Summary

Morganatic Citizenship. An Inquiry into Citizenship and Political Representation of the Overseas Citizen in the Kingdom of the Netherlands, the French Republic and the European Union

This dissertation is concerned with citizenship and political representation of overseas citizens in the Kingdom of the Netherlands from a comparative French and EU perspective. Citizenship is a core component of constitutional theory. Since the French Revolution, a basic assumption of the notion of citizenship is that citizens have the right to choose their representatives in the political representative assembly of a constitutional entity. However, the relationship between a constitutional entity and the citizens of the overseas territories challenges this basic assumption. Contrasting the approaches of the Kingdom of the Netherlands, the French Republic and the European Union to the rights and obligations of citizens of overseas territories sheds light on the meaning and contours of citizenship in constitutional theory and law. The Kingdom of the Netherlands comprises of four autonomous countries: the Netherlands proper, and the three overseas countries of Aruba, Curacao and St. Maarten. Arubans, Curaçaoans and St. Maartiners hold Dutch citizenship but, in contrast to their counterparts in the Netherlands, they lack the right to vote for the representative body of the Kingdom as a whole. The research question is two-fold and reads: firstly, ‘how can Dutch citizenship be qualified from a conceptual-theoretical and comparative perspective?’, and secondly, ‘what does the applicability of EU citizenship in the Overseas Countries and Territories (OCTs) of the Kingdom of the Netherlands entail for the constitutional structure and content of Dutch citizenship?’

Following introductory remarks and a discussion of the research question and the study’s methodology, Chapter 2 deals with the notion of citizenship. The ancients created the notion of citizenship in order to define who belongs to and, accordingly, who is excluded from the polis. An institution was needed in order to reward active membership in favour of the well-being of the community of the concerning polis. To that end, a reciprocal relationship was required. On the one hand, the polis needed military service from the people of the community when being attacked by other powers, and on the other hand the polis’ people desired protection. The individuals of a community who contributed, for instance, economically, militarily, literary or socially to the community needed to be distinguished and rewarded for their benefactions. Thus, in return for their deeds, the polis separated these individuals by granting them a legal status, which entrusted them with several right and privileges in the community. Citizenship as a Western institution was born.

The phenomenon of citizenship nearly vanished from history due to several circumstances. The rise of Christianity in the fourth century and, later, the rise of feudalism almost ensured the disappearance of the relationship between the citizen and his legal and political order. The first rebirth of citizenship can be traced to the Renaissance. In the fourteenth century, humanists rediscovered classical texts of ancients where the concept of citizenship had been addressed thoroughly. In the writings of prominent Renaissance authors, such as Marsilius of Padua, Bartolus of Saxoferrato and Baldus of Ubaldis, the relevance of the notion of citizenship during the years of the Renaissance can be traced. In the centuries after the Renaissance, the centralizing state entailed an eclipse in citizenship thought. The growing territorial state ensured that the terminology concerning the relationship between an individual and his polity changed. Citizens, for instance, became subjects of the monarch. Nonetheless, citizenship also survived the Age of Absolutism. It was in the French Revolution, that the notion of citizenship experienced its second rebirth. What proved to be decidedly attractive to the revival of citizenship during the era of the French Revolution, coincided with one of the reasons why citizenship was created in ancient Greece, where the aspect of reciprocity was emphasised. A major difference occurred concerning the right to vote. Where in ancient times citizenship entailed the ability to vote in person, this changed in practice after the French Revolution. The right to vote dealt with political representation. Various writings of thinkers, such as of Rousseau, Constant, Sieyès and Locke are scrutinised in the dissertation in order to address this crucial change.

Chapters 3 and 4 focus on the Overseas Countries and Territories, the so-called OCTs, and their development in the EU. According to Article 52 of the Treaty on the European Union (TEU), the TEU and the Treaty on the Functioning of the EU (TFEU) are applicable on the entire territory of the Member States of the Union. Nonetheless, for further details on the ratione loci of the EU Treaties, Article 5(2) TTEU refers to Article 355 of the TFEU. According the Article 355 (2) TFEU ‘the special arrangement for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II’. Part Four of the TEU is titled ‘Association of the Overseas Countries and Territories’. The purpose of the OCT association is by virtue of Part Four TFEU twofold: firstly, the association seeks to promote the OCTs’ economic and social development, and secondly, the association aims to establish close economic ties between the EU and the OCTs. Although according to the EU Treaties the OCTs are subject to (solely) the association regime of Part Four TFEU, in the case law of the Court of Justice of the EU (ECJ), the territorial and personal scope of the TFEU has been expended to the OCTs. The case law of ECJ has progressively expanded EU law’s reach in the OCTs to other parts of the Treaties. In Eman & Sevinger, for instance, the ECJ ruled that persons who possess the nationality of a Member State and reside in an OCT, can rely on the rights conferred on EU citizens in Part Two of the Treaty. Moreover, in the OCT decision of the Council of 2013, it is mentioned that the relationship between the OCTs and the EU should move way from a classical development cooperation towards a reciprocal partnership in order to support the OCTs’ development.

In Chapter 5 the notion of EU citizenship and its applicability in the OCTs is scrutinized. The Treaty on the EU of 1992 introduced de iure a concept of citizenship in the ambit of the EU. Every person holding the nationality of a Member State of the Union is according to Article 20 TFEU to be considered as a citizen of the Union. A fundamental characteristic of EU citizenship, therefore, is its derivative character. The only way to obtain EU citizenship is to be granted the nationality of a Member State of the Union. EU citizens shall enjoy rights conferred by the EU Treaties and be subject to duties imposed by it. A rewarding element can also be traced to EU citizenship. By using the benefits of European integration, EU citizens are being rewarded with rights. EU rights concern, inter alia, the right to free movement on the Member States’ territory, the right to vote and stand candidate in local government and European Parliament elections in the Member State of residence under the same conditions as nationals of the concerning Member State, and the right to enjoy diplomatic and consular protection in a third country in which the Member State of which the citizen is a national of, is not represented. Although according to the EU Treaties the relationship between the EU citizen and the legal and political order of the EU is a reciprocal one (the EU citizens have rights conferred by EU Treaties and are subject to duties imposed by it), in practice only rights are connected to EU citizenship. Duties connected to EU citizenship, therefore, are so far non- existent. Institutional change pertaining to EU citizenship has occurred in the case law of the ECJ. In various cases, such as Micheletti, Rottmann, Ruiz Zambrano, Grzelczyk, Delvigne, the ECJ clarified on EU citizenship’s structure and autonomous character. In the latter case – that of Delvigne – the ECJ confirmed that Article 39(2) of the Charter of Fundamental Rights of the European Union constitutes the expression in the Charter of the rights of EU citizens to vote in elections of the European Parliament. EU citizenship and the rights connected to it apply in an atypical way in the OCTs because of the peculiar status of the OCTs under EU law. Both the right to free movement and the right to vote for the European Parliament are explored. For the right to free movement, it is concluded that EU citizens of the OCTs have the right to free movement to territories where EU law in principle unequivocally applies. By virtue of the ECJ’s ruling in Delvigne, EU citizens in the OCTs have the right to vote for the European Parliament since they are qualified as EU citizens.

In Chapter 6 a comparative study is undertaken to the applicability of EU citizenship in the OCTs of the French Republic with regard to French citizenship. In this Chapter, attention is paid to the genesis of French citizenship in the ancien régime. The opponents of the ancien régime aimed at introducing an egalitarian society by invoking several principles from classical antiquity, such as equality. The notion of citizenship was considered helpful, since it distinguished citizens from non-citizens, and thus, clarified among whom equality should be desired. During and after the French Revolution, however, difficulties of implementing this ideal into French society was experienced multiple times. Nonetheless, the ideal is implemented for all French citizens concerning the right to free movement and the right to vote for the representative organ of the Republic; the Parlement which comprises of the Assemblée nationale and the Sénat. In French overseas law three overseas statuses are distinguished: the overseas departments and regions (département et région d’outre-mer/DrOM); overseas collectivities (collectivité d’outre-mer/COM) and the special status of New Caledonia. The residents of the DrOM, COM and New Caledonia are French citizens. The French Constitution stipulates that the Republic recognizes the populations of all overseas territories within the French nation in a common ideal of liberty, equality and fraternity. French overseas citizens are politically represented in both the Assemblée nationale and the Sénat. French overseas citizens are EU citizens. By virtue of EU citizenship they have the right to move freely on the territories where EU law unequivocally applies. Moreover, since their qualification as EU citizens, they have the right to vote for the elections of the European Parliament. The applicability of EU citizenship in the French OCTs illustrates that the relationship between the French citizen and the Republic is not less intimate than the relationship between the French EU citizen of the French OCTs and the EU. That this latter does not hold true for the Kingdom of the Netherlands and the Dutch citizens of the Kingdom’s OCTs is analysed in Chapter 7.

Chapter 7 focuses on Dutch citizenship. According to the 1954 Charter for the Kingdom of the Netherlands, there exist four autonomous countries in the Kingdom: the Netherlands proper and the three overseas Countries of Aruba, Curacao and St. Maarten. The Charter emancipates the former colonies and guarantees the autonomy of each to adopt its own constitution. Each country has its own representative parliamentary body: the overseas countries of Aruba, Curacao and St. Maarten have their Staten and the Netherlands has its Staten- Generaal. This 1954 Charter stipulates and limits the competences of the Kingdom. Among the Kingdom’s competences is to establish a law of citizenship. The Kingdom Act on Dutch Citizenship 1985 ensures that residents of all four countries hold common Dutch citizenship. A peculiar characteristic about constitutional Kingdom law is that the Netherlands’ Staten-General de facto functions as the representative parliamentary organ of the Kingdom of the Netherlands, because of the powers of the Staten-Generaal in the Kingdom legislative procedure. Proposals of, for instance, Kingdom Acts are dealt within the Staten-Generaal. The Staten-Generaal comprise of two chambers: the first chamber (indirectly chosen; namely by the members of the legislatures of the twelve provinces of the Netherlands) and the second chamber (chosen by adult Dutch citizens, however, Dutch citizens who reside in Aruba, Curacao and St. Maarten are in principle excluded). Therefore, it remains the case that not all Dutch citizens are politically represented in the representative parliamentary organ when Kingdom legislation is made. As a result, Dutch citizenship is only ostensibly uniformly regulated. The power to decide who possesses Dutch citizenship is vested in the Kingdom. Nevertheless, it is up to the Kingdom’s countries to determine the rights and obligations Dutch citizenship entails. The right to move freely and the right to vote for the overseas’ Staten and Staten- Generaal are regulated by the Countries and not the Kingdom. The aforementioned stands in stark contrast to the French situation, where, as a matter of constitutional law, the overseas parts of the Republic do not have the power to limit French citizenship nor the rights and obligations connected to it.

The applicability of EU citizenship in the Kingdom’s OCTs illustrates that there is an opposite situation in the Kingdom and the EU. In the EU, Dutch citizens of the OCTs – EU citizens – have various rights, such as the right of free movement and the right to vote for the elections of the European Parliament by virtue of their capacity as EU citizens. Within the Kingdom, however, the countries can limit these fundamental rights. As a consequence, there is no free movement of Dutch citizens in the Kingdom, nor are all Dutch citizens politically represented when Kingdom legislation is made. The relationship that the Dutch citizen of the overseas countries has with the legal and political order of the Kingdom is, therefore, far less intimate than the relationship the EU citizen of the Kingdom’s OCTs has with the EU. In this Chapter, a possible solution is provided in order to restore the deficits that are caused by the morganatic structure of Dutch citizenship. The democratic deficit in the Kingdom ceases to exist only if the political representative of the citizen of an overseas country has a vote in the Staten-Generaal when the latter acts as part of the Kingdom’s legislature. The term ‘morganatic’ is derived from the Latin matrimonium morganaticum, meaning ‘morganatic marriage’. ‘Morganatic marriage’ refers to a marriage between two persons of unequal social rank, where the woman does not get the privileges attached to the royal rank of the husband. In this dissertation, the term ‘morganatic’ is used to refer to a citizenship where citizens by virtue of their citizenship do not equally enjoy (political) rights connected to citizenship.

Finally, Chapter 8 discusses the dissertation’s conclusions. Three themes are used in order to reflect upon the research questions. The first theme concerns the notion of citizenship and its evolution. The second theme focuses on the implementation of the notion of citizenship in the legal order of the Kingdom of the Netherlands, the French Republic and the EU. Special attention is given in the second theme to reciprocity, political representation and the nature of the concerning legal order. The third theme concerns the possible future-proof character of the OCT-regime in the Kingdom’s constitutional ambit.