No European citizenship without indestructible Union

On 23 June 2016, the United Kingdom decided to leave the European Union. 33.5 million Britons voted, 17.4 million of them in favour of Brexit. As a result, more than 60 million people lost their status as "EU citizens". The remaining EU citizens lost the right to live and move around the UK on the same terms as nationals: more than 3.5 million EU residents in the UK became simply foreigners.

On 25 June 2021, Dutch Prime Minister Rutte declared that "Hungary no longer has a place in the European Union". He was reacting to the passing of Orban's so-called 'law against homosexual paedophiles', which among other things targets the dissemination of sexually diverse content to children under the age of 18. The fact that the EU citizenship status of millions of Hungarians can be called into question by a - retrograde - policy decided by their government or parliament gives an idea of the fragility of the EU bond.

The European Union defines itself as "a Union of states and citizens". Since the adoption of the Treaty on the Functioning of the European Union and the Charter of Fundamental Rights, the Union has used the concept of "EU citizenship", the scope, rights and obligations of which are set out in these documents. But in practice, this citizenship is no more (and no less) than a supplement to a country's national citizenship insofar as it is a member of the Union. National citizenship is a true citizenship: the legal systems define its perimeter, and establish at the highest level the protections enjoyed by its holders against possible attempts by the constituted powers to withdraw it or to empty it unilaterally. Through these systems, citizenship is a link between each individual holder - each citizen - and the state, which is obliged to guarantee its implications. 

Such protection does not and cannot exist for so-called "Union citizenship". Despite the formulas, the Union remains a club of states, and the supplement of European citizenship is granted or withdrawn to the states; they transmit it, administer it, or withdraw it (e.g., by leaving the Union) to the citizens, in accordance with their constitutional provisions. The existence of a true European citizenship would require a direct contract between the Community authority and each of the Europeans holding this "citizenship of the Union". 

A true European citizenship would correspond to a true European continental state. Weaker versions of European citizenship would be conceivable under political architectures of a federalising tendency, in which benefits and rights of a specifically Community scope - e.g., the right of movement - would be guaranteed by a Community authority, autonomous in means and effective throughout the territory of the Union, to which any citizen could turn in the event of infringement of such rights by any other administration, whether State or sub-State. But an authority designed in this way defies intergovernmental logic in the allocation of resources, and the principle of subsidiarity. Both elements make the effectiveness of EU authorities dependent on Member States; they work well if all administrations operate cooperatively, but lead to deadlock or dysfunctional response in environments prone to conflict or institutional disloyalty. And such conflict may increase in the EU, not only because of the emergence of illiberal poles, but also because of the growing internal diversity of the Union, with political actors subject to very different conditions, regulations and expectations; and because of the very plural logic of democratic processes. 

The more implausible it becomes for a real level of federal decision-making and protection to emerge in the EU, the more necessary its presence becomes. This contradiction is perhaps the most relevant challenge for the European construction, at least in terms of its internal credibility. The institutional complexity of the Union makes it difficult to articulate a genuine "EU citizenship" that protects individuals not as nationals of a member state - and thus subject to its national institutions - but as members of the Union. At the same time, the conflictuality and the risk of instability that the current European machinery engenders makes it all the more necessary to have an executive EU authority, directly accessible to citizens, and independent of states, capable of combating threats to "EU citizenship" - including those coming from other public administrations, as in the case of Hungary's anti-gay and transgender laws.

The most frontal attack that can be made on "EU citizenship" is its unilateral removal, against the will of the person concerned. And this is a prerogative that every member state possesses, recognised in the Treaties (Art. 50 TFEU). It offers the States an instrument of pressure and counterbalance against the centres of Community power; but it is also a brake against attempts to expand the perimeter of "European citizenship", and a nuclear button against sectors of its population that seek to exercise that citizenship where it is being curtailed. As long as accession to the Union is reversible for states, "EU citizenship" will be provisional and precarious for its beneficiaries, especially the most vulnerable.

In Europe, the link between citizenship status and the indivisibility of the political space that guarantees it is recognised in many fundamental national rules. In the United States, which is perhaps closer to the European Union in terms of its quasi-continental federation of states, a true civic space was only consolidated when the confederation, which originally linked the thirteen colonies, mutated - not without difficulty - into a true federal and non-reversible union, effectively guaranteeing citizenship. The US Supreme Court summarised in Texas v White (1869) the balance needed to build that common citizenship on the voluntary union of pre-existing political entities: "an indestructible Union of indestructible States". It spoke of the US, but it describes well the horizon of a truly federal European Union of citizens.

 Juan Antonio Cordero. Doctor e ingeniero en Telecomunicaciones, profesor en École polytechnique (Francia). Miembro de la Antena de París de Citizens pro Europe.