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Journal ArticleDOI

Brexiting European Citizenship through the Voice of Others

29 Jun 2016-German Law Journal (German Law Journal, Inc)-Vol. 17, pp 109-116
TL;DR: The British vote on 23rd June, opting by a rather slim majority to leave the European Union, has sent waves of uncertainty rippling through the island and the continent, as well as through some milestones of European integration.
Abstract: The British vote on 23rd June, opting by a rather slim majority to leave the European Union, has sent waves of uncertainty rippling through the island and the continent, as well as through some milestones of European integration. One of these is European citizenship. Paradoxically, it receives a hard shake at the hand of national citizenships, exercised through a referendum.

Summary (2 min read)

Introduction

  • The British vote on 23 rd June, opting by a rather slim majority to leave the European Union, has sent waves of uncertainty rippling through the island and the continent, as well as through some milestones of European integration.
  • 2 Second, it is a condition centered on the right to free movement, to the point that European citizens not exercising their right to free movement are subject to reverse discrimination.
  • This essay questions these new facets, reflecting on the new vulnerabilities that the link between national and European citizenship reveals; on the condition of mobile European citizens held to ransom from static ones; and on the opportunity that recent events entail for the Union to reaffirm a direct link to its citizens.
  • In plural, in consideration of the fact that nationals of other Commonwealth countries resident in the U.K. were allowed to vote in the referendum.

Exit through Voice

  • Much ink has been spilled on the relation between national and European citizenship.
  • This is a corollary of the “ius tractum” nature of European supranational citizenship: 7 European citizenship follows national citizenship like a shadow follows the body that carries is along.
  • It is precisely in this latter perspective that the European Court of Justice has issued its strongest warning on the exercise of national powers in terms of acquisition and withdrawal of nationality.
  • This decoupling is impliedly admitted by the provisions introduced by the Treaty of Lisbon that formalized the possibility of withdrawal of a Member State.

8 FRANCESCA STRUMIA, SUPRANATIONAL CITIZENSHIP AND THE CHALLENGE OF DIVERSITY – IMMIGRANTS, CITIZENS AND MEMBER

  • 11 Something on which some doubts begin to linger according to the reactions of politicians as well as constitutional scholars in the UK.
  • Decide that it is in the best interest of the country to secede, with all the citizenship consequences that secession entails.
  • Voice on the basis of national citizenship may determine the exit from supranational citizenship.
  • The problem is that, for the significant minority that opposed Brexit with their vote, it is the voice of others that forces exit.
  • 15 This is Hirschman’s tryptic: exit, voice, and loyalty.

Caring for the Discrete and Insular Minorities?

  • In the early days of European citizenship, several studies compared it to federal citizenship.
  • 22 If European citizenship were a real federal citizenship, it would entail a direct link between the Union and its citizens, with which the Member States would not be able to interfere.
  • 26 If this 22 See, e.g., CHRISTOPH SCHÖNBERGER, UNIONSBÜRGER: EUROPAS FÖDERALES BÜRGERRECHT IN VERGLEICHENDER SICHT (2006).
  • The answers to these questions depend in good part on how one interprets the link between the citizens and the Union.

Conclusion

  • Once the dismay and inebriation of the immediate referendum aftermath will have waned, the world may be left with a crumbling Europe, and researchers will be left with some hard thoughts.
  • Events of the last few days cast old principles under new light and prompt a renewed research agenda on the prospects of supranational citizenship.
  • The latter concept may seem left in agony, in the wake of resistance to migration, strained transnational solidarity, burgeoning nationalism and now popular opt-out.
  • Yet it is still one that attracts much attention around the globe.
  • 29 See Pietro Adonnino, A People's Europe.

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Brexit
Special Supplement
Brexiting European Citizenship through the Voice of Others
Francesca Strumia
University of Sheffield School of Law
[f.strumia@sheffield.ac.uk]
Introduction
The British vote on 23
rd
June, opting by a rather slim majority to leave the European Union,
has sent waves of uncertainty rippling through the island and the continent, as well as
through some milestones of European integration. One of these is European citizenship.
Paradoxically, it receives a hard shake at the hand of national citizenships,
1
exercised
through a referendum.
Any student of European citizenship has learnt a few things by heart. First, European
citizenship derives from national citizenship, to which it adds without replacing it.
2
Second,
it is a condition centered on the right to free movement, to the point that European
citizens not exercising their right to free movement are subject to reverse discrimination.
3
Last, according to the European Court of Justice, it is destined to be the “fundamental
status” for nationals of EU Member States.
4
The British vote, if eventually leading to real Brexit rather than just national political farce,
shows new facets of each of these citizenship tenets. This essay questions these new
facets, reflecting on the new vulnerabilities that the link between national and European
citizenship reveals; on the condition of mobile European citizens held to ransom from
static ones; and on the opportunity that recent events entail for the Union to reaffirm a
direct link to its citizens. The essay ultimately endeavors to distil from the dismay of the
first hours an initial post-referendum research agenda on the prospects of supranational
citizenship, in Europe and beyond.
1
In plural, in consideration of the fact that nationals of other Commonwealth countries resident in the U.K. were
allowed to vote in the referendum.
2
Treaty on the Functioning of the European Union, 2012 OJ (C 326), 47, art. 20.
3
See Case C-64/96 and C-65/96 Uecker and Jacquet v Land Nordrhein-Westfalen, EU:C:1997:285.
4
See, e.g., case C-184/99, Rudy Grzelczyk v. Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve,
EU:C:2001:458.

110 G e r m a n L a w Jo u r n a l Vol. 17
Brexit Supplement
Exit through Voice
Much ink has been spilled on the relation between national and European citizenship.
Some have argued that supranational citizenship devalues national, to the point that
“residence is the new nationality”.
5
I have argued elsewhere that European citizenship
actually enhances national citizenship.
6
The Brexit vote greatly enhances the power of
national citizenship to inflict a fatal wound on supranational citizenship. This is a corollary
of the “ius tractum” nature of European supranational citizenship:
7
European citizenship
follows national citizenship like a shadow follows the body that carries is along.
8
This
means, among others, that European citizenship is lost together with national citizenship.
It is precisely in this latter perspective that the European Court of Justice has issued its
strongest warning on the exercise of national powers in terms of acquisition and
withdrawal of nationality.
9
Relevant powers, albeit belonging to the Member States, have
to be exercised in compliance with EU law, and in particular taking into account the rights
of European citizens. Denaturalization decisions that cause a national of a Member State to
lose European citizenship are subject to an assessment of proportionality.
10
The Brexit vote, assuming that it is eventually determinative of a UK Brexit decision,
11
blows up all these legal bulwarks protective of the status of European citizenship.
European citizenship, this time, is not lost as a side effect of the loss of national citizenship,
but rather it is going to be lost by decoupling national and European citizenship. This
decoupling is impliedly admitted by the provisions introduced by the Treaty of Lisbon that
formalized the possibility of withdrawal of a Member State.
12
A Member State could
5
Gareth Davies, “Any Place I Hang my Hat?”, or: Residence is the New Nationality, 11 EUROPEAN LAW JOURNAL 43
(2005).
6
See, e.g., Francesca Strumia, Individual Rights, Interstate Equality, State Autonomy: European Horizontal
Citizenship and its (Lonely) Playground in Trans-Atlantic Perspective, in CITIZENSHIP AND FEDERALISM: THE ROLE OF
RIGHTS (Dimitry Kochenov ed., forthcoming 2016)
7
Dimitry Kochenov, Ius Tractum of Many Faces: European Citizenship and the Difficult Relationship between
Status and Rights, 15 COLUMBIA JOURNAL OF EUROPEAN LAW 169 (2009).
8
FRANCESCA STRUMIA, SUPRANATIONAL CITIZENSHIP AND THE CHALLENGE OF DIVERSITY IMMIGRANTS, CITIZENS AND MEMBER
STATES IN THE EU (2013), at 315.
9
Case C-135/08, Janko Rottman v Freistaat Bayern, EU:C:2010:104.
10
Id.
11
Something on which some doubts begin to linger according to the reactions of politicians as well as
constitutional scholars in the UK. See, e.g., Nick Barber, Tom Hickman, Jeff King, Pulling the Article 50 ‘Trigger’:
Parliament’s Indispensable Role, U.K. CONST. L. BLOG (June 27, 2016), available at https://ukconstitutionallaw.org/.
12
See Treaty on European Union, 2012 OJ (C 326), 13, art. 50.

2016 Brexiting European Citizenship 111
decide that it is in the best interest of the country to secede, with all the citizenship
consequences that secession entails. The dynamics of Brexit are however particularly
troubling. It is the very citizens that have made the democratic choice to give up their
supranational status, as well as to strip it off their dissenting fellow nationals. From the
point of view of this latter group, a new Achilles’ heel of supranational citizenship is
revealed, one that has a legal as well as a democratic face.
From a legal perspective, supranational citizenship emerges extremely vulnerable. It turns
out that notwithstanding the activism of the European Court of Justice in shoring up one of
its most ambitious creatures, European citizenship remains fragile. Under the Universal
Declaration of Human Rights anyone has a right to a nationality.
13
International law entails
protections against statelessness. However no one has a right to a supranational
citizenship, and in fairness most people live their lives without one, or with one that they
do not exercise. The referendum result makes one thing clear: legal protections, when it
comes to supranational citizenship and its rights, only go so far.
From a democratic perspective, a popular vote on continued membership of the EU may
seem a victory in the context of an entity that has been accused for decades of carrying
along a democratic deficit.
14
Yet it is a pyrrhic victory from the angle of supranational
citizenship. The very political exercise of national citizenship potentially ends up silencing,
for many, their supranational citizenship and its political side. Voice on the basis of
national citizenship may determine the exit from supranational citizenship. The problem is
that, for the significant minority that opposed Brexit with their vote, it is the voice of
others that forces exit. This is, of course, the regular course of democracy: winner takes all.
In this case, however, the winner takes away from all, winners and losers, part of the
political self that supranational citizenship entails: voice in the European Parliament, and
for migrant British citizens, voice in local elections in other Member States. Any
supranational loyalties that some British citizens may have developed together with such
political self are going to be automatically disabled.
15
Ultimately these results qualify some of the above mentioned scholarly arguments on the
effect of supranational citizenship on national citizenship.
16
Residence based on
13
Universal Declaration of Human Rights, art. 15.
14
See Joseph H. Weiler, Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European
Legitimacy, 12 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 94 (2014), at 100-101.
15
This is Hirschman’s tryptic: exit, voice, and loyalty. See ALBERT HIRSCHMAN, EXIT, VOICE AND LOYALTY: RESPONSES TO
DECLINE IN FIRMS, ORGANIZATIONS AND STATES (1970).
16
See supra, notes 5 and 6.

112 G e r m a n L a w Jo u r n a l Vol. 17
Brexit Supplement
supranational citizenship “is the new nationality”
17
only until national citizenship does not
outlaw such residence. And while supranational citizenship enhances national citizenship
in many ways, it does so in a rather contingent manner.
Supranational Citizens Held to Ransom
Supranational citizenship’s enhancement of national citizenship has to do with the free
movement rights that supranational citizenship entails. It allows partaking, through the
principle of non-discrimination on the basis of nationality, of the rights of nationals in a
host Member State. It also allows exporting entitlements that a national has in the
Member State of nationality so that these can be enjoyed in the Member State of
residence.
18
European supranational citizenship is centered on the right to free movement. In fact, it is
only activated in situations that are not purely internal, that is, situations that involve a
European citizen residing, working, or travelling to a Member State other than his own.
19
This transnational character of European citizenship has attracted various criticisms.
Accounts of European citizenship focus on the tiny minority of migrant European citizens
and unduly disregard the perspective of the static citizens, to whom European citizenship
means little or nothing.
20
Also, the promise of supranational equality that European
citizenship brings about is watered down by reverse discrimination of static citizens: not
only the European citizens who stay at home enjoy no protection, they may find
themselves treated less favorably, for instance for purposes of family reunification, than
migrant European citizens.
21
The Brexit vote brings new viewpoints on these considerations. It represents the revenge
of the static European citizens against the migrant ones. And, based on the data that has
17
See G. Davies, supra note 5, at 56.
18
See, e.g., Case C-499/06 Halina Nerkowska v Zakład Ubezpieczeń Społecznych Oddział w Koszalinie,
EU:C:2008:300; case C-503/09 Lucy Stewart v Secretary of State for Work and Pensions, EU:C:2011:500; (the
rationale for the judgments in these cases is that obstacles to fruition of benefits while residing outside the
Member State of nationality unduly restrict the freedoms conferred by the Treaties on European citizens)
19
The doctrine of the genuine substance of European citizenship, inaugurated by the Court in Ruiz Zambrano,
case C-34/09, Ruiz Zambrano EU:C:2011:124, overcomes this requirement but is left with uncertain prospects.
20
See, e.g., Agustín José Menéndez, Which Citizenship? Whose Europe? The Many Paradoxes of European
Citizenship 15 GERMAN LAW JOURNAL 907 (2014).
21
See Alina Tryfonidou, Reverse Discrimination in Purely Internal Situations: an Incongruity in a Citizens’ Europe 35
LEGAL ISSUES OF ECONOMIC INTEGRATION 43 (2008).

2016 Brexiting European Citizenship 113
been released on the correlation between age group and vote, a revenge of the
perpetually static against the potentially mobile.
Hence it turns out that the minority of migrant European citizens, who are so tightly
protected in their rights by the legal architecture of supranational citizenship, are held to
ransom by the majority of their static fellow nationals. If the latter pull the cord, their
supranational citizenship and the transnational opportunities that it brings about are gone.
In the light of this, the relative weight and meaning of supranational citizenship, including
for settled versus migrant supranational citizens, need some rethinking. As does the
vertical link that supranational citizenship weaves between the Union and its people.
Caring for the Discrete and Insular Minorities?
In the early days of European citizenship, several studies compared it to federal
citizenship.
22
If European citizenship were a real federal citizenship, it would entail a direct
link between the Union and its citizens, with which the Member States would not be able
to interfere. In that respect, federalism really “splits the atom of sovereignty”.
23
However,
such accounts have lost traction in the EU context, and arguments along these lines have
gradually gone quiet, while the study of EU citizenship has rather focused on its potential
as transnational citizenship, on its political capacity, on its repercussions for solidarity.
24
An
echo of the early federalist aspirations survives perhaps in the Court’s proclamation, less
adamant as of late,
25
that European citizenship is destined to be the fundamental status for
nationals of the Member States. The Brexit vote may, on the one hand, be the latest
disproof of the Court’s mantra. On the other hand, it presents an opportunity to reconsider
the nature and the prospects of the feeble direct link between the Union and its people.
After all, this is the first time in EU history that a pocket of European citizens who had
automatically acquired their supranational citizenship with the Treaty of Maastricht raises
its political voice to clearly state that they want to remain European citizens.
26
If this
22
See, e.g., CHRISTOPH SCHÖNBERGER, UNIONSBÜRGER: EUROPAS FÖDERALES BÜRGERRECHT IN VERGLEICHENDER SICHT (2006).
23
See US Term Limits v. Thornton 514 US 779 (1995) (J. Kennedy concurring), at 845 (Federalism requires ‘a
relationship between the people of the Nation and their National Government, with which the States may not
interfere’).
24
See, e.g., Dora Kostakopoulou, European Union Citizenship: Writing the Future 13 EUROPEAN LAW JOURNAL 623
(2007); Jo Shaw, Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism, in PAUL
CRAIG AND GRÁINNE DE BURCA (EDS.), THE EVOLUTION OF EU LAW (2011); Michelle Everson, A Citizenship in Movement,
15 GERMAN LAW JOURNAL 965 (2014).
25
See, e.g., Case C-333/13, Dano, EU:C:2014:2358.
26
European citizenship did not formally exist at the time of the 1975 UK referendum on EU membership. On the
other hand citizens voting in the EU accession referendums in the context of the 2004 enlargements were not
European citizens beforehand.

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Abstract: On 1 June 2012, the Commission received a complaint from the Spanish authorities concerning the new income tax system in Gibraltar, as introduced by the Income Tax Act 2010 (ITA 2010). According to Spain, this new system would grant a de facto selective advantage to the offshore sector, through the combined effect of the application of the territorial system and the tax exemption for passive income.

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TL;DR: The authors argue that once we dispense with the preoccupation of assigning primacy to a specific level of citizenship and establishing some kind of hierarchy among them, we can begin to address the questions and issues that really matter.
Abstract: EU citizenship has matured as an institution, owing to a number of important interventions by the European Court of Justice and legislative initiatives, such as the Citizenship Directive 2004/38/EC, which has recently entered into force. In this article, I critically examine minimalist and cosmopolitan conceptions of European citizenship and argue that once we dispense with the preoccupation of assigning primacy to a specific level of citizenship and establishing some kind of hierarchy among them, we can begin to address the questions and issues that really matter. Among these are the future governance of citizenship and the design of a more inclusive, multilayered and multicultural conception of citizenship. European citizenship entails a number of fruitful ideas for a more ambitious transition to a post-national tableau and can be the prototype for institutional experimentation on citizenship on a global scale.

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Frequently Asked Questions (7)
Q1. What are the contributions in "Brexit special supplement brexiting european citizenship through the voice of others" ?

Adonnnnino et al. this paper investigated the new vulnerabilities that the link between national and European citizenship reveals ; on the condition of mobile European citizens held to ransom from static ones ; and on the opportunity that recent events entail for the Union to reaffirm a direct link to its citizens. 

It allows partaking, through the principle of non-discrimination on the basis of nationality, of the rights of nationals in a host Member State. 

2 Second, it is a condition centered on the right to free movement, to the point that European citizens not exercising their right to free movement are subject to reverse discrimination. 

If supranational citizenship is a horizontal extension of national citizenship, entirely dependent on the sorts of the latter, then there is little that the EU can or should do. 

The very political exercise of national citizenship potentially ends up silencing, for many, their supranational citizenship and its political side. 

50.decide that it is in the best interest of the country to secede, with all the citizenship consequences that secession entails. 

The problem is that, for the significant minority that opposed Brexit with their vote, it is the voice of others that forces exit.