Citizenship for sale:
Member State Sovereignty or European
competence?
Master Thesis European Union law Nicolaas Deventer
11982330
nicolaas.deventer@student.uva.nl Supervisor: Mr. dr. Ronald van Ooik University of Amsterdam August 5 2019
2 Artwork by Natalia Vish
3 Abstract
This thesis is about the sale of citizenship and it’s compatibility with the general principles of European Law. There are three countries where it is possible to buy citizenship. The rules on the loss and acquisition of nationality are a Member State competence. Whether one sees the sale of citizenship as a problem or not, at first sight it seems the EU can’t interfere. This is not necessarily true. When looking at the two major cases in this regard, Rottmann and Tjebbes¸ it turns out that there can be situations in which the European Union can interfere in this area where Member States where thought to be sovereign. This is done on the notion that when deciding on the rules on nationality Member States need to have due regard of European Law. Since selling citizenship raises a lot of objections, that are mainly political and ethical, it was discussed how the CJEU could interfere. Again, since the rules surrounding acquisition and loss of nationality are a Member State competence, there are no European rules. This meant that in order to find a possible objection to selling citizenship had to be sought in the general principles of European law. Two general principles were extensively discussed, the principle of sincere co-operation and the principle of abuse of rights. The final chapter of the thesis contained the answer on how the CJEU could, but also should rule. First of all, following the cases Rottmann and Tjebbes, the Court has to establish if selling citizenship fell within the ambit of European law, which in my opinion it does. Than an answer was given on how these schemes relate to the general principles of sincere co-operation and the principle of abuse of rights. It turned out that there are a few possibilities for the Court to rule that selling
citizenship is incompatible with these principles. However, they would require a really avant-garde approach, which is unlikely to occur. This is a really sensitive area and the Member States do not want to lose their sovereignty regarding nationality. Personally I think the Court should protect Union citizenship, if they really want to make it the fundamental status of Union citizens.
4 Table of contents Contents List of abbreviations ... 5 Introduction ... 6 Methodology ... 7
Chapter 1 European Citizenship ... 8
1.1 Historical evolution of European Citizenship. ... 8
1.2 Acquiring citizenship through ‘ius argentum’ ... 10
1.3 Regulation of the loss and acquisition of citizenship ... 13
1.3.1. Who is competent? ... 13
1.3.2 Rottmann ... 14
1.3.3. Tjebbes ... 17
1.4 “Genuine Link” criterion from International law ... 19
1.5 Partial Conclusion ... 21
Chapter 2 General principles in relation to selling citizenship ... 22
2.1 Principle of loyalty/ sincere co-operation ... 22
2.1.2. Sincere co-operation and the Internal market... 24
2.1.3. Sincere co-operation and the principle solidarity ... 25
2.1.4. Sincere co-operation and the establishment of European citizenship ... 26
2.2 Abuse of rights ... 27
2.3 Partial conclusion ... 29
Chapter 3 Selling citizenship and the CJEU ... 29
3.1. How will the CJEU rule on this issue? ... 29
3.1.1. The ambit of European law. ... 30
3.1.2. Breach of European law? ... 31
3.2 Partial conclusion ... 35
Conclusion ... 36
Bibliography ... 39
List of case law ... 39
Literature ... 40
5 List of abbreviations
A-G Advocate-General
CJEU Court of Justice of the European Union
ECJ European Court of Justice (pre-2009)
EP European Parliament
EPRS European Parliamentary Research Service
EU European Union
ICJ International Court of Justice
TCN Third-country national
TEU Treaty on the European Union
6 Introduction
We only have to look at the freedom of movement rights to imagine that having the citizenship of one of Europe’s Member States is a valuable thing.
Currently, in the European Union, there are three Member States (Bulgaria, Cyprus and Malta) that operate schemes that grant investors the nationality of these countries under conditions that are less strict than ordinary naturalisation regimes. Other European countries have these so called ‘golden residence schemes’. However, the rules are a lot stricter, and investment can only result in a residence permit, which does not grant these people the same rights they would obtain when granted citizenship. The three countries mentioned above, offer citizenship without an obligation of physical residence for the individual, or a requirement of other genuine connections with the country. Thus, the difference is that in these countries it is possible to obtain nationality based on investment alone. So far nothing strange, if Member States decide to sell their citizenship to foreigners, so be it. At issue is, though that, according to Article 20 TFEU, any person that is holding the nationality of a Member State is a European citizen as well. Thus, obtaining citizenship of one of the Member States grants the individual all the rights attached to European citizenship such as the freedom to move and reside freely within the territory of the European Union (Art. 21 TFEU). The sphere of nationality and the conditions for obtaining and forfeiting national citizenship are regarded as an exclusive competence of the Member States which means that the Member States are allowed to offer these types of schemes. It does raise all sorts of interesting questions such as: How do these schemes relate to European law? What does being a European citizen means in a legal way? Are Member States acting contrary to European values and principles, such as sincere co-operation, or proportionality by offering these schemes?
In light of the foregoing I came up with the following research question:
To what extent are the schemes offering citizenship for sale compatible with the general principles of EU law?
7 Methodology
This thesis will be about the sale of citizenship by Member States, and whether the European Union can successfully interfere. There are three chapters in total. The first chapter will start with a descriptive part on the history of citizenship, and on the different ways in which it is possible to acquire citizenship. It will also describe part of the discussion that is going on in the literature. Besides legal elements, this discussion contains elements of political and ethical nature as well. Furthermore, the most important case law regarding this matter is discussed. This will provide the reader with enough insight in the topic before continuing on this subject. The chapter will continue with an analysis of the relevant case law regarding the loss and acquisition of citizenship. Most case law is about the loss of citizenship, and the legal framework around the acquisition of citizenship has not fully taken shape yet. By looking at the case law on the loss of citizenship there will be sought for an answer on how the rules apply in the situation of acquisition of citizenship. By the end of the first chapter it will be made clear whether it is possible for the European Union to even address the issues on nationality law. Chapter 2 will continue with by elaborating on possible general principles that are violated by selling citizenship. In the final chapter, these general principles are tackled from the perspective of the Court. This chapter not only is about how the court could answer, but also how, in my opinion, the Court should answer matters regarding the sale of citizenship. The research will end with a conclusion where the main question in this thesis is answered.
8 Chapter 1 European Citizenship
Article 20 TFEU reads: “Every person holding the nationality of a Member State, shall be a
citizen of the Union”. European citizenship confers several privileges and rights on
individuals. This chapter will start with some historical background on European citizenship. After that, I will elaborate on the sovereignty of Member states regarding the loss and acquisition of nationality. This chapter finishes with an analysis of two cases from the ECJ regarding this subject.
1.1 Historical evolution of European Citizenship.
The free movement provisions of the Treaty of Rome (1958) can be seen as an incipient form of European citizenship. And even though there was a debate in the 1970s and 1980s on granting special rights to European nationals, it was only in 1992 that European citizenship was formally established.1 In 1990, a Spanish delegation was the first to formally propose the legal notion of ‘European Citizenship’. During the Intergovernmental Conference in preparation of the Treaty of Maastricht, they proposed that the new Treaty should contain a separate title on European citizenship. This title should include the protection of fundamental rights, equal opportunities, the right to participate in politics, the right to move and reside freely within the Member states, as well as provision on how citizenship could be obtained.2 Although the proposal was not accepted, it was the Treaty of Maastricht that introduced the concept of European Citizenship as a legal status of nationals of the Member States of the European Union.3 Article 8 of this Treaty contained the following text:4
1
D. Kostakopoulou, ‘Scala Civium: Citizenship Templates Post-Brexit and the European Union’s Duty to Protect EU Citizens’ (2018) , JCMS <doi: https://doi.org/10.1111/jcms.1268. > Accessed 5 may 2019 863
2
Spanish Delegation, Intergovernmental Conference on Political Union, European
Citizenship, 21 February 1991, as reproduced in: F. Goudappel, The effects of EU Citizenship:
Economic, Social and Political Rights in a Time of Constitutional change. (T.M.C. Asser
Press 2010) 4.
3
Treaty of Maastricht [1993] OJ C191
4
J Shaw, ‘Citizenship of the Union: Towards Post-National Membership’ (1997) Jean Monnet Working Paper 6/97
9
‘Article 8:
1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union.
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.’
Furthermore, a list of rights was added which contained in article 8a to 8d: the right to free movement, the right to vote, the right to diplomatic protection, and the right to petition the EP. This new article had a dual purpose. On the one hand, the article was created to order the array of individual freedoms and faculties linked to the EU and its legal order; on the other hand, with this article a new symbol was created capable of enhancing, meticulously, political integration and mutual bonding among all EU citizens, regardless of their nationality.5Not every Member State welcomed this with enthusiasm.6 Before the Treaty of Maastricht was ratified by all Member States, Denmark rejected the Treaty at first. As a result, the Edinburgh Declaration of 1992 contained a few exceptions for Denmark in order for them to ratify the Treaty of Maastricht. For citizenship, this meant that the rules surrounding nationality of a Member State is exclusively settled by the Member state concerned and in accordance with the national law of that Member State.7 The Danish government feared that national citizenship might become meaningless. This fear led to an additional sentence in article 8 of the Treaty of Amsterdam which was signed in 1997 and came into force in 1999. The following sentence was added: “Citizenship of the Union shall complement and not replace
national citizenship”.8
Finally, the Treaty of Lisbon, which was signed in 2007 and came into force in 2009, made European citizenship what it is today. In the current treaties, European Citizenship is constitutionally established in article 9 TEU and article 20 and 21 TFEU. The wording of the
5
M. Ferrera . (2019) EU Citizenship Needs a Stronger Social Dimension and Soft Duties. In: R. Bauböck . (eds) Debating European Citizenship ( IMISCOE Research Series. Springer, Cham.) 181
6
E. Guild, The legal elements of European identity: EU citizenship and migration law (Kluwer Law International 2004) 35.
7
Conclusions of the Presidency: Edinburgh 12 December 1992: Annex 1: Decision of the Heads of State and Government, meeting within the European Council, Concerning certain problems raised by Denmark on the Treaty on the European Union.
8
10 new Article 20 TFEU changed on one point: Union citizenship would be ‘additional’ to national citizenship instead of ‘complement’ to national citizenship. Although it is clear in both wordings that Union citizenship shall not replace Union citizenship, the Member States insisted on changing the wording to reinforce the point that European citizenship is only capable of adding rights to national citizenship, and cannot detract rights from it.9 Besides these articles specifically mentioning citizenship, citizenship rights can be found throughout the treaties. Article 3 TEU reads: “The Union shall offer its citizens an area of freedom, security and justice without internal frontiers”. Furthermore, citizens are granted diplomatic protection (Art. 23 TFEU), fundamental political rights i.e. the right to vote and to the right to be a candidate in certain elections (Art. 22 TFEU), a right to petition and to submit a complaint to the European Ombudsman (Art. 24 TFEU) and finally protection against discrimination on the ground of nationality (Art. 18 TFEU).
1.2 Acquiring citizenship through ‘ius argentum’
Traditionally, citizenship of a country is based on acquiring this status at birth. The acquiring of citizenship by birth can be divided into two principles and can be based upon ius sanguinis, which means that citizenship is determined by descent, or ius soli, a principle by which citizenship is determined via the place of birth. The purpose of birthright rules, and citizenship law in general is to secure the intergenerational continuity of a state.10 A third way is through the process of naturalisation, where the conditions vary amongst Member States.11 Finally, most Member States have a discretionary naturalisation procedure.12 This allows Member States to award citizenship to an individual on the basis of ‘national interest’. This means that all the criteria that apply to ‘normal’ naturalisation are waived and citizenship is rewarded as a result of an outstanding contribution to the country’s society, sports, or culture. A prime example of the latter is that of Mamoudou Gassama. Mr. Gassama was a Malian migrant who climbed four stories to save a toddler that was dangling from a balcony.
9
H de Waele, ‘EU Citizenship. Revisiting its Meaning, Place and Potential’ (2010) 12 EJML 319. 111
10
M Vink, R Baubock, ‘Citizenship Configurations: Analysing the Multiple Purposes of Citizenship Regimes in Europe’ CEP 11(5), 624
11
Ibid, 629
12
Commission, ‘Report from the Commission to the European Parliament and the Council: Investor Citizenship and Residence Schemes in the European Union’ COM(2019) 12 final, 2
11 The man was granted French citizenship for his exceptional service.13 Four other Member States mention the granting of nationality on the basis of ‘economic interest of the state’.14 There is a big difference though between granting individuals citizenship on the basis of ‘economic interest of the state’ or granting individuals citizenship through the investment schemes. Citizenship by investment, which Peers called ‘ius argentum’, is granting the individual citizenship through a scheme where the conditions are predetermined. Granting citizenship on the basis of the ‘economic interest of the state’ is done through the discretion that the State has to reward an exceptional contribution, instead of a specific programme.15
Currently, the only countries in the EU where it is possible to invest a defined amount of money and receiving citizenship in return, are Cyprus, Malta and Bulgaria. The discussion about the sale of citizenship includes legal as well as political and ethical arguments.16 Although this thesis is about how these schemes relate to European law, it is good to shortly address the different opinions regarding selling citizenship.
Arguments against the sale of citizenship are mostly based on the schemes being unfair and unjust. Barbulescu finds the schemes a problem because of global inequality. These schemes contribute to the mobility of the super-rich, although the schemes themselves are not unjust, they build on the already existing disparities between countries.17 Furthermore capital as the sole condition for citizenship is the total opposite of the traditional conditions that value social or cultural ties in order to gain citizenship. Bauböck is concerned about democracy being corrupted. The lack of relation to a political community means an internal hollowing
13
BBC, ‘Mamoudou Gassama: Mali 'Spiderman' becomes French citizen’, ( BBC News, 13 September 2018 , https://www.bbc.com/news/world-europe-45507663 accessed 16 may 2019
14
The four Member States are: Bulgaria, Slovenia, Slowakia and Austria. See: Fact finding study. Milieu Law and Policy Consulting, Factual Analysis of Member States' Investor Schemes granting citizenship or residence to third-country nationals investing in the said Member State, Brussels 2018 (“the Study”).
15
S Peers , ‘Want to be an EU citizen? Show me the money!’ (EU Law analysis blogspot 28 January 2014) < http://eulawanalysis.blogspot.com/2014/01/want-to-be-eu-citizen-show-me-money.html> accessed at 14 may 2019
16
The different opinions are bundled in: A Shachar and R Baubock . (ed.), ‘Should Citizenship be for sale?’ (2014) EUI Working paper RSCAS 2014/01
<https://cadmus.eui.eu/bitstream/handle/1814/29318/RSCAS_2014_01.pdf?sequence=1.> Accessed in period of 1 may 2019 and 4 august 2019
17
R Barbulescu,(2014) ‘Global mobility corridors for the ultra-rich and why understanding the neoliberal transformation of citizenship matters’ In: A Shachar and R Baubock (2014)
12 out of democratic standards.18 Dzankic claims that ‘the values of European citizenship’ are challenged because citizenship was intended to be a set of rights that reflected mutual trust and sincere co-operation between the Member States. Now it is used as an instrument that selectively amplifies national membership.19 Besides legal scholars, the European Parliament stressed their concerns regarding the sale of citizenship.20 In a resolution in 2014 they particularly criticised the Maltese citizenship for sale programme on a number of grounds: Firstly, citizenship should not be something that is a tradable item and therefore there should not be a price attached to it. Secondly, it is not money that should give someone citizenship, it should depend on ties between people and the European Union. Finally, it raises issues of non-discrimination now that these programmes privilege the rich over the poor because citizenship is awarded without any other criteria being considered.21 Furthermore, the European Parliamentary Research Service identified several risks in its study: Devaluation of European citizenship and the potential for corruption, money laundering and tax evasion.22 Kochenov argues otherwise. He finds the sale of citizenship less random and arbitrary than the rules surrounding ius sanguines, ius soli or normal naturalisation. He points out that Italy gives citizenship to individuals in Latin America who show Italian ancestry, and Poland and Croatia are doing the same to their diaspora in Australia in much greater numbers than Citizenship is being sold.23 Owen amongst others, points out that investor citizenship is not much different from offering citizenship to prominent athletes. 24
18
R Baubock (2014) ‘What is wrong with selling citizenship? It corrupts democracy’ In: A Shachar and R Baubock (2014) 19-21.
19
J Dzankic ‘Investment-Based Citizenship and Residence Programmes in the EU’ (2015).. RSCAS 2015/08 <https://ssrn.com/abstract=2558064 > accessed on 18 may 2019
20
European Parliament ‘Resolution on EU citizenship for sale’ 2013/2995(RSP)
21
Ibid. Point K.
22
A Scherrer and E Thirion ‘Citizenship and residency by investment schemes in the EU: State of play, issues and impacts’ ( EPRS, NO. PE 627.128) Brussels
<http://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU(2018)62 7128>
23
D Kochenov (2014) ‘Citizenship for Real: Its Hypocrisy, Its Randomness, Its Price’ In: A Shachar and R Baubock (2014) 27-30
24
D Owen (2014) ‘Trading Citizenship, Human Capital and the European Union’ In: A Shachar and R Baubock (2014) 31-32
13 1.3 Regulation of the loss and acquisition of citizenship
1.3.1. Who is competent?
European citizenship has a paradoxal nature. On the one hand, it is constitutionalized in the Treaties, on the other hand, it is interdependent on national citizenship.25 It follows from article 20 TFEU that European citizenship is a direct consequence of having the nationality from one of the Member states.
For national citizenship, it is evident that the Member State has the competence. However, since national citizenship and European citizenship are interdependent, how far can the Member States go? In 1992 the ECJ ruled on this matter when for the first time. In
Micheletti, the Spanish ‘Tribunal Superior de Justicia de Cantabria’ made a preliminary
reference to the ECJ.26 Mr. Micheletti was born in Argentina but he had an Italian father. Thanks to Italian national law (ius sanguinis) Mr. Micheletti was able to receive Italian citizenship as well. When he wanted to register in Spain as a dentist, Spanish law refused him because in Spanish law, if a person has two nationalities, the nationality of the country where the person had his last residence is the leading criterion. The European Court of Justice (ECJ) concluded that Spain should allow Mr. Micheletti to be a dentist in Spain based on his Italian nationality. The ECJ said: “it is for each Member State, having due regard to Community law,
to lay down the conditions for the acquisition and loss of nationality. However, it is not permissible for the legislation of a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty.”27 So it is for the Member States to lay down the conditions on who can be a citizen. However, the case law from the ECJ regarding the loss and acquisition of citizenship shows that the Member states are not fully sovereign in this area. Although this case law focuses mainly on the loss of citizenship, it does show how the Court of Justice actively interferes in the member state competence regarding nationality. This case law is thus of major
25
J Shaw ‘EU citizenship: still a fundamental status?’ in R Baubock (ed), Debating
European citizenship (Springer IMISCOE Research 2019)
26
Case C-369/90 Mario Vicente Micheletti and others v Delegación del Gobierno en
Cantabria [1992]
27
14 significance when it comes to the question of whether there is a basis for the European Union to act when it comes to Citizenship by investment schemes.
1.3.2 Rottmann
Rottmann was an Austrian citizen who acquired German nationality as well. According to Austrian law, this meant that Rottmann would lose his Austrian nationality, now that he had acquired a new one. After a while, the German authorities found out that Rottmann was previously involved in criminal proceedings, something he omitted when he applied for German nationality. Rottmann’s German nationality was withdrawn by the German
authorities on the grounds of him obtaining the German nationality by deceiving the German authorities. Now that Rottmann lost both his Austrian and German nationality, he challenged the decision from the German authorities because it would render him stateless and thus deprive him of his European citizenship as well. The loss of the status as a European citizen meant that Rottmann could no longer enjoy the substantive rights that are conferred on Union citizens. 28 The intervening Member States, together with Freistaat Bayern and the
Commission, argued that the rules on the acquisition and loss of nationality fall within the exclusive competence of the Member States. A decision, such as in the Rottmann case can therefore not fall within the scope of European Union law.29 The ECJ, although
acknowledging that the matter was a competence of the Member States to a very large extent, had a different conclusion:
“It is clear that the situation of a citizen of the Union who, like the applicant in the main
proceedings, is faced with a decision withdrawing his naturalisation, adopted by the
authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status conferred by Article 17 EC [now Article 20 TFEU] and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law”30
28
H Van Eijken, ‘European Citizenship and the Competence of Member States to Grant and to Withdraw the Nationality of their Nationals' (2011) Utrecht Journal of International and European Law Vol. 27, No. 72, 65-69 <http://doi.org/10.5334/ujiel.ak> accessed on 20 may 2019
29
Case C-135/08 Janko Rottmann v Freistaat Bayern [2010] para 37
30
15 The ECJ continues by saying that, although it was legitimate to withdraw Rottmann’s
citizenship because of deception, it is for the national court to address whether the withdrawal is in line with the principle of proportionality. The principle of proportionality requires the court to balance the seriousness of the offence against the consequences that arise when somebody loses his or hers Union citizenship and the rights and entitlements that are part of this, the possibility to regain the nationality of origin and the timespan between the acquisition and loss of citizenship. 31 In Rottmann’s case, this means assessing the proportionality of the decision to denaturalise against the consequences that this would have for Rottmann, not just in terms of loss of German nationality but also due to the loss of his status as an EU citizen, with the rights and entitlements that that status entails
In essence, Rottmann is about finding the balance between the sovereignty that Member States possess when it comes to regulating matters of nationality, on the one hand, and European citizenship on the other. 32 At first sight, by declaring that the withdrawal was not contrary to European law in principle, the discretion to regulate nationality laws is left with the Member States. But what is most important in this judgment, is that the ECJ ruled for the first time, that the competence Member States possess to regulate the conditions surrounding their nationality laws, falls within the scope of Union law.33 What’s interesting is that in former judgements the ECJ relied on free movement to argue that the matter fell within the scope of Union law. In Rottmann however, the ECJ is not relying on the past usage of the right of free movement by Rottmann, when he moved from Austria to Germany, but focuses on the nature and the future consequences of Mr. Rottmann’s loss of Union citizenship. 34 In
Rottmann the Court clarified three important points. Firstly, the ECJ established that there is
no legal monopoly for Member States when it comes to deciding who classifies as a European citizen. Secondly, the Court clarified that European citizen rights apply not only in situations where a cross-border element exists. This showed the willingness of the ECJ to extend European citizenship rights to cases that would previously fall outside the scope of European Union law. Lastly, it seems the ECJ abandoned its own views about its maxim that European
31 ibid. para 55-56 32 Van Eijken (n 28) 67 33 ibid 68 34 ibid 69
16 citizenship is not intended to enlarge the scope of Union law. 35 That the Court concluded that the matter fell within the scope of European law is still not surprising when looking at the Treaties with an unbiased eye.36 The wording of Article 20 TFEU reads: “Every person
holding the nationality of a Member State, shall be a citizen of the Union.” Thus, any national
measure that determines the scope of national citizenship is affecting the scope of European citizenship as well, and as such the scope of European rights.
Although it seems logical, a powerful argument against the Rottmann ruling from the ECJ exists. Declaration No. 2 on Nationality of a Member State, which is annexed to the TEU, states that the decision whether or not an individual is a national of a Member State is ‘to be solely settled by reference to the national law of the Member State concerned’.37 The ECJ dismissed this argument though by stating that “, the fact that a matter falls within the
competence of the Member States does not alter the fact that, in situations covered by European Union law, the national rules concerned must have due regard to the latter.”38
The
decision by the ECJ, that European law applied, had two consequences: firstly, national laws and measures on citizenship will not be applicable when they conflict with European law. Secondly, it is for the ECJ, as the final authority, to decide when there is doubt about whether such a conflict exists and not for the national courts.39 Concluding, it can be stated that in
Rottmann the ECJ opened up a way for further infiltration in an area that was regarded as
sovereign for Member States.40
35
D Kochenov and R Plender, ‘EU Citizenship: From an Incipient Form to an Incipient Substance? The Discovery of the Treaty Text’ (2012). 37 ELR 369 (2012),
<https://ssrn.com/abstract=2137680 > accessed 1 June 2019
36 GT Davies ‘The entirely conventional supremacy of Union citizenship and rights’ In: J
Shaw(ed.), ‘Has the European Court of Justice challenged member state sovereignty in nationality law?’ (2014) EUI Working paper RSCAS 2011/62
https://cadmus.eui.eu/bitstream/handle/1814/19654/RSCAS_2011_62.corr.pdf?sequence=3 5-10
37
European Council, 31 December 1992, -1 -conclusions of the Presidency -Edinburgh, December 12, (1992) SN 456/1/92 REV 1 part A
38
Case C-135/08 Rottmann [2010] para 41
39
Davies (n 36) 6-7
40
J. Shaw (2011) ‘Setting the Scene: the Rottmann case introduced’ in J. Shaw J Shaw(ed.), ‘Has the European Court of Justice challenged member state sovereignty in nationality law?’ (2014) EUI Working paper RSCAS 2011/62 4
17 1.3.3. Tjebbes
In the Tjebbes case, four different persons in possession of both the Dutch nationality, as well as a third-country nationality lost their Dutch citizenship. Following Dutch law, persons with dual nationality, lose their Dutch citizenship when they have residence outside one of the European Member states for a continuous period of 10 years. By residing in the Netherlands for a year, or applying for a Dutch identity card this 10-year period could be interrupted.41 Another provision provided that the children of those individuals who lost their Dutch nationality because of this rule would lose their Dutch nationality as well. When the Dutch minister refused to issue new passports for this reason, they challenged this decision. Important to note is that this loss of citizenship came without a warning and there was no question of wrongdoing by the individuals, except for not renewing their passport. Because the loss of their Dutch nationality meant they would lose their European citizenship as well, the highest Dutch administrative Court (the ‘Afdeling Bestuursrechtspraak van de Raad van State’) referred this question to the European Court. Recently, namely on March 12th 2019, the ECJ ruled on the matter. 42
Tjebbes is continuing and building on previous case law from the ECJ regarding European
citizenship and its relation to national citizenship.43 The ECJ starts by repeating parts of the
Rottmann judgment by saying that even though the rules surrounding the loss and acquisition
of nationality fall within the competence of the Member States, the fact that in situations covered by European law, national rules must have due regard to Community law, is not altered.44 In Rottmann, this was explained by the ECJ as entailing an obligation for the national court to assess whether the decision to withdraw citizenship is not contrary to the principle of proportionality.45 In Tjebbes the ECJ laid down the requirements for this
proportionality assessment. According to the ECJ, the proportionality assessment requires “an
individual assessment of the situation of the person concerned and that of his or her family in order to determine whether the consequences of losing the nationality of the Member State concerned, when it entails the loss of his or her citizenship of the Union, might, with regard to
41
C-221/17 Tjebbes and Others v Minister van Buitenlandse Zaken [2019] para. 10.
42
ibid
43
C-135/08 Rottman [2010], para. 39; C-369/90 Micheletti [1992] para. 10; C-179/98 Mesbah [1999], para. 29; C-200/02 Zhu and Chen [2004]para. 37.
44
C-221/17, Tjebbes [2019] para. 30; C-135/08 Rottman [2010], para. 39
45
18
the objective pursued by the national legislature, disproportionately affect the normal
development of his or her family and professional life from the point of view of EU law. Those consequences cannot be hypothetical or merely a possibility.”46
With the phrase ‘from the point of view of EU law’ is meant that to ensure that the loss of nationality is consistent with “the fundamental rights guaranteed by the Charter (…) and
specifically the right to respect for family life as stated in Article 7 of the Charter, (…) in conjunction with the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of the Charter”.47 The Court concludes that the automatic loss of
citizenship for individuals living outside of the Union for more than 10 years, and having citizenship of a third country as well, is in principle not prohibited by European law in so far as there is a possibility to examine the consequences of the loss of nationality, and a
possibility to recover the nationality. This examination includes testing the consequences for this loss for the situation of each individual, including family members against the principle of proportionality.
The judgement contains two major aspects concerning the relationship between national citizenship and Union citizenship. The first one being the ECJ intervening in national
citizenship law, an area that is characterised as a Member State competence. The second one is how the Court classifies European citizenship. Following Rottmann, and earlier case law, it is once more confirmed that nationality law is not an area of Member State sovereignty that is completely shielded from European interference.48 Although it is up to the Member States to lay down the conditions for acquisition and loss of nationality, they must do so with due regard to EU law.49 The consequences of this interference can be divided into two dimensions, procedural and substantive.50 The procedural side requires an individual
examination of the consequences of losing citizenship and asks for a national remedy in case the loss of citizenship is regarded as disproportionate.51 The substantive requirements are the different policy issues to be taken into account when performing the proportionality
46
C-221/17, Tjebbes [2019] para. 44
47
Ibid para 45. Also: M Van den Brink ‘Bold, but Wihout Justification? Tjebbes’ (European
Papers, 25 April 2019) <www.europeanpapers.eu> accessed 28 may 2019
48
C-135/08 Rottman [2010], para. 39; C-369/90 Micheletti [1992]
49
C-221/17, Tjebbes [2019] para. 30
50
Distinction made by S Couts, in: S. Coutts, ‘Bold and Thoughtful: the Court of Justice intervenes in nationality law’ ( EU law blog, 25 March 2019) <, www.europeanlawblog.eu/> accessed 28 may 2019
51
19 assessment. As Van den Brink points out in his comments on the case, the Court is ‘thoughtful
and carefull’ when describing the purview of either national or Union law, when it comes to
deciding who is, and -just as important-, who is not a member of their political community.52 The Court does this by focussing its proportionality review on the consequences of losing citizenship, instead of assessing the Dutch policy rule of the 10 year period. 53
The second aspect, important in Tjebbes, consists of some of the core features of European citizenship. The Court has identified what it considers to be part of the core of the status of being a European citizen, namely by stating that it is not in conformity with
European law when depriving individuals of their nationality, as well of their European citizenship as this leads to: “particular difficulties in continuing to travel to the Netherlands
or to another Member State in order to retain genuine and regular links with members of his or her family, to pursue his or her professional activity or to undertake the necessary steps to pursue that activity.”54 Kochenov has multiple points of critique on the Tjebbes Judgement.
He finds it problematic that this ‘fundamental status’, is not fully ‘fundamental’. He, in my view, rightly points at the Eman and Sevinger case, where the Court confirmed that European citizenship does not expire when leaving the territory of the Union and continues as the fundamental legal status for nationals of the Member States.55 In Rottmann, European citizenship took a step towards being a possible trigger itself for the jurisdiction of the ECJ, being independent from the classical cross-border element that made European citizenship cases fall within the scope of Union law. But in Tjebbes, European citizenship did expire on the virtue of not renewing one’s passport and this, according to Kochenov, makes Rottmann irrelevant.56
1.4 “Genuine Link” criterion from International law
In International law, there is a criterion about the existence of a ‘genuine link’ between the citizen and the State. This ‘genuine link’ criterion has been established by the ICJ in the 52 S Courts (n 50) 53 C-221/17 Tjebbes [2019] paras. 39-40 54 Ibid. para. 46. 55
D Kochenov, ‘The Tjebbes Fail’ ( 2019) 4 European Papers (4) 1 <https://ssrn.com/abstract=3373840> accessed 29 may 2019, 10
56
20
Nottebohm case.57 Nottebohm was a case before the ICJ where Mr. Nottebohm, a German citizen, moved to Guatemala and started a business there. When traveling to Liechtenstein, he acquired citizenship from this country and as a result lost his German nationality. When he moved back to Guatemala, World War II started and Mr. Nottebohm was deported from Guatemala as an enemy. Liechtenstein opened a case before the Court on the basis of its diplomatic protection of its citizens. Guatemala, on the other hand, claimed that Mr. Nottebohm was not a proper citizen from Liechtenstein and thus had no right to receive diplomatic protection. The ICJ established that:
“nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national.”58
In Tjebbes the Court said that it was legitimate for a Member State to take the view that a genuine link between a state and its nationals is the expression of nationality.59
However, it can be questioned whether the existence of a ‘genuine link’ is of major importance. For example, in Micheletti it could have been argued that Mr. Micheletti was missing the genuine link with Italy. This would have meant that Micheletti, having the
Argentinean but also the Italian nationality, would not have any effects against other Member States. But the genuine link was not mentioned by the ECJ and neither did Spain being the defendant. Furthermore, when A-G Tesauro gave his opinion regarding this case he stated that the Nottebhom case wasn’t of any relevance. He wrote that the principle was stemming from the ‘romantic period’ of international law.60
In literature critique on the ‘genuine link’ criterion exists saying that it is not an objective criterion, making it hard to give a predictable
57
Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, (ICJ), 6 April 1955
58
ibid. page 23
59
C-221/17 Tjebbes [2019] para 35
60
21 result.61 The ‘genuine link’ criterion has been misused in a way to exclude certain groups of people from their citizenship.62 Hall amongst others, has argued that when citizenship is conferred upon people who do not possess this genuine link, the principle of sincere co-operation is breached because this will be considered as ephemeral, abusive or simulated.63 Although the use of the criterion of a ‘genuine link’ in the practice of selling citizenship could be a way to reduce the risks and objections that scholars and the European institutions talked about, addressed in chapter 1.2, the usage of this criterion also imposes the risk that Member States uses the lack of this genuine link for limiting the freedoms from European citizenship. This would defy the purpose of citizenship entitled to be the fundamental status of nationals of EU Member States.64
1.5 Partial Conclusion
To give a good overview of the relevant Treaty provisions, the first chapter started with a paragraph on the evolution of European Citizenship. To understand the notion of Union citizenship, it is important to shortly address the changes that were made in the Treaties with regard to Citizenship. The next paragraph explains how citizenship is acquired. Before going directly to the sale of citizenship, the other ways of acquiring nationality where addressed. Furthermore, the discussion that is going on about selling citizenship, and whether or not the EU should do anything about it, was addressed. However, the rules surrounding the loss and acquisition of citizenship are within the sovereignty of the Member States. On first sight, the EU can’t interfere. But from the case law, we know that the Member State sovereignty in the area of nationality is not absolute. The judgements Rottmann and Tjebbes show two examples of where the European Union interfered in nationality law. The analysis of these cases shows the possibilities for European intervention that will be further addressed in chapter 2.
61
K Kruma, An Ongoing Challenge: EU Citizenship, Migrant Status and nationality. Focus
on Latvia ( Brill Nijhoff, 2014) 45.
62
E Guild (n 6) 68-81
63
S Hall, Nationality, Migration Rights and Citizenship of the Union, (Martinus Nijhoff Publishers 1995) ; S O’Leary, Nationality Law and
Community Citizenship: A Tale of Two Uneasy Bedfellows, (12 Yearbook of European Law
1992) 353
64
S Carrera, 2014, ‘How much does EU citizenship cost? The Maltese citizenship-for-sale affair: a breakthrough for sincere co-operation in citizenship of the Union’(2014) CEPS no. 64 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2430117> accessed 5 June 2019, 28
22 Chapter 2 General principles in relation to selling citizenship
In the previous chapter, we saw what European citizenship entails, and it was explained that although the rules surrounding the loss and acquisition of nationality are a Member State competence, the ECJ did interfere in some cases. This chapter will continue with the possibility of interfering, trying to search for possible grounds on which the ECJ can do so. The chapter will be focused around 3 possible violations of European law that could create enough competence for the EU to act. A breach of the following will constitute that the matter falls within the ambit of European law: the principle of sincere co-operation, and the principle of abuse of European law. Proportionality does not return in this chapter, although it played a central role in Rottmann and Tjebbes. The reason for this is that it only seems to play a role for persons who already obtained Union citizenship. Rottmann showed the proportionality test is important when it comes to the question whether or not it is proportionate to deprive this person of Union citizenship. Besides this, as De Groot points out, “if one takes the
proportionality test seriously it has to apply to all persons who acquired the nationality by a certain act of naturalisation individually”65
So, although the Court opened up the
applicability of European law in the acquisition of nationality in Rottmann, the principle of proportionality will apply in the relation between Member States and individuals. This thesis is about the citizenship for sale schemes as a whole, and their compliance with European law, and thus involves the relation between Member States and the European Union. Therefore the following chapter will contain other general principles than the principle of proportionality.
2.1 Principle of loyalty/ sincere co-operation
The principle, also referred to as ‘the duty’, of sincere co-operation is enshrined in article 4 (3) TEU. This article reads as follows:
“Pursuant to the principle of sincere co-operation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
65
GR de Groot and MP Vink, (2015) ‘A Comparative Analysis of Regulations on Involuntary Loss of Nationality in the European Union’ (2014) CEPS no. 75
<https://www.ceps.eu/wp-content/uploads/2015/01/No%2075%20ILEC%20Loss%20of%20citizenship%20final%20M AP%20(1).pdf > accessed on 25 July 2019, 16.
23
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.”66
From this provision, we can derive both positive and negative obligations for the Member States.67 The positive obligations can be classified as a duty to act and contains the following elements: Firstly, the reciprocal obligation to assist each other as Member States, secondly Member States have a duty to take appropriate action to ensure fulfilment of the obligations arising out of the treaties.
It also contains a negative obligation which flows from the third sentence from 4 (3) TEU: Member States have a duty not to interfere with the working of European Law.68 Member States have the obligation to abstain from three different kinds of measures: firstly, measures that could jeopardise the effectiveness of European Law, secondly, measures that could hinder the internal functioning of the European Institutions, thirdly, Member States also have the obligation to abstain from measures that could hinder the development of the
Community integration process.69
The principle of sincere co-operation is one of the most dynamic provisions in the Treaties, particularly when it comes to its role in regulating the relationships and co-operation of the Member States in the functioning of European Law.70 The CJEU played an important role in its case law by clarifying the principle of sincere co-operation as a legal duty for Member States to respect the Union interests.71 It is considered to be a key component of the EU legal system.72 Furthermore, the Court emphasized in Commission v. Luxembourg that: “this duty
66
Consolidated Version of the Treaty on European Union [2008] OJ C115/13
67
K Mortelmans, ‘The Principle of Loyalty to the Community’ (1998) Maastricht Journal of European and Comparative <https://doi.org/10.1177/1023263X9800500105> accessed 8 June 2019, 86.
68
M. Verhoeven, The Costanzo Obligation: The Obligations of National Administrative
-Authorities in the Case of Incompatibility Between National Law and European law
(Cambridge: Intersentia, 2011) 41
69
B Durand, Commentaire Mégret Le Droit de la CEE, (Brussels: 1992) 25
70
S Carrera, (n 64) 21
71
Case C-369/90 Micheletti [1992], para. 10; See also: C-192/99 Kaur [2001]; C-200/02 Zhu
and Chen [2004]; C-148/02 Garcia Avello [2003]
72
24
of genuine co-operation is of general application and does not depend either on whether the Community competence concerned is exclusive or on any right of the Member States to enter into obligations towards non-member countries.”73 So even in the area of loss and
acquisition of nationality, which is considered to be a competence of the Member State, the duty of sincere co-operation still applies. All this being said, when looking further into Article 4 (3) it reveals a very general wording. In Corsica Ferries the ECJ has held that ex Article 5 EEC “is worded so generally that there can be no question of applying it autonomously when
the situation concerned is governed by a specific provision of the Treaty (…)”74 According to Verhoeven, there is a decrease in the necessity of establishing a link between the principle of sincere co-operation and a written provision of European law, but this doesn’t mean that it is a totally independent source of obligations.75 Nowadays “one can say that the principle of
sincere co-operation can create obligations when it is linked to a rule of European law or a principle objective of European Union policy which is to be facilitated”76
. Furthermore, the Court has never gone so far as to solely base an obligation on Article 4 (3) TEU.
Because of the latter, whether or not the principle of sincere co-operation is breached, depends on the connection between sincere co-operation and another rule of EU-law, or any objective of the European Union. Looking at the concerns with regards to the sale of
citizenship, pointed out by legal scholars and by the European institutions, set out in
paragraph 1.2, three possible objectives derive: Firstly, Sincere cooperation with regard to the Internal Market, Secondly, sincere co-operation in connection with solidarity between
Member States, and finally sincere cooperation in relation to the establishment of European citizenship.
2.1.2. Sincere co-operation and the Internal market
When looking at the first sentence of Article 3 (3) TEU we see that one of the objectives of the European Union is to establish an internal market. As stressed out by the study conducted by the European Parliamentary Research Service (EPRS) there is a risk that these schemes could have an impact on coherence and the integrity of the internal market. One problem is
73
Case C-266/03 Commission v Luxembourg [2005] para 58; Case C-433/03 Commission v
Germany [2005] para. 68.
74
Case C-18/93 Corsica Ferries [1994] para 18
75
M. Verhoeven, (n 68) 42
76
25 the so called ‘free-rider’ problem. The ‘free-rider’ is the Member State that is benefitting from the attractiveness of life in other Member States and the rights attached to citizenship. Only that particular Member State benefits from the foreigners that become European, whilst in return, these individuals enjoy benefits throughout Europe. Since the internal market does not have any border checks, the Commission and the EPRS identified several risks that might arise because of the sale of citizenship: risks to security, infiltration of non-EU organised crime groups, money laundering, corruption and tax evasion.77 As Kochenov pointed out, and already addressed in paragraph 1.2 of this thesis, the number of people actually buying citizenship seems to form only a small group.78 The effects it will have on the internal market will thus be marginal. Greater potential risks exist where Member States, such as Italy, are handing out citizenship to national descendants. In Micheletti, the CJEU protected the conferral by the Italian state of Italian nationality to an Argentinean citizen.79 This is done in far greater numbers than the sale of citizenship to wealthy third-country nationals.
2.1.3. Sincere co-operation and the principle solidarity
Besides the aim of establishing the internal market we can find another aim of the European Union in Article 3 TEU: “It shall promote (…) solidarity among Member States.”80 Solidarity is considered to be one of the fundamental values on which the European Union was
founded.81
It could be argued that selling citizenship is contrary to the principle of sincere co-operation in combination with the principle of solidarity among Member States. When an individual buys citizenship from a European Member State, he or she obtains European citizenship and all the rights attached to it. The latter means that the person will be able to enjoy the fundamental freedoms that are part of this right. If that individual in the past wanted to obtain citizenship of another European Member State, but was rejected, that same Member State cannot do anything now, since that Member State will have to respect the rights the individual obtained. From the Commission report, we know that the schemes selling
77 COM(2019) 12 final. 10 78 D Kochenov (n 23) 27-32. 79 Case C-369/90 Micheletti [1992] 80 TEU art 3 (3) 81
A Grimmel and S M Giang (Eds.) Solidarity in the European Union: A fundamental value
26 citizenship often advertise it as a way to obtain the benefits of Union citizenship.82 This
makes it likely that the reason for the individual to buy citizenship, is not because there is a ‘genuine connection’ between the individual and the country selling its citizenship, but because the individual wants to use the rights to make use of his newly obtained rights in another Member State. According to Hall, “A duty of solidarity must include refraining from
acts (…) which are deceptive or misleading towards those to whom the duty is owed.”83 Furthermore, the Court said in Surinder Sing that: “the facilities created by the Treaty cannot
have the effect of allowing the persons who benefit from them to evade the application of national legislation and of prohibiting Member States from taking the measures necessary to prevent such abuse.”84
Hall continues by saying that, in light of Nottebohm, when a Member
State confers its nationality on a person that does not have this genuine link with the state he obtains citizenship from, that Member State is acting in violation of the principle of
solidarity.85
2.1.4. Sincere co-operation and the establishment of European citizenship
In Grzelczyk the Court said: “Union citizenship is destined to be the fundamental status of
nationals of the Member States”.86
This was often repeated by the Court in later case law.87 Where citizenship originally started as a more ‘market-based citizenship’, the concept of European citizenship developed in a more fundamental status where it is not necessarily a requirement that a cross-border element was present, to rely on the status of European citizenship.88 In Rottmann the mantra of European citizenship being of fundamental importance for the Member State nationals was reason enough to justify restrictions on national rules. The same applies to other areas such as the assignation or recognition of names,89 civil status laws,90 and rules that were restricting the European right to vote.91 82 COM(2019) 12 final. p.4. 83 S Hall (n 63) 66 84
Case C-370/90 Surinder Singh, [1992]para 24
85
S Hall (n 63) 67
86
Case C-184/99, Grzelczyk [2001] para 3
87
Case C-413/99 Baumbast and R [2002] para 82; Garcia Avello[2003] para 22; Zhu and
Chen [2004] para 25; and Rottmann [2010] para 43.
88
E Spaventa, Earned Citizenship: Understanding Union Citizenship Through its Scope (September 18, 2014). Forthcoming in D Kochenov (ed) EU Citizenship and Federalism: the
Role of Rights, CUP 2015. p. 2-3. <https://ssrn.com/abstract=2497941>
89
27 Besides the status citizenship receives in the case law of the CJEU, the TFEU grants freedoms to its citizens, mainly in Article 20 and 21 TFEU. In the view of Džankić, as pointed out by the study of the EPRS, “this challenges 'the values of European citizenship, which has not
been intended as an instrument for selectively amplifying the national membership, but rather as a set of rights reflecting sincere cooperation and mutual trust among the Member
States”.92 Because Member States have the obligation to recognise the nationality of other
Member States, they have a legitimate interest in the rules on nationality from other Member States.93
2.2 Abuse of rights
The concept of abuse of rights can be traced back to 1974 where the ECJ addressed the issue of abuse of rights for the first time in Van Binsbergen.94 In this case, a Dutch lawyer moved
to Belgium while he was a representative in a case that was still pending before a Dutch court. According to Dutch law, the lawyer lost his right to act as a representative. Although the Court found that the Dutch rule constituted a restriction on Van Binsbergen’s free movement of services, the Court ruled that a Member State can legitimately impose restrictions on the freedom of movement when these rules are used by an individual with the purpose to
circumvent national law. The Court further specified that circumvention may arise when the activity “entirely or principally directed towards its territory’ of the Member State of which the domestic rules are avoided.95
In later case law, the CJEU acknowledged the abuse of rights in, among other areas, tax96, free movement of companies, 97 free movement of workers,98 and agriculture.99 In the Halifax
90
E Pataut, ‘A Family Status for the European Citizen?’, in L. Azoulai,. et al. (eds), ‘Constructing the Person in EU Law Rights, Roles, Identities’ (Oxford: Hart Publishing, 2016) 311-322
91
Case C-650/13 Delvigne [2015]
92
A Scherrer and E Thirion ( EPRS, NO. PE 627.128). (n 22) 26.
93
S Peers (n 15)
94
Case 33/74 van Binsbergen [1974] ECR 1299, paras 12–13.
95
ibid. para 13. See also: A Lenaerts, ‘The General Principle of the Prohibition of Abuse of Rights: A Critical Position on Its Role in a Codified European Contract Law’ (2010)
18 ERPL 6 1128 < http://www.kluwerlawonline.com/toc.php?pubcode=ERPL> accessed 14 June 2019
96
Case C-255/02 Halifax [2006]; Case C-196/04 Cadbury Schweppes [2006]; Case C-321/05
Kofoed v [2007]; Case C-425/06 Ministero dell’Economia e delle Finanze v Part Service
[2008]
97
28 judgement, the CJEU recognised the abuse of rights for the first time as a principle, “it must
be borne in mind that, according to settled case-law, Community law cannot be relied on for abusive or fraudulent ends”.100 Later in Kofoed, the CJEU extends this reading and mentions that the principle constitutes a ‘general Community law principle’: “the general Community
law principle that abuse of rights is prohibited. Individuals must not improperly or
fraudulently take advantage of provisions of Community law. The application of Community legislation cannot be extended to cover abusive practices, that is to say, transactions carried out not in the context of normal commercial operations, but solely for the purpose of
wrongfully obtaining advantages provided for by Community law.”101
In Emsland-Stärke, the Court developed a two-fold test to determine whether or not a case can be classified as abuse of law. First, The Court said: “a combination of objective circumstances in which, despite
formal observance of the conditions laid down by the Community rules, the purpose of those rules has not been achieved”, and secondly: “a subjective element consisting in the intention to obtain an advantage from the Community rules by creating artificially the conditions laid down for obtaining it” is required.102
Regarding the types of abuse, two categories can be distinguished.103 Firstly, when national law is circumvented by relying on a fundamental freedom and, secondly, when improper advantage obtained from a right granted by European law.
All this being said, when looking in legal literature it seems that legal authors reject the relevance of this principle regarding citizenship rights.104 When comparing it to other areas of law (mainly the fundamental freedoms) it has to be admitted that the Court has shown a different approach regarding the use of the principle of abuse. For example, in the cases
Chen,105 Collins106 and Commission v. Austria,107 the Court refrained from applying the test 98 Case C-127/08 Metock [2008] 99 Case C-110/99 Emsland-Stärke [2000] 100
Case C-255/02 Halifax plc, [2006] ;see also: Case C-367/96 Kefalas and Others [1998], paragraph 20; Case C-373/97 Diamantis [2000] para 33; Case C-32/03 Fini H[2005]
101
Case C-321/05 Kofoed [2007] para 38
102
Case C-110/99, Emsland-Stärke [2000] Para. 52
103
TP Tridimas, ‘Abuse of Right in EU Law: Some Reflections with Particular Reference to Financial Law’ (2009) Queen Mary School of Law Legal Studies Research Paper No.
27/2009, 4 <https://ssrn.com/abstract=1438577> accessed 13 June 2019
104
R De la Feria, Introducing the Principle of Prohibition of Abuse of Law( Hart publishing 2011) xviii
105
Zhu and Chen [2004]
106
29 from Emsland-Stärk. De la Feria thinks it is due to the balance the CJEU is trying to find between citizen rights and the politically sensitive nature of citizenship and free movement of persons.108 Thus, it is unclear whether the sale of citizenship could lead to an abuse of
European law. In chapter 3 I will continue on this point.
2.3 Partial conclusion
This chapter elaborated on the general principles that are connected with the sale of citizenship. It gave an overview of 2 general principles, sincere co-operation and abuse of rights. Because the principle of sincere co-operation has not been used as a standalone provision by the Court, three obligations stemming from the treaties where identified and elaborated further on. Finally, the principle of abuse of rights was further described in detail. This chapter’s purpose was mainly to set the framework around these different principles. Chapter 3 will now look at their compatibility with European law.
Chapter 3 Selling citizenship and the CJEU
In the first chapter, the rules and relevant case law regarding the loss and acquisition of nationality were extensively discussed. In chapter two the possible grounds for interference from the European Union were discussed because of possible incompatibility of the
citizenship for sale schemes with European law. Now in this third and final chapter, it will be further examined how the CJEU could, and should, rule when a case would come before it about the citizenship for sale schemes and their compatibility with European law. Although it is hard to say what the CJEU would do, this final chapter will show the possibilities the CJEU has when handling this issue.
3.1. How will the CJEU rule on this issue?
Before going into depth regarding the above question, it is important to delineate in which situations a case regarding the sale of citizenship could come before court. There are roughly three different situations: Firstly, A Member State could bring the matter before the CJEU
107
Case C-147/03, Commission v. Republic of Austria, [2005]
108
R De La Feria, 'Prohibition of abuse of (Community) law: The creation of a new general principle of EC law through tax' (2008) 45 Common Market Law Review, Issue 2, 411 <dro.dur.ac.uk/18940/1/18940.pdf?DDD19+dul4eg> accessed 20 June 2019
30 when it considers that another Member State is violating, or failing to fulfil the obligations under the Treaties by offering citizenship for sale. This is done via Article 259 TFEU.
Secondly, the Commission could start and action for infringement on the basis of Article 258 TFEU for the same reasons as the latter. Finally, a national court could ask for a preliminary ruling ex Article 267 TFEU to determine whether the national rule or practice, in this case the sale of citizenship, is compatible with EU law.
3.1.1. The ambit of European law.
Regardless of how the matter would come before the Court, the Court will start by
determining whether or not the schemes that sell citizenship fall within the ambit of European Union law to rule on them. As was explained in paragraph 1.3, in principle the rules on the loss and acquisition of nationality fall within the competence of the Member States. However, as previous judgements in Rottmann and Tjebbes have shown, it is possible that the rules on the loss and acquisition of nationality, and specifically mentioned in these judgements, the loss of citizenship, fall within the ambit of European law. 109 The Court has, until now, never expressed themselves about the acquisition of citizenship.
Thus it needs a further explanation whether EU law applies or not. When looking at the paragraphs in Tjebbes, the Court considers first of all that Union citizenship is intended to be the fundamental status of Member State nationals. 110 The Court continues by saying that the loss of the status conferred by Article 20 TFEU, and the rights that are attached to this article is by reason of its nature and the consequences enough to fall within the ambit of EU law. Since the same status conferred by Article 20 TFEU, and the same rights that are
attached to it apply in the case of selling citizenship, I argue that it is enough to fall, by reason of its nature within the ambit of EU law. The consequence of this is that, as has been repeated throughout case law, Member States must have due regard to European law when laying down the conditions on the acquisition of nationality.111
The latter means that the CJEU can rule whether a possible incompatibility with European law exists. In chapter 2, two different grounds for breaches where explained, the principle of sincere cooperation and the principle of abuse of rights.
109
C-135/08 Rottmann [2010] paras 39-41; Case C-221/17, Tjebbes [2019] para 30
110
C-221/17, Tjebbes [2019] para 31
111
31 3.1.2. Breach of European law?
Sincere co-operation
Does the sale of citizenship, constitute a breach of European law regarding the duty of sincere co-operation against other Member States or the EU? Chapter 2.1. explained that the duty of sincere co-operation has to be respected, even when Member States are exercising an (almost) exclusive competence. The Court has never based an obligation solely on Article 4 (3) TFEU. Chapter 2.1 identified three possible obligations out of the Treaties in relation to sincere co-operation and the sale of citizenship.
Sincere co-operation and the internal market
As paragraph 2.1.2. showed, the sale of citizenship has some potential risks for the Internal Market. Furthermore, A-G Poiares Maduro pointed out in his opinion on Rottmann that an
‘unjustified mass naturalisation of nationals of non-member States’ could harm the internal
market and lead to a breach of the principle of sincere co-operation when this is done without consulting the Commission or other Member States.112 However it is, in my view, unlikely that the Court will find these schemes incompatible with the principle of sincere co-operation in relation to the internal market. In Micheletti, for instance, the Court protected Italian legislation conferring nationality on Italian descendants in Latin America. Italy, amongst others, has quite generous national legislation conferring nationality on individuals showing some form of ancestry. A different question is what, in my opinion the Court should do. Coming back to my last point, the conferring of nationality by Italy on third-country nationals because of ancestry happens in far greater numbers than the individuals that buy citizenship. Besides this, citizenship for sale schemes are so expensive that only the wealthy can afford it. It is thus hard to imagine that these schemes impose a problem for the internal market. The Court should thus conclude that selling citizenship does not result in a disturbance of the internal market consequently breaching the principle of sincere co-operation.
Sincere co-operation and the principle of solidarity
112
