Statelessness in the European Union MOVING FROM THE HYPOTHETICAL TO REALITY: AN ASSESSMENT The hypothetical scenario presented above relies upon two major assumptions in exploring the value of EU citizenship for stateless persons: that the grant of EU citizenship is no longer dependent on the possession of nationality and that the EU possesses the necessary competences to legislate in this area. The former assumption is relatively straightforward. In its present form, nationality of a Member State constitutes a prerequisite for acquisition of EU citizenship. The grant of EU citizenship to individuals that do not meet this requirement, such as stateless persons, is therefore impossible unless the presently interlinked statuses of Member State nationality and EU citizenship are disentangled. The reasons underlying the second assumption, although already shortly touched upon throughout the article, are slightly more complex. Therefore, a discussion of the division of competences in the EU is provided prior to examining the possibilities for and obstacles to realising the hypothetical scenario. A The Competence Question The realisation of the hypothesised design of EU citizenship does not merely require a disentanglement of nationality and citizenship, but also requires the EU to possess the competence to legislate in this area. The term ‘competence’ refers to the legal authority held by the EU or, in other words, the power to adopt legally binding acts. 81 The division of competences between the EU and its Member States is governed primarily by the principle of conferral, as is specified in art 5(1) of the Treaty on European Union (‘TEU’). 82 According to this principle, the EU may only act and legislate insofar the Member States have ‘transferred’ some of their sovereign legislative powers to the EU. Its competences are, in that sense, not ‘inherent’, as it only possesses those competences conferred upon it by the treaties. 83 The founding treaties of the EU provide a classification of competences, distinguishing between exclusive, shared and ancillary competences. 84 In the areas where the EU has an exclusive competence it is the only entity that may legislate, excluding the Member States from exercising legislative powers. 85 If the EU shares a competence with the Member States, both the Member States and the EU are allowed to adopt legally binding acts. However, the Member States may only exercise that competence when the EU has not yet done so. 86 The power of the EU is most limited in areas where it holds an ancillary competence, since it can than only ‘carry out actions to support, coordinate or supplement actions of the Member States’. 87 In such cases, the main competence to legislate resides with the Member States, taking a form similar to an exclusive competence, as the EU is merely allowed to complement Member State action. 81 82 83 84 85 86 87 Kieran Bradley, ‘Legislating in the European Union’ in Catherine Barnard and Steve Peers (eds), European Union Law (2nd edn, Oxford University Press 2017) 105. TEU (n 48). Alan Dashwood, ‘The Relationship Between the Member States and the European Union/European Community’ (2004) 41(1) Common Market Law Review 355. To that effect, see TFEU (n 6) Title II on ‘Categories and Areas of Union Competence’; TEU (n 48) arts 4, 5. TEU (n 48) art 2(1); TFEU (n 6) art 3. TEU (n 48) arts 2(2), 4. TFEU (n 48) arts 2(5), 6. 39