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Daniela Cardoso – The quasi-European citizenship of third-country nationals under association agreements: which challenges for the principle of non-discrimination?

In the European Union, the legal situation of third-country nationals is predominantly established by international agreements. Third-country nationals are not regarded as European citizens but they benefit from some rights associated with such status according to the types of links shared with the Member States.

However, these agreements reveal a patchwork of social, political and legal inequalities.

Is it possible to speak about the broadening of the scope of European citizenship for third-country nationals due to equality considerations?

On 10 July 2014 the CJEU issued a decision concerning association agreements involving the European Union and Turkish nationals (Dogan v. Bundesrepublick Deutschland Case C-138/13). This decision touches upon a contentious issue: the “quasi-citizenship” rights of third-country nationals (hereafter TCN).

At stake in this case was a conflict between a German national measure and the content of Article 41(1) of the Additional Protocol to the EEC-Turkey Association agreement. The national provision imposed on the spouses of Turkish nationals residing in Germany who wished to enter that State for family reunification purposes the need to demonstrate beforehand that they had acquired basic knowledge of the official language of that state. This clause was in conflict with a standstill clause laid down in the Additional Protocol according to which any measure introduced after the entry into force of the Protocol with the objective of tightening the conditions upon which free movement and freedom of establishment are exercised should be prohibited.

The CJEU upheld the standstill clause while focusing on the implications arising from the need to balance the safeguarding of rights and expectations arising from the association agreement and the length of time passing between the agreement of a standstill clause and the implementation of a national measure. The Court neither developed any line of reasoning concerning equality considerations embedded in association agreements, nor delved into further considerations regarding European citizenship and its quasiextension to TCNs.

There are three widely-known association agreements concluded between the EU and its Member States with third countries: the EEA Agreement; the Agreement on free movement of persons with Switzerland and the Association Agreement with Turkey. These agreements contain a set of rights (namely free movement rights) and duties previously agreed between the countries involved but do not result in any extension of the status of European citizenship or other rights enjoyed by European citizens such as political representation. What remains are “citizenship-associated” rights as voiced by Dimitry Kochenov (“European citizenship and the difficult relationship between status and rights “, The Columbia Journal of European Law, page 234).

Although the ruling of the Court clearly shows that these association agreements are not undermined by national provisions, the Court remains quite vague with respect to the status of third country nationals in the light of international agreements. The truth is that these agreements raise a debatable question regarding non-discrimination between European citizens and third country nationals.

Many association agreements contain specific non-discrimination clauses either related to nationality and preferential treatment or to long-term residence. The Charter of Fundamental Rights of the European Union contains a non-discrimination requirement (Article 21 no. 1) which embodies general equality before the law. On the other hand, in the TFEU there is a non-discrimination clause laid down in Article 18. This clause has been interpreted as benefiting solely citizens of the European Union holding nationality of one of the Member States (Case Martínez Sala C-86/96) which makes the position of TCNs extremely vulnerable and subject to the type of treatment established under the international agreements above-mentioned.

Recent literature has challenged this proposition in order to reassess the scope of the nondiscrimination clause and expand it to TCNs. This solution also offers a response to the attempts of extending the status of European citizenship to TCNs. This would allow the states to maintain differences in treatment as long as these are justified and legitimate. In fact it seems quite paradoxical that the primary objective that underpins Europe is the attainment of a fully-fledged common market blind to nationality whereas nationality of a Member State is a pre-condition of being regarded as a European citizen.

This challenge seems to encourage new developments. Firstly, it touches upon the issue of competences of the European Union. Bringing TCNs within the principle of non-discrimination as understood in the Treaties implies reading the expression “within the scope of application of the treaties” in a much broader way. All in all the Treaty of Lisbon reinforced the Europeanization of a number of policies linked to TCNs such as visas and asylum policies, which means that TCNs may find themselves in situations now governed by EU law.

At the same time it allows us to rethink and reframe the situations in which the EU has competence to regulate the legal situation of TCNs not in possession of European citizenship. There are specific fields which are intergovernmental and in which the EU is not fully competent to regulate them since it needs to cooperate with the states and take their visions and worries into account. Criminal law is one of these fields. Regarding irregular immigration, illegal stay, protection, expulsion or even criminal attitudes on the part of TCNs, the EU has issued some common positions and minimum standards of treatment and procedures to be applied by the Member States, which do not prevent them from applying their own internal legal frameworks. In the future, it might be relevant to look at the impact of immigration on criminal law in Europe and decide on whether or not it should be regarded as an EU competence.

The second challenge covers the external relations of the European Union. Fundamental freedoms and general principles apply in external relations and the CJEU could potentially be asked to interpret legality issues pleaded by TCNs in light of fundamental rights.

In the contemporary context, what does it mean to be a European citizen? With TCNs we see that the grant of quasi-citizenship rights do not always depend on the possession of the status of a European citizen. Instead the rights rather extrapolate such status of a European citizen. With the association agreements, different rights and duties are granted to different categories of citizens who may or may not share any link with Europe. This reality shows that European citizenship is indeed a very permeable concept. The web of entitlements and rights associated with it is not defined per se but rather shaped by the Member States and their purposes.

Daniela Cardoso

LLM Student  (European Union Law), Católica Global School of Law

(For a futher discussion regarding the derivate nature of European citizenship or “ius tractum” see “O and B-S and G: Third-Country national family members and derived residency rights at home” by Maria Haag available at https://delilawblog.wordpress.com/case-comment/o-and-b-s-and-g-third-country-national-family-members-and-derived-residency-rights-at-home/.

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