ElectronicjournalofcomparatiVeLaw,vol.8.3(october2004),chttp://www.ejcl.org/> This declaration was replaced by another in 1981. 22 This was necessary because the rules on British nationality had been completely overhauled by the British Nationality Act 1981 which came into effect on 1 January 1983: 23 As to the United Kingdom of Great Britain and Northem Ireland, the terms nationals,, nationals of Member States 'nationa ls of Mem ber States and overseas countries and territories' wherever used in the Treaty establishing the European Economic Community, the Treaty establishing the European Atom ic Energy Community or the Treaty establishing the European Coaland Steel Community or n any of the Community acts deriving from those Treaties, are to be understood to refer to a. British citizens. b. Persons who are British subjects by virtue of Part IV ofthe British Nationality Act 19814and who have the right of abode in the United Kingdom and are therefore exempt from United Kingdom immigration control; British Dependent Territories citizens who acquire their citizenship from a connection with Gibraltar The reference in Article 6 of the third Protocol to the Act of Accession of22 January 1972, on the Channellslands25 and the Isle of Man, 26 to any citizen of the United Kingdom and Colonies'is to be understood as referring to any British citizen Because of these declarations, some categories of British nationals- in particular most British Dependent Territories Citizens', "British Overseas Citizens', "British Subjects without Citizenship and 'British Protected Persons'27-are excluded from European citizenship. One of these categories, the British Dependent Territories Citizens', merits some additional remarks. The British Dependent Territories were renamed British Overseas Territories' under Section 1 of the British Overseas Territories act 2002. which received Royal Assent on 26 February 2002. Under Section 1, British Dependent Territories Citizenship was renamed ' British Overseas Territories Citizenship. From then on, British Dependent Territories Citizen in the 1981 British declaration should be read as"British Overseas Territories Citizen. However, the British Overseas Territories Act 2002 produced yet another, even more important, modification. Section 3(1)of the Act provides as follows Any person who, immediately before the commencement of this section, is a British overseas territories citizen shall. on the commencement of this section become a british citizen The day of commencement was fixed at 21 May 2002.28 In respect of the formulation of the OJ1983.C23/1 23 See Bonner(1982); Evans(1981); Evans(1982a); De Groot(1989),p. 103; Simmonds(1984) I.e., British subjects without citizenship On the Channellslanders, see De Groot(2002c), p 70, Juarez Perez(1998), pp 170, 171 On the Manxmen, see De Groot(2002c), p 70; Juarez Perez(1998), pp 170, 171 On these different categories of British nationals, see De groot(1989), p. 103, with further references on p. 408 See British Overseas Territories Act 2002(Commencement)Order 2002, S 2(a) 6
Electronic Journal of Comparative Law, vol. 8.3 (October 2004), <http://www.ejcl.org/> 6 This declaration was replaced by another in 1981.22 This was necessary because the rules on British nationality had been completely overhauled by the British Nationality Act 1981, which came into effect on 1 January 1983:23 As to the United Kingdom of Great Britain and Northern Ireland, the terms ‘nationals’, ‘nationals of Member States’ or ‘nationals of Member States and overseas countries and territories’ wherever used in the Treaty establishing the European Economic Community, the Treaty establishing the European Atomic Energy Community or the Treaty establishing the European Coal and Steel Community or in any of the Community acts deriving from those Treaties, are to be understood to refer to: a. British citizens; b. Persons who are British subjects by virtue of Part IV of the British Nationality Act 198124 and who have the right of abode in the United Kingdom and are therefore exempt from United Kingdom immigration control; c. British Dependent Territories citizens who acquire their citizenship from a connection with Gibraltar. The reference in Article 6 of the third Protocol to the Act of Accession of 22 January 1972, on the Channel Islands25 and the Isle of Man,26 to ‘any citizen of the United Kingdom and Colonies’ is to be understood as referring to ‘any British citizen’. Because of these declarations, some categories of British nationals - in particular most ‘British Dependent Territories Citizens’, ‘British Overseas Citizens’, ‘British Subjects without Citizenship’ and ‘British Protected Persons’27 - are excluded from European citizenship. One of these categories, the ‘British Dependent Territories Citizens’, merits some additional remarks. The ‘British Dependent Territories’ were renamed ‘British Overseas Territories’ under Section 1 of the British Overseas Territories Act 2002, which received Royal Assent on 26 February 2002. Under Section 1, British Dependent Territories Citizenship was renamed ‘British Overseas Territories Citizenship’. From then on, ‘British Dependent Territories Citizen’ in the 1981 British declaration should be read as ‘British Overseas Territories Citizen’. However, the British Overseas Territories Act 2002 produced yet another, even more important, modification. Section 3 (1) of the Act provides as follows: Any person who, immediately before the commencement of this section, is a British overseas territories citizen shall, on the commencement of this section, become a British citizen. The day of commencement was fixed at 21 May 2002.28 In respect of the formulation of the 22 OJ 1983, C 23/1. 23 See Bonner (1982); Evans (1981); Evans (1982a); De Groot (1989), p. 103; Simmonds (1984). 24 I.e., British subjects without citizenship. 25 On the Channel Islanders, see De Groot (2002c), p. 70; Juárez Peréz (1998), pp. 170, 171. 26 On the Manxmen, see De Groot (2002c), p. 70; Juárez Peréz (1998), pp. 170, 171. 27 On these different categories of British nationals, see De Groot (1989), p. 103, with further references on p. 408. 28 See British Overseas Territories Act 2002 (Commencement) Order 2002, S. 2 (a)
ElectronicJournalofcomparativeLaw,vol.8.3(october2004),<http://www.ejcl.org/> 1981 British declaration, it can be concluded that former British Dependent Territories Citizens, who became British Overseas Territories Citizens by Royal Assent on 26 February 2002, on 21 May 2002 also received European citizenship through having been granted British citizenship. 29 However, there is one exception: British citizenship was not extended to persons who after 26 February 2002 were British Overseas Territories Citizens by virtue of a connection with the Sovereign Base Areas of Akrotiri and Dhekelia 3 These base areas, located on the island of Cyprus, are British Overseas Territories, but extending British citizenship was deemed to be inappropriate because of the military nature of these British possessions. For this reason, these British Overseas Territories Citizens do not possess British citizenship and are therefore definitely not European citizens Furthermore, it should be borne in mind that British citizenship is conferred to the other British Overseas Territories Citizens in addition to the status they possess. The consequent of this is that the persons in question may issue a declaration of renunciation in order to divest themselves of British citizenship If this happens, they are exclusively British Overseas Territories Citizens, not possessing European citizenship, of course These legal constructions show that the status of British Overseas Territories Citizen has not been abolished furthermore, acquisition of this status on the basis of the provisions of the amended British Nationality Act does not result in acquisition of British citizenship Persons who acquired British Overseas Territories Citizenship after 21 May 2002 can only apply to be registered as British citizens. Registration is at the discretion of the Secretary of State 31 In respect of all these changes concerning British Dependent Territories Citizens,it can be concluded that the United Kingdom is to review the 1981 declaration It is not the British Dependent Territories Citizens, but some British Overseas Territories Citizens(and some other categories such as British Overseas Citizens)who are now excluded. Furthermore it is useful to know whether the United Kingdom will preserve the statement that, for Community purposes, all British citizens are British, including those living in British Overseas Territories The validity of the exclusion of certain British nationals from European citizenship was challenged before the European Court of Justice in 2001 in the Manjit Kaur Case. 32 Manjit Kaur was a British Overseas Citizen(not a British Overseas Territories Citizen )of Indian extraction, who lived in East Africa. She argued that the British declaration deprived her of European citizenship. The European Court of Justice concluded that she was not deprived of European citizenship because she had never been a European citizen, according to the british declaration The numberof persons involved is approx 200,000, living in thirteen British overseas territories Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn Islands, St Helena and Dependencies, South Georgia and the South sandwich Islands and the Turks and Caicos islands Both base areas are located in the south of the island of Cyprus S. 4A BNA 1981, as amended by the British Overseas Territories Act 2002: . the Secretary of State may if he thinks fit cause the person to be so registered. Another category of British Overseas Territories Citizens without Brit ish cit izenship are the lois, covered by s. 63)of the Brit ish Overseas Territories Act 2002 ECJ 20 February 2001, Case 192/99, ECR I-1237
Electronic Journal of Comparative Law, vol. 8.3 (October 2004), <http://www.ejcl.org/> 7 1981 British declaration, it can be concluded that former British Dependent Territories Citizens, who became British Overseas Territories Citizens by Royal Assent on 26 February 2002, on 21 May 2002 also received European citizenship through having been granted British citizenship.29 However, there is one exception: British citizenship was not extended to persons who after 26 February 2002 were British Overseas Territories Citizens by virtue of a connection with the Sovereign Base Areas of Akrotiri and Dhekelia.30 These base areas, located on the island of Cyprus, are British Overseas Territories, but extending British citizenship was deemed to be inappropriate because of the military nature of these British possessions. For this reason, these British Overseas Territories Citizens do not possess British citizenship and are therefore definitely not European citizens. Furthermore, it should be borne in mind that British citizenship is conferred to the other British Overseas Territories Citizens in addition to the status they possess. The consequence of this is that the persons in question may issue a declaration of renunciation in order to divest themselves of British citizenship. If this happens, they are exclusively British Overseas Territories Citizens, not possessing European citizenship, of course. These legal constructions show that the status of ‘British Overseas Territories Citizen’ has not been abolished: furthermore, acquisition of this status on the basis of the provisions of the amended British Nationality Act does not result in acquisition of British citizenship. Persons who acquired British Overseas Territories Citizenship after 21 May 2002 can only apply to be registered as British citizens. Registration is at the discretion of the Secretary of State.31 In respect of all these changes concerning British Dependent Territories Citizens, it can be concluded that the United Kingdom is to review the 1981 declaration. It is not the British Dependent Territories Citizens, but some British Overseas Territories Citizens (and some other categories such as British Overseas Citizens) who are now excluded. Furthermore, it is useful to know whether the United Kingdom will preserve the statement that, for Community purposes, all British citizens are British, including those living in British Overseas Territories. The validity of the exclusion of certain British nationals from European citizenship was challenged before the European Court of Justice in 2001 in the Manjit Kaur Case.32 Manjit Kaur was a British Overseas Citizen (not a British Overseas Territories Citizen!) of Indian extraction, who lived in East Africa. She argued that the British declaration deprived her of European citizenship. The European Court of Justice concluded that she was not deprived of European citizenship because she had never been a European citizen, according to the British declaration: 29 The number of persons involved is approx. 200,000, living in thirteen British overseas territories: Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn Islands, St Helena and Dependencies, South Georgia and the South Sandwich Islands, and the Turks and Caicos Islands. 30 Both base areas are located in the south of the island of Cyprus. 31 S. 4A BNA 1981, as amended by the British Overseas Territories Act 2002: ‘. . . the Secretary of State may if he thinks fit cause the person to be so registered.’ Another category of British Overseas Territories Citizens without British citizenship are the Ilois, covered by S. 6 (3) of the British Overseas Territories Act 2002. 32 ECJ 20 February 2001, Case 192/99, ECR I-1237
ElectronicjournalofcomparatiVeLaw,vol.8.3(october2004),<http://www.ejclor satisfy the definition of a nationalof the United Kingdom of rights to which that person might be or Furthermore, adoption of that declaration did not have the effect of depriv ing any person who did entitled under Community law. The consequence was rather that such rights never arose in the first place for such a person Furthermore the Court stressed that the british declaration was in conformity with the special Declaration(No 2)on national ity of a Member State, which is attached to the Maastricht Treaty. The Declaration reads as follows The Conference declares that, wherever in the Treaty esta blishing the European Community reference is made to nationals of the Member States, the question whether an indiv idual possesses the nationa lity of a Mem ber State shall be settled solely by reference to the national law of the Mem ber State concerned Member States may declare, for information, who are to be considered their nationals for ommunity purposes by way of a declaration lodged with the Presidency and may amend any such declaration when necessary Apart from the United Kingdom, only one other Member State issued a declaration on the definition of nationals for Community purposes. As far back as 1957, Germany declared that not only Germans within the meaning of the German Nationality Act (Reichs- und Staatsangehorigkeitsgeset: 1913, with amendments)-which already included all nationals of the Democratic Republic of Germany -are to be regarded as Germans for European Community purposes, but also Germans within the meaning of Article 116 German Constitution(Grundgeset), including ethnic Germans in Eastern Europe for instance the "Volga Germans, if they had entered Germany as refugees( vertriebene ).33 However, since 1 January 2000, this German declaration is no longer of practical relevance, because from this date onwards anyone recognised as a german within the meaning of Article 116 German Constitution simultaneously acquires German nationality ex lege on the basis of the revised German Nationality Act Nevertheless, there are several other categories of nationals of Member States with regard to whom it is doubtful whether they possess European citizenship. I do not intend to elaborate on these in this lecture but only wish to highlight some of the interesting borderline categories of European citizenship. 35 In spite of their Danish nationality, the Danish inhabitants of the Faroe Islands 6 are not European citizens. However, with regard to the Danish Greenlanders. 37 the Netherlands Antilleans the Arubans38 and the French inhabitants See Treaties establishing the European Communities, Office for Official Publications of the European Communities 1978, 573. Compare Bleckmann(1978; 1980). Furthermore: De Groot(1990); Jessurun d Oliveira (1999),p.400 34 Article 7 of the German Nationality Act, as amended by Act of 15 July 1999, Bundesgesetzblatt 1999I 1618. See also the transitional provision of Article 40(a) 35 For details, see De groot(1993b; 1998d; 2000b; 2002c) 36 De Groot(2002c), pp 74-76; Juarez Perez(1998), pp 169, 170 De groot(2002c), p. 73 De groot(1993a; 2000c). Compare also Burgers-Vos(1992)and Martha(1992)
Electronic Journal of Comparative Law, vol. 8.3 (October 2004), <http://www.ejcl.org/> 8 Furthermore, adoption of that declaration did not have the effect of depriving any person who did not satisfy the definition of a national of the United Kingdom of rights to which that person might be entitled under Community law. The consequence was rather that such rights never arose in the first place for such a person. Furthermore, the Court stressed that the British declaration was in conformity with the special ‘Declaration (No 2) on nationality of a Member State’, which is attached to the Maastricht Treaty. The Declaration reads as follows: The Conference declares that, wherever in the Treaty establishing the European Community reference is made to nationals of the Member States, the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned. Member States may declare, for information, who are to be considered their nationals for Community purposes by way of a declaration lodged with the Presidency and may amend any such declaration when necessary. Apart from the United Kingdom, only one other Member State issued a declaration on the definition of nationals for Community purposes. As far back as 1957, Germany declared that not only Germans within the meaning of the German Nationality Act (Reichs- und Staatsangehörigkeitsgesetz 1913, with amendments) - which already included all nationals of the Democratic Republic of Germany - are to be regarded as Germans for European Community purposes, but also Germans within the meaning of Article 116 German Constitution (Grundgesetz), including ethnic Germans in Eastern Europe, for instance the ‘Volga Germans’, if they had entered Germany as refugees (Vertriebene).33 However, since 1 January 2000, this German declaration is no longer of practical relevance, because from this date onwards anyone recognised as a German within the meaning of Article 116 German Constitution simultaneously acquires German nationality ex lege on the basis of the revised German Nationality Act.34 Nevertheless, there are several other categories of nationals of Member States with regard to whom it is doubtful whether they possess European citizenship. I do not intend to elaborate on these in this lecture, but only wish to highlight some of the interesting borderline categories of European citizenship.35 In spite of their Danish nationality, the Danish inhabitants of the Faroe Islands36 are not European citizens. However, with regard to the Danish Greenlanders,37 the Netherlands Antilleans, the Arubans38 and the French inhabitants 33 See Treaties establishing the European Communities, Office for Official Publications of the European Communities 1978, 573. Compare Bleckmann (1978; 1980). Furthermore: De Groot (1990); Jessurun d’Oliveira (1999), p. 400. 34 Article 7 of the German Nationality Act, as amended by Act of 15 July 1999, Bundesgesetzblatt 1999 I, 1618. See also the transitional provision of Article 40 (a). 35 For details, see De Groot (1993b; 1998d; 2000b; 2002c). 36 De Groot (2002c), pp. 74-76; Juárez Peréz (1998), pp. 169, 170. 37 De Groot (2002c), p. 73. 38 De Groot (1993a; 2000c). Compare also Burgers-Vos (1992) and Martha (1992)
ElectronicjOurnalofcomparativeLa,vol.8.3(october2004),<http://www.ejcl.org/> of French overseas territories(territoires outremer), it has to be concluded -with some hesitation-that they do possess European citizenship, although they reside in territories of the Member States which are not situated within the territory of the European Union Of interest as well is the position of those Spanish nationals, who, in addition to their Spanish nationality, possess the nationality of a Latin-American country pursuant to the Treaties on dual nationality, which Spain entered into with twelve Latin American countries. 40If resid ing in Spain, they are definitely European citizens; if they are living in Latin America or a third State, European citizenship depends on whether they are entitled to a Spanish passport. In the original versions of the various Treaties on dual nationality, they were not entitled to a Spanish passport, but recent amendments to several treaties grant this right, even to those resid ing in Latin America. If they hold a Spanish passport, they can presentI themselves as European citizens. 42 Remarkable also is the position of dual Italian-Argentinean citizens or their descendants, owing to the Italian-Argentinean treaty on dual nationality, 43 which was modelled on the Spanish-Argentinean treat In add ition to these borderline cases of European citizenship, it is worthwhile to study the rules in force in member States that allow descendants of former nationals living abroad to acquire the nationality of their ancestors. Considerable differences can be observed between these rules. Some Member States are very restrictive in respect of access to citizenship for descendants of former nationals resid ing abroad. Other States are extremely liberal. Since 9 J 2003,44 Spain, for example, grants a right to opt for Spanish nationality to all children born of a parent who originally possessed Spanish nationality and was born in Spain(Article 20(1)(b) Codigo civil). The declaration to opt for Spanish nationality can also be made outside Spain. The option right is not limited in respect of the ge of the person involved. The grand children of persons who originally possessed Spanish nationality, will be able to acquire Spanish nationality by naturalisation after a residence period of one year(Article 22(2)(f)Codigo civil). Italy offers rather similar access to Italian nationality for the children and grandchildren of italian emigrants 45 As a result of the new See De groot(2002 c), pp 74-76, with further references. For a different opinion, see Hartley(1978), pp 77-80: Mortelmans and Temmink(1991), in particular pp 63, 64 Argentina, Bolivia, Chile, Costa Rica, Dominican Republic, Ecuador, Guatemala, Honduras, Columba, Nicaragua, Paraguay and Peru; for further information, see Aznar Sanchez(1977)and, more recently, Alvarez Rodriguez(2000)and Coppa(2002) See Arts. 2 (1)and 6(a)Directive 73/148 (establishment and services)and Arts. 3 (1)and 4 (3)(a) Directive 68/360(workers) De groot(2002d) No/ Treaty of 29 October 1971; in Italy approved by Act of 18 May 1973, No.282 Gazetta Ufficiale 1973 Act 36/2002 of 9 October 2002. BOE 2002. 35638-35640On this new Act. see Alvarez ro (2002) ee Arts. 4 and 9 Legge sulla cittadinanza italiana of5 February 1992, Gazetta Ufficiale 15 February 1992. No. 38 and Art. 1 ofthe Act No. 379 of 14 Decem ber 2000. Gazetta Ufficiale No. 295 of 19 Decem ber 2000
Electronic Journal of Comparative Law, vol. 8.3 (October 2004), <http://www.ejcl.org/> 9 of French overseas territories (territoires outremer), it has to be concluded - with some hesitation - that they do possess European citizenship39, although they reside in territories of the Member States which are not situated within the territory of the European Union. Of interest as well is the position of those Spanish nationals, who, in addition to their Spanish nationality, possess the nationality of a Latin-American country pursuant to the Treaties on dual nationality, which Spain entered into with twelve Latin American countries.40 If residing in Spain, they are definitely European citizens; if they are living in Latin America or a third State, European citizenship depends on whether they are entitled to a Spanish passport. In the original versions of the various Treaties on dual nationality, they were not entitled to a Spanish passport, but recent amendments to several treaties grant this right, even to those residing in Latin America. If they hold a Spanish passport, they can present 41 themselves as European citizens.42 Remarkable also is the position of dual Italian-Argentinean citizens or their descendants, owing to the Italian–Argentinean treaty on dual nationality,43 which was modelled on the Spanish–Argentinean treaty. In addition to these borderline cases of European citizenship, it is worthwhile to study the rules in force in Member States that allow descendants of former nationals living abroad to acquire the nationality of their ancestors. Considerable differences can be observed between these rules. Some Member States are very restrictive in respect of access to citizenship for descendants of former nationals residing abroad. Other States are extremely liberal. Since 9 January 2003,44 Spain, for example, grants a right to opt for Spanish nationality to all children born of a parent who originally possessed Spanish nationality and was born in Spain (Article 20 (1) (b) Código civil). The declaration to opt for Spanish nationality can also be made outside Spain. The option right is not limited in respect of the age of the person involved. The grandchildren of persons who originally possessed Spanish nationality, will be able to acquire Spanish nationality by naturalisation after a residence period of one year (Article 22 (2) (f) Código civil). Italy offers rather similar access to Italian nationality for the children and grandchildren of Italian emigrants.45 As a result of the new 39 See De Groot (2002c), pp. 74-76, with further references. For a different opinion, see Hartley (1978), pp. 77-80; Mortelmans and Temmink (1991), in particular pp. 63, 64. 40 Argentina, Bolivia, Chile, Costa Rica, Dominican Republic, Ecuador, Guatemala, Honduras, Columbia, Nicaragua, Paraguay and Peru; for further information, see Aznar Sanchez (1977) and, more recently, Alvarez Rodriguez (2000) and Coppa (2002). 41 See Arts. 2 (1) and 6 (a) Directive 73/148 (establishment and services) and Arts. 3 (1) and 4 (3) (a) Directive 68/360 (workers). 42 De Groot (2002d). 43 Treaty of 29 October 1971; in Italy approved by Act of 18 May 1973, No. 282, Gazetta Ufficiale 1973 , No. 152. 44 Act 36/2002 of 9 October 2002, BOE 2002, 35638-35640. On this new Act, see Alvarez Rodriguez (2002). 45 See Arts. 4 and 9 Legge sulla cittadinanza italiana of 5 February 1992, Gazetta Ufficiale 15 February 1992, No. 38 and Art. 1 of the Act No. 379 of 14 December 2000, Gazetta Ufficiale No. 295 of 19 December 2000
ElectronicjournalofcomparatiVeLaw,vol.8.3(october2004),chttp://www.ejcl.org/> Spanish option right for the children of former Spanish nationals born in Spain, Fidel Castro himself could immediately opt for European citizenship while continuing to reside in Cuba. 46 4. Autonomy in matters of nationality The special" Declaration(No 2)on nationality of a Member State quoted earlier, which was attached to the Maastricht Treaty, gives the impression that each Member State is fully autonomous in regulating nationality. The conclusion that Member States continue to have full autonomy cannot be maintained, however, in all circumstances We may first of all observe that the relation between the first and second sentence of the Declaration on nationality is not entirely clear. The first sentence grants the Member State in question the right to determine who is a national of that Member State. The nationality of a Member State is to be determined exclusively on the basis of the national law of that Member State and not by Community law. The second sentence, however, offers the Member States the possibility of issuing an additional declaration for information'regarding the persons who possess the nationality of a Member State. Does this second sentence entail that the Member States can exclude groups of their nationals from the rights under the EC Treaty? Can they grant these rights to groups of individuals who do not possess the nationality of these Member States under their nationality law? Or are they only permitted to offe authoritative explanation of their nationality laws as to who exactly is a national of the Member State involved in the case of reasonable doubt obviously, the other Member States need to know whether they should also regard British Overseas Citizens as British citizens for Community purposes. 47 Is it possible for the Netherlands, for example, to declare that all Netherlands citizens born outside the territory of the Kingdom of the Netherlands are not Netherlands citizens for Community purposes? Upon consultation of the Netherlands law of citizenship, there can be no reasonable doubt whether or not children of Netherlands citizens born abroad are Dutch. They acquire Netherlands citizenship at birth, jure sanguinis; a declaration to the contrary, therefore, addressed to the Presidency of the European Community, would be rather surprising. Would such a declaration perhaps violate the aim of Article 17 of the Treaty? The answer to this question depends, inter alia, on the interpretation of the second sentence of the add itional declaration. Does it allow total freedom to make any conceivable declaration regard ing the determination of the nationals of a Member State? And what exactly is the purport of the words for information'and when necessary'in that second sentence? However, I have already mentioned that two Member States, Germany and the United Kingdom, issued special declarations on the issue of who should be regarded as their nationals for Community purposes. Both Member States did not simply explain'their nationality legislation, but created a special, functional nationality for Community purposes This observation is of relevance to the interpretation of the words for information'in the idel Castros father, who was born in Galicia(Spain), went to Cuba at the end of the 19th century. See NoticiasdeCubaavailablethroughhttp://www.cubanetorg(lastvisitedon25October2003).accordingto Spanish estimations, some 80,000 persons residing in Cuba have this option Compare Jessurun d'Oliveira(1999),p. 440, who stresses that the United Kingdom and Germany had reasons for issuing a declaration, because they have non-standard nationality legislation
Electronic Journal of Comparative Law, vol. 8.3 (October 2004), <http://www.ejcl.org/> 10 Spanish option right for the children of former Spanish nationals born in Spain, Fidel Castro himself could immediately opt for European citizenship while continuing to reside in Cuba.46 4. Autonomy in matters of nationality The special ‘Declaration (No 2) on nationality of a Member State’ quoted earlier, which was attached to the Maastricht Treaty, gives the impression that each Member State is fully autonomous in regulating nationality. The conclusion that Member States continue to have full autonomy cannot be maintained, however, in all circumstances. We may first of all observe that the relation between the first and second sentence of the Declaration on nationality is not entirely clear. The first sentence grants the Member State in question the right to determine who is a national of that Member State. The nationality of a Member State is to be determined exclusively on the basis of the national law of that Member State and not by Community law. The second sentence, however, offers the Member States the possibility of issuing an additional declaration ‘for information’ regarding the persons who possess the nationality of a Member State. Does this second sentence entail that the Member States can exclude groups of their nationals from the rights under the EC Treaty? Can they grant these rights to groups of individuals who do not possess the nationality of these Member States under their nationality law? Or are they only permitted to offer an authoritative explanation of their nationality laws as to who exactly is a national of the Member State involved in the case of reasonable doubt? Obviously, the other Member States need to know whether they should also regard British Overseas Citizens as British citizens for Community purposes.47 Is it possible for the Netherlands, for example, to declare that all Netherlands citizens born outside the territory of the Kingdom of the Netherlands are not Netherlands citizens for Community purposes? Upon consultation of the Netherlands law of citizenship, there can be no reasonable doubt whether or not children of Netherlands citizens born abroad are Dutch. They acquire Netherlands citizenship at birth, jure sanguinis; a declaration to the contrary, therefore, addressed to the Presidency of the European Community, would be rather surprising. Would such a declaration perhaps violate the aim of Article 17 of the Treaty? The answer to this question depends, inter alia, on the interpretation of the second sentence of the additional declaration. Does it allow total freedom to make any conceivable declaration regarding the determination of the nationals of a Member State? And what exactly is the purport of the words ‘for information’ and ‘when necessary’ in that second sentence? However, I have already mentioned that two Member States, Germany and the United Kingdom, issued special declarations on the issue of who should be regarded as their nationals for Community purposes. Both Member States did not simply ‘explain’ their nationality legislation, but created a special, functional nationality for Community purposes. This observation is of relevance to the interpretation of the words ‘for information’ in the 46 Fidel Castro’s father, who was born in Galicia (Spain), went to Cuba at the end of the 19th century. See ‘Noticias de Cuba’, available through http://www.cubanet.org (last visited on 25 October 2003). According to Spanish estimations, some 80,000 persons residing in Cuba have this option. 47 Compare Jessurun d’Oliveira (1999), p. 440, who stresses that the United Kingdom and Germany had reasons for issuing a declaration, because they have non-standard nationality legislation