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The Impact of Union Citizenship on National Citizenship Policies

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The Impact of Union Citizenship on National Citizenship Policies The Impact of Union Citizenship on National Citizenship Policies Karolina Rostek Gareth Davies∗ I. INTRODUCTION ................................................................................... 90 II. STATUS OF CITIZEN ............................................................................. 93 A. Citizenship and Identity ............................................................ 93 1. Idea of Citizenship ........................................................... 94 2. Citizenship—Marker of Belonging ................................. 95 3. Conclusions ...................................................................... 97 B. The Concept of Union Citizenship ........................................... 97 1. Uniqueness of EU Citizenship ......................................... 97 2. Union Citizenship—Watershed (?) in Europeans’ Lives .................................................................................. 99 3. Controversies Raised by EU Citizenship ...................... 101 4. Conclusions .................................................................... 103 III. REFLEXIVE HARMONISATION ........................................................... 104 A. The History of Reflexive Harmonisation ............................... 105 B. The Role of Influence Tactics ................................................. 107 C. The Essence of Reflexive Harmonisation .............................. 108 D. Defects of Hard Law ............................................................... 109 E. Alternative to Hard Law—Soft Law ...................................... 110 F. Effectiveness of Soft Law ....................................................... 111 G. Need for Soft/Hard Law Constellation .................................. 112 H. Second-Order Effects .............................................................. 113 I. Conclusions ............................................................................. 113 IV. RELATION BETWEEN UNION CITIZENSHIP AND MEMBER STATE NATIONALITY POLICIES ......................................................... 115 A. In(ter)dependence of Member States Nationality Legislations .............................................................................. 116 1. Legal Provisions Guarantying Independence ............... 116 2. Increasing Interdependence Between the MS ............... 117 ∗ Karolina Rostek was formerly a post-graduate researcher at the University of Groningen. Gareth Davies is Professor of European Law at the Vrije Universiteit, Amsterdam. The order of the authors indicates their relative contributions to the research and writing of this Article. However, both authors take responsibility for the whole. 89 90 TULANE EUROPEAN & CIVIL LAW FORUM [Vol. 22 B. Spanish Case............................................................................ 121 1. Spanish Attitude Towards Migrants ............................... 122 2. Implications of 2005 Amnesty for Illegal Immigrants ...................................................................... 123 3. Conclusions .................................................................... 124 C. Irish Case ................................................................................. 125 1. Essence of Former Irish Nationality Law ...................... 125 2. Controversies Around Unconditional Ius Soli .............. 126 3. Proposal for a Constitutional Amendment— Debate on the Need of Nationality Reform .................. 128 4. Conclusions .................................................................... 134 D. German Case ........................................................................... 135 1. Impact of EU Citizenship on Third-Country Nationals ......................................................................... 136 2. Essence of Former Nationality Law in Germany ......... 137 3. Implications of the 1999 Citizenship Reform ............... 138 4. Conclusions .................................................................... 140 E. Directive on Third-Country Long-Term Residents ............... 141 1. The Directive as a Response to Union Citizenship ....... 142 2. Provisions of the Directive ............................................. 144 3. Implications of the Directive .......................................... 145 4. Conclusions .................................................................... 148 V. CONCLUSIONS ................................................................................... 149 I. INTRODUCTION Willingness to take advantage of belonging to the Union on the one hand, and a the desire to retain national sovereignty on the other hand, has long marked the process of European integration. Recently, this duality can be well observed in the example of national citizenship policies. Interestingly, independent nationality legislation in many European Union (EU) countries has been undergoing transformation in parallel with the establishment of EU citizenship. The link between introducing the status of Union citizen and reforms of nationality laws deserves special attention. It must be noted that introducing EU citizenship was a significant moment in the European integration process—it caused a genuine stir among the Member States (MS) during the debate preceding its establishment. Firstly, it provoked strong objections from the MS to delegation of powers to the EU level in the domain of nationality policy. Although acquisition of national citizenship remained in the states’ 2007] UNION AND NATIONAL CITIZENSHIP 91 discretion, it did not prevent certain countries from expressing worries that Community citizenship threatened their independence. In fact, as it will be shown, granting all MS nationals the status of EU citizen increased the interdependence of nationality policies. Changes in this field introduced at the national level no longer have exclusively domestic impact, but affect other MS. Thus, it will be claimed that a need to harmonise legislation in this area is emerging. Currently, despite strong opposition of the MS authorities to conferral of competences concerning national citizenship, the convergence of nationality regulations may be observed. Can this trend be interpreted as the result of reflexive harmonisation? Are the transformations of certain MS nationality laws second-order effects of European integration fostered by implementing Union citizenship? Secondly, adopting Union citizenship created a debate on the position of third-country nationals residing in the EU. Excluding all foreign residents from the right to acquire Community citizenship is considered to have deteriorated their relative position in European societies. Did this situation provoke national authorities to any action? May the reforms facilitating access to national citizenship be considered as a result of this deterioration, and hence ultimately of implementing Union citizenship? Also, how has the EU reacted to the deepened gulf between EU and non-EU citizens? In this light, the Council Directive on third-country nationals who are long-term residents should be considered. The provisions enshrined in the Directive harmonise the conditions for acquiring the status of long-term resident in all MS and grants them a certain set of rights. Although this Community act was officially aimed at compensating the position of non-EU nationals, who suffered from introducing Union citizenship, in fact it has much wider implications. Last but not least, introducing the status of EU citizen violated a traditional understanding of citizenship, which was for centuries associated solely with the nation state. Decoupling the notion of citizenship from the national level provoked a wide debate on the general concept of citizenship. Has the time to redefine this notion come? Has Union citizenship affected the identity of MS nationals or third-country residents? May EU law, by inducing changes in nationality, cause a convergence of ideas of belonging? What is worth emphasising is the fact that until recently legislation of the MS was amended for two reasons: either a given country decided independently that the change was necessary, or it was imposed by Community law. Are these the only possibilities to induce legal 92 TULANE EUROPEAN & CIVIL LAW FORUM [Vol. 22 transformation on the national level? As this Article will discuss, there is a middle way indicated by the theory of reflexive harmonisation, which suggests combining self-regulation with adjusting to common external rules. This method seems to be very well suited to the wishes of the EU countries at the current stage of integration. At present, most of the MS are reluctant to confer further competences to the EU level and then to adopt hard law acts subsequently added to the European Community (EC) law. In this respect, soft law (SL), which has a voluntary character and leaves the MS a certain autonomy in adjusting their legislations to the “acquis communautaire”, has started to gain popularity. It will be argued that soft law instruments, deprived of coercive mechanisms, seem to be in line with the needs of the Community Members, and therefore may be considered as an up-to-date tool to encourage them to further integration. In the case of nationality policies, non-coercive influence tactics, encouraging voluntary action, seem to be more desirable than issuing new legal provisions. The above leads to a formulation of the three main aims of this Article. Firstly, it will be argued that changes to nationality legislation have been implemented under the pressure
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