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To what extent does EU law put limits to acquiring EU
citizenship?
Subject:
L.LM. thesis
Master:
International and European Law
Track:
European Union Law
Student:
Lilian Gonçalves Simões (10754148)
Email:
lilian.goncalvessimoes@gmail.com
Supervisor:
Dhr. Mr. Dr. Ronald van Ooik
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Abstract
Citizenship of a country is traditionally based on ius sanguinis or ius soli. States also give immigrants the possibility to naturalize as citizens.
Citizenship by investment schemes are programs that make it easier for third-country nationals to acquire the nationality of the State in question. In the case of the nationalities of the Member States of the European Union, these third-country nationals do not only acquire that nationality but also EU citizenship. These programs have led to some questions and concerns in the European Union. There is no existing caselaw of the Court of Justice of the European Union on acquiring citizenship and the European Union does not have the power to harmonize nationality law, since nationality law is a competence of Member States.
The goal of this legal research is to get a better overview of the relation between Member States’ nationality law and European Union law, specifically in the act of acquiring citizenship through investment. For the purpose of this study, the review has been focused on existing legal provisions, secondary resources and literature relevant to the matter of nationality. The secondary resources that have been used are mostly reports from the European Commission, European Parliament and independent organisations on the citizenship by investment -matter. The literature is consisting of, inter alia, textbooks on EU law, articles of journals and blogs.
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Index
Abstract ... 2
Introduction ... 4
Chapter 1: Losing European Citizenship ... 8
1.1 Micheletti ... 8
1.2 Kaur ... 9
1.3 Rottmann ... 11
1.4 Tjebbes ... 14
Chapter 2: Limits set by EU law ... 18
2.1 The CBI programs in three MS ... 18
2.2 Critique coming from the EU ... 19
2.3 Problems with CBI programs ... 22
2.4 Status of citizenship in the EU ... 23
2.5 Does current EU law provide boundaries to CBI?... 24
2.5.1 Genuine link ... 26
2.5.2 Principle of sincere cooperation ... 28
2.5.3 Principle of proportionality ... 29
C-118/20 JY v. Wiener Landesregierung ... 31
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Introduction
The term ‘nationality’ has its linguistic origin in the Latin word ‘natio’, which we nowadays translate more often as ‘a nation’ or ‘the people’. The concept of natio was originally conceived as a group of people who belonged together by birth on a certain ground, or by descent. Under the influence of Romanticism and the strongly connected ‘awakening of people’, the concept of ‘natio’ acquired its current meaning and led to the development of the concept of nationality. This term was mostly used to characterize the ethnicity of a certain group. Only later on did the term start to represent a person’s relationship to a state.1 The European Convention on
Nationality, signed in Strasbourg on 6 November 1997, defines nationality as the legal bond between a person and a State and does not indicate the person’s ethnic origin.2 A citizen enjoys both rights and obligations from the country in which they are a national.3
The European Union (hereafter: EU or the Union) represents 446 million European Citizens4 with a connection to one of the 27 Member States (MS). The concept of European citizenship is established in the Treaty on the Functioning of the European Union (TFEU); every person holding the nationality of a MS shall be a citizen of the EU. EU citizenship comes with its own rights and is an addition to the national citizenship, it does not replace it.5 EU citizenship is based on free movement and border crossing of EU nationals.6 The internal market comprises an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.7 Every EU citizen has the right, under certain conditions, to move and reside freely within the territory of the 27 MS.8 Mobility within the EU is promoted and encouraged as a source of great strength for the
1 Gerard-René de Groot and Maarten Vink, ‘Meervoudige nationaliteit in Europees perspectief: een
landenvergelijkend overzicht’, Den Haag: ACVZ, November 2008. < https://acvz.org/wp-content/uploads/2015/06/VS-ACVZ-NR19-2008.pdf>, p.12.
2 Article 2 (a) European Convention on Nationality.
3 Ministerie van Justitie. “Staatloosheid: Een Mondiaal Probleem, een overzicht van staatloosheid en
geboorteregistratie wereldwijd”. Den Haag: Ministerie van Justitie, September 2016.
4 Europa Nu, ‘Europese Unie in cijfers’, <
https://www.europa-nu.nl/id/vh6tqk1kv3pv/europese_unie_in_cijfers>, accessed on 11/5/2020.
5 Article 20 TFEU.
6 Dora Kostakopoulou, ‘When EU Citizens become Foreigners*’, Vol. 20, No. 4 European Law Journal (July
2014) p. 449.
7 Article 26 (2) TFEU. 8 Article 21 (1) TFEU.
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economy, society and the individual itself.9 The sense of European citizenship in 2019 has reached its highest level since spring 2010: more than seven in ten Europeans feel they are citizens of the EU: 73% against 26%.10 As expressed in case law of the Court of Justice of the European Union (hereafter: CJEU or the Court), nationality is a bond between a citizen and the State, and it is “the special relationship of solidarity and good faith between [a Member State]
and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality”11. Citizenship of a country is traditionally based on birth-right acquisition,
be it by descent (ius sanguinis) or by birth in the territory (ius soli). States also give immigrants the possibility to naturalise as citizens, provided they fulfil certain integration conditions and/or show a genuine connection to the country, which can include marriage to one of its citizens. All MS have such ordinary naturalisation procedures.12
“Freedom to travel, ability to live, work, study. Citizenship by investment programs will grant immediate citizenship to applicants and their families. … In Europe the programs of Cyprus and Malta mean citizenship not just of those countries but the European citizenship benefits that come with it, meaning the ability
to work travel and study anywhere in Europe.”
– La Vida Golden Visas13
The quote from ‘La Vida Golden Visas’ is one of many websites that claim to be selling passports, and therefore nationalities, to those with pockets full of money or in need of residency in a certain country.
It thus seems there is a new form to obtain the nationality of a country. This new form consists out of national schemes designed to attract foreign investments. Variations of this new form can be found globally. Some variations offer residency or citizenship rights, in exchange for investment in that particular country.14 Three EU MS have national procedures in place to
9 European Union, ‘The EU in brief’, <https://europa.eu/european-union/about-eu/eu-in-brief_en>, accessed on
11/05/2020.
10 European Commission, ‘Standard Eurobarometer 91: European Citizenship’ (June 2019), p.39.
11 Case C-135/08, Janko Rottmann v Freistaat Bayern (Rottmann) [2010], ECLI:EU:C:2010:104, para. 51. 12 European Commission, ‘Report from the Commission to the European Parliament, the Council, The European
Economic and Social Committee and the Committee of the Regions, Investor Citizenship and Residence Schemes in the European Union’, COM (2019) 12 final (23 January 2019), p.2.
13 La Vida Golden Visas, <https://www.goldenvisas.com/>, accessed on 15/5/2020
14 European Parliamentary Research Service, ‘Citizenship by Investment (CBI) and Residency by Investment
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offer citizenship in exchange for investment, better known as Citizenship by Investment (CBI). Bulgaria, Cyprus and Malta introduced in 2005, 2007 and 2013 respectively broader schemes aimed at attracting investment from third-country nationals by facilitating access to their citizenship. These schemes are a new form of naturalisation as they systematically grant citizenship of the MS concerned, provided the required investment is made and certain criteria are fulfilled (therefore sometimes called the ius pecunia).15
CBI aims to attract investment by offering citizenship in return for a defined amount of money. In Bulgaria, an overall investment of EUR 1 million is requested under its fast-track CBI scheme. In Cyprus, a minimum investment of EUR 2 million is necessary, together with ownership of property in Cyprus. In Malta, a contribution of EUR 650,000 must be paid into a national investment fund, together with an investment of EUR 150,000 and a requirement to own or rent property in Malta. In Cyprus and Malta, additional investments for family members are required.16
At EU level, the CBI schemes have the following typical features: • They are targeted at non-EU nationals;
• They are provided by a clear, delineated process for investors to make an investment in return for citizenship rights;
• These investments can be active (for instance, they require the setting up of a business on the territory that comes with the creation of jobs), or passive (e.g. financial capital is infused into a private company with no requirement to manage the business on a day-to-day basis or it can require a minimum lump sum transferred to government bonds or the property sector);
• They do not necessarily require applicants to spend time on the territory in which the investment is made. 17
• The person in question becomes a citizen of the EU.
These schemes have led to some concerns with the European Parliament (EP) and the European Commission (EC).
These schemes and concerns led to the contemplation whether the principle of proportionality could, beside losing citizenship, also play a role at acquiring national and hence EU citizenship.
15 Supra n 12, p.3. 16 Ibid.
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This leads to the research question of this thesis: To what extent does EU law put limits to acquiring EU citizenship?
This thesis consists of classic legal research, with a descriptive approach from an internal perspective, with inter-disciplinary and qualitative elements. The research object of the thesis is the concept of ‘Citizenship by Investment’, schemes that three of the 27 MS of the Union currently introduced into their nationality law. For the sake of this legal research, the choice has been made to leave the ‘Residency by Investment’ (RBI) programs out of the analysis.
The goal of this legal research is to get a better overview of the relationship between MS’s nationality law and EU law, specifically in the act of acquiring citizenship through investment. For the purpose of this study, the review has been focused on existing legal provisions, secondary resources and literature relevant to the matter of nationality. The secondary resources that have been used are mostly reports from the EU, EP and independent organisations on the CBI matter. The literature is consisting of, inter alia, textbooks on EU law, articles of journals and blogs.
To answer the research question, this thesis will give a summary of relevant caselaw in the first chapter, regarding nationality and EU citizenship in order to get an overview of the existing framework of EU law. The cases that will be discussed, Micheletti, Kaur, Rottmann and Tjebbes, have been considered for this research due to the significant impact they had in shaping nationality law within EU law. In the second chapter, the previously discussed caselaw, relevant EU principles and literature will be examined and compared to the CBI schemes and the legal argumentation that is being used in order to support these programs, in order to discover if EU law puts limits to buying EU citizenship. The findings and recommendations will be discussed in the third and last chapter. The recommendations will be based on a predictive and normative character.
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Chapter 1: Losing European Citizenship
CBI is a considerably new concept. The CJEU has not yet ruled on this matter. This means there is no caselaw about CBI yet, but the Court has ruled on nationality law in the past, more precisely, on losing EU citizenship. This caselaw will briefly be discussed in this chapter, in order to determine if acquiring EU citizenship is proportional in comparison to losing it. The general rule applying to nationality law is that it is a MS competence. However, international law does impose some limitations, e.g. reduce statelessness, prohibit discrimination on various grounds and protect the rights of the child. In Micheletti and Others the question arose whether constraints also exist within the EU context.18
1.1 Micheletti
Mario Vincente Micheletti is a citizen who has both the Argentinian and Italian nationality. The question in this case was raised when Mr. Micheletti applied to the Spanish authorities for a permanent residence card as a national of a MS, in order to start working as a dentist in Spain. The application was dismissed. Mr. Micheletti decided to bring proceedings before the national court for the annulment of the decision of the Spanish authorities and for the recognition of his right to obtain an EU national’s residence card.19 The dismissal of Mr. Micheletti’s application was based on Article 9 of the Spanish Civil Code that stated that in cases of dual nationality where neither nationality is Spanish, the nationality corresponding to the habitual residence of the person concerned before his arrival to Spain is to taken precedence. In Mr. Micheletti’s case this was Argentina, not Italy, and so it concerned the Argentinian nationality.20
The national court referred a question to the CJEU for a preliminary ruling, asking if the provisions of the Treaties, Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the MS, and other secondary law on the freedom of persons and establishment should be interpreted as being compatible and thus allowing the application of national legislation which does not recognize the rights inherent in a person’s status as a national of another MS, just because that person happens to also possess
18 Oliver Vonk, ‘The Court of Justice of the European Union and nationality law: cases of Micheletti, Kaur and
Rottmann’, < https://www.ifuturecitizen.com/post/the-court-of-justice-of-the-european-union-and-nationality-law-the-cases-of-micheletti-kaur-and-ro>, accessed on 04/05/2020.
19 Case C-369/90, Mario Vicente Micheletti and Others v. Delegación del Gobierno en Cantabria, (Micheletti)
[1992], ECLI:EU:C:1992:295, para. 2-4.
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the nationality of a third state and that country was the last place of residence.21 Essentially, what the national court wanted to know was if EU law precludes a MS from denying entitlement of the freedoms to a national of another MS who at the same time is a national of a non-MS country.
In paragraph 10 of the case, the CJEU states that under international law, it is for each MS to lay down the conditions for the acquisition and loss of nationality. However, it is not permissible for the legislation of a MS to restrict the effects of granting the nationality of another MS 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.22
In this case, the Court emphasises that the regulation of nationality is a competence that belongs to the MS, having due regard to EU law. The differences in legislation on nationality should be accepted by other MS, and the principle of mutual recognition must be applied. The CJEU relied on the Nottebohm principle; the principle of effective nationality, which requires for a genuine link between a person and a State in order for a nationality to be an ‘effective nationality’.23
Whenever a MS (Italy), having due regard to EU law, has granted its nationality to a person, another MS (Spain) may not, by imposing an additional condition for its recognition (last residence before coming to Spain), restrict the effects of the grant of that nationality with a view to the exercise of a fundamental freedom provided for in the Treaty, particularly since the consequence of allowing such a possibility would be that the class of persons to whom the EU rules on freedom of establishment were applied might vary from one MS to another.24
1.2 Kaur
Ms. Kaur became a Citizen of the United Kingdom and Colonies under the terms of the British Nationality Act 1948. This status did not distinguish between British people who were UK-based and those who were not. The Commonwealth Immigrants Act 1968 provided in Chapter 9 that from then onwards ‘a British subject was free from immigration control only if he, or at least one of his parents or grandparents, was born, adopted, registered or naturalized in the
21 Ibid, para. 6. 22 Ibid, para. 10.
23 Liechtenstein v. Guatemala (Nottebohm) [1955] International Court of Justice. 24 Case C-369/90 Micheletti.
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United Kingdom’. Due to these law reforms, Ms. Kaur had lost her right of abode in the UK in 1968. 25
In 1981, a new British Nationality Act was drafted which distinguished five different statuses.26 Ms. Kaur became a British Overseas citizen under the 1981 Act.27
In the absence of special authorisation she had no right under national law to enter or remain in the United Kingdom.28 Ms. Kaur re-applied on 4 September 1996 for leave to remain as she already had done on several occasions since 1990 and applied for judicial review of the decision to refuse her leave to remain. On that occasion Ms. Kaur stated that she wished to remain and obtain gainful employment in the United Kingdom and periodically to travel to other MS in order to make purchases of goods and services and, if necessary, to work there.29
The High Court of Justice of England and Wales, referred questions to the Court for a preliminary ruling. The referring court essentially sought to ascertain the relevant criteria for determining whether a person has the nationality of a MS for the purposes of Article 8 of the Treaty and the effect in Community law, if any, of the 1972 and 1982 Declarations.30
Ms. Kaur and Justice submitted that, in accordance with the principle established in
Micheletti and Others, a MS can define the concept of 'national' only if it has due regard to
Community law and, consequently, only if it observes the fundamental rights which form an integral part of Community law. 31 Ms. Kaur claimed that British law infringed fundamental rights by depriving British nationals in a situation as herself of the right to enter the territory of which they were nationals, or of rendering them effectively stateless and she disputed the relevance of the British declarations. The UK and others took the view that, under international
25 Oliver Vonk, ‘The Court of Justice of the EU and nationality law: Kaur’,
<https://www.ifuturecitizen.com/post/the-court-of-justice-of-the-eu-and-nationality-law-kaur> ,accessed on 4/5/2019.
26 Many of these categories are currently disappearing British Overseas Citizenship, British National (Overseas)
Citizenship, British subjects, British protected persons – based on Fransman's British Nationality by Laurie Fransman, published on 30/4/2011.
27 Supra n 25.
28 Case C-192/99, The Queen and Secretary of State for the Home Department, ex parte: Manjit Kaur, (Kaur)
[2001], ECLI:EU:C:2001:106, para. 11.
29 Case C-192/99 Kaur para. 12, 14. 30 Ibid, para. 16.
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law, each State alone can determine the categories of persons that it regards as its nationals. The UK also stressed the importance of its declarations in the light of its colonial past. 32
The Court upheld that the 1972 Declaration must be taken into consideration as an instrument relating to the Treaty for the purpose of its interpretation and for determining the scope of the Treaty ratione personae. Although unilateral, this declaration was intended to clarify an issue of particular importance for the other Contracting Parties inasmuch as it was intended to define those United Kingdom nationals who would benefit from the provisions of the Treaty and, in particular, from the provisions relating to the free movement of persons. 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 but rather had the consequence that such rights never arose in the first place for such a person. Reference must be made to the 1982 Declaration on the definition of the term nationals in order to determine whether a person is a national of the United Kingdom of Great Britain and Northern Ireland for the purposes of Community law.33
The CJEU says that, under international law, it is up to each MS, having due regard EU law, to lay down the conditions for the acquisition and loss of nationality.34
1.3 Rottmann
Janko Rottmann was an Austrian national by birth who acquired German nationality through naturalisation in 1999, thereby losing his Austrian nationality. However, during the naturalisation procedure he had not mentioned that he was the subject of criminal proceedings in Austria. Only after his naturalisation the German authorities were informed of Mr. Rottmann being subject to criminal proceedings, and that Austria had issued a warrant for his arrest in 1997. In the light of those circumstances, Mr. Rottmann’s naturalisation was withdrawn with retroactive effect on the ground of deception. As he had lost his Austrian nationality upon naturalisation in Germany, the withdrawal of the German naturalisation not only rendered him stateless, but also provoked the loss of European citizenship. The preliminary question submitted by the German court asked whether it was contrary to EU law that Rottmann lost his European citizenship as a result of the combined effect of the lawful withdrawal of his
32 Supra n 25.
33 Case C-192/99, Kaur, para. 23-27.
34 Catherine Barnard, The Substantive Law of the EU: The four freedoms (fifth edition Oxford 2016) p. 208,
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naturalisation by the German authorities and the non-automatic recovery of his original Austrian nationality. 35
The CJEU reminded that according to Micheletti and Others, paragraph 10, it is for each MS, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality.36 It proceeded to state that the situation of a citizen of the EU who is faced with a decision withdrawing his naturalisation, adopted by the authorities of one MS, and placing him, after he has lost the nationality of another MS that he originally possessed, in a position capable of causing him to lose the status conferred by Article 20 TFEU and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of EU law.37 The situation in this case would seem as a wholly internal situation to Germany where EU law does not apply, but the CJEU argued differently. In paragraph 41 it said that even where a matter falls under the competence of a MS, ‘in situations covered by EU law’ the national rules must ‘have regard for EU law’. In paragraph 42 the CJEU decides that, although nationality law falls within the competence of the MS, the loss of citizenship and therefore the consequence of a loss of European citizenship, brought the situation of Mr. Rottmann within the scope of EU law. Since the decision of the German authorities could render Mr. Rottmann stateless, and thereby depriving him his status and rights as an EU citizen, the situation fell under the scope of EU law.38 The proviso that due regard must be had to EU law does not compromise the principle of international law previously recognised by the Court, that the MS have the power to lay down the conditions for the acquisition and loss of nationality, but rather enshrines the principle that, in respect of citizens of the Union, the exercise of that power, in so far as it affects the rights conferred and protected by the legal order of the Union, is amenable to judicial review carried out in the light of EU law.39
A decision withdrawing naturalisation because of deception corresponds to a reason relating to the public interest. In this regard, it is a legitimate concern for a MS to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the
35 Oliver Vonk, ‘The Court of Justice of the EU and nationality law: Rottmann’,
<https://www.ifuturecitizen.com/post/the-court-of-justice-of-the-eu-and-nationality-law-rottmann>, accessed on 09/05/2020.
36 Case C-135/08 Rottmann, para. 39. 37 Ibid, para. 42.
38 Catherine Barnard & Steven Peers, European Union Law (second edition Oxford 2017) p. 373, refers to Case
Rottmann, para. 41.
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reciprocity of rights and duties, which form the bedrock of the bond of nationality. That consideration on the legitimacy, in principle, of a decision withdrawing naturalisation on account of deception remains, in theory, valid when the consequence of that withdrawal is that the person in question loses, in addition to the nationality of the MS of naturalisation, citizenship of the Union.40
It is, however, for the national court to ascertain whether the withdrawal decision observes the principle of proportionality so far as regarding the consequences it entails for the situation of the person concerned in the light of EU law, in addition, where appropriate, to examining the proportionality of the decision in the light of national law. Having regard to the importance which primary law attaches to the status of citizen of the EU, when examining a decision withdrawing naturalisation it is necessary to take into account the consequences that the decision entails for the person concerned. If relevant, as well for the members of his family with regard to the loss of the rights enjoyed by every citizen of the Union, and to establish three different aspects of the principle, that loss is justified:
• in relation to the gravity of the offence committed by that person,
• to the lapse of time between the naturalisation decision and the withdrawal decision and,
• to whether it is possible for that person to recover his original nationality.41 The CJEU held that it is not contrary to EU law for a MS to withdraw from a citizen of the Union the nationality of that State acquired by naturalisation when that nationality was obtained by deception, on condition that the decision to withdraw observes the principle of proportionality.
What this case has shown is that, although nationality law is not a competence of the EU and it is up to States to lay down the conditions for the acquisition and loss of nationality, it can fall within the scope of EU law. It also introduced a proportionality test to examining the proportionality of the withdrawal decision made in the light of national law. Having regard to the importance which primary law attaches to the status of citizen of the EU, when examining a decision withdrawing naturalisation, it is necessary to take into account the consequences that the decision entails for the person concerned with regard to the loss of the rights enjoyed by
40 Ibid, para. 51. 41 Ibid, para. 54-56.
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every citizen of the Union, and to establish whether that loss is justified in relation to the gravity of the offence committed by that person.42
1.4 Tjebbes
Ms. Tjebbes and three other applicants lodged appeals against the rulings delivered by the District Court in The Hague, after their passport applications were not examined by the Minister of Foreign Affairs. The Ministry argued that the applicants had lost the Dutch nationality. The District Court declared their actions unfounded.43 This led to the referring court, the Council of State, asking whether Articles 20 and 21 TFEU must be interpreted as precluding legislation of a MS about nationality. Precluding could possibly provide for the loss of the nationality of that MS by operation of law. This entails, in the case of persons who are not also nationals of another MS, the loss of their citizenship of the Union.44
As mentioned by the Advocate General (AG) in paragraphs 53 and 55 of his Opinion, when exercising its competence to lay down the conditions for acquisition and loss of nationality, it is legitimate for a MS to take the view that nationality is the expression of a genuine link between it and its nationals, and therefore to prescribe that the absence, or the loss, of any such genuine link entails the loss of nationality. It is also legitimate for a MS to wish to protect the unity of nationality within the same family.45
In that regard, a criterion such as that laid down in Article 15(1)(c) of the Dutch law on Nationality, which is based on the habitual residence of nationals of the Kingdom of the Netherlands, for an uninterrupted period of 10 years, outside that MS and outside the territories to which the EU Treaty applies, may be regarded as an indication that there is no such link. Similarly, as stated by the Dutch Government with regard to Article 16(1)(d) of that law, the lack of a genuine link between the parents of a child who is a minor and the Kingdom of the Netherlands can be understood, in principle, as a lack of a genuine link between the child and that MS.46
42 Ibid.
43 Case C-221/17, M.G. Tjebbes, G.J.M. Koopman, E. Saleh Abady, L. Duboux v Minister van Buitenlandse
Zaken, (Tjebbes) [2019], ECLI:EU:C:2019:189, para. 17-18.
44 Ibid, para. 27. 45 Ibid, para. 35. 46 Ibid, para. 36.
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The legitimacy of the loss of the nationality of a MS in those situations is supported by the provisions of Article 6 and Article 7(3) to (6) of the United Nations Convention on the Reduction of Statelessness which provide that, a person may lose the nationality of a Contracting State in so far as he does not become stateless. The risk of becoming stateless is precluded, in the present case, by the national provisions at issue in the main proceedings, given that their application is conditional on the possession by the person concerned of the nationality of another State (be it an EU MS or a third country) in addition to Netherlands nationality. Similarly, Article 7(1)(e) and (2) of the Convention on Nationality provides that a State Party may provide for the loss of its nationality, inter alia, in the case of an adult, where there is no genuine link between that State and a national habitually residing abroad and, in the case of a minor, for children whose parents lose the nationality of that State.47
Under circumstancesas those referred to in Article 15(1)(c) of the Law on Nationality and Article 16(1)(d), EU law does not preclude that a MS prescribes for reasons of public interest the loss of its nationality, even if that loss will entail, for the person concerned, the loss of his or her citizenship of the Union.48
However, it is for the competent national authorities and the national courts to determine whether the loss of the nationality of the MS concerned, has due regard to the principle of
proportionality. The CJEU repeats what was established in Rottmann.49
The loss of the nationality of a MS by operation of law would be inconsistent with the principle of proportionality if the relevant national rules did not permit at any time an individual
examination of the consequences of that loss for the persons concerned from the point of view
of EU law. 50
It follows that, in a situation such as that at issue in the main proceedings, in which the loss of the nationality of a MS arises by operation of law and entails the loss of citizenship of the Union, the competent national authorities and courts must be in a position to examine, as an ancillary issue, the consequences of the loss of that nationality and, where appropriate, to have the person concerned recover his or her nationality ex tunc in the context of an application by that person for a travel document or any other document showing his or her nationality.51
47 Ibid, para. 37. 48 Ibid, para. 39. 49 Ibid, para. 40. 50 Ibid, para. 41. 51 Ibid, para. 42.
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The CJEU followed a different view from the AG. The AG characterised nationality law as part of the national identity of the MS, to be respected under Article 4(2) TEU.52
While the measure clearly fell within EU law, this was restricted to assessing the proportionality of the legislative measure in general and not an individual examination of each administrative decision.53 Requiring national courts to do this would expose individuals to situations of legal uncertainty. To do otherwise would involve the Court in assessing the criteria selected by MS when determining whether an individual had a genuine link or not to the MS concerned.54
Having made this determination, AG Mengozzi found that the ten-year rule did pursue a genuine public interest i.e. maintaining a genuine link between the individual citizen and the relevant MS and was proportionate, particularly in light of the ease with which the ten-year period could be interrupted.55 The rule relating to children of adult citizens denaturalised by
virtue of the ten-year rule was disproportionate in that it went beyond what was necessary to secure the public interest of restoring unity of nationality within the family while taking into account the best interests of the child.
The AG proposed that the answer to the second part of the question should be that Article 20 TFEU and Article 24 of the Charter preclude a legislative provision such as the provisions of the Law on Nationality, under which, save in exceptional cases, a minor loses, by operation of law, the nationality of his or her Member State and consequently loses citizenship of the Union, as a result of the loss of nationality by his or her parent. 56^57
After the Court’s judgment, the Raad van State (Council of State) decided on 12 February 2020 that the Minister of Foreign Affairs had to investigate for the six applicants in
Tjebbes what the consequences of the loss of their Dutch citizenship, and thus the loss of their
citizenship of the EU are within a period of four months.
If it turned out that these consequences are "disproportionate from the point of view of EU law", the applicants should be able to retroactively become Dutch nationals.
52 Case C-221/17 Tjebbes (Opinion of AG Mengozzi), para. 107. 53 Ibid, para. 118.
54 Ibid, para. 113-114. 55 Ibid, para. 119-127.
56 Stephen Coutts, ‘Bold and Thoughtful: The Court of Justice intervenes in nationality law Case C-221/17
Tjebbes’, < https://europeanlawblog.eu/2019/03/25/bold-and-thoughtful-the-court-of-justice-intervenes-in-nationality-law-case-c-221-17-tjebbes/>, accessed on 22/7/2020.
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The Council concluded that, on the basis of the principle of proportionality, the minister must be able to assess the concrete consequences if someone loses Dutch nationality, and with that also EU citizenship. The RWN (Law on Nationality) currently does not provide the minister with any room for this, because the law assumes an automatic loss of nationality. That is why the minister must provisionally base this assessment on the European treaty article that regulates EU citizenship (article 20 TFEU), pending an amendment to the RWN.58
In this first chapter, we have seen that the CJEU has said in Micheletti and Others that nationality is a MS competence, having due regard to EU law. The different legislation on nationality should be applied in the light of mutual recognition. This was repeated in Kaur, adding that it is up to each MS to lay down the conditions for the acquisition and loss of nationality.59 The Union does not deviate from the solution adopted in international law which
it considers to be a ‘principle of customary international law’.60
Rottmann showed that, although nationality law is not a competence of the EU, it can
fall within the scope of EU law. It also introduced a proportionality test to examining the proportionality of the withdrawal decision made in the light of national law. Tjebbes repeats
Rottmann and adds that the competent national authorities and courts must be in a position to
examine the cases on an individual basis and thereby examine the consequences of the loss of that nationality and, where appropriate, to have the person concerned recover his or her nationality ex tunc in the context of an application by that person for a travel document or any other document showing his or her nationality.
As defined by the International Court of Justice in the Nottebohm case (1955), citizenship 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' and this has been used by the CJEU as well.61^62
58 Final judgment of the Raad van State in Tjebbes (ECLI_NL_RVS_2020_423). 59 Supra n 34.
60 Case C-135/08 Rottmann (Opinion of AG Poiares Maduro), para. 19 refers to Kaur, para. 20. 61 Nottebohm, page 23.
62 European Parliamentary Research Service, ‘Acquisition and loss of citizenship in EU Member States’, briefing
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Chapter 2: Limits set by EU law
Selling passports has an evident European dimension. What the three MS actually sell is not only their own nationality, but also the supranational status enshrined in citizenship of the Union. Any person holding the nationality of a MS is a European citizen and enjoys the rights attached to it, such as the freedom to move and reside within the territory of the Union.63
2.1 The CBI programs in three MS
‘Golden passports’ offer fast-track citizenship to foreign nationals in exchange for their substantial investment in the country. For EU governments, these schemes are a low-cost method of generating substantial inward investment. For the wealthy elite, they are a means of securing the right to live, work and travel throughout the EU with ease and also family
reunification.
By virtue of these schemes, citizenship and residency rights have been turned into luxury commodities.64 Cyprus introduced in mid-2013 a new investor citizenship program. The Cypriot Scheme for Naturalisation of Investors provides a fast-track acquisition of nationality. The applicant must hold a permanent privately-owned residence on Cyprus, with a value of at least €500.000,-. 65 The applicant must also have visited Cyprus at least once, possess a clean
criminal record and must not be included on the list of persons whose property is ordered to be frozen within the boundaries of the Union.66
The Bulgarian investor citizenship program was also adopted in 2013. Under this scheme, foreign applicants who have been granted a permanent investor residency permit, will acquire Bulgarian citizenship without demonstrating Bulgarian language proficiency or renouncing any other nationality. The applicant will under the investors’ scheme be eligible for naturalisation without need to comply with the period of 5 years residency applicable to all the rest of applicants to be granted with long-term stay and naturalisation in Bulgaria.67 Bulgaria is the only country out of these three that does not allow dual citizenship.68
63 Sergio Carrera, ‘How much does EU citizenship cost? The Maltese citizenship-for-sale affair: A breakthrough
for sincere cooperation in citizenship of the union?’, CEPS Paper in Liberty and Security in Europe, no.64/April 2014, p.1.
64 Transparency International & Global Witness, ‘European Getaway: Inside the Murky world of golden visas.’,
(2018)., p.18.
65 Supra n 63, p.40. 66 Supra n 62, p.8. 67 Supra n 63, p.10. 68 Supra n 62, p.4.
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In Malta, the Individual Investor Program was introduced in 2013 as well and claims that 70% of the investment money will go to a National Development and Social Fund, which according to Maltese law, “shall be used in the public interest inter alia for the advancement of education, research, innovation, social purposes, justice and rule of law, employment activities, the environment and public health”69. The Maltese scheme did not
require the investors to take up residence in Malta or to comply with any other naturalization conditions. Following criticism from the European Parliament and the European Commission, Malta later amended its scheme to introduce a residential requirement (one year).70
The price tags that come with these programs are the following: Malta: +/-€1.15 million; Cyprus: +/-€2 and €5 million; and Bulgaria: +/-€500,000.71
2.2 Critique coming from the EU
The Commission Directorate General for Justice, Fundamental Rights and Citizenship was considering the feasibility of launching infringement proceedings against Malta, which followed the adoption of a EP Resolution on 16 January 201472 where an overwhelming majority of MEPs voted against the Maltese scheme and the outright sale of citizenship of the Union.73
The resolution expressed concerns about the regulations under the Maltese Citizenship Act which allowed investors to be eligible for naturalisation in return for investment alone. The resolution, while recognising that issues pertaining to nationality are the competence of the MS, called on the EC, as the guardian of the Treaties, to state whether these schemes respect the letter and spirit of the Treaties and the Schengen Borders Code, as well as the EU rules on non-discrimination.
It underlined in particular that EU citizenship implies the holding of a stake in the Union and depends on a person’s ties with Europe and the MS or on personal ties with EU citizens. It also refers to Article 4(3) of the Treaty on European Union (TEU) which enshrines the principle of ‘sincere cooperation’ between the Union and the MS.
69 Paragraph 13.2, Individual Investor Programme of the Republic of Malta Regulations, 2014, Maltese
Citizenship Act (CAP. 188), L.N. 47 of 2014.
70 Supra n 62, p.8. 71 Supra n 63, p.11.
72 P7_TA (2014)0038 ‘EU citizenship for sale’ European Parliament resolution of 16 January 2014 on EU
citizenship for sale (2013/2995(RSP)).
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The resolution further called on the EC to assess the various citizenship schemes in the light of European values and the letter and spirit of EU legislation and practice, and to issue recommendations in order to prevent such schemes from undermining the values that the EU has been built upon, as well as guidelines for access to EU citizenship via national schemes.74
The EP criticised the Maltese program on a number of grounds: citizenship should not be a tradable commodity and “cannot have a price tag attached to it”75, citizenship should
depend on people having ties with the EU or ties with an EU citizen, and the program privileges rich people over the poor, and therefore raises issues of non-discrimination as it allows only the richest third-country nationals to obtain EU citizenship, ‘without any other criteria being considered’. The EP Resolution put special emphasis on the need for MS to be careful when exercising their national competences on matters of residency and citizenship and “to take possible side-effects into account”.76
During the EP’s Plenary Session debate on the 15 January 2014 the EP stated the following: “in compliance with the criterion used under public international law, MS should only award citizenship to persons where there is a “genuine link” or “genuine connection” to the country in question”77.
The EP’s Resolution on EU Citizenship for Sale of 16 January 2014 underlined that “EU citizenship implies the holding of a stake in the Union and depends on a person’s ties with Europe and the MS or on personal ties with EU citizens”.78
Questions about the matter were once again raised in the EP in January 2019. The EC was asked whether the EC planned to draft common legislation to ensure that divergent national rules on obtaining EU citizenship do not exist and if the EC planned to take specific steps to prevent MS from getting rich through selling citizenship.79
74 European Commission, Follow-up to the European Parliament resolution on EU citizenship for sale, adopted
by the Commission on 2 April 2014.
75 Supra n 72, point K
76 Supra n 63, p.7, see Supra n 71.
77 European Parliament, Plenary Session debate of the European Parliament on 'EU citizenship for sale' 15
January 2014 , Strasbourg, Speech: Citizenship must not be up for sale, <https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_14_18>.
78 Supra n 14, p.24.
79 European Parliament, ‘Question for written answer E-000074/2019to the Commission on EU citizenship for
sale.’ on 9 January 2019 < https://www.europarl.europa.eu/doceo/document/E-8-2019-000074_EN.html>, accessed on 15/4/2020.
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The EC informed that on 23 January 2019, the EC adopted its Report on Investor Citizenship and Residence Schemes in the European Union.80 The report contains a comprehensive, factual overview of all such schemes in the EU. It also sets out the risks inherent in such schemes, in particular as regards security, money laundering, tax evasion and corruption.
As a next step, the EC continued, there will be set up a group of experts from the MS to investigate the specific risks that arise from CBI schemes. With a view to improving the information available about such schemes and strengthening their supervision, the group of experts from the MS will address aspects of transparency and good governance regarding the implementation of both investor citizenship and residence schemes. The group of experts should also develop by the end of 2019 a common set of security checks for investor citizenship schemes, including risk management processes that take into account security, money laundering, tax evasion and corruption risks.81 The EC set up the group of experts from the MS
to:
• look at the specific risks arising from investor citizenship schemes;
• develop a common set of security checks, including risk management processes that take into account security, money-laundering, tax evasion and corruption risks, by the end of 2019; and
• address the aspects of transparency and good governance with regard to the implementation of both investor citizenship and residence schemes.
The group met on 5 April 2019, 8 July 2019, 2 October 2019 and 11 December 2019. The next meetings of the group will be announced in due course.82 The agendas for the meetings, as they become available, and further information on the activities of the group can be found on the website.83
80 Supra n 12.
81 European Commission, answer to question E-000074/2019, 9 April 2019,
<https://www.europarl.europa.eu/doceo/document/E-8-2019-000074-ASW_EN.html>, accessed on 16/4/2020.
82 European Commission, ‘Investor Citizenship Schemes’, <
https://ec.europa.eu/info/investor-citizenship-schemes_en>, accessed on 20/7/2020.
83 European Commission, ‘Activities of the Group of Member State Experts on Investor Citizenship and
Residence Schemes’,< https://ec.europa.eu/info/policies/justice-and-fundamental-rights/eu-citizenship/eu-citizenship/activities-group-member-state-experts-investor-citizenship-and-residence-schemes_en>, accessed on 20/7/2020.
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2.3 Problems with CBI programs
As the Greek Presidency representative said84:
…it is important to remind ourselves that EU citizenship is additional to and clearly does not replace national citizenship...there is no harmonization of national legislation in this field. The conditions for acquiring and losing EU citizenship depend directly on the conditions for acquiring/losing nationality of individual member states...It also has an autonomous character stemming from the EU legal order, so member states need to exercise their powers in accordance to the Treaties… MS must have mutual trust to recognise different national provisions governing naturalisation.85
The main EU objective at risk by the CBI programs is the very status of citizenship of the Union. The Preamble of TEU stipulates MS’ commitment to ‘resolve to establish a citizenship common to nationals of their countries’. This sentence needs to be read along with the Union’s objectives outlined in Article 3 TEU, Part Two of TFEU, and Title V of the EU Charter of Fundamental Rights (Citizens Rights).86
Bulgaria, Cyprus and Malta are taking advantage of the margin of manoeuvre of the EU on questions of acquisition and loss of nationality, to design strategic nationality and attractive migration schemes for their own economic advantages and national interests.87
Some believe that the schemes pose a threat to the meaning of citizenship itself, being it national or EU citizenship. Many argue that citizenship is a public good, not a commodity for the open market.88 According to this school of thought, citizenship is an active duty and a critical building block in the development of a democratic community that should not be sold to the passive, footloose and mobile investor.89
Tagging a price to citizenship of the Union jeopardizes the substance of citizenship of the Union and its common nature to nationals of EU countries. Allowing the richest third-country nationals to obtain fast-track EU citizenship can be considered to be discriminatory in nature and raise issues of non-discrimination, because it allows only the richest third-country
84 During the European Parliament Strasbourg Plenary Session of 15 January 2014. 85 Supra n 63, p.7.
86 Ibid, p.26. 87 Ibid, p.16. 88 Ibid, p.7. 89 Supra n 64, p.19
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nationals to obtain EU citizenship, ‘without any other criteria being considered’, while people with less resources have to comply with stricter criteria in order to be considered. 90^91
Apart from the ethical dilemmas that arise, there are also other concerns that might arise or have already resulted from CBI and RBI. Concerns raised are about certain inherent risks, in particular as regards security, money laundering, tax evasion and corruption.92
The commercialisation of EU citizenship went even one step further by introducing a private-sector actor as the intermediary between the State and foreigners seeking to purchase citizenship in Malta. The companies that are put in the position of ‘recruiting’ buyers, anticipate that what will attract customers is the possibility to move and live in some other MS.93
Third-country nationals may invest in a MS for legitimate reasons, but may also be pursuing illegitimate ends, such as evading law enforcement investigation and prosecution in their home country and protecting their assets from the related freezing and confiscation measures. Hence CBI and RBI create a range of risks for MS and for the EU as a whole: in particular, risks to security, including the possibility of infiltration of non-EU organized crime groups, as well as risks of money laundering, corruption and tax evasion. Such risks are exacerbated by the cross-border rights associated with citizenship of the Union or residence in a MS. There is also a concern around lack of transparency and governance of the schemes.94
2.4 Status of citizenship in the EU
EU citizenship is destined to be the fundamental status of nationals of the MS, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.95 The establishment of citizenship of the EU was added to the EC Treaty by the Maastricht Treaty in 1992 and listed a number of specific rights which citizens can enjoy.96 Article 20(1) TFEU makes it clear that every person holding the nationality of a MS shall be a citizen of the
90 Supra n 63, p.7. 91 Ibid, p.26. 92 Supra n 12, p.1. 93 Supra n 63, p.25. 94 Supra n 12, p.9-10.
95 Case C-184/99, Grzelczyk [2001] ECLI:EU:C:2001:458, para. 31. 96 Supra n 34, p.325.
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EU as well and that citizenship of the Union does not replace national citizenship, but is an addition to it.
Dimitry Kochenov argues that, precisely because EU citizenship is ultimately a secondary status, the power of the MS is severely weakened, since while each one of them taken separately can have an illusion that it controls access to EU citizenship, taken together, they do not, as long as the naturalisation regimes are not harmonized. Huge disparities between the citizenship laws of all the MS all lead to the acquisition of the same status of European citizenship, which has effectively overtaken the majority of the main attributes of nationality from the national level. In failing to regulate the issue of access to EU citizenship effectively, the MS opted for illusion of control rather than solution of outstanding problems.97 He continues by saying that in the light of these considerations, the legislation of the MS requiring the denunciation of the previous MS’s nationality at naturalisation undermines the fundamental status of European citizenship and underscores the level of integration practically existing between the MS. It is submitted that even without EU’s intervention, as it is potentially not empowered to act in this field, more and more MS keeping the requirement on the books will either abolish this requirement altogether, or follow the German and Slovenian example, and applying the renunciation requirement to third countries’ nationalities only.98
I do not agree with Kochenov’s view, when he says that the MS live in an illusion where they believe they have control over their nationality laws, while in reality, according to Kochenov, they do not have any control. I find it interesting that he somehow suggests to harmonize the national laws, in order for the MS to gain control again on the matter of nationality, while I consider that nationality law continues to be a core element of national sovereignty and that it is the reason for not harmonizing the nationality laws within the EU.
2.5 Does current EU law provide boundaries to CBI?
The principle of applicability of EU law is equally applicable to the acquisition of nationality as to losing it. As mentioned under ‘2.3: Problems with CBI’, tagging a price to citizenship jeopardizes the substance of EU citizenship Allowing the richest third-country nationals to obtain fast-track EU citizenship can be considered to be discriminatory in nature and raise issues of non-discrimination, because it allows only the richest third-country nationals to obtain EU
97 Dimitry Kochenov, ‘Double Nationality in the EU: An Argument for Tolerance’, European Law Journal, Vol.
17, No. 3, (May 2011) p.336.
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citizenship, ‘without any other criteria being considered’, while people with less resources have to comply with stricter criteria in order to be considered. Article 18 TFEU states that within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. CBI is not based on the nationality of the applicants, but on their social status. This means article 18 TFEU does not apply to CBI, but according to article 21 of the Charter of Fundamental Rights of the EU any discrimination shall be prohibited, also discrimination based on social origin. The EP and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination. Could this provision provide a way of containing the CBI schemes in the EU?
As Craig and de Búrca (2011) have pointed out, the Court has often emphasized that the “...duty of genuine cooperation is of general application and does not depend either on whether the Community competence is exclusive, or on any right of the Member State to enter into obligations towards non-member countries”.99
Directive 2003/109 concerns the status of third-country nationals who are long-term residents. Directive 2003/109 has harmonized at EU level a common status of long-term resident third-country national. A common set of rules apply for granting long-term residency status to third-country nationals. The first and main criterion being that the third-country nationals must have resided legally and continuously for a period of five years in the territory of a MS. They must also be able to financially support themselves and their family members and have done so throughout that period. They must have all-risk health insurance and, if the MS so requires, they have to comply with integration measures. They should not constitute a threat to public policy or public security. Once acquired, long-term residency status gives the holder the right to move and reside anywhere in the EU provided that they can pay for themselves. Access to employment can be made subject to restrictions.100
Because the five-year residence requirement is now contained in EU secondary legislation, it cannot be applied as flexibly as MS’ national provisions.
The Luxembourg Court is ultimately responsible for the correct application and interpretation of Directive 2003/109 and a MS’s application of the Directive which would
99 P. Craig and G. de Búrca, EU Law: Text, Cases and Materials (6th Edition, Oxford: Oxford University Press
2015), p.377, refers to case C-266/03 Commission v. Luxemburg, [2005], ECLI:EU:C:2005:341, para. 58.
100 Council Directive (EC) 2003/109 concerning the status of third-country nationals who are long-term residents
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defeat its objective by giving third-country nationals a golden passport much sooner than after five years, that is to say to ensure that third-country nationals obtain long-term residency status after five years residence in a MS, would surely be anathema to the Court.101
By attaching a higher value to the applicants’ wallet, RBI may even undermine one of the main goals of the EU long-term residence Directive, which frames the five years of residence in the territory of a MS as the most relevant criterion for acquiring the status of long-term resident. The Directive does not foresee the possibility of MS selling long-long-term residency status. While some MS sell residency status and may even call it ‘permanent’ under their respective national laws, if the conditions of the Directive are not fulfilled then the status cannot be EU permanent residency status in light of Directive 2003/109, which means the right to move and live in other MS can not be given to the holder. The consequence is that the purchase of RBI in one MS does not have any impact on other MS until the purchaser has lived for five years in the first MS and fulfilled the conditions of the Directive that apply to the acquisition of EU permanent residence status.102
2.5.1 Genuine link
The EU institutions also argue that these programs should include a ‘genuine link’ criterion. A study done by the EC103looked for other factors, besides physical residence, which might arguably create a link between the applicant for citizenship and the country concerned. In Bulgaria, the applicant must undergo an application interview, but is exempt from the conditions of being proficient in the Bulgarian language or from showing knowledge of Bulgarian public life. The Cypriot authorities consider that the investment in Cyprus is itself an enough bond between the applicant and Cyprus. It is to be noted that, under the relevant Cypriot Council of Ministers decision, the residence criterion required under its ordinary naturalisation procedure is replaced by an investment criterion. Applicants for Maltese citizenship in the final stage of the naturalisation process are asked about their links with Malta. Applicants are asked to have boarding passes showing travel to Malta, and if they have other evidence, for instance, donations to charitable organisations in Malta, membership of a local sports, cultural or social club or pay income tax to the Maltese Inland Revenue Department. Applicants are also
101 Supra n 63, p.18-19. 102 Ibid.
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encouraged to set up a business in Malta.104 It seems like the MS believe they meet the requirement of a genuine link through these requirements.
What are the exact grounds for determining that a link is de facto ‘genuine’? Could the argument that Ms. Kaur had a genuine link with the UK not be made? E. Guild hints to the ways in which states have misused the genuine link requirement in order to exclude certain groups of people from their citizenship and security of residence status in a manner contrary to non-discrimination on the basis of race and ethnicity.105
Kaur is one example. The European Commission of Human Rights of the Council of
Europe declared the Act in Kaur to be contrary to Article 3 of the European Convention of Human Rights, i.e. inhuman and degrading treatment by discriminating on the basis of race or color. This did not preclude the UK from passing the British Nationality Act in 1981 and re-allocating citizenship to those persons presenting ‘a link’ to the UK which was dependent on whether a parent was born in the UK, and therefore categorised Ms. Kaur as ‘British Overseas Citizens’ without a right of residence and falling outside the meaning of UK nationals for the purposes of Union citizenship law.106 Compared to the requirements in place
by the three CBI States, Ms. Kaur had a greater genuine link than the persons meeting the requirements of the MS, which leads me to think that the principle of genuine link might not form a boundary to CBI.
A possible danger, as Sergio Carrera argued, by framing EU citizenship in terms of a genuine rather than formal link, is that the EU may indirectly encourage MS to misuse the idea of genuine link in order to legitimise nationalistic and exclusionary citizenship policies.107
Based on Nottebohm, I would argue that the idea of selling citizenship goes against the idea of the need for a person to have a genuine link to the State it is buying its nationality from. It is my belief that such schemes have implications for the EU as a whole, as every person holding the nationality of a MS is at the same time a citizen of the Union. Although these are national schemes, they are deliberately marketed and often explicitly advertised as a means of acquiring Union citizenship, together with all the rights and privileges associated with it,
104 Supra n 12, p.4.
105 E. Guild, ‘The Legal Elements of European Identity: EU Citizenship and Migration Law’, The Hague:
Kluwer Law International, Chapter 4 (The Residence/Citizenship Nexus), pp.68-81.
106 Supra n 63, p.27. 107 Supra n 62, p.9.
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including in particular the right to free movement. 108 As an EU citizen these practices feel a bit unethical to me.
2.5.2 Principle of sincere cooperation
In accordance with Article 4(3) TEU, the principle of sincere cooperation, the EU and the MS shall assist each other in carrying out tasks that flow from the Treaties. The MS 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 MS shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.109 The CJEU has considered the principle as a key component of the EU legal system, lying at its core basis, and as a duty of general application across the various areas of European law.110
In the AG Opinion of the Rottmann ruling, AG Pioares Maduro points out that the principle sincere cooperation could be affected if a MS were to carry out, without consulting the EC or its partners, an unjustified mass naturalisation.111
The lack of the genuine link was viewed by European institution as a violation of the EU principle of sincere cooperation.112 But not everyone agrees with this reasoning of infringing Article 4(3) by putting EU citizenship out for sale. Jo Shaw states that the case for a legal obligation under the Treaties to moderate this type of national citizenship policy seems rather weak. It may be a mercantilist practice, but it is not arbitrary according to the norms of EU law.113 The effects of the programs would be marginal in terms of number and thus have little impact in other MS, so the suggestion AG Maduro makes in his Opinion would not be applicable.
I wonder if the argumentation of sincere cooperation would hold in Court, since the CJEU established in Micheletti that as long as a MS acknowledges someone as its citizen, other
108 Supra n 12, p.1. 109 Article 4(3) TEU
110 Case 43/75 Defrenne v Société Anonyme Belge de Navigation Aérienne Sabena [1976] ECLI:EU:C:1976:56,
para. 28.
111 Case C-135-08, Rottmann (Opinion AG Poiares Maduro), para. 30. 112 Supra n 62, p.31.
113 Jo Shaw, ‘Citizenship for sale: Could and Should the EU Intervene?’, in A. Shachar and R. Baübock (eds),
Should Citizenship be for Sale?, EUI Working Papers, RSCAS 2014/01, Robert Schuman Centre for Advanced
29
MS are not allowed to question that decision. If we would apply this to the CBI programs, this would mean that it is up to the MS to decide on who, when and how people can qualify for their citizenship and it should not be questioned by others. On the other hand, the lack of the genuine link is seen as a violation of sincere cooperation. I understand that view.
It is legitimate for a MS to take the view that nationality is the expression of a genuine link between it and its nationals, and therefore to prescribe that the absence, or the loss, of any such genuine link entails the loss of nationality or, in the case of CBI, the refusal of granting the nationality. By not respecting the condition of having a link, you are ignoring caselaw (Nottebohm) and recognition that exist and therefore infringing article 4(3)TEU.
2.5.3 Principle of proportionality
In the context of losing EU citizenship, the principle of proportionality in relation to citizenship was for the first time introduced by the Court in Rottmann. The CJEU stated that the loss of EU citizenship falls ‘by reason of its nature and its consequences, within the ambit EU law’ and thus invited national courts to apply a proportionality test to establish whether that loss of citizenship was justified.114 That examination requires an individual assessment of the situation
of the person concerned and that of his or her family as Tjebbes made clear. This needs to happen in order to determine whether the consequences of the loss might, with regard to 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.115
In Rottmann the CJEU mentioned that the acquisition and loss of nationality was purely a matter of national law, but then stated that the fact that a matter falls within the competence of the MS does not alter the fact that, in situations covered by EU law, the national rules concerned must have due regard to the latter.116 EU law applied to a national decision on the loss of MS’ nationality, because it caused the person concerned to lose his status as an EU citizen.117
114 Supra n 62, p.8.
115 Case C-221/17 Tjebbes, para. 44. 116 Case C-135/08 Rottmann para. 41.
117 Steven Peers, ‘Want to be an EU citizen? Show me the money!’, 28 January 2014,
<http://eulawanalysis.blogspot.com/2014/01/want-to-be-eu-citizen-show-me-money.html>, accessed on 07/06/2020.
