For the European Citizenship to Residents

Paul Oriol

In democratic countries everybody has rights that make him, in some ways, a citizen: social, cultural, labour rights. But almost everywhere the political citizenship is reserved to nationals.

According to the European Charter of Fundamental Rights (the Charter): “Everyone is equal before the law” (Art. 20) and: “Within the scope of application of the Treaty establishing the European Community, and without prejudice to the special provisions thereof, any discrimination on grounds of nationality shall be prohibited” (Art. 21 (2)). Equality is the rule, inequality the exception. Exceptions will have to become rarer according to the Tampere Summit Conclusions: “The legal status of third country nationals should be approximated to that of Member States' nationals. A person, who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit, should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by EU citizens”.

The Treaties

The EU citizenship has been instituted by the Maastricht Treaty (the Treaty): “Every person holding the nationality of a Member State shall be a citizen of the Union” (Art.8-1). The Treaty lists the rights attached to this citizenship: “the right to move and reside freely within the territory of the Member States” (Art.8A-1), “protection by the diplomatic or consular authorities of any Member State” (Art.8C), “right to address a petition to the European Parliament” and “to apply to the Ombusdam” (Art.8D), “right to vote and to stand as a candidate at municipal elections in the Member State where he resides, under the same conditions as nationals of that State” (Art.8B-1) and “at elections to the European Parliament” (Art.8B-2).

These rights are of a very different nature. The right to move and to reside can be referred to the Rights of Man: “Every person has the right to move freely and to choose his residence in the territory of a State” (Art.13-1 of the Universal Declaration of the Rights of Man) and “Every person has the right to leave any country, including his own, and to return to his country” (Art. 13-2). This freedom, called for since the Rome Treaty, is not yet fully recognized, even for citizens of the EU. Its extension to nationals of third countries is provided for by the Charter: “The freedom of movement and residence can be granted ... to nationals of third countries legally residing in the territory of a Member State” (Art. 44-2).

The diplomatic and consular protection is a right of the national : “The State must give its protection to its nationals, which translates into diplomatic and consular protection to be given to nationals being abroad ...” (European Convention on the reduction of cases of multi-nationality and on military duties in cases of multi-nationality, François Julien-Laferrière, Migrations Société, no. 80, March-April 2002).

The right to petition and to apply to the Ombusdam is a right of any administered person. The Treaty grants it to “any natural or legal person residing or having its registered office in a Member State” (Art. 138D) and the Ombusdam is “empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State” (Art.138E).

The right to vote and to stand as a candidate at municipal and European elections is reserved to EU citizens.

The Treaty makes of a citizen, in turn, a person-citizen, a consumer-citizen, a national-citizen or a citizen-citizen. Of course, the Rights of Man or those of consumers are also a form of citizenship. But the core of citizenship is indeed the participation in political decisions. The Charter goes further than the Treaty: “Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters...” (Art.12-1). It grants to everybody, hence to nationals of third countries, the right of participation, “in particular in political ...matters”. Nationals of third countries may be members of a political party “at all levels”, may preside over them, but they cannot vote in any political election.

Present situation

Because of the Treaty, over the same territory people having the same duties are enclosed in castes of citizenship with different rights:

- national citizens living in their national territory (365 million people) have the right to vote and to stand as a candidate in any election

- EU citizens being in a EU country other than that they are nationals of (5 millions) have only the right to vote and to stand as a candidate in municipal and European elections

- nationals of third countries (15 millions) have (in Belgium*, Denmark, Finland, Ireland, Luxemburg, Netherlands, Sweden) or do not have (in Germany, Austria, France, Greece, Italy) the right to vote and to stand as a candidate in certain local elections, depending on the laws of the country of residence and on peculiar norms of some countries (Spain, Portugal, United Kingdom), and

- in all of the States, there are outcastes, as the sans-papiers.

The EU citizenship adds a legal discrimination to the many already (ill)suffered, and in a way legitimizes them. In order to suppress such a political discrimination, could the residence be taken as the criterion for awarding citizenship, just as nationality is?

It is obvious that, according to the subsidiarity principle, it is a State that awards its nationality. It would be obvious likewise that it is the EU that awards the EU citizenship. But the EU citizenship is based on nationality, so the States are awarding it indirectly. Hence an inconsistency. Two brothers, Turks, establish themselves in the EU, Ali in Belgium, Umit in Germany. After 7 years, Ali gets the Belgian nationality and becomes a EU citizen. Umit cannot do that. But, as he is perfectly integrated, his business prospers. He calls Ali to live with him. Since his arrival, he, a Belgian and hence a EU citizen, has the right to vote and to stand as a candidate in municipal and European elections. He does not know Germany, does not speak German... Umit cannot vote, but could help him in that task!!!

The Treaty has shown that the arguments against the right to vote for foreign residents are weak in the face of a determined political will. The EU citizens enjoy their rights deriving from the EU citizenship whatever their degree of integration, the length of their residence, the language they speak.

There remains to speak of the reciprocity principle: no fundamental principle requires reciprocity for awarding new rights. It is never claimed for opening citizenship to Norwegians or New Zealanders. Such requirement would make the quality of democracy within the EU dependent on the States that the foreigners have left for escaping corruption, bad management or oppression. The countries that have given the right to vote before the Treaty have done so with the intention of democratizing their society. They have given it to all residents whatever their nationality.

Extending citizenship is the conclusion of the slow but progressive process of bringing the rights of foreigners in line with the nationals’, of extending the right to vote towards a real universal suffrage (from the wealth-based vote to suffrage reserved to men, then to women, then to the young).

Nationality vs. Citizenship

The link Nationality - Citizenship is just an historical one, albeit it is made sacred by the notion of nationality, which can be felt as essential, uncreated. However, laws on nationality vary a great deal depending on traditions and real or alleged interests of the moment.

According to the 1999 census of population, there were 3.260.000 foreigners in France. Demographer Hervé Le Bras could write: “If France had the same laws as the United States, the 510.000 foreigners born in France would be French. And if we had the laws of Latin American countries, residents for more than 10 years would have acquired the nationality of the host country. We would count then 638.000 foreigners only!” (Coup de Soleil, no.21) And we could also add: with the German laws, before the last reform, or the Swiss laws they would be 6 or 7 millions! So, depending on which legislation is applied, the “foreign” population can vary from 600.000 to 6 millions! That relativizes the notion of foreigner and that of national.

The Belgian law of 2000 has made easier the acquiring of nationality, determining a significant reduction of the number of foreigners in Belgium without any real change in the composition of that population! Actually, there have been “61.980 naturalizations in 2000, 62.982 in 2001 and 46.417 in 2002. Before that, the country was registering between 25.000 and 35.000 naturalizations a year” (Le Soir, 21/06/2003).

Nationality is not the only criterion for awarding rights. More and more, residence is playing that role. From the rights of the sans-papiers to the right to get the nationality, passing through the social, labour, cultural, political rights. Rights that were considered political yesterday are recognized today, in democracy, to foreign residents: right of association, expression, manifestation, to join trade-unions ...

The link nationality-citizenship appears so “natural” that often the two words, citizenship and nationality, are used interchangeably. However, they do not answer the same question.

Nationality answers the question “Who are we?”, and the answers are several, because people’s allegiances are several: nationality, but also family situation, profession, religion, gender, age, and to a little extent citizenship... There is no point in negating the links which exist among people of the same nationality, even if such links make often reference to common ancestors and such attachment is explained by the right of blood. This story is mythical at the national level, and it is even more so at the European level. There is no European people, there is diversity of peoples, of cultures, of religions...

Citizenship answers the question: “How to construct a common future in diversity?”. A citizen is one who takes in his hands his situation respecting the common good and, in democracy, with no exclusion. Citizenship implies a relation with others, conflicting but egalitarian.

The European Commission could say that “the nationals of other Member States integrate themselves in the economic and social activity of their hosting country, all the more so as they already enjoy the same rights as the local nationals... It is more logical, if not fully justified, to take part in the elections organized in their town of residence, even if they have the nationality of another Member State, rather than to continue to participate in the elections of a town where they no longer reside, which they have the nationality of”. (Proposal for a Council directive on the right to vote of nationals of another Member State in the municipal elections in the Member State of residence, COM (88) 371, 24/06/1988). If the awarding of political rights is a factor of integration and they are awarded to some and not to others, does it mean that there is an intention to integrate some and not others?

Everybody must be in a position to participate in the construction of a common future, by his professional, sporting, artistic, demographic contribution; but also to participate in the moment when decisions are made. Citizenship is a factor of social cohesion. Can one imagine a true equality in the enforcement of law without equality in drafting it? The right to vote and the EU citizenship would legitimize actions which often are performed already when one participates in the life of his neighborhood, his company, his church, his sporting club or his association of school parents. To this de facto citizenship there must correspond a de jure citizenship, lest frustrations are generated.

Europe cannot but be based on universal values. Moreover, it must really accept both the variety of cultures and universalism. It cannot be content with a petty multi-culturalism and universalism without, one day or the other, paying the consequences. Nation-States have often been created before citizenship, before the institution of democratic systems; and they are not there even for the EU: there is no European people, there is no European nation-State. The EU citizenship is a citizenship without State. Diversity is congenital in Europe. Why not to base “Europeanship” on citizenship, on adhesion to principles, on participation? Why shouldn’t Europe be a creation by its citizens, by all those who declare their will to participate? Such desire of egalitarian citizenship will constitute the European identity, that cannot be a national identity. Adhesion by naturalization is an adhesion to an already-constituted mythical community. Adhesion by citizenship is an adhesion to a project, to an identity in the process of being built, which rests on a political plan, on reason.

Practical considerations

On the occasion of the European Social Forum, the campaign and a petition** "ONE MILLION SIGNATURES in favour of EUROPEAN CITIZENSHIP FOR ALL RESIDENTS" has been launched. It is supported by more than 250 organizations from 12 out of the 15 EU countries. One million signatures for asking the Commission a proposal on this matter, related to the project of the European Constitution. In order to bring this political discrimination in the European political space in the making. At the moment of European elections, of the discussion on the project of the Constitution, of the out-bound enlargement, which should not make us forget the in-bound enlargement and the 15 to 20 million people living on the EU territory without having its citizenship. Its goal is to modify the criteria for awarding the EU citizenship, which should be: “Every person residing in, and every national of, a Member State shall be a citizen of the Union.”. Such a wording would be closer to the values declared in other places.

* In Belgium, nationals of third countries do not have the right to stand as a candidate.

**Avalaible in 11 languages http://www.fidh-ae.org/petition-million.htm