Voluntary harmonisation of European citizenship laws: the Nordic countries example
EU citizenship is currently a status derived from Member State nationality. This derivative nature is not a historically unique construct. As pointed out by Rainer Bauböck, ‘the same citizenship architecture was characteristic for early stages of federal statehood in Germany, Austria, and the United States of America’. It is clear, however, that Member State self-determination in matters of citizenship is much stronger in the EU than in any of these historical federal nations.
As European citizens enjoy the right of free movement throughout the Union, every Member State is affected by the nationality law provisions of other Member States. As yet, the EU lacks competence to act in the area of nationality law, which is often justified by pointing at Member State sovereignty and the general sensitivity of the issue. This has not prevented a debate on the necessity for minimum harmonisation of the Member States’ nationality laws, however. While at present there is a relatively low level of mobility of Union citizens, when large numbers of EU citizens arrive from third countries the need to coordinate nationality laws may come to outweigh the importance of national self-determination.
It is interesting to note that the coordination of nationality laws was exactly what happened when the Scandinavian countries discussed the possibility of introducing a Nordic Union citizenship after the Second World War. They agreed that a common Nordic nationality was undesirable and that Nordic Union citizenship should complement rather than replace the nationality of the participating States. Yet it was also recognised that if such a Union was created, significant differences between the States’ nationality legislations could not be maintained. The following example from the comparative NATAC project illustrates this well:
it would have been an odd situation if a foreigner born in Denmark could acquire Danish nationality at the age of nineteen and then move to Finland and enjoy equal rights there with native Finns in Nordic Union matters, while a foreigner born and raised in Finland would still be deprived of such rights. Since Nordic Union citizenship was meant to be attached to the nationality of each Member State, more uniform legislation on the acquisition and loss of nationality was found to be necessary.
Eva Ersboll has explained that currently the high barriers to naturalisation for long-term resident migrants in Scandinavia do not apply to citizens from the Nordic countries. Her native country Denmark has traditionally facilitated the acquisition of citizenship for Nordic citizens, as the residence requirement for naturalisation of Nordic citizens is only two years. ‘In the aftermath of the Second World War’, Ersboll observes, ‘the Nordic countries discussed the introduction of a common Nordic citizenship; however the issue was set aside for more urgent matters. Instead, a Nordic agreement was concluded, entitling citizens from the Nordic countries to privileged acquisition of citizenship through notification/declaration and facilitated naturalisation’.
It is often asserted that the Member States will never give up their autonomy in nationality law as this would effectively be the beginning of a federal Europe. Nationality being one of the core elements of State independence, their sovereignty and existence are put in jeopardy when giving up part of this autonomy. In short, the sensitivity of nationality would militate against the idea of harmonisation in this field. An argument against this line of reasoning is that Member States will become increasingly aware that it is in the interest of all to set minimum standards in the field of nationality law, for example concerning the conditions for naturalisation.
If the EU aspires to exercise more influence in matters of nationality, it could cooperate with the Council of Europe in setting up minimum standards in nationality law. Rather than starting from scratch, the EU could encourage Member States to sign and ratify the 1997 European Convention on Nationality. The Council of Europe – due to its activities in nationality law in recent decades – could be made responsible for the general harmonisation attempts, thereby leaving the EU to concentrate on points that the Council of Europe cannot decide on. This could involve, for example, EU rules which stipulate that residence in other Member States should be taken into account when assessing naturalisation applications.
Indeed, there are Third Country Nationals who can demonstrate a strong link to the EU but who, for different reasons, have difficulties acquiring the nationality of a Member State; consequently, also EU citizenship is out of reach. These difficulties consist in naturalisation requirements that are particularly hard to meet (for example long residence periods for naturalisation; the requirement of renouncing the original nationality; and language and society tests that are part of the naturalisation procedure). Moreover, non-EU spouses of EU citizens who frequently move in the territory of the Union will find themselves in a problematic situation. They may not be able to acquire the nationality of the country of residence because they move again to another Member State before fulfilling the waiting period for naturalisation; it may also be difficult to acquire the nationality of the EU citizen spouse because naturalisation conditions (for example language requirements) have become much stricter in recent years. More generally, it may be questioned to what extent language tests will still make sense after the establishment of EU citizenship. After all, language tests were introduced on the assumption that immigrants would stay after naturalisation; EU citizenship, on the other hand, allows newly naturalised immigrants to move to other Member States, also if they do not speak their language.
Author: Dr. Olivier Vonk