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EU Visa Liberalization Vs. National Citizenship Laws and Policies

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EU Visa Liberalization Vs. National Citizenship Laws and Policies Eugenia Mocanu EU visa liberalization vs. national citizenship laws and policies 1. Introduction The Republic of Moldova1 is widely considered a success story in terms of its partici- pation in the Eastern Partnership (EaP) initiative, particularly with respect to migra- tion related issues. Indeed, in July 2010 the EU and Moldova started negotiations on visa-free travel for Moldovan citizens to the EU which resulted in the adoption of a Visa Liberalisation Action Plan (VLAP) of January 2011. According to the reports pre- sented by the European Commission, Moldova has made significant progress in strengthening its migration services’ capacities when compared to its fellow coun- tries from the EaP region. As a result, the European Commission proposed visa-free regime for Moldovan citizens, traveling to the Schengen area and holding a biomet- ric passport.2 On 27 February 2014, the European Parliament voted for the abolish- ment of visas for the Moldovan citizens. Moldova is thus the first EaP country to meet all the requirements for visa-free travel as provided in the Visa Liberalisation Plan.3 As of 28 April 2014, the visa requirements have been abolished for the Moldo- van citizens who want to travel to the Schengen zone for a short stay and hold bio- metric passport.4 Despite the fears of some EU Member States that a visa-free regime will cause an increase of immigration flows (illegal migration) and of cross-border crime, granting a visa-free regime to Moldova will have a significant impact, as it will not only come closer to the EU, but will also become more attractive to its Member States. At the 1 For the purpose of this work, the author will use the term Moldova and Moldovan, referring to the Republic of Moldova and its citizens. It is not to be confused with the part of Romania, bearing the same name and bordering with the Republic of Moldova (which is an independent state). 2 European Commission Press Release IP/13/1170, “Commission proposes visa-free regime to Moldova”, 27 November 2013 3 European Parliament Press Release, REF. 20140221IPR36646, “Parliament gives green light to visa- free travel for Moldovan citizens”, 27 February 2014 4 European Commission Statement 14/101, “Commissioner Malmström on visa-free travel for Moldo- va”, 3 April 2014 1 same time, visa liberalisation is important due to the historically close relations with Romania, the sister-country that fully supports and promotes Moldova on its way to EU integration. Romania has a preferential policy of granting citizenship to its former nationals who lost it against their own will. This policy is primarily aimed at Moldo- vans living on the other side of the Prut River (dividing the two states); it shows an increasing number of citizenships granted annually by the Romanian authorities to Moldovan citizens. It is important to note that Moldovans may acquire a second citi- zenship, as both countries allow multiple citizenships and, thus, the statehood of Moldova is not endangered. However, this process is not viewed in a positive light by some EU Member States. There are many who believe that the visa liberalisation dialogue between Moldova and the EU has started through the back door with the issuance of “new” citizens, by acquiring Romanian citizenship. So what are the citizenship laws and policies in the EU? What are the rules for third country nationals to exercise their “freedom of movement” in the European Union? Which way should Moldova choose to go? And, what are the relations between the EU, Moldova and Romania? 2. EU Citizenship 2.1. General notions The EU is a partnership of 28 Member States. It works 24/7, 365 days a year. Its aim is the benefit of its people, its citizens. Without them, the Union would not make any sense, it would not serve any purpose. The Treaties instituted the citizenship of the Union, stating that it is additional to the national citizenships. Thus, the first is linked to the second and ceases to exist without it. The concept of a European citizenship was considered from a very early stage in the development of the Communities and may be said to begin with the birth of the “market citizen”, a “reduced functionalist concept of an individual”5 which conferred 5 David O’Keeffe “Union Citizenship”, in David O’Keeffe and Patrick Twomey (eds.) “Legal Issues of the Maastricht Treaty” (Chancery/Wiley, London), p. 87; Stefan Kadelbach, “Union Citizenship” in Bog- dandy A and Bast J (eds.), “Principles of European Constitutional Law”, (Hart Publishing, Verlag C.H. 2 certain individual rights under the Treaty Establishing the European Economic Com- munity (TEC). It is a concept that is essentially based upon the economic objectives set forth in the Treaty. Among the reasons for introducing Community citizenship, three are of particular importance: (1) encouraging free movement, (2) reducing the EU’s democratic deficit, and (3) forming a base for the construction of a European identity.6 Community citizenship gave economic actors under Art 18 TEC the right of free movement and residence within the territory of the Member States. In particu- lar, the right of residence throughout the Community was given to employees, self- employed workers and to their family members by secondary legislation, in conjunc- tion with the right to work.7 Nevertheless, these rights did not in any way provide a condition of citizenship. EU citizenship is evolutionary and can expand to include new rights together with the expansion of the scope of the Treaties. Thus, the benefits of Union citizenship are not limited to the rights conferred by Art 21-24 TFEU. In fact, Art 25 TFEU makes it plain that the concept of citizenship was explicitly designed to be developed fur- ther. The main features of the Union citizenship, according to the Treaty of Lisbon, are as follows: firstly, since it is expressly stated that the Union citizenship is addi- tional to the national citizenship, it is therefore necessary in the first instance to be a a citizen of a Member State; secondly, Union citizenship does not replace national citizenship – it is prima facie Member States who determine the conditions under which citizenship is conferred,8 and the other Member States are required to recog- nize the citizenship duly granted by another Member State;9 thirdly, Union citizen- Beck, Oxford, München 2010), p. 455; Stefan Kadelbach, “European Citizenship Rights” in Dirk Ehlers (ed.), “European Fundamental Rights and Freedoms”, (De Gruyter Recht, Berlin 2007), p. 542. 6 Karolina Rostek, Gareth Davies, “The impact of Union citizenship on national citizenship policies” [2006] 10 European Integration online Papers, p. 6 http://eiop.or.at/eiop/index.php/eiop/article/view/2006_005a 7 European Union, Summaries of EU legislation, “Citizenship of the European Union”, http://europa.eu/legislation_summaries/institutional_affairs/treaties/amsterdam_treaty/a12000_en.ht m 8 European Council (1992), Denmark and the Treaty on European Union [1992] OJ C 348; Case C- 192/99 The Queen v. Secretary of State for the Home Department, ex parte: Manjit Kaur [2001] ECR I- 01237; Case C-369/90 Micheletti and others v. Delegacion del Gobierno en Cantabria [1992] ECR I- 4239, para 10. 9 Paul Craig, Grainne de Burca, “EU Law. Text, Cases, and Materials” (4th edn, OUP 2008), p. 848; 9 Koenraad Lenaerts, Piet van Nuffel, Robert Bray (ed), “Constitutional Law of European Union” (2nd edn, Thomson/Sweet and Maxwell, 2005), p. 544; Case C-369/90 Micheletti and Others [1992] 3 ship comprises a number of rights and duties in addition to those stemming from citizenship of a Member State; however, there are no obvious duties or obligations imposed by the Treaty on individuals.10 Moreover, as stated in Declaration no 2 on Nationality of a Member State,11 “the question whether an individual possesses the citizenship of a Member State shall be settled solely by reference to the national law of the Member State concerned”. However, one cannot state that there is no connection between the national citizen- ship of Member States and the Union citizenship. Indeed, the Union citizenship con- fers rights (Arts 20-25 TFEU); at same time, it does not replace the national citizen- ship, but adds to it (Art 20 TFEU). They go hand in hand: one cannot be a Union citi- zen, without holding the citizenship of a Member State. Member States, by virtue of their monopoly in determining who qualifies as their citizens, enjoy freedom in de- ciding who should be granted the status of EU citizenship. In this respect, Member States are sovereign actors: even if national legislation distinguishes several catego- ries of citizenship, the right to decide who is ultimately entitled to Union citizenship lies with the Member States themselves. 12 Granting citizenship is a constant process that directly affects people and states through immigration/emigration and goes beyond the limits of only one state: (1) it affects the neighbouring countries, on the regional level and (2) it influences the migration policies and sets up certain standards, on the Union level. Indeed, every Member State has the sovereignty to decide on its internal citizenship policies. How- ever, the Union also has a say in this process, being directly affected through waves of new citizens. Thus, the national citizenship laws are not independent of EU law and must respect its rules and principles. Member States have the primary compe- tence to determine their own laws concerning access to and deprivation of national citizenship, nevertheless subject to the principle that where this competence im- 10 Craig/de Burca, “EU Law. Text, Cases, and Materials”, p. 849; Samantha Besson, Andre Utzinger, “Toward European Citizenship” [2008] 39/2 Journal of Social Philosophy, p.
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