I had accepted, eighteen months, that European citizenship was ‘a promise that will never be kept”. I’m disappointed, but not surprised, by a judgment in the French Cours de Cassation that dismisses the rights of British expatriates in France as “inopérants” – ceasing to apply on the UK’s departure from the EU. Steve Peers, a Professor of EU Law at the University of Essex, has consistently argued that this would be the case.
Why did I think differently? I’d point to four reasons, none of which has been persuasive to lawyers. First, there was the Charter of Fundamental Rights of the European Union, the promise by the EU to its citizens that their rights were ‘fundamental’. ‘Fundamental’ rights don’t disappear because a member state removes itself from the consideration; only membership rights do that. Second, there was precedent – when Greenland left the European Community, the rights of its citizens were preserved on request. Third, there was what I had understood about the nature of European citizenship. This comes from Wheare’s classic work on Federal government (OUP, 1946). A federation, he explains, is:
“an association of states so organised that powers are divided between a general government which in certain matters … is independent of the governments of the associated states, and on the other hand, state governments which in certain matters are, in their turn, independent of the general government. This involves, as a necessary consequence, that general and regional governments both operate directly upon the people; each citizen is subject to two governments.”
That describes the structure of the European Union precisely – apart, it now seems, from the last seven words.
Lastly, there was the description of European citizenship in the Treaties, which said that EU citizenship was ‘additional’ to citizenship in a member state, and does not replace it. There is an ambiguity here. In the French version of the treaties, the wording is this:
Est citoyen de l’Union toute personne ayant la nationalité d’un État membre. La citoyenneté de l’Union s’ajoute à la citoyenneté nationale et ne la remplace pas.
S’ajouter can be read here as ‘attached’ or ‘supplementary to’, and that, it seems, is how it’s been read in France. A “supplementary” citizenship seems to me to offer much less than an “additional” one.
I think there’s room to cavil about this, because if the term ‘supplementary’ was intended, it could have been said – and if the clause meant that European citizenship was supplementary, the last part, that it would not replace nationality of a member state, clarifies nothing, and could have no meaning or effect. The caveat only makes sense if European citizenship was being considered as a form of citizenship in its own right. I have no choice but to bow to the decision, but I persist in thinking of this as a promise broken.