Symposium: World-Wide France and (Colonial) EU Law Today

Dimitry Vladimirovich Kochenov

University of Groningen

The EU (or, back then, the European Economic Community (‘EEC’)) was designed with the goal of continued colonialism in mind. Indeed, the ‘the achievement of one of [Europe’s] essential tasks, namely, the development of the African continent’ was one of the two key goals of the Schuman declaration; the other was the achievement of peace. French influence in ensuring unified Europe’s colonial ambitions was absolutely crucial: it is the French ultimatum, which consisted in full inclusion of the continued colonization with the help from EU partners into the project – or no EEC, which is among the starting elements of the EU as we know it. It is thus not a surprise, as Peo Hansen and Stefan Jonsson report in their brilliant ‘Eurafrica’, that the editorial in Le Monde dedicated to the launch of the EEC was ambitiously titled ‘Le nouveau pacte pour l’Afrique’ [The New Pact for Africa]. European colonial ambitions failed in the face of extremely strong opposition of both super powers of the day, the US and the USSR, and the absolute majority of the colonies emerged as independent countries – many with a strong structural, including budgetary and monetary, dependence on France.

The core features of the law setting out the territorial framing of the EU were articulated at the founding of the EEC: the extent to which EU law is to be applicable in the reformed colonies of Member States of the EU – be it overseas possessions or semi-independent ‘countries or territories’ – was set out in those epochal times at the dawn of integration. The result is a complex panoply of statuses and rules, which now seem almost counterintuitive given that the age of colonization is seemingly over. As the deficiencies of the decolonization project as implemented have become clearer, for example the growing discrepancies in the quality of life and the realization of the most basic rights between the two sides of the decolonization boundary (think of French Mayotte vs the independent Comoros or of Dutch Aruba vs the independent Suriname), it has also became clear that what is now called ‘EU Law of the Overseas’ is with us to stay.

Indeed, among those overseas possessions still under the sovereignty of EU Member States, a trend of opposing the imposition of independence has emerged: the Aruban story of a successful fight against being thrown out of the Kingdom of the Netherlands (thereby becoming a ‘fully’ independent state) is a great illustration of this. As devolved home rule powers grew in the Overseas, from the Dutch Caribbean to Greenland, so did – fully predictably, but probably also counterintuitively – their strong attachment to the metropole. The result is the emerging concept of ‘insular sovereignty’ as discussed in detail by Godfrey Baldacchino, implying that a small insular nation cannot be fully independent in practice, no matter what we find on paper. Aruba or New Caledonia will not be ‘more’ independent, thus, should the ties with the metropole be cut. In effective terms they will have much less leverage in the world and their position to maintain high standard of living and full-fledged rights protection for the population could be only diminished, as Gerard Prinsen also explains. Former EU colonial law thus emerged in a new light: as a system of rule empowering the EU’s overseas territories – sometimes against the Member State they are appended to – creating a complex picture. The EU’s map – just like that of France – has equally evolved (as I have documented here at 743).

The most recent restatement of the EU Law of the Overseas, reflecting its complexities and building on the foundations laid by Pierre Pescatore and Jacques Ziller, is available as part of the OUP Commentary on the Treaties and the Charter and sets out a relatively simple picture: EU law knows three main types of the EU’s Overseas possessions:

• Outermost Regions, regulated by Articles 355(1) TFEU and 349 TFEU and including, for instance, France’s La Réunion and French Guiana;

• Overseas Countries and Territories, regulated by Articles 355(2) TFEU, all the provisions in Part IV TFEU, and including, as per Annex II TFEU, France’s New Caledonia and French Polynesia, just to give a couple of examples; and

• lastly, territories sui generis, which do not formally fall within the other two categories, and include, for instance, the Faroe Islands (Denmark) or the Åland Islands (Finland).

France does not formally exercise sovereignty over any possessions in the third category. I say ‘formally’, since the differences between the different categories in practice are frequently less far-reaching than one would expect, as Dominique Custos explains here.

So while the base rules are seemingly crystal clear –  EU law and all the core aspects of the EU’s internal market should be fully applicable in the Outermost Regions, while precisely non-applicability of EU law is the guiding principle behind the application of EU law in the Overseas Countries and Territories – derogations from these rules are numerous and far-reaching. The result of this is that ‘applicability’ does not always mean that the law indeed applies – there is no unrestricted freedom of movement of goods with the French outermost regions, for instance; while ‘non-applicability’ does not always mean that the law does not apply. So all the EU citizens from the Overseas Countries and Territories – including the Polynesian French and the Aruban Dutch – have a full set of EU rights relating to the free movement of persons, empowering them to work and reside in any of the Member States of the EU, despite what the Treaties seemed to suggest before the European Court of Justice clarified the connection between the freedom of movement and the nationality of the Member States.

Crucial in this respect is that independence from a Member State of the EU will definitely result in the abolition of all the rights for the citizens of the newly-independent state under EU law, unless an agreement is reached that the status of attachment to the former metropole can be maintained. On this count, one can be absolutely certain that should New Caledonia become an independent state, thus losing the current semi-sovereign insular arrangements and special status under EU law, its citizens will be much worse off in terms of the rights they enjoy worldwide compared with French citizens. The rights cost of independence for insular possessions of EU Member States is thus enormous, which explains why the majority of independence drives in the EU’s Overseas have now died out. The rights and entitlements of the French citizens on Mayotte as opposed to the Comorian citizens is a telling example in this respect. A Comorian is not only deprived of the right to work in Amsterdam, Paris, or Berlin, but in the majority of cases she will also never get a chance to get a visa to visit those places legally.

After starting as an orthodox colonial project, the EU has walked a long path throughout its history, resulting in the establishment of an intricate system of Overseas Law to govern the remaining non-European possessions together with the Member States. This system has created significant added value for the Overseas territories that maintain a connection to Europe in terms of tangible rights and protections enjoyed by the inhabitants of those territories in Europe and elsewhere in the world. The emergence of insular sovereignty made the dichotomy between colony and independent state much less straightforward than it was in the 50s and 60s. These significant developments will unquestionably continue to play a role in the debates around the status of New Caledonia.

Professor Dimitry Vladimirovich Kochenov, Chair in European Constitutional Law and Citizenship, University of Groningen (The Netherlands).

Suggested Citation: Dimitry Vladimirovich Kochenov, ‘World-Wide France and (Colonial) EU Law Today’ IACL-AIDC Blog (5 November 2020) https://blog-iacl-aidc.org/constitutionalism-and-pluralism-in-overseas-france/2020/11/5/world-wide-france-and-colonial-eu-law-today