Territorial disputes: Brexit (11) [Post 211]

The previous posts introduced the four fundamental freedoms that have to do with the European Union. With Brexit, the United Kingdom (and therefore, Northern Ireland) will leave behind this legal structure. In the context of the four fundamental freedoms, the posts referred in particular to free movement of persons and European Union citizenship. Today’s post introduces European Union treaty law relevant to citizenship.

In fact, citizenship provisions included in the treaty do not add any anything substantive to Community rights already existing in European Union law. The European Court of Justice has attempted to “add” to citizenship rights. It has failed to be more generous in the interpretation of art. 21 TFEU and an independent right of free movement. However, the European Court of Justice has been progressive in creating wide right to equality for Union citizens under art. 18 TFEU (principle of non-discrimination).

Citizenship Provisions Included in European Union Treaty Law
Art. 21 (1) TFEU: “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty.”
Art. 22 TFEU: confers right to vote and stand for municipal elections and elections to European Parliament under same conditions as nationals of Member State. Only exercisable when Union citizen exercises right to free movement in another Member State. European Union citizenship is only significant if results in non-nationals participating actively and exercising rights in art. 22 TFEU.
The right to vote in municipal elections and elections to European Parliament in own Member State is conferred by national law.

Art. 23 TFEU: confers entitlement to protection by diplomatic or consular authorities of any Member State, on same conditions of nationals of Member State, in territory of third country in which Member State of which European Union citizen is national is not represented.
Assistance offered in cases of death, serious accident, illness, arrest, detention or where victim subject to violent crime. Includes relief and repatriation of “distressed citizens” of Union. The right to diplomatic protection not general one. European Union citizens are not entitled to protection of all Member States in any third country. They have only protection where their own Member State is not represented.

Art. 24 TFEU: confers right to petition European Parliament and to submit complaints to Ombudsman.
The right to petition Parliament is not new within Union framework. In fact, the right to petition Parliament and complain to the Ombudsman is not exclusively attached to the condition of European Union citizenship, but rather a general right, including third country nationals.

From the above brief account, it is clear European Union law does not grant but simply acknowledges the aforementioned rights. In fact, even the acknowledgment is limited in practical terms. The post tomorrow will introduce the views of the European Court of Justice on citizenship.

Monday 25th February 2019
Jorge Emilio Núñez
Twitter: @London1701


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