Review by Olivier Charnoz

 

 

Figures

 

· 14.1 million resident aliens living in the EU among which :

· 4.9 are nationals of EU Member States (MS) residing in other MS Þ 1,4 per cent of the total population

·  9.2 are not citizen of any EU MS Þ 2,8 per cent of the total population

 

Problem

 

· These nationals of EU MS a problem for maintaining democratic inclusiveness while EU MS undergo integration, since migration often deprive them from political rights.

· E.g. until the Maastricht Treaty more than four millions Community citizens were deprived of the right to vote in local election, simply because they were no monger in their MS of nationality.

· Thus, the implementation of the fundamental freedom of movement led  to the loss of certain political rights.

 

Causes

 

· Electoral laws that restrict voting rights to citizens initially produce this paradox

· but nationality based on ancestral lineage (jus sanguinis) perpetuate it.

 

Jus solis / Jus sanguinis

 

· Solis Þ Ascription is based on birthplace - Sanguinis Þ Ascription is based on lineage

· Solis Þ Naturalisation is based on permanent residence in a given territory - Sanguinis Þ No naturalisation

· Jus sanguinis and Jus solis became principles of modern nationality laws at the end of the 18^th century, when laws differentiating the membership of a nation from that of another nation became institutionalised with the innovation of citizenship in France.

· 19^th century : ~ norm that everyone belong to a state. Elimination of statelessness.

 

Nationality and citizenship

 

· At the end of the 18^th century the terms 'subjects', 'national' and citizen were used indiscriminately.

· As popular sovereignty eventually became a norm of state legitimisation (at least nominally, or through the spread of universal suffrage)

-         a distinction between subject and citizen became clear.

-         nationality and citizenship increasingly overlapped.

· However, Weis (1979) notes that "nationality and citizenship emphasise two different aspects of the same notion : State membership. Nationality stresses the international, citizenship the national, municipal, aspect".

· The article is primarily concerned with the internal aspect of state membership and the incumbent acquisition of full political rights.

 

Different laws Þ new forms of inequalities between MS citizens.

 

· Most EU MS base citizenship on jus sanguinis.

· UK and Ireland base ascription and naturalisation on jus solis.

· In Germany, jus sanguinis has governed both ascription and naturalisation

· In France, traditional importance of jus solis.

· These differing principles have consequences for political union.

Intra-EU Migration and Political Integration

 

Intra EU-Migration and Integration Theory

 

· Early theorists essentially assumed that intra-EC migration furthered political integration.

· Deutsch : a background condition of integration is a particular sense of community, of 'we-feeling', products of increasing social communication which, he asserts, migration fosters Þ the rate of migration is an indicator of integration.

· Neo-functionalists : increasing contact across national boundaries fostered a transfer of loyalties from national to supra-national level. This process is particularly important at the elite level  (Haas, 1968)

· However Feldestein (1967) notes that 'increases in social communication cannot be assumed because migrants are often socially isolated within host societies'.

 

Trends in Intra-EU Migration

 

· Contrary to the expectations of the Commission, the Single European Act has not greatly increased intra-EU migrations.

· The Treaty of Rome conferred freedom of movement only to workers (Article 48-51), whereas Maastricht's European citizenship opens opportunities for migration beyond labour flow.

· Romero (1990) has identified four trends :

-         increasing migration among France, Germany, the United Kingdom, Denmark and the Benelux countries (indicative of the increased migration of the highly skilled)

-         increasing migration from the industrialised North to the EU Mediterranean coast (indicative of mobile intra-EU retirees)

-         increasing cross-border tourism within western Europe (estimated at 150 million, that is 45 per cent of the world total)

-         increasing intra-EU student migration

· The widening of European integration could turn migration from outside the EU into de facto intra-EU migration.

 

Political significance of Intra-EU Migration

 

· Increased migration of corporate managers, engineers, doctors, lawyers, entrepreneurs, highly skilled technicians, university students and middle-class retirees Þ high income and education population.

· Since the degree of political participation is generally correlated to education and income, the changing composition of intra-EU migration may lead to even more demands for political rights by the migrants themselves.

· Moreover, this kind of migrants has greater access to good lawyers enabling them to use litigation that exploits the discrepancies between the rights to equal treatment provided by EC law.

 

Intra-EU Migration, Rights and Legal Integration

 

· Neither social communication nor neo-functional theories anticipated the importance of legal integration. They focused much more on economic integration leading to political spill-over.

· It was legal integration, however that quietly continued after de Gaulle (in the 1960s) and the oil-shock recession (in the 1970s) stalled economic integration.

· Intra-EU migration facilitates the process of legal integration by creating circumstances leading to legal conflicts between resident aliens and the Member States in which they reside (e.g. 1985 Gravier, 1989 Cowan)

· The landmark Van Gend en Loos decision (ECJ, 1963) was crucial to this process because it confers rights under EC law to Member States citizens (Treaty provisions, directly applicable)

 

Political Rights and Integration

 

· Many resident alien EU nationals were effectively disenfranchised by moving within the EU. This loss of political weight violated the principle of equality

· Thus, integration of the European labour market has led to a loss of political rights...

· ... but at the same time, the loss of political rights inhibits the formation of a single European market.

· Securing political rights for resident aliens can be interpreted as elimination barriers to movement. This would require the development of new common electoral and citizenship laws.

· Together with the civil and social rights already possessed by resident alien EU nationals, the extension of full political rights amounts to a de facto granting of citizenship to non-nationals. (RPR in France, strongly opposed for instance).

 

Democracy and Federalism

 

· Federal theorists did not take enough into account the potential negative consequences of MS nationality for maintaining inclusive democracy in the end state of political union.

 

Carl Friedrich's analysis

 

· Carl Friedrich studied the relationship between democracy and federalism.

· Friedrich identifies 'absolutist democracy as unrestrained majority rule' and acknowledge that it 'is incompatible with federalism because it does not permit an effective division of power'.

· However, a constitutional democracy (instead of an absolutist one) is compatible with democracy.

"All that it is required is to recognise that every member of the inclusive political order is a citizen of two communities operating on two levels - the regional and the national (federal).

A given group of persons A1, A2, A3... an another group B1, B2, B3... belong not only to community A or B (included communities) , but also to community AB (inclusive community).

 

What happens if migration ?

 

· If there is migration between A and B, problem. Different possibilities.

· multiple membership is one solution which would fit a federal system. Multiple membership can take two extreme forms (maximalist, minimalist):

Þ dual nationality (full citizenship status in both A and B)

Þ a set of mutual guarantees against discrimination based on nationality.

· The new European citizenship's provision of local voting rights increases the democratic inclusiveness.

· However, it is clearly a compromise solution between establishing full dual nationality and limits multiple membership to primarily Cecil and social rights.

 

European Citizenship and EU Federalism

 

· Although the compromise solution of European citizenship agreed to at Maastricht increases democratic inclusiveness, it also demonstrates the underlying theoretical conflict among jus sanguinis, inclusive democracy and federalism.

 

The Development of European Citizenship

 

· The ECJ, the Commission, and the European Parliament are primarily responsible for the development of European Citizenship :

-         the ECJ secured the Treaty's guarantee of free movement through decisions on civil and social rights (Plender, 1988 ; Evans, 1984 ; Magiera, 1991 ; Meehan, 1991)

-         the Commission and the EP pressured MS for realisation of political rights.

· 1960 : drive for political rights began with the EP's draft convention on direct election to the Parliament. The draft called for uniform electoral system across MS that enabled MS nationals to vote and run in elections in the MS in which they resided Þ opposition of the Council

· 1975 : Commission report on extending local voting rights. Presented as an interim solution, before the granting of full political rights ' desirable in the long term'.

· 1988 : the Commission proposed that the Council should issue a directive establishing local voting rights.

· 1990 : Belgium proposes a European Citizenship on its memorandum to the Council.

· 1991 : Spain became the primary advocate of European Citizenship - Presented a working draft.

· The Maastricht Treaty incorporated most of the original Spanish draft.

 

Rights related to European Citizenship

 

· To move and to reside within the Union

· To vote and to stand for elections in local and European Parliamentary elections in the citizen's place of residence.

· right to diplomatic and consular protection in countries in which the citizen's MS is not represented.

· To petition the European Parliament.

· To register complaints to Community institutions (except the Court) with an Ombudsman.

 

A segmented citizenship

 

· With European Citizenship, the political structure of the EU is quite different from traditional models of democratic federal systems (USA, Germany).

· In the traditional model (federalism in one country), each level of government has a different electorate, but the electorate is layered telescopically :

 

                                                           National Level

 

 

 

 

                                                                   State

 

 

 

                                                                    Local

 

· The EU model is a " mirror image of federalism in one country". C.f. graph p. 391

 

Implied Inequalities

 

· The Maastricht Treaty's European Citizenship introduces new inequalities among resident alien EU national across the EU.

· Their political power depends on whether they reside in a Unitary Democracy (e.g. France) or in a Federal Democracy (e.g. Germany)

Þ Residents from Germany voting in local elections in France have relatively less power (than French voting in Germany) because local governments primarily implement national law (that is not the case in Germany: more policies originate at the local level)

· A similar difference arises between electoral systems utilising proportional representation (Spain) and first-past-the-post (UK).

Þ with proportional representation minorities have a greater access to power.

 

 

Conclusion

 

· Uniform adoption of jus solis by all MS could be a solution in order to maintain inclusive democracy in a future EU federation.

· However, this is unlikely to occur : while Germany has been moving towards the jus solis naturalisation rules of France, France has moved toward Germany 's jus sanguinis naturalisation policy.

· Finally, jus sanguinis and inclusive democracy may coexist with a different form of federal political organisation, e.g. non-territorial federalism (Renner, 1918). Model : Netherlands, Belgium, and Switzerland.

            Þ the European electorate would be divided along ethno-national as well as territorial lines

            Þ non territorial representation would be institutionalised at all levels of the political structure of the EU

· However, this solution would be very complex.

 

 

 

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