The Internal Aspects of Good Neighbourliness in the EU: Loyalty and Values

Electronic copy available at: http://ssrn.com/abstract=2548141

University of Groningen Faculty of Law

University of Groningen Faculty of Law Research Paper Series No. 13/2015

This paper can be downloaded without charge from the

Social Science Research Network Electronic Paper Collection Available at SSRN: http://ssrn.com/ abstract=2548141

The Internal Aspects of Good Neighbourliness in the EU: Loyalty

and Values

by Dimitry Kochenov

January 2015

Electronic copy available at: http://ssrn.com/abstract=2548141 Electronic copy available at: http://ssrn.com/abstract=2548141

1

The Internal Aspects of Good Neighbourliness in the EU: Loyalty and Values

Dimitry Kochenov*

This is a draft of a contribution forthcoming in D Kochenov and E Basheska (eds) Good Neighbourly

Relations in the European Legal Context (Brill Nijhoff, 2015). Please consult the book for the final version.

Abstract

The contribution argues that the legal context of the EU is substantially different from the

classical context within which the international law principle of good neighbourly relations is

usually deployed, altering the traditional understanding of the principle to a great degree. Firstly,

to be a good neighbour in the context of the Union implies not only respect for international law

vis-à-vis neighbouring states and a strict adherence to the acquis. It also indispensably implies

strict adherence to the values of the Union, including democracy, the rule of law and the

protection of human rights – if not justice and minority protection. Being a good neighbour in the

EU thus means being a particular type of state, embracing a particular type of constitutionalism.

Secondly, the principle of good neighbourly relations, particularly in the context of EU

enlargements and EU citizenship, implies that the Member States should be ready to adapt their

national laws to the Union reality even outside the context of the EU acquis. In other words,

having legitimate regulation in place, which is not in breach of international or EU law per se, can

still amount to a violation of the principle of good neighbourly relations in the Union context. The

examples of EU pre-accession conditionality in the fields of democracy and the rule of law, and

of the recent reforms of the Slovak and Hungarian citizenship laws both suffice to make this

point. Given the specificity of the legal reality of interdependence that the Union has shaped, it is

perfectly legitimate to expect the EU to intervene should some Member States fail to internalise

this special EU reality and cause negative externalities which start to affect others.

* Chair in EU Constitutional Law, University of Groningen. I am grateful to Elena Basheska and Anatole

Boute for helpful comments on the first draft.

Electronic copy available at: http://ssrn.com/abstract=2548141 Electronic copy available at: http://ssrn.com/abstract=2548141

2

1. The key themes introduced

The goal of this chapter is to demonstrate that the principle of good neighbourly relations

we know so well from international law1 is bound to function significantly differently in

the European Union compared to the rest of the world. While classical good

neighbourliness is about the mutual respect of sovereignty and borders among states in

the international community2 – as clearly outlined by Elena Basheska in the previous

chapter – the internal context of the EU is quite different in a number of important

respects.3 Further contributions to this volume explore these in detail, looking at a

number of different contexts, offering a representative selection.4 Most importantly, given

the specificity of the legal-political context that the Union provides, which has now come

to be the natural habitat, as it were, for all the Member States of the Union, the EU

necessarily faces growing expectations as an actor within good neighbourly relations,

adopting this position alongside the states. This role implies acknowledgement and

1 For a detailed analysis, see Elena Basheska, ‘The Position of the Good Neighbourliness Principle in

International and EU law’ in this volume. 2 e.g. Iftene Pop, Components of Good Neighbourliness Between States – Its Specific Legal Contents –

Some Considerations Concerning the Reports of the Sub-Committee on Good-Neighbourliness Created by

the Legal Committee of the General-Assembly of the United Nations (Editura R.A.I., Bucharest 1991). See

also: Elena Basheska, ‘The Good Neighbourliness Principle in EU Law’ (PhD thesis, University of

Groningen 2014); Malgosia Fitzmaurice and Olufemi Elias, Watercourse Co-operation in Northern

Europe: A Model for the Future (T.M.C. Asser Press, The Hague 2004); Philippe Sands and Jacqueline

Peel, Principles of International Environmental Law (3rd edn CUP, NY 2012) 197 etc. 3 Philip Allott, ‘The European Community is not the True European Community’ (1991) 100 YLJ 2485–

2500 (see especially, his diplomacy–democracy distinction). See also Dimitry Kochenov and Fabian

Amtenbrink, ‘Introduction: The Active Paradigm of the Study of the EU’s Place in the World’ in Dimitry

Kochenov and Fabian Amtenbrink (eds), The European Union’s Shaping of the Legal International Order

(CUP, Cambridge 2013) 1‒18. 4 Anatole Boute, ‘The Good Neighbourliness Principle in EU External Energy Relations: The Case of

Energy Transit’; Hans Vedder, ‘Good Neighbourliness in a Sustainable European Internal Electricity

Market: A Tale of Communities and Uncommunautaire Thinking’; Arthur Khachaturyan, ‘Application of

the Good Neighbourliness Principle in EU Law: The Case of Gibraltar’; Stéphanie Lauhlé-Shaelou, ‘On the

“Edge” of Good Neighbourliness in EU law: Lessons from Cyprus’; José-María Arraiza, ‘Good

Neighbourliness as a Limit to Extraterritorial Citizenship: The case of Hungary and Slovakia’; Paul

Blokker and Kriszta Kovács, ‘Hungarian Citizenship and Franchise Politics and their Effects on the

Hungarian-Romanian Relations’, Damjan Možina, ‘Slovenia and Croatia in Dispute over Bank Deposits

from Yugoslav Times – “No more Shall Foes, but Neighbors be”?’.

3

pursuit of new responsibilities, which affect the EU’s foreign policy and, probably even

more importantly, its internal organisation and functioning.

Before starting the analysis, an important disclaimer should be made, however:

this chapter will not argue for the existence of a principle of good neighbourly relations in

international law, capable of being important in the EU legal context. The existence of

the principle is simply assumed, to avoid overlaps with the preceding contribution to this

volume. Moreover, it is not the intention of this contribution to suggest that good

neighbourliness should be the main lens through which to assess the internal functioning

of the EU. It will be demonstrated, however that the EU adds a number of significant

differences to the functioning of this principle as we know it from international law. In

addition, even if it should not be the main lens, this principle can certainly help illuminate

a number of dark corners of the Union’s legal reality, potentially helping to solve a

number of outstanding legal problems.

In a nutshell, this chapter advances an argument that the EU implies a much

deeper reach for the principle of good neighbourly relations compared to what can be

observed in the context of classical international law owing, inter alia, to the reality of

the interdependency – the Internal Market,5 a citizenship common to all the Member

States,6 Union territory

7 and the Area of Freedom Security and Justice

8 – and common

5 Article 3(3) TEU. See also Niamh Nic Shuibhne and Laurence W Gormley (eds), From Single Market to

Economic Union (OUP, Oxford 2012); Niamh Nic Shuibhne (ed), Regulating the Internal Market (Edward

Elgar, Chantelham 2006). 6 According to the Preamble of the EU Treaty, the High Contracting Parties are ‘RESOLVED to establish a

citizenship common to nationals of their countries’. See also Article 9 TEU; Part II TFEU. For an analysis:

Dimitry Kochenov, ‘The Essence of EU Citizenship Emerging from the Last Ten Years of Academic

Debate: Beyond the Cherry Blossoms and the Moon’ (2013) 62(1) ICLQ 97–136 (and the references, for an

exhaustive list of relevant literature). 7 Case C–34/09 Ruiz Zambrano v Office national de l'emploi (ONEm) [2011] ECR 1–1177. Reconfirmed in

C–256/11 Murat Dereci and Others v Bundesministerium für Inneres, judgment of 15 November 2011, not

yet reported. For analyses, see Loïc Azoulai, ‘La citoyenneté européenne, un statut d’intégration sociale’ in

Mélanges Jean Paul Jacqué. Chemins d’Europe (Dalloz, Paris 2010); Teresa Pullano, La citoyenneté

européenne: Un espace quasi étatiqueI (Presses de Sciences Po, Paris 2014). 8 Article 3(2) TEU. For analyses see Ester Herlin-Karnell, ‘Constitutional Principles in the Area of

Freedom, Security and Justice’ and also Stephen Coutts, ‘Citizenship of the European Union’ in Diego

Acosta Arcarazo and Cian C Murphy (eds), EU Security and Justice Law (Hart Publishing, Oxford 2014)

38–53 and 92–109 respectively;

4

values,9 objectives

10 and destiny established in the context of the Union, which exhibit

strongly federal features.11

This interdependency emerges with a particular clarity after

the entry into force of the Treaty of Lisbon, as the Union has acquired – in Joris Larik’s

brilliant analysis – a ‘constitutional sense of purpose’12

which goes far beyond its stated

objectives.13

In practice, such an advanced level of interdependency among the Member

States means that their departure from the foundational goals and values of the Union,14

even if this happens within the sphere traditionally regarded as strictly in the sovereign

realm of a Member State, can inflict negative externalities on other Member States, let

alone on the Union itself, as its functioning could thereby be undermined.15

The principle

of good neighbourly relations can thus be breached ‘at home’.

Ester Herlin-Karnell, ‘Is the Citizen Driving the EU’s Criminal Law Agenda?’ in Michael Dougan, Niamh

Nic Shuibhne and Eleanor Spaventa (eds), Empowerment and Disempowerment of the European Citizen

(Hart Publishing, Oxford 2012) 203–224. 9 For a critical assessment, see e.g. Andrew Williams, ‘Taking Values Seriously: Towards a Philosophy of

EU Law’ (2009) 29(3) OJLS 549–577. For the analysis of the meaning of the values in the context of

Article 2 TEU enforcement, see Armin von Bogdandy and Michael Ioannidis, ‘Systemic Deficiency in the

Rule of Law: What It Is, What Has Been Done, What Can Be Done’ (2014) 51 CML Rev 59–96. See also

Armin von Bogdandy and Pal Sonnevend (eds), Constitutional Crisis in the European Constitutional Area:

Theory, Law and Politics in Hungary and Romania (Hart Publishing, Oxford 2014). 10

Joris Larik, ‘From Speciality to a Constitutional Sense of Purpose: On the Changing Role of the

Objectives of the European Union’ 2014 ICLQ 1–28, footnote 5 (for an exhaustive list of relevant

literature). 11

Robert Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law

(OUP, Oxford 2009). See also Koen Lenaerts and Kathleen Gutman, ‘“Federal Common Law” in the

European Union: A Comparative Perspective from the United States’ (2006) 54 AJCL 1–122; Jean-Claude

Piris, ‘L’Union européenne: vers une nouvelle forme de fédéralisme?’ (2005) 41(2) Revue trimestrielle de

droit européenne 243–260. 12

Larik (n 10). 13

For a classical work on EU constitutionalism see Joseph HH Weiler, The Constitution for Europe: ‘Do

the New Clothes Have an Emperor?’ (CUP, Cambridge 1999). See also Gráinne de Búrca and Joseph HH

Weiler (eds), The Worlds of European Constitutionalism (CUP, Cambridge 2011). 14

The ones espoused, especially, in Articles 2 and 3 TEU. 15

The duty of loyal cooperation potentially covers such situations: see generally John Temple Lang,

‘Developments, Issues, and New Remedies – The Duties of National Authorities and Courts Under Article

10 of the EC Treaty’ (2003) 27 Fordham Int’l L. J. 1904–1939. See also Laurence W Gormley, ‘Some

Further Reflections on the Development of General Principles of Law within Article 10 EC’ in Ulf Bernitz

et al. (eds), General Principles of EC Law in a Process of Development (2nd edn Kluwer Law Int’l, The

Hague 2008) 303–313 (discussing the duty of loyalty).

5

The sensitive border-line separating the internal from the external realm in the

context of good neighbourliness in the EU thus simply disappears. Moreover, in this

sense, EU law fundamentally differs from international law. It is not surprising then that

the Union is ready to protect is constitutional core16

– which does not merely overlap with

the acquis17

– both from recalcitrant Member States deviating from the spirit and the

letter of Article 2 TEU18

and from the unwanted norms of international law, which the

ECJ does not regard as being consistent with that provision.19

This chapter focuses on this

particularity of the legal-political reality shaped by the European integration process: to

demonstrate that virtually anything EU Member States do in deviation from Article 2

TEU can lead to negative externalities for their Union partners, leading to a potential

breach, inter alia, of the principle of good neighbourly relations – the focus of this

collection. A number of fundamental questions arise in this respect, from the interrelation

between the EU duty of loyalty and the principle of good neighbourly relations, to the

Union’s own role in the context of this principle.

It is suggested that the principle of good neighbourly relations could theoretically

be deployed within the Union to cover situations when, while the Union’s harmonious

development is potentially disrupted, the duty of loyalty is not necessarily being

16

Opinion 1/91 [1991] ECR I–6079. Joined Cases C–402/05 P and C–415/05 P Yassin Abdullah Kadi and

Al Barakaat v Council of the European Union and Commission of the European Communities, [2008] ECR

I–6351 (Kadi I) and Joined Cases C–584/10 P, C–593/10 P & C–595/10 P European Commission, Council

of the European Union, United Kingdom of Great Britain and Northern Ireland v Yassin Abdullah Kadi,

judgment of 18 July 2013, not yet reported (Kadi II). See, for an analysis, Nikolaos Lavranos, ‘Revisiting

Article 307 EC: The Untouchable core of fundamental European Constitutional Law Values and Principles’

in Filippo Fontanelli et al. (eds), Shaping Rule of Law Through Dialogue: International and Supranational

Experiences (Europa Law Publishing, Groningen 2009) 119–146. 17

That acquis is not about the elaboration of Article 2 TEU values became clear in the context of the pre-

accession process. For a contemporary analysis, see Dimitry Kochenov, ‘Europe’s Crisis of Values’ (2014)

48 Revista catalana de dret públic 106–118. 18

As Article 7 TEU requires. Given the difficulties surrounding Article 7 TEU’s successful application to

this effect, further steps have been discussed to ensure compliance: European Commission, ‘A New EU

Framework to Strengthen the Rule of Law’, Strasbourg, 11 March 2014, COM(2014) 158 final. For the

discussion of some academic proposals, see Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of

Law Oversight in the European Union (CUP, Cambridge 2015) (forthcoming). 19

Kadi I and Kadi II (n 16); Case C–369/90 Mario Vicente Micheletti and others v Delegación del

Gobierno en Cantabria [1992] ECR I–4239 (Micheletti). Kochenov and Amtenbrink (n 1).

6

breached. The proposition of this chapter – and it will of course be viewed as a long shot

by many – is that good neighbourly relations could potentially reach the spots the duty of

loyalty does not. Moreover, horizontal and vertical aspects of the operation of the

principle of good neighbourly relations can be distinguished, covering situations between

the Member States in the former case and involving the EU itself in the latter.

The chapter starts by listing some relevant aspects of the EU’s specificity, to

demonstrate the internal aspects of good neighbourliness with clarity, then proceeding to

assess the ongoing struggle for the values of the Union in the context of several Member

States deviating from them, listing the key approaches espoused by the Union to address

such deviations (II.). The sections which follow say a few words on the specificity of two

particularly sensitive contexts of interdependence, focusing on EU enlargement (III.) and

EU citizenship in dealing with the principle of good neighbourly relations in the EU

(IV.). In contrast with the other chapters in this volume addressing such issues, the main

focus of this essay is on the internal aspects of the principle of good neighbourly

relations: what is the transformation required of the EU and its Member States to make

this principle fully operational in the context of the renewed reality of interdependence?

The chapter concludes by establishing that the legal context of the EU is

substantially different from the classical context within which the principle of good

neighbourly relations is deployed, altering the traditional, international law-derived

understanding of the principle to a great degree. A number of contributions in this volume

provide vivid illustrations of the specificity of the EU’s context in fields which this

chapter does not cover, thereby reconfirming the key findings of this analysis, which are

the following.

Firstly, to be a good neighbour in the context of the Union implies not only

respect for international law vis-à-vis neighbouring states and a strict adherence to the

acquis.20

It also indispensably implies strict adherence to the values of the Union,

including democracy, the rule of law and the protection of human rights – if not justice

20

Christine Delcourt, ‘The Acquis Communautaire: Has the Concept Had Its Day?’ (2001) 38 CML Rev

829–870.

7

and minority protection.21

Being a good neighbour in the EU thus means being a

particular type of state, embracing a particular type of constitutionalism.22

Secondly – and this is a spill-over of the first finding – the principle of good

neighbourly relations, particularly in the context of EU enlargements and EU citizenship,

implies that the Member States should be ready to adapt their national laws to the Union

reality even outside the context of the EU acquis. In other words, having legitimate

regulation in place, which is not in breach of international or EU law per se, can still

amount to a violation of the principle of good neighbourly relations in the Union context.

The examples of EU pre-accession conditionality in the fields of democracy and the rule

of law,23

or the recent reforms of the Slovak and Hungarian citizenship laws both suffice

to make this point.24

Given the specificity of the legal reality of interdependence that the

Union has shaped,25

it is perfectly legitimate to expect the EU to intervene should some

Member States fail to internalise this special EU reality and cause negative externalities

which start to affect others.26

Indeed, some Member States have come to expect this kind of intervention from

the EU,27

which is particularly clear in the context of the preparation for the last three

enlargement rounds: Member States expect the Union to participate actively in

21

On the context of justice in the EU, see Dimitry Kochenov, Gráinne de Búrca and Andrew Williams

(eds), Europe’s Justice Deficit? (Hart Publishing, Oxford 2015) (forthcoming); on minority protection, see,

Kristin Henrard, Devising an Adequate System of Minority Protection: Individual Human Rights, Minority

Rights and the Right to Self-Determination (Kluwer Law, The Hague 2000). 22

Vlad Perju, ‘Proportionality and Freedom – An Essay on Method in Constitutional Law’ (2012) 1(2) J.

Global Constitutionalism 334–367. 23

Dimitry Kochenov, EU Enlargement and the Failure of Conditionality: Pre-Accession Conditionality in

the Field of Democracy and the Rule of Law (Kluwer Law Int’l, The Hague 2008). 24

See Arraiza and also Blokker and Kovács (n 4). 25

For a very sophisticated analysis of the Union’s effects on the Member States see Alexander Somek,

‘The Argument from Transnational Effects I’ (2010) 16 ELJ 315–344 and Alexander Somek, ‘The

Argument from Transnational Effects II’ (2010) 16 ELJ 375–395. 26

Carlos Closa, Dimitry Kochenov and Joseph HH Weiler, ‘Reinforcing the Rule of Law Oversight in the

European Union’, EUI Working Papers RSCAS 2014/25. 27

See ‘The Letter from Germany, Finland, Denmark and the Netherlands Request a New Mechanism to

Safeguard the Fundamental Values of the EU’ addressed by the four respective Foreign Ministers to

President Barroso, available at <http://www.rtt.ro/en/scrisorea-prin-care-germania-finlanda-danemarca-si-

olanda-solicita/> last accessed 14 December 2014.

8

guaranteeing either that they themselves remain democracies where key liberties, rights

and the rule of law are guaranteed, or that they are shielded from the negative

consequences of other Member States’ shortcomings in adhering to the spirit of Article 2

TEU. Indeed, as Wojciech Sadurski explained,28

this has been an important driving factor

behind the newly-joining Member States’ desire to become part of the EU. The Union

thus potentially emerges as an additional level of constitutional protection of the key

values which are shared, the Treaties teach us, by the EU and its Member States.

That said, a legitimate question concerning the role of the EU as such in the

context of the functioning of the principle good neighbourly relations emerges most

acutely. Is the EU subject to the principle? If yes, what is to be expected of the Union in

the context of good neighbourly relations?

2. EU’s specificity and the struggle for values

The EU now is unquestionably a mature constitutional system.29

Making futile attempts

to accommodate it within the realm of international law sensu stricto is unwise. This

would necessarily affect the application of the principles of international law in the

context of the EU, which is obviously not a state. Furthermore, it would also profoundly

affect the very essence of the states which are part of the EU: the option to choose a

destiny which deviates from the EU’s foundational values set out in Article 2 TEU is

closed to them.30

The special interrelationship between the EU and its Member States on

the one hand and, simultaneously, between the Member States of the EU on the other, is

such that EU values play a central role in the functioning of the legal organism of the

Union. This is certainly the case, even notwithstanding the fact that such values do not

28

Wojciech Sadurski, Constitutionalism and the Enlargement of Europe (OUP, Oxford 2012). 29

For a leading textbook, see e.g. Robert Schütze, European Constitutional Law (CUP, Cambridge 2012). 30

Indeed, a provision allowing withdrawal from the Union is designed precisely for such states. For

analyses, see Phedon Nicolaides, ‘Withdrawal from the European Union: A Typology of Effects’ (2013) 20

MJ 209–219; Adam Łazowski, ‘Withdrawal from the European Union and Alternatives to Membership’

(2012) 37(5) EL Rev 523–540.

9

find their automatic elaboration and expression in the acquis,31

which remains a tool with

a clearly decipherable market bias,32

suffering from many a lacuna when approached

from the standpoint of the very values the Treaties profess.33

Although the acquis on values and the values’ enforcement does not spread far

beyond Article 7 TEU,34

the matured Union generates legitimate expectations that its

values will be defended and enforced.35

The outcome of such enforcement should

necessarily be the restoration of a situation where each of the Member States of the Union

fully adheres to the specific type of constitutionalism, based on democracy, the rule of

law, human rights protection and other key principles, such as proportionality and loyal

cooperation, and also demonstrates full adherence to the acquis. Having even one

Member State among the twenty-eight which does not meet these criteria can be argued

to necessarily result in a breach, inter alia, of the principle of good neighbourly relations

due to the Union’s very organisation. This is an additional perspective on non-compliance

with the values which come in addition to the classical understanding of the duty of

loyalty. Indeed, from an EU law-centred perspective, an equally strong argument can be

made that any deviant Member State will also be in violation of the duty of loyalty – even

though its exact scope is debatable.36

The need to defend Article 2 TEU values makes the

Union’s involvement indispensable.

31

Kochenov (n 17). 32

Niamh N Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47(6) CML Rev 1597–1628;

Jukka Snell, ‘The Internal Market and the Philosophies of Market Integration’ in Catherine Barnard and

Steve Peers (eds), European Union Law (OUP, Oxford 2014) 300–324. 33

Williams (n 9); Andrew Williams, The Ethos of Europe: Values, Law and Justice in the EU (CUP,

Cambridge 2010); Dimitry Kochenov and Andrew Williams, ‘Justice Deficit Introduced’ in Kochenov, de

Búrca and Williams (n 21). 34

Wojciech Sadurski, ‘Adding Bite to a Bark: The Story of Article 7, EU Enlargement, and Jörg Haider’

(2010) 16 CJEL 385–426. 35

Jan-Werner Müller, ‘The EU as a Militant Democracy, or: Are There Limits to Constitutional Mutations

within the Member States’ (2014) Revista de Estudios Políticos 141–162. 36

The Legal Service of the Council concluded the following: ‘[T]he new EU framework for the Rule of

Law as set out in the Commission’s communication is not compatible with the principle of conferral which

governs the competences of the institutions of the Union’: Council of the European Union, Opinion of the

Legal Service 10296/14, of 14 May 2014, para 28.

10

In other words, the principle of good neighbourly relations here necessarily

overlaps with the duty of loyalty, even though it is seemingly easy to draw a conceptual

distinction between the two: while good neighbourly relations by definition concerns

relations between states, the EU duty of loyalty necessarily adds an acquis element to it,

including the respect for the goals of integration.37

While a breach of the duty of loyalty

causing negative externalities for other Member States will obviously also be a breach of

the principle of good neighbourly relations, the reverse would not be true: the scope of

the duty of loyalty should be construed more narrowly than the principle of good

neighbourly relations in the context of breaches. One should thus not be mislead by the

(potentially, at least) similar operation of the two, when their scopes overlap.

Both the considerations of good neighbourliness and loyalty, when applied to the

EU, are bound to rest on the understanding of the climate of interdependency that the

Union has created for its Member States. Joining Carlos Closa, I have identified at least

three key normative arguments for the Union’s involvement.38

These concern, firstly, the

effects of Article 2 TEU violations by a single Member States on the whole of the Union

both at the citizen and the Member State level; secondly, these concern the supranational

understanding of the Union as a federal legal-political organism, requiring it to intervene

in defence of the rights and freedoms, which it directly endows to its citizens;39

and,

thirdly, the argument building on the EU’s congruence with its own proclaimed values

and policies, especially acute once the external realm of the EU’s activities is taken into

account: we cannot expect, say, Azerbaijan to take the EU’s attempts to promote the rule

37

Pierre Pescatore, Le droit de l’intégration. Emergence d’un phénomène nouveau dans les relations

internationales selon l’expérience des Communautés Européennes (A.W. Sijthoff, Leiden/Institut

Universitaire de Hautes Etudes Internationales, Genève 1972) 29. See also Panayotis Soldatos and Georges

Vandersanden, ‘L’admission dans la CEE – Essai d’interprétation juridique’ (1968) 6 Cahiers de droit

européen 674–707, 689. 38

Carlos Closa and Dimitry Kochenov, ‘Reinforcement of the Rule of Law Oversight in the European

Union: Key Options’ in Werner Schröder (ed), Rule of Law in Europe (Hart Publishing, Oxford 2015)

(forthcoming). 39

For a detailed assessment, see Dimitry Kochenov (ed), EU Citizenship and Federalism: The Role of

Rights (CUP, Cambridge 2015) (forthcoming).

11

of law and other values40

seriously if the EU’s own internal affairs demonstrate lacunae

precisely in these fields.41

While the first argument of the three clearly implies the

possibility of approaching the EU’s problems with its values’ from the perspective of the

principle of good neighbourly relations, the second of the three adds to this perspective,

turning the Union as such into an active agent of good neighbourly relations in a legal-

political context which is no longer two-dimensional, as the vertical division of

competences between the EU and the Member States plays a crucial role here.

The normative argument on the universal effects of the departure of individual

Member States from the values of the Union as a whole starts with the all-pervading

principle, related to the deep inter-penetration and the mutual interdependency between

the Member States of the Union at the current stage of European integration.42

This works

at two levels. Firstly, every European citizen has an interest in not being confronted with

an illiberal Member State in the EU, since that state will take decisions in the European

Council and the Council of Ministers and at least indirectly participate in governing the

lives of all the citizens of Europe. If one or more Member States change their standards

regarding the Rule of Law or democracy, this necessarily and automatically affects

decisions in and by other Member States as well. Secondly, every EU Member State is

equally interested in ensuring that none of the others get a free ride, undermining the

genuine nature of the Union and the internal market. Legally speaking, the

interdependency between the Member States now works in such a way that the EU

obliges the Member States to presume that each of them is at least as good as any other in

terms of standards of governance, democracy and the Rule of Law. Mutual trust, which is

40

The commonality of values is the key assumption behind the whole edifice of the ENP: Päivi Leino and

Roman Petrov, ‘Between “Common Values” and Competing Universals’ (2009) 15 ELJ 654–671. See also

Roman Petrov, ‘The Principle of Good Neighbourliness and the European Neighbourhood Policy’ in this

volume. 41

External promotion of values, especially democracy, the rule of law and human rights is one of the main

lines of EU’s foreign policy: Marise Cremona, ‘Values in EU Foreign Policy’ in Malcolm Evans and Panos

Koutrakos (eds), Beyond the Established Legal Orders: Policy Interconnections Between the EU and the

Rest of the World (Hart Publishing, Oxford 2011) 275–316; Ester Herlin-Karnell, ‘EU Values and the

Shaping of the International Context’ in Dimitry Kochenov and Fabian Amtenbrink (eds), European

Union’s Shaping of the International Legal Order (CUP, Cambridge 2013) 89–107. 42

Jan-Werner Müller, ‘The Copenhagen Commission’ in Closa and Kochenov (n 18).

12

essential to the working of the EU and the market itself, depends precisely on holding

true to this presumption.43

Failures to accept other Member State court decisions,

European arrest warrants, newly-issued nationalities or the quality of phytosanitary

measures – you name it – are generally prohibited by EU law: the Member States decide

for each other every day. Thus, disrespect for the Rule of Law and democracy in one

particular Member State can have negative externalities on third (EU, but also non-EU)

parties. This principle assumes that the EU is already a coherent legal-political entity

based on mutual trust and respect, and works at both the level of citizens and at the level

of the Member States: this is unquestionably a fair description of reality, occasional

issues with concrete implementation notwithstanding.

The federal analogy builds on the inter-dependency argument but moves it one

step further: the EU is recognised – in keeping with the functioning of its law in some

domains – as a supranational federation. Such recognition provides an additional

normative argument for its involvement in cases where the Member States disregard the

Rule of Law, as the Union is per se also conceived of as a bearer of an important stake in

the functioning of the system and the effectiveness of the rights it grants. As an important

bearer of duties vis-à-vis the citizens and, also, the Member States, the EU as such is

viewed as a responsible actor. This vision cannot emerge merely out of a crude story of

interdependence between EU citizens or between the EU Member States. Once the EU’s

supranational nature is fully taken into account, it acquires a role in protecting its citizens,

which is independent of the Member States. Playing such a role pertains to the key recent

jurisprudence of the Court of Justice of the European Union (ECJ).44

The debate on how

far the federal analogies – particularly those related to the renewed importance of EU

43

Miguel Poiares Maduro, ‘So Close Yet So Far: The Paradoxes of Mutual Recognition’ (2007) 14 JEPP

814–825. See also: Susanne K Schmidt and Kalypso Nicolaïdis, ‘Mutual Recognition “On Trial”: The Long

Road to Services Liberalization’ (2007) 14(5) JEPP 51–68. See, in general, Christine Janssens, The

Principle of Mutual Recognition in EU Law (OUP, Oxford 2013). 44

E.g. Case C–135/08 Janko Rottmann v Freistaat Bayern [2010] ECR I–1449; Case C–34/09 Gerardo

Ruiz Zambrano v Office national de l’emploi (ONEm) [2011] ECR I–1177. For an analysis, see Dimitry

Kochenov, ‘A Real European Citizenship: A New Jurisdiction Test: A Novel Chapter in the Development

of the Union in Europe’ (2011) 18 CJEL 56–109.

13

citizenship – can be stretched is ongoing.45

The independent ability of the Union,

observable in the EU every day, to affect the legal-political situation in the Member

States in the most direct way, necessarily permits strong claims that the EU emerges as a

‘neighbour’ in its own right, when approached in light of the good neighbourliness

principle. This is not only a matter of horizontal relations with non-EU states, but also,

again, a matter of vertical relationships with its own constituent parts. The added value of

bringing good neighbourly relations into the picture becomes clear in the context of the

necessary limitations of EU’s own duty of loyalty principle. Good neighbourly relations,

potentially enjoying broader scope – its much more basic and intuitive nature

notwithstanding – could be deployed alongside the duty of loyalty.

The third normative argument refers to the principle of congruence and has an

internal and an external dimension. Externally, the argument based on this principle

points to the kind of requirements that the Union usually sets for engaging in cooperation

with third parties.46

The protection of fundamental rights, the Rule of Law and democracy

together or individually are good cases in point. Indeed, the EU even attempts to shape

international law to its liking, using its own fundamental values and principles as a basis

for this.47

Should the EU establish oversight mechanisms, then it would clearly also

reinforce its credibility in the wider world. This is crucial, in particular given that the EU

sets high standards for the candidate countries in the course of the pre-accession

process,48

which contrasts sharply with what is required of Member States which are

already ‘in’. Internally, the congruence principle means that respect for democracy and

the Rule of Law should not only be viewed as a prerequisite for accession but also for

45

See e.g. Eleanor Spaventa ‘Earned Citizenship: Understanding Union Citizenship through Its Scope’ in

Dimitry Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (CUP, Cambridge 2015)

(forthcoming) and Niamh Nic Shuibhne ‘EU Citizenship as Federal Citizenship: What Are the Implications

for the Citizen?’ in Dimitry Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (CUP,

Cambridge 2015) (forthcoming). 46

Cremona (n 41); Leino and Petrov (n 40). 47

Herlin-Karnell (n 41). 48

Marc Maresceau, ‘The EU Pre-Accession Strategies: A Political and Legal Analysis’ in Marc Maresceau

and Erwan Lanon (eds), The EU’s Enlargement and Mediterranean Strategies: A Comparative Analysis

(Palgrave, Basingstoke 2001) 3–28, 18.

14

continued membership. In short, when taken seriously, the congruence argument

enhances the EU’s credibility in safeguarding and defending its fundamental values. The

three arguments combined provide a sound normative foundation for the intensification

of the EU’s involvement with the outstanding issues on the disregard of the fundamental

values by the Member States, enriching the possible understanding of good neighbourly

relations in the internal context of the EU, as the principle acquires potentially new vistas

of development and meaning.

The struggle for the continued observance of Article 2 TEU values in the EU is

on-going – arguably, it is now much more acute than ever before.49

Following the

growing number of serious discussions on what to do with Hungary, given current

developments there,50

and in light of the special features of the mounting problems, it

seems high time to return to the very basic question on the reasons behind having a Union

in Europe. The question of Europe’s raison d’être is as acute now, more than half a

century into the project, as ever and is under active debate for good reason.51

Answering

this question is crucial – not only because the answer provides better legitimisation52

– if

49

See e.g. Jan-Werner Müller, ‘Safeguarding Democracy inside the EU. Brussels and the Future of the

Liberal Order’ (2013) Transatlantic Academy Paper Series (and the literature cited therein) available at:

<http://www.transatlanticacademy.org/publications/safeguarding-democracy-inside-eu-brussels-and-future-

liberal-order> last accessed 14 December 2014; Closa and Kochenov (n 18). 50

e.g. Miklós Bánkuti, Gábor Halmai and Kim Lane Scheppele, ‘Hungary’s Illiberal Turn: Disabling the

Constitution’ (2012) 23 The Journal of Democracy 138–146; Kim Lane Scheppele, ‘The Unconstitutional

Consitution’, The New York Times (2 January 2012) available at:

<http://krugman.blogs.nytimes.com/2012/01/02/ the-unconstitutional-

constitution/?_php=true&_type=blogs&_r=0> last accessed 14 December 2014. For a discussion see

Verfassungsblog’s special feature Hungary: Taking Action, 2013. Available online at: <http://www.

verfassungsblog.de/en/category/focus/hungary-taking-action/#.Uw4a-Puzm5I> last accessed 14 December

2014; Bojan Bugarič, ‘Protecting the Rule of Law in the European Union: The Hungarian Challenge’

LEQS Papers 79/2014, available at <http://www.lse.ac.uk/europeanInstitute/LEQS/LEQSPaper79.pdf> last

accessed 14 December 2014. 51

Williams (n 33); Jürgen Neyer, The Justification of Europe: A Political Theory of Supranational

Integration (OUP Oxford 2012); Gráinne de Búrca, ‘Europe’s raison d’être’ in Kochenov and Amtenbrink

(n 1); Kochenov, de Búrca, and Williams (n 21). 52

Anthony Arnull and Daniel Wincott (eds), Accountability and legitimacy in the European Union (OUP,

Oxford University Press 2002).

15

not justification53

– of the integration project already in existence, but also, since it is

likely to shed light on how to resolve some of the outstanding problems which the

Member States and the Union are facing. In particular, this concerns the Union’s role in

dealing with values/Rule of Law crises in the Member States – issues which are as

indispensable for the Union’s survival as they are potentially outside the clear-cut scope

of Union law.

Indeed, the overwhelmingly fragility of the supranational authority – notoriously

famous for its democratic deficit and criticized for the missing underlying idea of the

good to go beyond the Internal Market54

– must be taken into account. Setting aside the

clear weakness of EU’s powers, how can a Union which could legitimately be presented

as antithetical to justice55

and democracy,56

reshape the essential constitutional

fundamentals of the Herren der Verträge unfaithful to the values of Article 2 TEU?57

Will it be necessary to reinvent the integration construct first before this is can be made

possible? Clearly, such a reinvention, presumably requiring explicit assent from all the

Member States, is nothing short of impossible precisely because some of the Member

States are at the heart of the problem. At the same time, will the Union be able to function

– or at least pretend to function – successfully, if nothing is done, given the disruptive

potential of the three essential features of the on-going crisis as outlined above? There are

currently more questions than there are answers.

53

Neyer (n 51); Glyn Morgan, ‘European Political Integration’ (2007) 14(3) Constellations 332–346; Beate

Sissenich, ‘Justification and Identity in European Integration’ (2007) 14(3) Constellations 347–354 (for

posing this issue and some important attempts). 54

Joseph HH Weiler, ‘Bread and Circus: The State of the European Union’ (1998) 4 CJEL 223–248;

Williams (n 9); Dimitry Kochenov, ‘The Citizenship Paradigm’ (2013) 15 Cambridge YB of European

Legal Studies 196–225. 55

Kochenov, de Búrca and Williams (n 21); Williams (n 33). 56

See e.g. Joseph HH Weiler, ‘Deciphering the Political and Legal DNA of European Integration: An

Exploratory Essay’ in Julie Dickson and Pavlos Eleftheriadis (eds), Philosophical Foundations of

European Union Law (OUP Oxford 2013); See also Kalypso Nicolaïdis, ‘European Democracy and Its

Crisis’ (2013) 51(2) JCMS 351–369; For earlier contributions on this subject see Kevin Featherstone, ‘Jean

Monnet and the “Democratic Deficit” in the European Union’ (1994) 32 JCMS 149–170; cf Giandomenico

Majone, ‘Europe’s Democratic Deficit: The Question of Standards’ (1998) 4 ELJ 5–28. 57

Joseph HH Weiler’s metaphor of living in a glass-house reflects this state of affairs very well: Closa,

Kochenov and Weiler, ‘Reinforcing Rule of Law Oversight in the European Union’, EUI Working Papers

RSCAS 2014/25.

16

Given the current level of interdependence between the Member States in the

Union, each and every other Member State is significantly harmed by such Hungaries.

This therefore necessarily points in the direction of the Union’s raison d’être: is the

Union about solving the constitutional conundrums of its Member States? The

responsibilities which the Union now discharges, coupled with the full reliance of the

Member States on the Union and also on each other in the context of the profound

interdependence described above, make the deployment of the duty of loyalty, possibly

backed by good neighbourliness considerations, indispensable.

3. EU Enlargement and the Internal Aspects of Good Neighbourliness

For many decades, the Union has been consistently working against the raison d’être

question, denying the very possibility that this question would ever arise, presenting itself

as solely functioning within the paradigm of the Internal Market, which denies the very

possibility of any serious treatment of the majority of the principles included in Article 2

TEU, since it builds on a justice void, thus denying the acuteness of the problems

currently plaguing the Union, instead of trying to solve them.

It is only in the context of the preparation for its Eastern enlargement that a

fascinating situation arose, when the EU de facto ended up seemingly enforcing its

foundational values through the pre-accession conditionality policy – with highly

questionable results. The failure of conditionality in the fields of democracy and the Rule

of Law, which is analysed elsewhere,58

is now overwhelmingly made manifest by the

developments in Hungary. None of the ‘older’ Member States has come under the same

level of heightened scrutiny concerning compliance with democracy, the Rule of Law and

the other values of the Union. The message that the EU was projecting on the candidate

countries from Central and Eastern Europe was that it would help them improve tout

court. The promotion of the basic democratic principles and the Rule of Law – the values

of Article 2 TEU – was presented as part of the enlargement package. It is crucial in this

58

Kochenov (n 23).

17

context that the pre-accession activity of the EU was not limited per se, by the principle

of conferral,59

as any internal activity of the EU would have been. This was because the

task of the pre-accession exercise consisted not so much in the export of the acquis

(which definitely played an important part), but also in guaranteeing that the new

Member States would also embrace the specific type of constitutionalism which the EU

promotes and embraces along with its Member States. As a political process partly

outside the realm of the acquis, enlargement thus marked the first attempt by the EU to

intervene with the constitutional core of states to ensure that the Union as a whole does

not suffer negative externalities emerging from interdependence when a state fails to

subscribe to the values of Article 2 TEU.

Crucially, not a single Western European Member State joined the Union on such

a premise: the EU was founded as a celebration of the value-rich nature of all the

Member States as functioning democracies based on the Rule of Law. The enlarging EU,

however, came to be expected to become a careful helper in areas outside of its reach.

The acceding states looked at the EU as a possible guarantor of future democratic

stability, to ensure that a Hungary never happens. It did. It appears that the radical

difference in approaches towards the different groups of Member States adopted by the

EU is actually mirrored by the Member States’ own aspirations in the EU context and has

important implications for the whole EU integration project. Wojciech Sadurski has

brilliantly described this cleavage, also covering the Council of Europe in a recent

monograph:60

states join the Union precisely expecting to be monitored and relying on the

guarantees, expressed in the context of the pre-accession process, that the Union will

provide a helping hand in case of eventual departures from Article 2 TEU. The

developments in Hungary thus provide an illustration of how the EU fell short of the

growing expectations of the new Member States, by failing to guarantee that they stay

true to the course of freedom and Article 2 TEU values.

The essential lesson in terms of good neighbourliness and the duty of loyalty to be

learnt from the latest rounds of the EU’s eastern enlargement is that the principle of good

59

ibid, Chapter 2. 60

Sadurski (n 28).

18

neighbourly relations unquestionably emerged as a bi-faceted legal reality. Firstly, as

described in detail in Peter Van Elsuwege’s chapter in this volume, the principle of good

neighbourly relations crystallised as an important component of the pre-accession

preparation process of the new Member States-to-be through attempting to ensure that

they did not import any conflicts into the EU. Let us call this the external facet of the

operation of the principle. The internal facet, then, is reflected in the very set-up of the

pre-accession strategy,61

which was based on the principle of conditionality and did not

focus uniquely on the export of the acquis, intending to cover the values of the Union and

thereby to transform the constitutional essence of the new-coming Member States of the

Union. Although this tandem has failed to produce the desired results – which is not

surprising given its poor design and implementation62

– the pre-accession context,

followed by the introduction of Article 7 TEU into the Treaties and its gradual fine-

tuning, was the first attempt by the EU to turn the values on which the Union is based and

which are indispensable for its successful functioning, into binding legal provisions.

4. EU Citizenship and the Internal Aspects of Good Neighbourliness

The EU enlargement regulation provides an example of how considerations of good

neighbourly relations, informing both EU’s external action in the context of enlargement

regulation and its internal approaches in preparing the new Member States to accession

also in the areas outside the scope of the acquis and the EU powers sensu stricto, played a

role in pushing the Union to rethink what is expected of it by the Member States,

anticipating the ongoing heated debates on what to do with authoritarian Member

States.63

The area of EU citizenship and Member State nationality law enables viewing

61

Maresceau (n 48) 3–28; Laurent Beurdeley, L’élargissement de l’Union européenne aux pays d’Europe

Centrale et orientale et aux îles du bassin méditerranéen (L’Harmattan, Paris/Montréal 2003) 43; Kirstyn

Inglis, ‘The Europe Agreements Compared in the Light of Their Pre-accession Reorientation’ (2000) 37

CML Rev 1173–1210, 1178 et seq. 62

Eline De Ridder and Dimitry Kochenov, ‘Democratic Conditionality in Eastern Enlargement: Ambitious

Window-Dressing’ (2011) 16 EFAR 589–605. 63

Closa and Kochenov (n 18).

19

good neighbourly relations from a different angle: the gradual development of the Union

shaped such a reality, where legitimate sovereign regulation by the Member States in

their own sovereign sphere of competences can potentially violate the principle of good

neighbourly relations without, however, necessarily violating the duty of loyalty, if

construed strictly. In fact, a wider approach to the requirements of the duty of loyalty is

probably needed in this area.64

Be that as it may, aggressive nationalisation policies (such

as the one pursued by Hungary in the last few years)65

can be problematic in the face of

intolerant neighbours unwilling to subscribe to a liberal understanding of EU citizenship

and the internal market (such as Slovakia withdrawing citizenship from natural-born

Slovaks naturalising elsewhere in response to the Hungarian tolerance policy).

None of the Member States in question is at fault from the perspective of the duty

of loyalty interpreted restrictively: nationality is within the realm of Member States’ own

competence,66

unless they act disproportionately in depriving their nationals of EU

citizenship67

or fail to recognize the legally sound nationality of a different Member

State.68

Indeed, none of the Slovaks-turned-Hungarian, even if deprived of their Slovak

nationality is in danger of losing EU citizenship. Hungary is also certainly right to assume

that the toleration of multiple nationalities is the general rule in the Union,69

and

64

See for an analysis, Dimitry Kochenov, ‘Double Nationality in the EU: An Argument for Tolerance’

(2011) 17 ELJ 323–343. The Greek government expressly referred to the duty of loyalty in this area in its

submissions in the Rottmann case. For an analysis, see Dimitry Kochenov, ‘Case C–135/08, Janko

Rottmann v Freistaat Bayern, judgment of 2 March 2010 (Grand Chamber)’ (2010) 47 CML Rev 1831–

1846. 65

As described in detail in the chapter by Arraiza (n 4). 66

For a detailed analysis, see Dimitry Kochenov, ‘Ius Tractum of Many Faces: European Citizenship and a

Difficult Relationship between Status and Rights’ (2009) 15(2) CJEL 169–237; Stephen Hall, ‘Determining

the Scope Ratione Personae of European Citizenship: Customary International Law Prevails for Now’

(2001) 28 Legal Issues of Economic Integration 355–360; Andrew Evans, ‘Nationality Law and European

Integration’ (1991) 16 EL Rev 190–215. 67

Case C–135/08 Janko Rottman v Freistaat Bayern [2010] ECR I–149. 68

Micheletti (n 19). 69

Kochenov (2011) (n 64).

20

globally,70

emerging, in the words of Peter Spiro’s insightful analysis, as a ‘human

right’.71

From the point of view of good neighbourliness, the picture changes somewhat,

however. Looking at the principle horizontally, without including the EU for the moment,

Slovakia is clearly in breach in changing its tolerance policy in direct response to the

introduction of the Hungarian policy of passportisation of Hungarian minorities abroad

following a strictly ethnic approach to citizenship – as is analysed in detail in other

contributions to this volume.72

What saved Slovakia from condemnation under EU law

was the fact that the EU citizenship of the majority of those affected is not brought into

question by the policy. However, at the horizontal level, the obvious causal link between

Hungary’s policy and Slovakia’s change in the law point to the fact that, Slovak

nationality is in fact withdrawn as a reaction to the lawful acquisition of a nationality of

another Member State: moreover, the policy was created specifically to make this

possible. This definitely undermines the idea of a single working and living space73

which EU citizens enjoy in the Union territory.74

The thinking behind the change in law

in Slovakia was thus repugnant in essence and can easily be distinguished from the policy

of other Member States which are intolerant, fully or in part, to accepting multiple

nationalities: their intolerance is not necessarily linked to the desire to degrade one

particular nationality, humiliating specific neighbouring states, as is the case in

Slovakia.75

Hungary also, however, does not emerge in a favourable light. Even if one

leaves aside the questionable thinking behind the distribution of Hungarian passports in

70

For an overview, see Peter Spiro, ‘Dual Citizenship as a Human Right’ (2010) 8 Int’l J. Const. L. 111–

130 (and the literature cited therein). 71

ibid. 72

See Blokker and also Arraiza (n 4). 73

Oxana Golynker, ‘European Union as a Single Working-Living Space: EU Law and New Forms of Intra-

Community Migration’ in Andrew Halpin and Roeben Volker (eds), Theorising the Global Legal Order

(Hart, Oxford 2009) 145–166. 74

Pullano (n 7). 75

The law is overwhelmingly illogical, as the first statistical data demonstrates with clarity that instead of

dual Slovak-Hungarian nationals, it mostly targets Slovaks with Czech or US nationalities.

21

its neighbouring countries,76

it emerges that no sensitivity at all was demonstrated by

Hungary vis-à-vis the Slovak position, even if the latter, although probably legal – if one

is a particularly black-letter type – is questionable at its core. The principle of good

neighbourly relations implies an ability and willingness to negotiate in good faith and

certainly includes the idea of avoiding, rather than creating disputes – something that the

two countries definitely failed to do. Moreover, the current temper of Hungarian-Slovak

relations is definitely grotesque and rich in provocation,77

which destroys the spirit of

constructive cooperation one would expect of two EU Member States. Therefore, while

EU law has probably not been broken sensu stricto, strong considerations point in the

direction of the breach of the horizontal aspects of the principle of good neighbourly

relations.

Furthermore, the duty of loyalty aside, one can also argue that the vertical aspects

of the same principle of good neighbourly relations (the ones which bring in the Union),

were equally broken, as both countries failed to consider the new reality of the federal

context shaped by the EU. This is so, since the very value of a particular Member State

nationality – as opposed to EU citizenship as such – has been gradually diminishing in

the EU in recent decades as a consequence of the maturation of both EU citizenship and

the Internal Market.78

Indeed, the successful development of the Internal Market was

bound to diminish the legal effects of particular Member State nationalities due to four

key factors, all striking at the core of the essence of nationality. EU law prohibits the

Member States from favouring their own nationals in a growing range of situations;79

it

seriously limits any discretion enjoyed by the Member States not to let in foreigners who

76

For analyses see Araiza (n 4); Kim Late Scheppele, ‘Hungary: The End of Politics’, The Nation (26 May

2014), available at <http://www.thenation.com/article/179710/hungary-and-end-politics> last accessed 14

December 2014. 77

Case C–364/10 Hungary v Slovak Republic, judgment of 16 October 2012, not yet reported. 78

Dimitry Kochenov, ‘Rounding up the Circle: The Mutation of Member States’ Nationalities under

Pressure from EU Citizenship’, EUI Working Papers RSCAS No 2010/23. 79

Gareth Davies, Nationality Discrimination in the European Internal Market (Kluwer Law Int’l, The

Hague 2003).

22

are EU citizens or to deport them;80

it severely restricts the Member States’ ability to

impose specific duties of nationality by providing for a simple escape route for evading

such duties through free movement;81

and it makes it impossible for the Member States to

claim that they can safeguard equality among their citizens, since the situation of some of

them is covered by EU law, while others are not.82

Member States are thus severely

limited in what they can and cannot do: their nationality now comes with virtually no

‘bonus’83

and is just as good as any other EU nationality: the duties of nationality they

impose can be legally disobeyed, and they have virtually no say in who will reside, work

or study in their territory, let alone be treated equally to someone else. This is an

important part of what Gareth Davies characterised as the ‘humiliation of the State’,84

when describing the constitutional essence of the Union. Importantly, such ‘humiliation’

is not a specific consequence of the introduction of EU citizenship or any other particular

development of the acquis: it flows directly from the very essence of the Union rooted in

the Internal Market, where internal borders are abolished and discrimination on the basis

of nationality is outlawed.

Humiliating the state is not necessarily a bad thing, as it can simultaneously

empower individuals in their quest for better lives.85

So on the positive side of the same

coin – European citizens residing in a Member State other than their Member State of

80

For a more sober account, see Dora Kostakopoulou, ‘When EU Citizens Become Foreigners’ (2014)

20(4) ELJ 447–463. 81

Dimitry Kochenov, ‘EU Citizenship Without Duties’ (2014) ELJ 482–498. 82

Dimitry Kochenov, ‘Citizenship without Respect: The EU’s Troubled Equality Ideal’, Jean Monnet

Working Paper (NYU Law School) 08/10. 83

Non-deportability could potentially be presented as such bonus, which would nevertheless be a half-

hearted boon in a context when the European Arrest Warrant (EAW) functions properly. On non-

deportability outside of the legal context of the EAW, see Dimitry Kochenov and Benedikt Pirker,

‘Deporting the Citizens within the European Union: A Counterintuitive Trend’ (2013) 19(2) CJEL 341–

362. 84

Gareth Davies, ‘The Humiliation of the State as a Constitutional Tactic’ in Fabian Amtenbrink and Peter

AJ van den Berg (eds), The Constitutional Integrity of the European Union (T.M.C. Asser Press, The

Hague 2010) 147–174. 85

But see Joseph HH Weiler, ‘Europa: “Nous coalisons des Etats nous n’unissons pas des hommes”’ in

Marta Cartabia and Andrea Simoncini (eds), La Sostenibilità della democrazia nel XXI secolo (Il Mulino,

Bologna 2009).

23

nationality are not simply ‘foreigners’.86

The ECJ acting with other institutions of the

Union shaped a legal reality where the citizenship of the EU acquired clear and

identifiable scope and a direct ability to shape the rights of those in possession of this

status, enlarging their horizon of opportunity. To pretend that EU citizens are not,

potentially at least, quasi-nationals of any of the Member States where they choose to

reside, would thus amount to closing one’s eyes to the current level of development of

EU law.

Consequently, although acquisition and the loss of nationality are not among the

issues which the Union is empowered to regulate,87

the very functioning of the Internal

Market, amplified by the idea of EU citizenship, makes the retention of the pre-existing

modes of regulation of such de jure extra-acquis issues by the Member States

unsustainable: the EU reality must be taken into account for any regulation of these issues

to make sense.

In a situation where the nationalities of the Member States are legally unable to

trigger differentiation between their owners in the majority of cases, the requirement to

renounce one Member State’s nationality upon acquiring another seems to suggest an

exchange between identical statuses. At the same time, it is a strong discouraging factor,

86

EU law thus questions the foreigner-citizen dichotomy: the lines between ‘us’ and ‘them’ are necessarily

blurred in the borderless Internal Market. This blurring of the lines of belonging is not unique to the EU,

however, and is a general trend, observable in a number of jurisdictions around the world: Tanja Brøndsted

Sejersen, ‘“I Vow to Thee My Countries” – The Expansion of Dual Citizenship in the 21st Century’ (2008)

42(3) Int’l Migration Rev 523–549, 524. The signs of this erosion are not only seen in the equality of

legally resident foreigners with citizens in the majority of spheres, ranging from non-discrimination to

social security. Recent decisions of international tribunals also demonstrated that the international human

rights protection regime can stand in the way of the use by states of the previously unconditional right to

deport an alien. See e.g. Beldjoudi v France (App no 12083/86) ECHR 26 March 1992; Stewart v Canada,

U.N. Doc. CCPR/C/58D/538/1993 (1996) 4 IHRR 418, IHRL 1745 (UNHRC 1996). See also Kochenov (n

66) 175–181; Linda Bosniak, ‘Citizenship Denationalized’ (2000) 7 Ind. J. Global Legal Stud. 447–510. 87

e.g. Opinion of AG Poiares Maduro in Rottmann (n 44) para 17: ‘la détermination des conditions

d’acquisition et de perte de la nationalité, – et donc de la citoyenneté de l’Union –, relève de la compétence

exclusive des États membres’ (also see the references cited therein). This, notwithstanding the famous

obiter dictum in Micheletti that decisions on nationality should be taken by the Member States with ‘due

regard of Community law’: Micheletti (n 19) para 10.

24

preventing the naturalisation of long-term residents.88

This is particularly true given the

lack of any reason for the requirement: in a situation where the bond between the socio-

cultural understanding of a nation and nationality as a legal status ceases to exist, and

where EU citizenship gains in importance as the main source of rights for all the nationals

of the Member States, to ask for renunciation of the previous nationality is meaningless.

Those considering naturalisation need to balance the idea of compliance with a

meaningless requirement against the prospect of being granted the two rights which are

reserved to nationals. While the requirement to give up one’s previous nationality is

discouraging, it is often also the only factor playing against naturalisation in one’s

Member State of residence, since language proficiency is usually not a problem upon

completion the several years of residence required for naturalisation.

In the light of the considerations restated above, it is impossible to disagree with

Evans’s observation that the ‘relaxation of restrictions on possession of dual nationality

seems to be demanded by the spirit, if not the letter of Community law’.89

Ideally, this

should not only concern EU citizens, but also third country nationals, who are equally

affected by this nonsensical requirement. In other words, although not in breach of the

duty of loyalty, the requirement of renunciation of a previous EU nationality upon

naturalisation in the EU can be legitimately presented as a highly-problematic attempt to

ignore all of what the Union stands for, degrading the trust among the Member States and

closing one’s eyes to the successes of the EU integration project. This would clearly

amount to the violation of the principle of good neighbourly relations, should this

principle be interpreted, as this chapter suggests it should, in a context-sensitive way –

i.e. by requiring the Member States of the Union to ensure that the reality of European

integration is not ignored in their internal and external actions.

88

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

Expatriate Voting and Nationality Retention of Emigrants’ (2006) 81 NYU L. Rev 117–147, 138. 89

Evans (n 66).

25

5. Conclusion

This chapter argues that the principle of good neighbourly relations, the existence of

which it chooses to take for granted,90

is not context-free. In the EU it boasts vertical and

horizontal dimensions, necessarily including the Union – and with it the whole of the

integration project – among the actors to be considered when assessing the operation of

the principle. In addition to the actorhood of the Union, which is not a state, the operation

of the principle permits a somewhat broader view of the day-to-day operation of the duty

of loyalty, as the principle of good neighbourly relations then functions to demand that

the Member States ensure that no negative externalities are created by their lawful actions

within their own sphere of competence for the other Member States and the Union as a

whole. The very reality of European integration, implying that all the Member States

fully embrace the values of the Union and a particular type of constitutionalism, is then

what the principle protects. The examples of the toleration of dual nationality and the

regulation of EU enlargement have been deployed to illustrate how this view of the

principle of good neighbourly relations could function in practice, potentially enriching

the protections that the new legal reality shaped by the Union – and the Member States

faithful to it – enjoys under the suggested reading of the law. Notwithstanding the fact

that the approach advocated here is nothing more than a hypothesis elaborated from our

mainstream understanding of how EU law is supposed to function, it can hopefully

contribute to the essential debate on how to assist EU constitutionalism in the face of

Member States refusing to take its foundations to heart.

High expectations notwithstanding, the EU is not yet a militant democracy,91

bound to disappoint those who see it as an all-purpose umbrella against bad weather in

national politics. The close interrelation between the duty of loyalty – which is rooted in

EU law – and the principle of good neighbourly relations – which is not necessarily

acquis-bound, not even in the EU – pose serious questions on the role to be played by the

EU as a sovereign actor in the context of the operation of the principle of good

90

See, for a meticulous analysis, Basheska (n 1). 91

Müller (n 35).

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neighbourly relations. In particular, the EU’s involvement in assisting the Member States

to become the particular type of state and to embrace the specific type of

constitutionalism implied in Article 2 TEU – but not necessarily specified by the acquis

as such – is of key importance here. Given that the acquis’ scope in a strictly legal sense

cannot permit the EU’s unlimited intrusions into matters of Member State sovereignty

within the scope of their own constitutional autonomy, we hypothesise that the principle

of good neighbourly relations – understood in the broad EU-specific sense where the very

nature of a Member State can have negative externalities on the rest of the Union – could

also be employed alongside the duty of loyalty in dealing with problematic Member

States.

Failing to take the EU reality into account is unquestionably the easiest way to

violate the principle of good neighbourly relations in Europe.