Double Nationality in the EU: An Argument for Tolerance

• DOI: http://doi.org/10.1111/j.1468-0386.2011.00553.x
• Published date: 01 May 2011
• Author: Dimitry Kochenov
• Date: 01 May 2011

eulj_553323..343

Double Nationality in the EU:

An Argument for Tolerance

Dimitry Kochenov*

Abstract: Currently the Member States’ nationalities, short of being abolished in the

legal sense, mostly serve as access points to the status of EU citizenship. Besides, they

provide their owners with a limited number of specif‌ic rights in deviation from the general

principle of non-discrimination on the basis of nationality, and—what is probably more

important for the majority of their owners—trigger legalised discrimination in the wholly

internal situations. Viewed in this light, the requirement to have only one Member State’s

nationality enforced in national law by 10 Member States seems totally outdated and

misplaced. This paper focuses on the legal analysis of this controversial requirement.

I Introduction

Giving up your previous nationality is an imperative part of the naturalisation proce-

dure in 10 Member States of the European Union (EU).1While justif‌iable from the

point of view of national, as well as international law, such a requirement potentially

sits uneasily next to the concept of European citizenship and the idea of an ever-closer

Union the Member States are striving to build.2Assessment of the requirement to give

up one’s previous Member State nationality when naturalising in the Member State of

residence in the light of the growing importance of European Citizenship provides an

* Associate Professor of EU Law, University of Groningen, The Netherlands.

1These are The Czech Republic, Denmark, Estonia, Hungary, Latvia, Lithuania, The Netherlands,

Poland, Slovakia and Slovenia. See the materials available at the EUDO citizenship project page,

including detailed country by country reports, http://eudo-citizenship.eu/. See also Gerard-René de Groot

and Maarten Vink, Meervoudige nationaliteit in Europees perspectief: Een landenvergelijkend overzicht

(Adviescommissie voor Vreemdelingenzaken, 2008); Maarten Vink and Gerard-René de Groot, ‘Citizen-

ship Attribution in Western Europe: International Framework and Domestic Trends’, (2010) 36 Journal

of Ethnic and Migration Studies 713 (for an overview of citizenship laws in Western European states).

André Liebich, ‘Plural Citizenship in Post-Communist States’, (2000) 12 International Journal of Refugee

Law 97 (for an overview of the situation in Eastern Europe). On the general context of dual nationality

in the EU, see Marc Morjé Howard, ‘Variation in Dual Citizenship Policies in the Countries of the EU’,

(2005) 39 International Migration Review 697, esp. table 4, at 713. Virtually in all the countries listed,

certain exceptions apply, providing fractions of newly naturalised citizens with a possibility to retain their

previous nationality.

2This article thus sides with Evans in condemning this requirement: Andrew Evans, ‘Nationality Law and

European Integration’, (1991) 16 European Law Review 190, at 193. It is surprising that this important

issue has received so little scholarly attention in the recent decades.

European Law Journal, Vol. 17, No. 3, May 2011, pp. 323–343.

© 2011 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

excellent context to address a broader issue of EU citizenship—Member State nation-

alities interaction.3

Building on the fast-growing literature analysing citizenship in the context of glo-

balisation,4this article will place the requirement of renunciation of the original nation-

ality in the general context of the weakening of the legal meaning of ‘thick’

understandings of nationality, which amplif‌ies the nonsensical nature of the require-

ment in question. Addressing the problems inherent in the renunciation requirement,

this paper will illustrate the general process of the rise to prominence of EU citizenship

and the relative decline in importance (legally speaking) of the nationalities of the

Member States, which is likely to change Europe fundamentally in the near future. It

is high time to acknowledge, fully, that ‘single market [has] an effect on the lives of the

people,’5and try to solve the problems arising in this context in a just and fair manner.

The requirement to give up previous Member State’s nationality potentially hinders

the integration of European citizens into the society of the Member States other than

their own, and is a barrier on the way of wider political inclusion of EU citizens benef‌iting

from virtually all other nationality rights on equal footing with those EU citizens who

possess the local nationality. While this requirement has an obvious deterrent effect on

the naturalisation,6it also fails to achieve any identif‌iable goals. European citizens

residing in the Member State other than their Member State of nationality are not simply

‘foreigners.’ The powers of the Member State of residence to discriminate against

such people or deport them have been diminishing at an increasing pace during the

last decades: the Member States and the Court of Justice (ECJ), acting together with

other Institutions of the EU, gave EU citizenship a clear and identif‌iable scope.7This

3For analysis see Dimitry Kochenov, Rounding Up the Circle: The Mutation of Member States’ Nation-

alities under Pressure from EU Citizenship, Robert Schuman Centre for Advanced Studies Working Paper

RSCAS 2010/23 (2010).

4Linda Bosniak, ‘Citizenship Denationalized’, (2000) 7 Indiana Journal of Global Legal Studies 447. See

also Mikko Kuisma, ‘Rights or Privileges? The Challenge of Globalization to the Values of Citizenship’,

(2008) 12 Citizenship Studies 613; Martin Wolf, ‘Will the Nation-State Survive Globalization?’, (2001) 81

Foreign Affairs 178; Kim Rubinstein and Daniel Adler, ‘International Citizenship: The Future of Nation-

ality in a Globalised World’, (2000) 7 Indiana Journal of Global Legal Studies 519; Ronnie D. Lipschutz,

‘Members Only? Citizenship and Civic Virtue in a Time of Globalization’, (1999) 36 International Politics

203.

5Gordon Slynn, Introducing a European Legal Order (Stevens and Sons and Maxwell, 1992) 85.

6Ruth Rubio-Marín, ‘Transnational Politics and the Democratic Nation-State: Normative Challenges of

Expatriate Voting and Nationality Retention of Emigrants’ (2006) 81 NYU Law Review 117, at 138. There

is a general consensus in the literature that the requirement to give up previous nationality at naturali-

sation is an important disincentive.

7For a very informative analysis of this process see Ferdinand Wollenschlager, ‘A New Fundamental

Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic

Paradigm of European Integration’, (2011) 17 European Law Journal 1. See also Gareth Davies, ‘EU

Citizenship’, in Damian Chalmers, Gareth Davies and Georgio Monti, European Union Law: Text and

Materials (Cambridge University Press, 2010), 439; Dimitry Kochenov, ‘Ius Tractum of Many Faces:

European Citizenship and a Diff‌icult Relationship between Status and Rights’, (2009) 15 Columbia

Journal of European Law 169, at 193; Dora Kostakopoulou, ‘Ideas, Norms and European Citizenship:

Explaining Institutional Change’, (2005) 68 Modern Law Review 233, at 244–261. See also Matthew J.

Elsmore and Peter Starup, ‘Union Citizenship—Background, Jurisprudence, and Perspective: The Past,

Present, and Future of Law and Policy’, (2007) 26 Yearbook of European Law 57; Francis G. Jacobs,

‘Citizenship of the European Union—A Legal Analysis’, (2007) 13 European Law Journal 591; Stefan

Kadelbach, ‘Union Citizenship’, in Armin von Bogdandy and Jürgen Bast (eds), Principles of European

Constitutional Law (Hart, 2006), 453; Anne Pieter van der Mei, ‘Union Citizenship and the “De-

Nationalisation” of the Territorial Welfare State’, (2005) 7 European Journal of Migration and Law 210.

European Law Journal Volume 17

324 © 2011 Blackwell Publishing Ltd.