European Union Citizenship and the Unlawful Denial of Member State Nationality

Abstract

Increasingly some European Union Member States are undertaking practices to revoke or refuse nationality, and thus EU citizenship. The problem is that some of these practices are unlawful, meaning that the refusal of EU citizenship might also be unlawful in turn. This article will question the impact of measures denying nationality on EU citizenship, and conclude that, when an EU Member State unlawfully denies nationality, the person can nonetheless still acquire and assert EU citizenship. As international and European law continues to develop, it increasingly constrains state freedom in adopting domestic nationality law. Regarding the revocation of Member State nationality, EU law demands that the state consider the possibly disproportionate consequential loss of EU citizenship. European human rights law limits revocation for the impact that act has on other human rights, such as freedom from discrimination and the right to one’s identity. International law also restricts revocation of nationality when it results in statelessness or constitutes an arbitrary or discriminatory act. Regarding the refusal of Member State nationality acquisition, the same sources also constrain state freedom. EU law and European human rights law demand that such a refusal not otherwise infringe other human rights, and international law obliges states to protect every person’s right to a nationality. In many ways, both international and European law now make some revocations or refusals of nationality unlawful. If a denial of Member State nationality is indeed unlawful, then the next question is whether such an unlawful act can have consequences for EU citizenship. Under both international law and European law, there are several remedies for an unlawful act. For example, EU Member States must act in line with the duty of sincere cooperation. Also, under international law, unlawful acts cannot create legal rights. This article will argue that, when the denial of Member State nationality is unlawful, other Member States, and the Union itself, may nonetheless recognize and give effect to EU citizenship.