Constitutional provision on EU citizenship – The case of Croatia

As a candidate country for European Union accession, Croatia has recently introduced a number of legal reforms in order to fulfill the membership criteria. One of these concerns the amendments made to the Croatian Constitution in June 2010. These amendments include, amongst others, Article 146 of the Croatian Constitution on EU citizenship rights. Essentially, this provision represents a domestic counterpart of one of the fundamental provisions of primary EU law, Article 20(2) of the Treaty on the Functioning of the European Union, which provides a number of rights to EU citizens.

Croatia is the first State to adopt a provision concerning European citizenship in its Constitution - none of the current Member States’ Constitutions include such an article. Three issues concerning this provision are thus of interest. First, what is the legal effect of the inclusion of such a provision in the Constitution within the context of EU integration? Second, why did Croatia include this provision in the Constitution? Third, what consequences is this provision likely to generate in the future?

With regard to the first question, it is by now generally accepted that the law stemming from the Treaty is an independent source of law. This implies that rights granted by EU law derive from it directly and are valid regardless of the possible existence of equivalent or even contradictory norms of any rank at the national level. From the perspective of EU law, such an inclusion of primary EU law guaranteeing the rights of Union citizens in a national constitution, or any national act for that matter, seems a legally superfluous move. Only those guarantees that are agreed upon at the supranational, EU level can establish enforceable Union citizens’ rights and correlative duties on the part of the Member States.

Since the best that this kind of a measure can hope to achieve is to become an echo and a symbolic confirmation of the already existing, valid and binding EU legal guarantees, one wonders what motivated its adoption. From the few documents accessible to the public, it appears that no EU institution or representative participating in accession negotiations ever requested the adoption of a provision on EU citizenship rights on the constitutional or any other level. A clue as to what might have been the agenda behind the adoption of the provision on EU citizenship lies in its wording. Article 146 of the Croatian Constitution starts by listing a number of rights guaranteed by EU law to Croatian nationals once they become EU citizens, that is, once Croatia becomes an EU member state. Only the last paragraph of this Article provides that Union citizens will enjoy these same rights in the territory of the Republic of Croatia. This seems to indicate that what was primarily on the drafters’ minds was to inform Croatian nationals about their future EU citizenship status and the rights attached to it. The guarantee of an efficient exercise of EU citizens’ rights in Croatia seems to have represented only a secondary concern.

Professor Rodin, who was a member of the expert Subcommittee on EU integration of the Government's ad hoc Committee on Constitutional Reform, argues that there are three principal and intertwined reasons for introducing this provision. The first is purely educational, in that the provision aims to inform Croatian nationals about the rights that they will gain with Croatia’s entry into the EU. The second has to do with achieving symmetry, politically wise. To be precise, it was considered unacceptable to simply declare that EU citizens will acquire certain rights in Croatia’s territory upon entry to the EU, without clarifying that equivalent rights would equally be granted to Croatian nationals in other EU Member States. This relates to the final reason, which can be described as creating a ‘carrot on a stick’.It seems to have been envisaged as a political bargaining mechanism with a primary purpose of educating Croatian nationals about their future status as EU citizens and, in that sense, creating an impetus for them to vote in favour of joining the EU at the referendum held last January.

If this hypothesized political agenda is neither surprising, nor in itself worrying, the final products of its realization are cause for concern. Pushing the political agenda of ensuring positive outcomes in the upcoming referendum on EU membership in the form of a constitutional amendment on Union citizenship may be misunderstood as a lack of understanding, or worse, willful ignorance of the principle of primacy of EU law by the framers of the Croatian Constitution.

Another constitutional novelty seems to indicate that the framers of the Croatian Constitution were not entirely aware or acceptant of the principle of primacy of EU law. Article 145(2) provides that ‘All legal acts and decisions accepted by the Republic of Croatia in European Union institutions shall be applied in the Republic of Croatia in accordance with the European Union acquis communautaire’ (first italics mine). Presumably, this provision was inspired by a longstanding Croatian constitutional rule which provides that international treaties which have been concluded and ratified in accordance with the Constitution shall be a component of the Croatian legal order and shall have primacy over domestic law, but not over the Constitution. It is obvious that, when applied in the EU legal context, this provision contravenes the principle of primacy of EU law, which is generally considered to be absolute and which generates precedence over all provisions of national law, including national constitutional norms.

It is worth noting that the aforementioned expert Subcommittee never agreed to insert Article 145(2) into the Constitution. According to Professor Rodin, when this provision was re-drafted and accepted, the Subcommittee was no longer assembled. Whether such a lack of transparency was purposefully created in order to ‘cover up’ the adoption of constitutional amendments that blatantly contradict some of the founding principles of EU law, by keeping them out of sight of the expert community and the public in general, or whether it was unintended, is unclear.

Of additional concern are the possible impacts that the constitutional amendment on EU citizenship might have on the exercise and enforcement of EU citizens’ rights in Croatia. Namely, there is a likelihood that the move to adopt the EU citizenship provision will be interpreted by both the citizenry and the judiciary as a suggestion, or worse, a requirement to rely on this constitutional norm instead of relevant EU law provisions when seeking to protect EU citizens’ rights in Croatia. This kind of scenario is worrying because it could lead national judges to an understanding that what they are applying are provisions of national constitutional law, rather than those of EU law. Accordingly, they might be inclined to balance Union citizens’ rights against other rights guaranteed by the Constitution. This may not only reinforce the perhaps so far unintended attitude of the Constitution framers that seems to suggest the rejection of the principle of primacy of EU law, but also effectively deprive individuals of their EU citizenship rights.

While it remains to be seen what concrete results the insertion of the described constitutional novelties will generate, it may be concluded that pushing the identified political agenda through the described amendment has lead to some sloppy and rather embarrassing moves on the part of the framers of the Croatian Constitution. For that reason alone, these amendments warrant public attention and criticism.

This blog entry is based on a paper by Tina Oršolić accessible at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2030765