Brexit Means Brexit: Does It so When It Comes to EU Citizenship?

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Following a dramatic referendum, the United Kingdom triggered Art. 50 of the TEU in March 2017 officially commencing its withdrawal from the EU. At first glance, one of the many consequences of the move is the loss of EU citizenship for all British citizens as they will no longer be ‘holding the nationality of a Member State’ (TFEU, Art. 20(1)). This means losing all the perks that go with an EU passport, among them the freedom of movement, residence, and employment across the Union (id., Art. 20(2)).

A broader question of fairness and justice arises when ca. sixteen million people who have not voted in favour of leaving the bloc and have not committed any fraud or deceit are going to be stripped of their EU citizenship, and all of the privileges associated therewith. Not surprisingly, there have been some speculations on whether (and how) EU citizenship can be preserved by the Brits.

EU Citizenship

In its contemporary form, EU citizenship was established by the TEU back in 1992 providing that an EU citizen is ‘[e]very national of a Member State’ (Art. 9). The drafters of the Treaties could easily avoid using the term ‘citizenship’ and simply assign all the rights to nationals of the Member States but did not do that (William Thomas Worster, Brexit and the International Law Prohibitions on the Loss of EU Citizenship 15 International Organizations Law Review 341, 348 (2018)). However, the true roots of EU citizenship can be found in the Treaty of Paris signed in 1951. The Treaty virtually denounced any restrictions in the employment of professionals ‘in the coal and steel industries’ (Art. 69).

EU citizenship is a unique creature. Comparing it to the usual ius sanguinis and ius soli, EU citizenship can be described as ius tractum, a term suggested by Mr Dimitry Kochenov (Dimitry Kochenov, Ius Tractum of Many Faces: European Citizenship and the Difficult Relationship between Status and Rights, 15 Columbia Journal of European Law 169, 181 (2009)). Importantly for further discussion, this term reflects the way EU citizenship is acquired, but not how it is sustained or terminated.

So far, the Court of Justice handed down four notable decisions that are relevant to this blog post: Micheletti, Grzelczyk, Rottmann and Zambrano. In Micheletti, the Court established that Member States should treat EU citizens ‘having due regard to Community law.’ In Grzelczyk, the Court defined EU citizenship as ‘the fundamental status of nationals of the Member States.’ In Rottmann, the Court noted that the loss of EU citizenship is a fundamental change in a person’s status and such a situation is covered by EU law. Finally, in Zambrano, the Court found that the TFEU ‘precludes national measures which have the effect of depriving citizens of the Union of the […] rights conferred by virtue of their status as citizens of the Union.’

Retaining EU Citizenship after Brexit

Four arguments in favour of the premise may be put forward. (a) First, the deprivation of EU citizenship would violate human rights law. (b) Second, such a deprivation goes against the constitutional essence of EU law. (c) Third, EU membership status of the State of nationality is relevant only for the acquisition of EU citizenship. (d) Fourth and last, there is a precedent for holding EU citizenship after leaving the EU (Greenland). (e) A short sub-conclusion follows.

(a) It is worth to begin with the fact that depriving UK nationals of their EU citizenship may be easily perceived as a matter of international law of human rights. Under the latter, ‘no one shall be arbitrarily deprived of his nationality.’ Albeit its uniqueness, EU citizenship is indeed citizenship and taking away that citizenship from millions of people overnight would be a violation of their human rights or, at least, would go against the principles of proportionality and due process.

(b) Although the idea of a Constitution for Europe failed, the EU law remains very much constitutional. Studying the subject matter from that perspective, Mr Clemens Rieder has favoured the premise of the blog post in one of his articles (Clemens M. Rieder, The Withdrawal Clause of the Lisbon Treaty in the Light of EU Citizenship (Between Disintegration and Integration) 37 Fordham International Law Journal 147 (2013)). There are two reasons to point out his contribution separately: first, his vision was expressed in 2013, much earlier than the research on the issues of withdrawal from the EU got politicised due to Brexit; second, his arguments are based heavily on the US constitutional jurisprudence. Recalling the Perez case and the theoretical underpinnings of sovereign-citizen relationships, Mr Rieder concludes that ‘even if a majority of people in a referendum may be in favor of withdrawal …, a way would nevertheless need to be found to accommodate the right of individuals to retain EU citizenship’ (Rieder, 168).

(c) Mr Kochenov argues that once the UK withdraws from the EU, the Brits will no longer be EU citizens ‘by definition’ citing Art. 9 of the TEU as they will no longer be nationals of a Member State. Contrary to Mr Kochenov’s views, the nationality in its traditional meaning is relevant only for the purposes of acquiring EU citizenship, as it is evident from the relevant provisions of the Treaties, and not for the purposes of losing EU citizenship.

In fact, Mr Kochenov himself points out that nationality matters only when it comes to acquisition of EU citizenship, citing the Kaur case in an article where he argues for bestowing EU citizenship upon Latvian non-citizens (Dimitry Kochenov, Aleksejs Dimitrovs, EU Citizenship for Latvian “Non-Citizens”: A Concrete Proposal 38 Houston Journal of International Law 55, 79-80 (2016)). Contradictory to his views on the Brexit situation, he argues that EU citizenship is ‘autonomous from the legal orders of the Member States’ (id., 74) and the scope of Member States’ nationality does not necessarily overlap with the scope of EU citizenship (id., 75). In another article (Dimitry Kochenov, Ius Tractum of Many Faces: European Citizenship and the Difficult Relationship between Status and Rights, 15 Columbia Journal of European Law 169, 185 (2009)), he even hints at the idea of EU citizenship for all permanent residents inside the EU (i.e. persons who do not have a Member State’s nationality).

Of course, the main point of Mr Kochenov is that Member States are free to decide upon whom they grant EU citizenship because nations are free to define who their citizens are. First, it does not mean that countries are free to decide who is going to be deprived of EU citizenship. Second, the specific proposal to provide Latvian non-citizens with EU citizenship is, essentially, an ‘academic’ precedent establishing that it is possible to hold EU citizenship without holding the nationality of any Member State.

(d) One of the strongest arguments in favour of the premise of this blog post may be found back in the history of EU’s diminution. After Greenland withdrew from the EU, its people remained to be EU citizens. This argument has been invented by Mr William Thomas Worster when he distinguished Greenland’s exit from Algeria’s withdrawal (Worster, 359-60). The different outcomes in terms of EU citizenship (the Algerians did not retain it) are explained by Mr Worster by chronology as, in his opinion, EU citizenship was introduced after the Algerian exit and before Greenland’s withdrawal (id., 359 n.80). This explanation does not stand because, as shown above, EU citizenship was introduced by the TEU after both events. The key to this puzzle must be that Algeria became an independent sovereign state while Greenland remains to be a part of Denmark. Nevertheless, Greenland’s precedent established that one indeed can exit the EU and retain EU citizenship at the same time.

(e) Based on the relevant authorities, EU citizenship of the Brits can be lost either by dissolution of the EU or by the loss of British citizenship. Neither of these is about to happen. Zambrano may be read as prohibiting any state actions that deprive the EU citizens of their EU citizenship at all, except revoking national citizenship (as in Rottmann). Human rights law, the constitutional principles, the EU law itself, and past EU’s diminution evidence that there is no valid reason for stripping the UK nationals of their already acquired EU citizenship.

Associate Citizenship and Recent Developments

MEP Guy Verhofstadt initiated the idea of ‘associate citizenship’ for the Brits. Ironically, in the respective Report by the European Parliament, the idea of associate citizenship is outlined right after the calls to end a ‘Europe à la carte’ although these ideas are apparently contradictory. The idea of associate citizenship would probably require amendments to the Treaties although some argue that such pushing of limits is possible even without doing that. Apart from creating a totally anomalous concept in international law (although the concept of ‘normal’ EU citizenship is still far from being usual), this idea may be criticised on the account that it presumes certain duties along with rights while EU citizenship entails only rights. Another point is that the EU has concluded association agreements with a number of countries. The obvious confusion would stimulate further speculations on whether the nationals of those EU-aspiring countries are entitled to associate citizenship.

The only one who can provide a clear and authoritative answer is the Court of Justice. Several attempts have been done to bring the matter to the attention of the Luxembourg judges in the Netherlands, but the Dutch courts have not allowed the matter to proceed. Looking back at the Court’s case-law, the Court of Justice itself would probably do a lot of manoeuvres to avoid adjudicating on this complex and much-politicised subject.


The post has explored the topic endeavouring to research the issue deeply and not in the mainstream; going at loggerheads with the prevalent academic views is just a side effect of genuine curiosity. In its turn, the subject matter is itself a side effect of the sophistication of EU citizenship in the broader framework of the ‘new legal order of international law’ that ‘has created its own legal system.’ A Member State’s departure is merely a crystallisation thereof.

A careful analysis of the Treaties, case-law, international law, and other relevant authorities results in a conclusion that there is no obstacle to retain EU citizenship for those UK citizens who have already acquired European citizenship. Even from a political perspective, this decision may be valid because EU citizenship, due to ius tractum, will not be inherited by further British generations. Regrettably or fortunately, the final say will probably be a political consensus.

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Dimitry Kochenov says

March 15, 2019

It is great to read an insightful contribution from a fellow CEU alumnus (to be).
Not to engage with every argument one by one, I would just mention three things, which should be discussed in the context of the interaction between EU citizenship and Brexit:
1. Just as the EU is not a 'state' in internatoinal law, EU citizenship is not a 'nationality': it is an additional legal status granted by the EU to the holders of the Member State nationalities for the purposes of EU law. Third country nationality cannot trigger EU citizenship (Algeria, the Comoros, Vanuatu, both Congos, etc etc etc). The loss of an EU nationality triggers the loss of EU citizenship (Tjebbes, Rottmann).
2. Greenland has never left the EU, which is why it is an Annex II TFEU territory where a lot of EU law potentially applies, definitely Part IV TFEU (see Prof. Zeller's amazing work to this effect, as well as ).
3. Effet utile of Article 50 requires interpreting it as a provision, which makes leaving the EU possible. Rottmann on steroids cannot annihilate national democratic choices taken by the Member States by rendering Article 50 meaningless.
For a somewhat fuller restatement of a view different from the one expressed by you, please kindly consult my paper written with Martijn van den Brink forthcoming in the JCMS this srping:
Best wishes,
Prof. Dimitry Kochenov (LEGS '02)

Serhii Lashyn says

March 16, 2019

Thank you for your comment, Prof Kochenov! In fact, your impressive corpus of writings and in-depth analysis on EU citizenship and the investor citizenship phenomenon has been one of the decisive factors that inspired me to research the subject matter.

Indeed, your arguments are convincing and much 'soberer.' And thank you for referring to other relevant publications, in particular, the forthcoming one co-authored with Martijn van den Brink - excited to read!


Will Worster says

March 16, 2019

Thanks for the post on this important question. I see that we are often on the same side of these issues.
I agree with Dimitry that EU citizenship is not a nationality. Certainly true since the EU is not a state. Although I wonder whether it can really be a citizenship either since citizenship also necessitates a state. For me, I am not sure it is really important whether it is “nationality” or “citizenship” or just “status”, because it is clearly a legal bond directly between the individual and the legal person of the Union. It is this kind of bond that human rights law protects.
I also think that the loss of MS nationality resulting in the loss of EU citizenship as per Rottman is clear. If millions of Brits were losing their nationality, then loss of EU citizenship would be the correct result. (Although mass denationalization perhaps objectionable on other grounds.)
However, the unilateral termination of only EU citizenship by one MS is not explicitly governed by the treaties. We deduce that this would be the logical outcome by following the principles of the law of international organizations. But then, I am not sure that this is the legal framework that is really applicable to this kind of legal bond. Of course it is the correct legal framework for determining if the UK can withdraw (article 50 still has significant meaning). But the moment the treaty creates rights for people – and in this case a fundamental legal status and bond with the Union – then it takes on a new characteristic that is much harder to terminate, through democracy or otherwise. So the UK should be free to leave of course, but that does necessitate that it also drag its nationals along with it. Giving the UK the authority to unilaterally terminate the EU citizenship of certain EU citizens against their will, is quite shocking.
Brexit is forcing us to confront the full extent of EU citizenship autonomy, whether that autonomy is bounded by the law of international organizations or human rights. Shame that this cannot be referred to the CJEU. My bet is that the Court would side with human rights over the law of international organizations.

Serhii Lashyn says

March 17, 2019

Prof Worster, thank you very much for your comment!

I agree with many of your observations expressed both in your comment here and in the article cited. I also think that EU law is indeed evolving as something brand-new and unique, and application of well-established patterns from international or national law does not always lead to precisely correct outcomes. The subject matter is an illustration of this sophistication and complexity or, as you wrote, the autonomy of EU citizenship.


JH says

March 18, 2019

Very interesting article and replies, but isn't the best analogue (though very imperfect) for all of this Commonwealth citizenship? That's a supplemental form of citizenship that did in fact evolve from the precursor to modern citizenship in territories of the former British Empire: British subject status. Of course by the time of the 1950s and 1960s it became de-linked from the original British subject status (since republics in the Commonwealth retained the status for their nationals despite their nationals clearly no longer being subjects of The Crown). It did however become linked to membership in the Commonwealth such that if a country remained in the Commonwealth, its citizens were basically automatically recognized as Commonwealth citizens by other Commonwealth countries, BUT if a country left the Commonwealth it was at risk of its citizens losing that status and any associated benefits (visa free travel, consular assistance, right to vote and stand for elections) that may have been accorded to other Commonwealth citizens by tradition or in law (though such benefits were never collectively codified via treaty).

Additionally, countries which left the Commonwealth still had the opportunity for its citizens to be treated as Commonwealth citizens by some other countries even after leaving (for example in British law, citizens of countries which have left the Commonwealth are typically continued to be regarded as Commonwealth citizens for some months or even years after until the relevant legislation is changed by Order and in some other C'wealth countries such citizens continue to be regarded as C'wealth citizens indefinitely).

It would seem then that rather than providing for a new official status of "Associate Citizenship" which could as the author noted, be confusing given the association agreements signed by the EU (unless the intention is to extend associate citizenship to citizens of countries which have signed association agreements resulting in a particular level of integration with the EU - such as the EEA states, DCFTA states, Switzerland, and any other states with association agreements whose nationals have visa exemptions when visiting the EU, etc) the EU could either use the Commonwealth/Irish approach (i.e. change relevant legislation so that in a similar way as to how Irish citizens are treated as if they were Commonwealth citizens (and thus expressly not considered "foreign" or "alien") under law in many Commonwealth countries, British citizens could be treated as if they were EU citizens) or perhaps use the Associate Citizenship approach proposed by Guy Verhofstadt and term it something else instead such as "Special Residency of the EU" or "Denizenship of the EU" (essentially a form of permanent residency) and along those lines perhaps only give SOME of the benefits of EU citizenship. For example the right to vote for elections to the EP in a member state but not to stand for election (a few countries allow permanent residents to vote, more usually in municipal or local elections), the right petition parliament and the ombudsman, and to free movement rights. Rights not included would be consular protection (not citizens, so no consular protection), accessing EU documents, voting in municipal elections (that would be left up to individual member states), the language rights of EU citizens, and the right to freedom from discrimination on grounds of nationality that EU citizens enjoy (OTHER than the rights that these special residents would already have).