws on a
jurisdictional conception of nationality along the lines of nationality in international law.
2. In the following the term ‘EU law nationality’ is used interchangeably.
3. See e.g. Y. Borgmann-Prebil and M. Ross, in H.-J. Blanke and S. Mangiameli (eds.), The Treaty on European Union
(Springer, 2013), Article 9 TEU, para. 29 f; as well as D. Martin, in M. Kellerbauer, M. Klamert and J. Tomkin (eds.),
The EU Treaties and the Charter of Fundamental Rights (Oxford University Press, 2019), Article 20 TFEU, para. 3 ff.
4. [1992] OJ C 191/98. And although this Declaration is still referenced in the literature, it is worth noting that it has been
scrapped with the Treaty of Lisbon.
5. Case C-369/90 Micheletti, EU:C:1992:295, para. 10.
6. See e.g. G.-R. de Groot, ‘Towards a European Nationality Law’, 8 EJCL (2004).
Wagner 305

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