Pirates of the Mediterranean meet judges of the Kirchberg: the CJEU rules on Malta’s investor citizenship law

 

Steve Peers, Professor of Law, Royal Holloway University of London*

Photo credit: Aldo Ardetti, via Wikimedia Commons

*Thanks to Justin Borg-Barthet for corsair quote

**This blog post builds on research for the upcoming third edition of The EU Citizenship Directive: A Commentary, by Elspeth Guild, Steve Peers and Jonathan Tomkin (OUP, 2026)

 

Defending his country’s investor citizenship policy, a former Prime Minister of Malta once defined his homeland as a nation of ‘corsairs’, offering an explanation based on the legality (or not) of buccaneering behaviour:

“The difference between pirates and corsairs is that pirates do things illegally while corsairs have a license to do things that are on the brink of what is acceptable by the mainstream.”

Nevertheless, the Court of Justice of the EU has now ruled that the Maltese investor citizenship policy is a breach of EU law. So the Maltese government are pirates after all. Or are they? Is the real swashbuckling lawlessness here in fact the foray of the Luxembourg judges deep into the waters of Member States’ powers, to seize as treasure national competence which is plainly not theirs?

Background

According to the Declaration on nationality of a Member State, attached to the original TEU (the Maastricht Treaty):

The Conference declares that, wherever in the Treaty establishing the European Community reference is made to nationals of the Member States, the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned. Member States may declare, for information, who are to be considered their nationals for Community purposes by way of a declaration lodged with the Presidency and may amend any such declaration when necessary.

The point was reiterated in the ‘Edinburgh Decision’ of Member States a few months later:

The question whether an individual possesses the nationality of a Member State will be settled solely by reference to the national law of the Member State concerned.

Earlier in 1992, the CJEU gave its first ruling that fully addressed the issue: Micheletti. In this case, a national court asked the CJEU whether a dual citizen of a non-EU country and an EU Member State could rely upon EU free movement law, even though another Member State had doubts that his Member State nationality (acquired via his parents’ nationality) sufficed to entail a genuine link with that Member State, given that his previous residence was outside the EU.

The Court of Justice responded by referring to Member States’ power to define their nationality, with an ensuing obligation of mutual recognition by other Member States:

Under international law, 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. [emphases added]

It followed that:

…it is not permissible to interpret Article 52 of the Treaty [now Article 49 TFEU] to the effect that, where a national of a Member State is also a national of a non-member country, the other Member States may make recognition of the status of Community national subject to a condition such as the habitual residence of the person concerned in the territory of the first Member State.

In the Court’s view, ‘this conclusion is reinforced by the fact that the consequence of allowing such a possibility would be that the class of persons to whom the Community rules on freedom of establishment were applied might vary from one Member State to another’.

Despite the reference to ‘international law’ in the context of a Member State granting or removing its own nationality, the Court implicitly rejected the approach of international law as regards judging whether another Member State’s nationality had to be recognised. In particular, the ICJ’s Nottebohm judgment had previously stated that countries could disregard another country’s nationality if there was no ‘genuine connection’ with that country. (The Advocate General’s opinion in Micheletti expressly argued that Nottebohm was not relevant).

Moreover, the throwaway reference to Member States’ power to define their nationality being subject to the proviso of ‘having due regard to Community law’ was eventually clarified. Starting with the 2010 judgment in Rottmann, the CJEU ruled that a Member State’s decision to deprive its citizens of its nationality was not unlimited, despite the declaration and decision of 1992, because that resulted in the loss of citizenship of the EU:

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 [20 TFEU] and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law.

The Court qualified its prior judgment in Micheletti:

The proviso that due regard must be had to European Union law does not compromise the principle of international law previously recognised by the Court, and mentioned in paragraph 39 above, that the Member States 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, as is in particular the case of a decision withdrawing naturalisation such as that at issue in the main proceedings, is amenable to judicial review carried out in the light of European Union law.

Having established that deprivation of nationality was within the scope of EU law, the Court went on to say that there was no breach of EU law in doing so in this case, given the international measures that refer to the prospect of deprivation of citizenship in case of fraud (referring to the Council of Europe Convention on Nationality and the UN Convention on the Reduction of Statelessness, and also to the Universal Declaration of Human Rights as regards arbitrary deprivation of nationality).

The Rottmann judgment led inevitably to further case law, given the importance of deprivation of nationality to any individuals facing it: Tjebbes (discussed here); C-118/20; C-689/21; and C-684/22. Broadly speaking, this case law is generally deferential to Member States’ decisions to deprive citizens of their nationality, but subject to some limits, particularly a need for a legitimate interest (criminal offences, absence from the territory, dual citizenship) as well as the principle of proportionality and the guarantee of procedural rights. (Note that British citizens’ loss of EU citizenship due to Brexit was not subject to this case law, because that loss followed from the UK choosing no longer to be a Member State – as confirmed by the CJEU in 2022 (see discussion here))

On the other hand, the Court did not have the opportunity to clarify whether there were also limits imposed by EU law on Member States’ rules on acquisition of their nationality – until the Commission challenged the Maltese rules on investor citizenship, on the grounds that they amounted to selling the nationality of a Member State (and therefore EU citizenship) to people who lacked a sufficient link to that Member State.

The Commission v Malta judgment

The Court’s ruling starts by addressing the Maltese government’s argument that the constraints set by EU law on acquisition of Member States’ nationality are much less than the constraints on deprivation of nationality: they should ‘be limited to a finding of significant breaches of the values or objectives of the European Union, which are general and systematic in nature’. In the Court’s view ‘[t]here is nothing in the wording or the scheme of the Treaties to support the inference that their authors intended to lay down, as regards the grant of the nationality of a Member State, an exception to the obligation to comply with EU law’ only in such cases. Moreover, ‘such an exception cannot be accepted since it would amount to a limitation of the effects attaching to the primacy of EU law, which falls within the essential characteristics of EU law and, therefore, within the constitutional framework of the European Union’.

The Court then moves to the Commission’s argument that Malta had infringed Article 20 TFEU (the definition of EU citizenship, based on holding the nationality of a Member State) and Article 4(3) TEU (the EU law principle of sincere cooperation). The judgment points out that the Treaties aim to ensure free movement of people, in conjunction with the principle of mutual recognition. Next, the Court refers to the political participation elements of EU citizenship, by which ‘Union citizens participate directly in the democratic life of the European Union’; the EU’s ‘functioning is founded on representative democracy, which gives concrete expression to democracy as a value, which is, under Article 2 TEU, one of the values on which the European Union is founded’ (citing its recent judgment on EU citizenship and membership of political parties, which I discussed here). According to the Court:

It follows that the exercise by the Member States of their power to lay down the conditions for granting their nationality has consequences for the functioning of the European Union as a common legal order.

The Court also refers to the Treaty provisions on consular protection of EU citizens. Then:

It is in the light of those various rights that the Court has held that the provisions relating to citizenship of the Union are among the fundamental provisions of the Treaties which are part of the framework of a system that is specific to the European Union and which are structured in such a way as to contribute to the implementation of the process of integration that is the raison d’être of the European Union itself and thus form an integral part of its constitutional framework…

Next, the Court repeats its long-standing catchphrase that ‘Union citizenship constitutes the fundamental status of nationals of the Member States’, providing reasoning for that conclusion: ‘in the light both of the scope of the rights attaching to Union citizenship…and of the fact that that status derives automatically from the fact of being a national of a Member State’.

Therefore:

Union citizenship is thus one of the principal concrete expressions of the solidarity which forms the very basis of the process of integration…and which is an integral part of the identity of the European Union as a specific legal system, accepted by the Member States on a basis of reciprocity

And it follows that:

The exercise of the Member States’ power to lay down the conditions for granting the nationality of a Member State is not, therefore, in the same way as their power to lay down the conditions for loss of nationality, unlimited. Union citizenship is based on the common values contained in Article 2 TEU and on the mutual trust between the Member States as regards the fact that none of them is to exercise that power in a way that is manifestly incompatible with the very nature of Union citizenship.

The Court then reiterated (based on prior case law) that ‘the bedrock of the bond of nationality of a Member State is formed by the special relationship of solidarity and good faith between that State and its nationals and the reciprocity of rights and duties’, extending that to entail a principle underlying EU citizenship:

In the same vein, it is clear from the very wording of the first sentence of Article 20(2) TFEU that citizens of the Union are to enjoy the rights and be subject to the obligations laid down in the Treaties. In accordance with Article 20(1) TFEU, the special relationship of solidarity and good faith between each Member State and its nationals also forms the basis of the rights and obligations reserved to Union citizens by the Treaties.

When defining that ‘particular relationship of solidarity and good faith…the definition of the conditions for granting the nationality of a Member State does not fall within the competence of the European Union, but within that of each Member State, which has a broad discretion in the choice of the criteria to be applied, provided that those criteria are applied in compliance with EU law’.

But as the Court had already noted, that national discretion was not unlimited, but was subject to EU law. Crucially, then, the Court asserts that:

…a Member State manifestly disregards the requirement for such a special relationship of solidarity and good faith, characterised by the reciprocity of rights and duties between the Member State and its nationals, and thus breaks the mutual trust on which Union citizenship is based, in breach of Article 20 TFEU and the principle of sincere cooperation enshrined in Article 4(3) TEU, when it establishes and implements a naturalisation scheme based on a transactional procedure between that Member State and persons submitting an application under that programme, at the end of which the nationality of that Member State and, therefore, the status of Union citizen, is essentially granted in exchange for predetermined payments or investments.

A programme of that sort amounts to the commercialisation of the granting of the status of national of a Member State and, by extension, Union citizenship, which is incompatible with the conception of that fundamental status that stems from the Treaties.

The Court then recalls the mutual recognition principle from Micheletti, expressing its concern in that context:

Transactional naturalisation, which is granted in exchange for predetermined payments or investments, is not only contrary to the principle of sincere cooperation, but is also liable, by its nature, to call into question the mutual trust which underlies that requirement of recognition, since that trust relates to the premiss that the grant of the nationality of a Member State must be based on a special relationship of solidarity and good faith justifying the grant of rights resulting, in particular, from Union citizenship.

Diving into the specific rules of the Maltese investor citizenship scheme, the Court states that three of the five rules are essentially based on forms of cash payment. Although the fourth condition requires ‘legal residence in Malta for a period of 36 months’, the Court dismisses this as being, in effect, a Potemkin village: in practice, ‘that condition does not amount to a requirement of actual residence in the territory, since the physical presence of the applicant on that territory is required only when biometric data are collected in order to obtain the residence permit and to take the oath of allegiance’. This conclusion was reinforced by the opportunity to reduce the residence requirement to 12 months in return for further cash payments, and by comparison to the more stringent rules – entailing longer and genuine residence – which apply to the ‘ordinary’ naturalisation procedure of Malta. As for the final condition – a series of suitability checks in the public interest – the Court takes the view that they do not alter the essentially commercial nature of the sale of citizenship.

Finally, the Court dismisses Malta’s argument that its investor citizenship scheme ‘takes into account certain connecting factors on the part of the applicants’, in particular links via investments and possible future links after obtaining nationality. In the Court’s view: there was no evidence that the scheme ‘provides for a specific and concrete examination of the relevance of certain investments in order to establish the existence and extent of an applicant’s ties with the Republic of Malta, or to enable the development of such links with that Member State, distinct from’ examining whether an applicant meets the criteria; the prospect of deprivation of nationality after granting it was limited in scope; and the scheme was sold as conferring free movement rights in any Member State. Although Malta denied responsibility for how private parties sold the scheme, the Court points out that it had authorised them to act on its behalf – so (implicitly) had the power to prevent them from adopting these sales techniques, but failed to use that power. So, as a sales pitch, Malta was not really selling its nationality – it was selling citizenship of the European Union. And (implicitly again) Malta was not linking its nationality to its territory – it was linking it to being somewhere else in the EU instead.

Comments

I’ll start with the specific issues arising from the judgment (the impact on investor citizenship schemes) and move to the general (the impact on EU citizenship and the nature of the EU legal order more broadly).

Investor citizenship schemes

Several questions arise here. First of all, what happens to those who have already obtained citizenship under the Maltese scheme? Is Malta now obliged to yeet the rich?

Secondly, can Member States now refuse to recognise another Member State’s citizenship, if it has been obtained via means of an investor citizenship scheme that breaches EU law? Thirdly, would any system of investment citizenship by a Member State necessarily breach EU law?

Fortunately, immigration lawyer Simon Cox has already mused over these issues. On the first point, he points out that Malta did not ask the Court to limit the temporal effect of its ruling, so arguably it applies to citizenship already granted on the basis of the illegal scheme. Although, as he notes, Member States may not be keen to rescind citizenship already granted, other Member States have done so in similar circumstances (I would add that the CJEU case law on deprivation of nationality, mentioned above, would likely accept this on public interest grounds). But for those Member States reluctant to deprive investors of citizenship, it is possible that the CJEU may be asked to rule on this point – either if the Commission seizes the Court again, or if a Maltese court (perhaps seized by an NGO opposing the national scheme) asks the Court questions about the consequences of its judgment in that Member State.

But can another Member State now refuse to recognise the investor citizenship granted by Malta? The judgment touches on that point but very ambiguously, noting that a transactional citizenship rule is ‘liable, by its nature, to call into question the mutual trust’ underpinning EU citizenship, without answering the implied question of whether it is legal to do so. There’s a practical question of how to identify the Maltese citizens in question: presumably their passports are not literally golden. Perhaps immigration officials could profile those Maltese citizens who are flashing the biggest Rolexes and surrounded by the youngest women.

Assuming Member States do this, it should not be assumed, in light of the Court’s ambiguity, that it has overruled its long-standing judgment in Micheletti. Where the Court wishes to reverse its prior judgments, it does so explicitly (see, for instance, Metock: ‘It is true that the Court held [an absurd interpretation of free movement law in a previous judgment]….However, that conclusion must be reconsidered.’) In any event, in my view, the Micheletti judgment was and remains rightly decided on the mutual recognition point: the ICJ’s Nottebohm judgment was, with respect, poorly reasoned (paying insufficient account to the basic international law principle of state sovereignty), and it is hard to see how EU free movement law could function if Member States are second-guessing who is validly a national of another Member State. Above all, Member States had already made it clear (in the 1992 declaration and decision) that in the context of EU law, it was up to each of them – not other Member States – to determine who their nationals are.  

What about alternative versions of investor citizenship? Certainly the general tone of the judgment is one of disgust for commercialisation of EU citizenship in general. But as Simon Cox points out, the judgment also seems to suggest that a genuine residence requirement would overcome the Court’s revulsion. A less blatant sales pitch might help too. We can only speculate how long the super-rich would have to endure the inconvenience of mooring their yachts in Valetta for, to satisfy the Court – because it only told us that the current Maltese law was insufficient, without detailing which alternative would be legal.

EU citizenship and the EU legal order

This train already left the station with the Rottmann judgment 15 years ago, but it bears saying again, as the Court confirms that this case law applies to also the acquisition of Member State nationality: this whole line of judgments, with respect, has no basis in the wording of the Treaties or EU legislation. Not only is there no reference to any EU law constraints on Member States’ nationality law in the Treaties, the 1992 declaration and decision make absolutely clear that Member States interpret the Treaty to mean that nationality of a Member State is defined solely by national law.  

The Court’s specific rationales for rejecting Malta’s proposed high threshold for EU law constraints on acquisition of Member State nationality throw more flimsy fuel on this unconvincing fire. Yeah, of course the authors of the Treaties said nothing about an exception from EU law as regards acquisition of Member State nationality – because they said nothing about EU law applying to Member States’ nationality law in the first place. In fact, the 1992 declaration and decision clearly state that the authors of the Treaties believe EU law doesn’t apply to Member States’ nationality law at all. “We are very concerned about what the authors of the Treaties wrote” says the Court – while ignoring what the authors of the Treaties actually wrote on this very issue. This is simply judicial gaslighting.

As for the primacy of EU law, this is just confused. Even assuming one agrees with the Court’s conception of the primacy of EU law, it is a means of enforcement of EU law in the event of a conflict with national law. That primacy tells us nothing about what the scope or substance of EU law is – whether it applies at all to the acquisition of national citizenship, and if so what constraints it places upon those rules.

I have to say that if I read this reasoning on an EU law exam, the student would get nowhere near a 2:1.

Having said that, the judgment is what it is. We cannot avoid having to grapple with the Court’s explication of how it conceives of EU citizenship, and what that might mean more generally. And here, despite the weak foundations of its demand to set constraints upon national citizenship, the Court develops many interesting principles.  

The prior case law on the deprivation of Member States’ nationality was focussed on what the consequent loss of EU citizenship might mean for the individual concerned, particularly as regards free movement. But as regards acquisition of nationality, in this judgment at least the Court is not concerned about the impact on the individual. It is not even wholly focussed – as you might reasonably expect of the sale of nationality as a means to free movement – on the impact on other Member States. Rather it focusses in many respects on the impact for the European Union.

And what a European Union that is. As in the earlier case law, the Court mentions free movement aspects of citizenship, but it now adds references to consular protection and especially political rights. Coupled with the Court’s disdain for the sale of nationality, it seems that in this judgment, EU law is no longer founded on the internal market; it is now based on the internal marketplace of ideas. 

The Court does not mention the rather inconvenient fact that EU citizens face financial thresholds to exercise free movement rights: benefit recipients can move from Hamburg to Hanover, but not from Bucharest to Bremen. While EU free movement law is more generous than the usual immigration law for those of modest means, it is still more stringent than the rules applying to citizens of a Member State moving within it – on financial grounds. The Court is Captain Renaut in Casablanca: shocked, shocked to find that citizenship rights are dependent on money in here.

The judgment also links EU citizenship to democracy and the values of the EU, asserting an impact of Member States’ rules on acquisition of nationality upon ‘the functioning of the [EU] as a common legal order’, and ‘the identity of the [EU] as a specific legal system’. This stress on the legal nature of the EU reads like an attempt at fashioning constitutional patriotism by bloodless legal technocrats; and it is inevitably undermined by the profound weaknesses of the Court’s legal reasoning as regards the existence of EU constraints upon Member States’ nationality law.

But there’s a broader stress on non-legal values here too. The overall vibe is of a court preparing itself with arguments to defend the rule of law and other EU values – despite contrary developments in one country across the Atlantic and, more cogently, certain Member States. We shall soon see how this might play out in the pending case about EU values and Hungarian LGBT restrictions. And, circling back to Member State nationality, it is hard to see how the Hungarian government’s plan to suspend the Hungarian nationality of dual citizens who are insufficiently orgasmic about Orban could possibly be compatible with EU law in light of this new judgment.

One issue is notable by its absence from the Court’s reasoning: the argument that the rules on acquisition of nationality of a Member State are an aspect of national identity, which the Treaties explicitly require the EU to respect – even though Malta argued the point. It’s a strong argument in general terms, but its strength may differ in separate cases. There’s obviously a better case for (say) the grant of Irish nationality to (most of) those born in Northern Ireland as being intrinsically linked to the history and identity of Ireland, than there is for the souvenir shop citizenship of the Maltese law in this case. But the Court should nonetheless have answered the objection.

Conversely, the Court explicitly uses this judgment as a vehicle to express itself on the ‘identity’ of the European Union: as we have seen already, as a ‘specific legal system’. Presumably the specificity of this legal system explains – although again the Court avoids saying this directly – why the judgment implicitly rejects the Commission’s argument that Member States must base their nationality law upon a ‘genuine link’ with the country (echoing international law), and instead develops an EU-specific set of principles. (The break with international law is another point of divergence with the case law on deprivation of citizenship; perhaps it didn’t help that the Advocate-General’s opinion inaccurately claimed that the Council of Europe Convention has no rules on acquisition of nationality).   

Rather, the basis for the EU law rules on the acquisition of Member State nationality is the ‘special relationship of solidarity and good faith between each Member State and its nationals’; and the test is apparently whether a particular national rule is ‘manifestly incompatible with the very nature of Union citizenship’. Applying that test, ‘a Member State manifestly disregards’ this requirement when it sells its nationality on a commercial basis. Note that the Court does not say that this would be the only type of rule on acquiring nationality which is, in its view, incompatible with EU law.

What might this mean in other cases? Simon Cox’s blog post usefully points out some examples of other rules which might be challenged as a barrier to acquiring nationality (rather than, as in this case, making it too easy to obtain in some cases). He refers to high fees and education requirements; I would add that, by analogy with the case law on loss of citizenship, EU law may give applicants for nationality procedural rights too. And the link the Court makes with the values of the EU should, for example, preclude any practice (as in Trump’s USA) of refusing citizenship based on criticism of the actions of a foreign government – still less arresting the applicant at a citizenship interview with a view to deporting him.

Conclusion

This is the Alien v Predator of constitutional moments. I’m equally unimpressed by both the arrogant Eurofederalism of the Court and the fridge-magnet nationalism of the Maltese government. But what, in an ideal world, would be the best way forward?

There’s certainly a case, given the impact of the grant of nationality upon other Member States, of some form of coordination of nationality law within the EU. This would also be consistent with the logic of declaring the existence of citizenship of the European Union: why should the notion of citizenship be subject to no common rules at all?

But the development of such principles needs to be consistent with the rule of law, not the Court’s untenable interpretation of the 1992 decision and declaration. I doubt that there is much prospect of a Treaty amendment to confer competence upon the EU in this field: Orban may be many things, but he is not a turkey who would vote for Christmas. As things currently stand, principles could be agreed on the basis of soft law, or even treaties between Member States, on the basis of a ‘coalition of the willing’ if need be.

As I doubt that such a coalition will be easily forthcoming, I think we will be stuck with the development of legal principles in this field based on further elaboration of the Court’s judicial activism for the foreseeable future.  Time will tell whether the Court’s judgment is an anomaly – a reaction to a particularly egregious national policy in the context of broader allegations of corruption – or a key part of further case law on nationality law in particular and the EU legal order in general. 

To adapt the words of a famous on-screen pirate, look at the Court: they are the captain now.

Protecting the right to a nationality for children of same-sex couples in the EU – A key issue before the CJEU in V.M.A. v Stolichna Obsthina (C-490/20)

 

Patrícia Cabral, Legal Policy Officer, European Network on Statelessness*

The enjoyment of LGBTIQ* rights varies across Europe, including the recognition of same-sex partnerships or marriages and the recognition of legal parentage between children and those who raise them as parents – regardless of biology, gender or sexual orientation. As a result, rainbow families in Europe (families where a child has at least one parent who identifies themselves as lesbian, gay, bisexual, trans, intersex or queer) can face problems with recognition of civil status, birth registration and access to birth certificates, leaving some children in these families either stateless or at risk of statelessness.

Such cases have occurred across several countries in Europe and reflect a wider concerning trend within the EU, where LGBTIQ*-related discriminatory laws and practices by Member States impact on the child’s right to a nationality and their access to EU citizenship. The Court of Justice of the European Union (CJEU) will now have an opportunity to address this issue in a pending case concerning a child born to same-sex parents in Spain.

The case before the CJEU

The case before the CJEU, V.M.A. v Stolichna Obsthina, Rayon ‘Pancharevo’ (C-490/20), concerns a child born in Spain, to a British mother and a Bulgarian mother, who had entered into a civil marriage in the UK before the birth of the child. Spain issued a birth certificate, which recorded both mothers as the child’s parents, but which does not specify whether one of the women is the biological mother. The Bulgarian mother subsequently applied for the issuance of a birth certificate for the child in Bulgaria. The Bulgarian authorities refused to issue a birth certificate, on the grounds that no evidence was provided about the child’s parentage with respect to her biological mother, and that the registration of a birth certificate with two female parents was contrary to public policy, as same-sex marriages are not permitted in Bulgaria.

One of the questions asked by the domestic court to the CJEU is whether the Bulgarian authorities can refuse to issue a birth certificate on the grounds that the applicant refuses to provide information on who is the biological mother. The CJEU is also asked to consider how to strike a balance between the national and constitutional identity of the Member States (protected by Article 4(2) TEU) on the one hand, and the right to respect for private and family life and the best interests of the child on the other (Articles 7 and 24(2) of the EU Charter of Fundamental Rights).

The domestic court noted that the refusal to issue a birth certificate by Bulgaria constitutes an obstacle to the issuance of identity documents and may impede the exercise of the child’s rights as an EU citizen, asking the CJEU whether this affects the interpretation of EU law. Even though it recognises that without a birth certificate the child would be unable to acquire identity documents and exercise EU citizenship rights, the domestic court does not explicitly address the impact that this may have on the child’s right to a nationality and the risk of statelessness in its request for a preliminary ruling.

In the request for a preliminary ruling, the domestic court assumes that the child would be entitled to British nationality, considering the impact that Brexit would have in the exercise of her rights as an EU citizen. However, new evidence has subsequently been submitted to the court that the UK has since refused nationality to the child (based on special provisions that do not allow a parent who acquired British nationality by descent to pass on their nationality to a child born outside the UK). As neither of the mothers holds Spanish nationality, although she was born in Spain, the child did not acquire Spanish nationality at birth. She would need to rely on a safeguard in law which ensures that children born in Spain who would otherwise be stateless can acquire Spanish nationality. However, to apply this safeguard it must be demonstrated that the child is unable to acquire any other nationality. The Bulgarian authorities’ denial of access to identity documents, which are essential for the child to evidence her Bulgarian nationality and effectively enjoy her right to Bulgarian nationality, contradict the fact that according to Bulgarian law, the child is entitled to Bulgarian nationality (see below for further elaboration on this point).

This poses a particular and paradoxical challenge in this case, in terms of the ability of the child to provide evidence that she is effectively prevented from acquiring another nationality in order for her to be able to take advantage of the Spanish safeguard. Furthermore, had the child been born in a country without a safeguard that protects children born stateless on the territory, the situation would remain unresolved and the child would be stateless due to discriminatory birth registration practices by the Bulgarian authorities. Given that the UK and Spain have both confirmed the child is neither a British nor a Spanish national, the child is currently stateless, or at least at risk of statelessness. While it is unfortunate that the domestic court did not address the impact on the child’s right to a nationality, the CJEU is free to reformulate the questions referred to it and provide all the elements of interpretation of EU law relevant to the case, including those related to access to EU citizenship and statelessness. This is a fundamental issue that the CJEU must resolve in this case.

In its request for a preliminary ruling, the court asks whether Member States have broad discretion as regards the rules for establishing parentage, however the issue is not the establishment of parentage but rather the recognition in Bulgaria, of the legal parentage established in Spain. In line with caselaw from the CJEU and the European Court of Human Rights (ECtHR), the margin of discretion that Members States have in the recognition of parentage, particularly when this impacts on the child’s best interests and identity, is narrower than for the establishment of parentage. As further explained in this piece, doubts remain as to whether the domestic authorities are refusing to recognise the legal parentage established between the child and her mothers as evidenced by the Spanish birth certificate, or whether they recognise the parentage but refuse to issue a birth certificate. Whichever position the authorities are taking, it has a severe impact on the child’s rights and the refusal to issue a birth certificate results in denying her Bulgarian nationality and thus access to EU citizenship.

Discriminatory birth registration practices negatively impact the fulfilment of children’s rights

Most, but not all of us, have had our births registered. Birth registration involves the official recording of a birth within the civil registry, which records both the fact of the birth and its characteristics. It often results in a birth certificate issued by the civil registrar that provides proof that the child has had their birth registered and is essential evidence of a child's family ties as well as their place of birth. These are key aspects of legal identity and can be critical to establishing the child’s nationality, as nationality is usually acquired either through the parents (jus sanguinis), the place of birth (jus soli), or a combination of the two.

Lack of birth registration is not the same as statelessness, yet it heightens the risk of leaving children without a nationality. Given the key information birth registration provides about individuals and their links to a State, either through the parents or place of birth, not having a birth registered or a birth certificate evidencing registration can contribute to difficulties establishing these links and consequently expose them to the risk of statelessness. Children in this situation face severe obstacles in exercising the rights to which they are entitled under international law such as the 1961 Convention on the Reduction of Statelessness and the 1989 Convention on the Rights of the Child (CRC), including access to education, healthcare and social security. In the case of children born to EU citizens, lack of birth registration and consequent impacts on acquiring a nationality will also impede on their ability to exercise their rights as EU citizens, including free movement rights.

Ultimately, it is never in the child’s best interests to be left stateless, even for a short period of time. As stressed by UNHCR in its Guidelines on Statelessness No. 4, “it follows from Articles 3 and 7 of the CRC that a child must not be left stateless for an extended period of time: a child must acquire a nationality at birth or as soon as possible after birth”.

In its concluding observations to the Bulgarian government in 2018 (CCPR/C/BGR/CO/4), the UN Human Rights Committee noted with concern that same-sex couples married abroad and their children are denied access to civil registration, and made recommendations towards eliminating discrimination on the basis of sexual orientation or gender identity. Such discriminatory birth registration practices against same-sex couples often have a serious impact on the child’s right to a nationality and may render a child stateless, leading to other violations of the child’s rights. This is the situation in the current case, where the Bulgarian authorities have refused to issue a Bulgarian birth certificate for the child on the basis of birth, gender and sexual orientation.

Somewhat paradoxically, in the current case the domestic court has seemingly recognised the legal parentage between the child and the Bulgarian mother, as evidenced by the Spanish birth certificate, through its conclusion that the child would anyway be a Bulgarian national by virtue of having a Bulgarian mother (although see below why this assertion is questionable). Given the legal parentage has been recognised by the Bulgarian authorities in this way, the refusal to issue a birth certificate on the basis of establishing parentage constitutes direct discrimination based on birth, sexual orientation and gender. According to Article 60(2) of the Bulgarian Family Code, the mother of the child is the woman who gave birth to the child, therefore the woman who has not given birth is not considered a mother. However, in a similar situation of an opposite sex couple this issue would not arise, as both parents would be included in the birth certificate without requiring proof of parentage. Such discrimination is not justifiable and requesting information on the biological parentage in this case therefore constitutes a violation of Article 21(1) EU Charter of Fundamental Rights (CFR).

This discrimination based on the sexual orientation of the parents and its impact on the child’s acquisition of nationality is further at odds with the Convention on the Rights of the Child, ratified by all EU Member States, as all children have the right to be registered immediately after birth and the right to acquire a nationality without discrimination of any kind and irrespective of the child’s or their parent’s status (Articles 2 and 7 CRC). The case also raises other important questions beyond the scope of this commentary, but which have been discussed by other experts.

Denial of a child’s nationality in practice, despite entitlement in the law, leads to statelessness

According to the 1954 Convention relating to the Status of Stateless Persons, a stateless person is somebody who is not considered as a national by any State under the operation of its law. This has been authoritatively interpreted by UNHCR as requiring “a mixed question of fact and law”, meaning that statelessness is not just about the letter of the law, but about how the competent authorities apply the law in a specific case. UNHCR also asserts that “under the operation of its law” is not synonymous with “by operation of law”, a term which signifies that acquisition of nationality is automatic in nature, as opposed to other non-automatic mechanisms to acquire nationality (such as through naturalisation).

According to the Bulgarian court, the question of the child’s right to a nationality does not arise in this case as a result of the authorities’ refusal to issue a Bulgarian birth certificate for the child. The court states that the child is still a “Bulgarian national by operation of law”. This suggests that the child would be automatically considered a national under Bulgarian law, but it must be noted that nationality cannot be established by court (Article 4 of the Law on Bulgarian Nationality) and regard must be given to how the law is applied in practice. According to UNHCR’s guidance, asserting whether a person is considered a national under a State’s law and practice requires evaluating evidence issued by the competent authorities. When nationality is acquired automatically, i.e. “by operation of law”, birth registration is usually the document that provides evidence of acquisition of nationality. By refusing to issue a birth certificate, which provides evidence of the legal parentage between the child and her Bulgarian mother, the authorities are also denying the child access to identity documents which are essential for her to evidence her Bulgarian nationality and to effectively enjoy her right to a nationality and all rights derived from it. By extension, the child is also prevented from enjoying her EU citizenship, which the CJEU has reiterated to be “the fundamental status of nationals of the Member States”.

As noted by UNHCR, “where the competent authorities treat an individual as a non-national even though he or she would appear to meet the criteria for automatic acquisition of nationality” – as in the case at hand, where the authorities are preventing access to identity documents – “it is their position rather than the letter of the law that is determinative in concluding that a State does not consider such an individual as a national”.

Denial of EU citizenship and related rights

Refusing to issue a birth certificate should therefore be interpreted as a refusal to recognise Bulgarian nationality, rendering the child stateless. This would also automatically impact on the child’s access to EU citizenship and on the enjoyment of the rights derived from it. As the CJEU held in the Zambrano case, Article 20 TFEU “precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union”. The refusal to issue a birth certificate means she would be unable to evidence the acquisition of Bulgarian nationality and has no entitlement to any other nationality of an EU Member State, which would result in a denial to acquire EU citizenship and entirely deprive the child from enjoying her rights as an EU citizen.

Furthermore, the CJEU has held that the concept of public policy as justification for a derogation from a fundamental freedom must be interpreted strictly. In the Coman ruling (discussed here), it noted that the obligation to recognise same-sex marriages, for the purpose of granting a derived right of residence to a third-country national, does not undermine the national identity of Member States protected by Article 4(2) TEU or pose a threat to public policy. While Member States are free to decide whether to allow marriage between persons of the same sex, they are precluded from imposing national measures which may obstruct the exercise of free movement rights and such measures must comply with the EU Charter of Fundamental Rights. Although in Coman the CJEU addressed the granting of a derived right of residence to a third-country national who was married to an EU citizen, the principles outlined in the judgment could be applied to the present case in V.M.A. v Stolichna Obsthina.

Upholding EU commitments to equality for rainbow families

The EU has made important strides towards recognising and upholding the rights of children of rainbow families and their parents in recent years, not least with the recent introduction of a five-year LGBTIQ Equality Strategy, which includes protecting the rights of rainbow families as one of four key pillars for action between 2020-2025. As President von der Leyen asserted in her State of the Union address, “if one is parent in one country, one is parent in every country”. As part of the strategy, the European Commission commits to bringing forward a legislative initiative on the mutual recognition of parenthood and to explore possible measures to support the mutual recognition of same-sex partnership between Member States. This builds on work in recent years by the Commission under its List of Actions to advance LGBTIQ equality to address free movement and cross-border issues, through its dialogue with Member States to remove obstacles concerning the recognition of birth certificates of children born to same-sex couples in another Member State.

Furthermore, in order to improve legal certainty for EU citizens exercising their free movement rights, and to ensure a more effective and uniform application of the free movement legislation across the EU, the European Commission committed in the LGBTIQ Equality Strategy (as also described in the EU Citizenship Report 2020) to review the 2009 guidelines on free movement in 2022 and to ensure that the updated guidelines reflect the diversity of families, and to help all families, including rainbow families, to exercise their right to free movement.

Through these initiatives, the EU demonstrates the responsibility of both the EU and its Member States to remove barriers to birth registration and to ensure the recognition of birth certificates of children born to rainbow families, the legal parentage of the children and any consequences on the child’s right to a nationality.

In 2021, the EU will publish a 2021-24 strategy on the rights of the child, providing a comprehensive framework for EU action to promote and protect children’s rights, and including recommendations for action by other EU institutions, EU Member States and stakeholders. This presents a further opportunity for the EU to outline action to protect the rights of children of rainbow families, including the right to a nationality.

The role of the courts in respecting the best interests of the child and upholding the child’s right to a nationality

Nationality law usually falls within a Member State’s competency. However, as the CJEU emphasised in Rottman, when exercising their powers in the sphere of acquisition and loss of nationality, Member States must have due regard to EU law, including upholding the EU’s values and the rights enshrined in the EU Charter of Fundamental Rights. (See discussion of later CJEU case law here)

Under its Article 53, the level of protection granted by the provisions of the EU Charter of Fundamental Rights is at least equivalent to the protection granted by the European Convention on Human Rights (ECHR) and international law, including the CRC. It is therefore essential for the CJEU to draw from international jurisprudence on the right to respect for private and family life in the consideration of this case, as well as to consider the right to a nationality, the principle of non-discrimination and the best interests of the child in line with international human rights law.

Case law from the ECtHR affirms that the recognition of parentage and acquisition of nationality fall within the ambit of the right to respect for private and family life (e.g. Mennesson and Genovese), as protected by Article 8 ECHR and Article 7 CFR, and provides guidance to its interpretation. Particularly in Mennesson, the ECtHR has stressed that respect for private life requires that everyone should be able to establish details of their identity as individual human beings, which includes the legal parent-child relationship, emphasising that children have a right to legal identity.

The child’s right to a nationality is further protected under Article 15 UDHR, Article 24(2) ICCPR, and Articles 3 and 7 of the CRC. The UN Human Rights Committee has recently found that failure to identify statelessness and assess a child’s nationality status led to a violation of the right to a nationality (Zhao v Netherlands). Furthermore, in their General Comment No 14, the Committee on the Rights of the Child recognises that the best interests of the child might conflict with other interests, including the public interest, and notes that authorities must bear in mind that the right of the child to have their best interests taken as a primary consideration means that the child's best interests are not just one of several considerations, nor should they be considered on the same level as all other considerations. Rather, they take priority in all circumstances, “especially when an action has an undeniable impact on the children concerned” (CRC General Comment No 14 para 40), as is the situation in this case.

The courts play a key role in interpreting national legislation and thus aligning domestic practice with the regional and international human rights framework. While domestic courts must not lose sight of their international obligations, the regional courts have a further responsibility to ensure that the diversity of national jurisdictions does not compromise respect for fundamental rights or the best interests of the child. Cases similar to the one presently before the CJEU have been reported across Europe, with children born to same-sex couples facing discrimination in recognition of civil status documents and in access to birth registration and identity documents, particularly in Poland, Bulgaria and Ireland. The nationality laws of all Member States must be applied in a non-discriminatory manner and with respect for fundamental rights, especially when they have a direct impact on the enjoyment of EU citizenship. Currently, children are being born stateless or at risk of statelessness in the EU and denied EU citizenship, solely because of a prejudice towards their parents’ sexual orientation. The CJEU therefore has an essential role to play in supporting progress towards a seamless implementation of international standards on statelessness and human rights law in all EU Member States, and towards a Europe where no child is born stateless.

*Reblogged from the European Network on Statelessness blog

Barnard & Peers: chapter 13

Photo credit: Laurent Verdier, via Wikimedia Commons

CJEU asked to rule on acquisition of nationality in light of EU citizenship: The fundamental status on the horizon? (C-118/20 JY v Wiener Landesregierung)

David A.J.G. de Groot, EU-CITZEN Network*

* I would like to thank Tania Isacu, Rainer Bauböck and Gerd Valchars for their very useful comments.

Introduction

The Supreme Administrative Court of Austria has requested a preliminary ruling from the Court of Justice of the European Union (CJEU) in the case C-118/20 JY v. Wiener Landesregierung, concerning the revocation of a guarantee of the grant of Austrian nationality.

Austria maintains a strict ‘single nationality’ policy, meaning that wherever possible, it requires that a person has only Austrian nationality and no other. Consequently, Austrian nationality is lost in most cases automatically upon voluntary acquisition of another nationality. Equally, Austria requires that upon acquisition of its nationality all previous nationalities have to be relinquished. Austria, as opposed to e.g. Germany, has made no exceptions to this rule where the previous or future nationality is the nationality of a Member State.

C-118/20 JY concerns the procedure for acquisition of Austrian nationality, and more specifically at which moment during the procedure the previous nationalities have to be lost, and whether this is in conformity with the rules on EU citizenship.

Facts of the case

It is unclear from the facts when JY exactly moved to Austria. What is known is that JY applied on 15 December 2008 for Austrian citizenship. At the time, JY held Estonian citizenship and was therefore an EU citizen. More than five years later, in March 2014, the authorities granted her a guarantee of the grant of Austrian nationality, which would enable acquisition of Austrian nationality on condition of providing proof that the previous nationality had been relinquished.

Technically speaking, at this moment she was still not an Austrian national.

She subsequently relinquished her Estonian citizenship on 27 August 2015. Consequently, from that moment on she was stateless.

On 6 July 2017, the authorities revoked the original guarantee of the grant of Austrian nationality and rejected her application for Austrian citizenship.

The reasons provided by the authorities was that JY had committed two serious administrative offences since the decision on the guarantee of the grant of Austrian nationality. These, in combination with eight prior offences (all speeding offences), made her ineligible for naturalization. The two serious administrative offences concerned a failure to provide a compliant vehicle inspection disk and driving under the influence of alcohol.

Based on this, the Administrative Court considered that her future conduct could not be ascertained.

Additionally, the Administrative Court considered that the C-135/08 Rottmann decision of the CJEU was not applicable, since at the time of the revocation decision, JY no longer was an EU citizen, as she was stateless. The court furthermore considered that the breaches were of such a serious nature that the revocation of the guarantee was proportionate in light of the 1961 Convention on the reduction of statelessness. Also, the requirements for revocation of the guarantee as provided for in the Austrian Citizenship Act were considered fulfilled.

On appeal, the Supreme Administrative Court referred the following questions to the CJEU:

Does the situation of a natural person who, like the appellant in cassation in the main proceedings, has renounced her only nationality of a Member State of the European Union, and thus her citizenship of the Union, in order to obtain the nationality of another Member State, having been given a guarantee by the other Member State of grant of the nationality applied for, and whose possibility of recovering citizenship of the Union is subsequently eliminated by revocation of that guarantee, fall, by reason of its nature and its consequences, within the scope of EU law, such that regard must be had to EU law when revoking the guarantee of grant of citizenship?

If the first question is answered in the affirmative,

Is it for the competent national authorities, including any national courts, involved in the decision to revoke the guarantee of grant of nationality of the Member States, to establish whether the revocation of the guarantee that prevented the recovery of citizenship of the Union is compatible with the principle of proportionality from the point of view of EU law in terms of its consequences for the situation of the person concerned?

Analysis

There are many different issues in this case.

Primarily, there is the question: is EU citizenship applicable? Does it only have to be taken into account? Or, has it in fact been violated?

In its C-369/90 Micheletti judgment, the CJEU stated back in 1992 that “under International law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality” (emphasis added). This was consistently repeated in the EU citizenship cases C-192/99 Kaur, C-200/02 Zhu and Chen, C-135/08 Rottmann and C-221/17 Tjebbes (discussed here). Therefore, the role of EU citizenship in this case will feature quite prominently.

However, before we delve into the questions of whether and how EU law is applicable, we should wonder whether the procedure applied by Austria for acquisition of nationality is actually even in conformity with international law.

Relinquishment requirement under international law

The Austrian authorities and the referring court seem to be under the impression that this method of using a temporary guarantee for the acquisition of nationality in order for the person to relinquish their other nationality is in conformity with international law. In short: it is not!

By de facto requiring that before a final assessment for naturalization the person has already relinquished all nationalities and consequently is stateless, Austria is violating the 1961 Convention on the reduction of statelessness and the European Convention on Nationality (ECN). By making a full reassessment of the eligibility (with the exception of the income requirement, a reassessment of which had been considered in violation with the Constitution) after the other nationalities have been relinquished, thus by conducting an assessment ex nunc and not ex tunc, the law deviates from international standards.

The guarantee given by Austria did not satisfy the criteria of Article 7(2) of the 1961 Convention, which provides that “A national of a Contracting State who seeks naturalization in a foreign country shall not lose his nationality unless he acquires or has been accorded assurance of acquiring the nationality of that foreign country.” In the 2013 Tunis Declaration of the UNHCR, concerning the interpretation of the 1961 Convention, it is stated that loss of the previous nationality should in principle only occur upon acquisition of the other nationality. An exception is provided where an assurance for the future acquisition is given. However, the Declaration clearly states that such an assurance for the grant of nationality may not be “retracted on grounds that conditions for naturalization are not met”. It is equally provided in the Declaration that the state of previous nationality may only provide for loss of its nationality if the guarantee provided is “unconditional and does not leave any discretion to the authorities of the country.” Since the guarantee made by Austria was not unconditional, could be and was actually retracted based on a new assessment of eligibility, Austria can be considered in violation of international law.

Additionally, by giving the impression that its nationality will be acquired and thus a renouncement of the previous nationality will not cause statelessness, Austria has violated the principle of mutual trust in EU law. Every renouncement made in accordance with the nationality laws of the other Member States in order to obtain Austrian citizenship in essence violated those other Member States’ laws and commitments to the prevention of statelessness.

Paradoxically, one could consider that any guarantee ever made by Austria, irrespective of whether the nationality was acquired later or not, had no legal value under international law. Thus, Austria may have created a situation where many naturalized citizens have technically never lost their previous nationality, because the renouncement was contra legem at the time it was made (due to the fact that it would have rendered the person stateless and the guarantee could not provide sufficient assurance that it would not). Only those naturalized citizens who would have lost the previous nationality automatically due to voluntary acquisition of Austrian nationality (e.g. previous nationals of the Netherlands, Lithuania and Slovakia) would only have Austrian citizenship.

Question 1 - EU citizenship law applicable

The Administrative Court considered that EU law, and specifically EU citizenship, was not applicable to the case because at the moment of the decision revoking the guarantee, JY was already stateless and no longer an EU citizen.

This is a rather narrow interpretation and also rather galling considering the fact that it was the Austrian procedure for the acquisition of nationality that created that situation in the first place.

One should consider the question of applicability of EU law, and specifically EU citizenship, from two slightly different perspectives: (1) EU citizenship (Article 20 TFEU) and (2) free movement (Article 21 TFEU).

(1) Taking the view point of Article 20 TFEU, the case already clearly falls within the ambit of EU citizenship, but not necessarily for the reasons pointed out by the referring court.

The referring court makes this a case of loss of EU citizenship, while arguably it is actually a case of acquisition of EU citizenship.

As was stated above, the CJEU has consistently held that the Member States must have due regard to Union law when laying down the conditions on acquisition and loss of nationality. However, until now there have been no cases concerning acquisition of nationality. National courts seem to believe that only where the nationality, and thus EU citizenship, is lost, does EU law comes into play. However, arguing so, they forget that EU law is equally applicable to the acquisition of nationality.

This principle of applicability of EU law to the acquisition of the nationality of a Member State should apply irrespective of the nationality of the person prior to the acquisition, be it that of a Member State, a Third-Country or when the person is stateless.

In the present case, though, since JY had the nationality of a Member State before starting the procedure for acquisition of another Member State’s nationality – which Austria cannot deny considering that it applied the facilitated naturalization criteria for EU citizens on the basis of Article 11a(4)(2) of the Austrian Citizenship Act to JY – the applicability of EU law to the case is beyond doubt.

Any arguments brought forward by the Austrian authorities that the moment of revocation of the guarantee is the point of reference for establishing whether the nationality of the person makes EU citizenship law applicable (which is irrelevant, as explained, since it concerns an acquisition and not a loss case) conflicts with the principle of estoppel. It was the Austrian guarantee that did not fulfil the requirements to ensure that JY would have been an EU citizen.

(2) The referring court has only made reference to Article 20 TFEU in its submissions; however, one should consider that Article 21 TFEU is equally applicable.

Prior to becoming stateless, JY was an EU citizen who made use of her right of free movement by residing in a Member State other than the Member State of nationality. Consequently, her residence prior to becoming stateless was based on Directive 2004/38.

In its judgment C-165/16 Toufik Lounes (discussed here), the CJEU stated that “the rights conferred on a Union citizen by Article 21(1) TFEU, […] are intended, amongst other things, to promote the gradual integration of the Union citizen concerned in the society of the host Member State.” The Court furthermore considered that “Union citizens, […] who, after moving, in the exercise of their freedom of movement, to the host Member State and residing there for a number of years pursuant to and in accordance with Article 7(1) or Article 16(1) of Directive 2004/38, acquire the nationality of that Member State, intend to become permanently integrated in that State.”

Thus, according to the CJEU, naturalization by an EU citizen in the Member State of residence is the ultimate proof of having become permanently integrated in the society of the host Member State.

The CJEU considered that “it would be contrary to the underlying logic of gradual integration that informs Article 21(1) TFEU to hold that such citizens, who have acquired rights under that provision as a result of having exercised their freedom of movement, must forego those rights –– in particular the right to family life in the host Member State –– because they have sought, by becoming naturalised in that Member State, to become more deeply integrated in the society of that State.”

Considering that the CJEU stated that one could not allow an EU citizen to forego rights by becoming more deeply integrated in the society of the host State, a fortiori one cannot expect a Union citizen to gamble away his or her EU citizenship on the possibility of becoming more deeply integrated in the society of the host State, not only foregoing some rights, but the entire legal framework their existence in that State and personal identity are based on. For, from the moment she became stateless, Directive 2004/38 seized to be applicable to JY.

This case, therefore, goes beyond mere Article 20 TFEU, since the rights acquired under Article 21 TFEU are equally at stake.

For that reason, under all circumstances the questions would have to be rephrased in order to include Article 21 TFEU.

The answer to the first preliminary question is thus a definite ‘yes, EU law has to be taken into consideration when a guarantee to acquire the nationality of a Member State is revoked.’

Question 2 - EU law violated

In its second question, the referring court wonders if the national authorities have to consider whether the revocation of the guarantee that prevented the recovery of citizenship of the Union is compatible with the principle of proportionality from the point of view of EU law in terms of its consequences for the situation of the person concerned.

This is the wrong question.

The reference in the question to the principle of proportionality is a consequence of the erroneous reasoning of the referring court that the case concerns loss of nationality, while – as explained above – it actually concerns acquisition of nationality. If indeed it were to concern loss of nationality, then it would be clear based on C-135/08 Rottmann and in C-221/17 Tjebbes that it is mainly the principle of proportionality that has to be observed when it concerns the loss of the nationality of a Member State and of EU citizenship. In C-221/17 Tjebbes the Court listed multiple criteria which have to be observed in such cases. In the present case concerning acquisition of nationality, while the principle of proportionality of course has to be observed, this is by far not the only part of EU law that will have to be considered.

It should be noted at this point that the Administrative Court considered the traffic violations ‘serious crimes’ capable of and proportionate for justifying a revocation of the guarantee. Driving under influence might cause a situation where the consequences could result in a criminal offence; however, the referring court also stated that according to its recurring case-law such a violation will cause revocation of the guarantee irrespective of the actual volume of consumption in the case. If we consider e.g. a situation where the volume is very low, but just above the permitted limit, this cannot be equated to an offence which requires a long prison term (in Austria it does not. The two administrative offences solely resulted in fines totalling €412). It should definitely not be an administrative offence that renders you stateless.

I would like you to also think about the other violation of not having a compliant vehicle inspection disk. Just consider the next time when you have to bring your car to the vehicle inspection that your nationality might depend on it. Would you consider this reasonable? For the time being, I would advise any person who is considering to ever naturalize in Austria to sell their car.

Considering the fact that it concerns ‘recovery of citizenship of the Union’, one should wonder first whether the entire situation that led to this can be considered compatible with EU law.

As was already explained above, the guarantee of the grant of nationality was not unconditional and could be retracted. Therefore, the guarantee did not even fulfil the requirements under international law.

Since EU law is applicable, the Charter of Fundamental Rights of the EU (CFR) and the general principles of EU law are also applicable.

One should consider that JY’s legitimate expectations have clearly been violated. She acted in complete good faith by renouncing her Estonian citizenship in order to acquire the Austrian nationality. This good faith has been thoroughly betrayed.

One should, furthermore, consider that there might be a violation of JY’s right to private life as protected by Article 7 CFR. This is due to the fact that nationality, just like all other civil status, is governed by private life. A requirement to become stateless in order to acquire another nationality, and then additionally refuse the grant of this nationality, is an unjustifiable violation of the right to private life.

Furthermore, as was explained above, we are presented here with a clear violation of Article 21 TFEU. No EU citizen should ever have to forego all rights derived from EU law in order to become more permanently integrated in an EU host State.

The second question should therefore be rephrased in order for it not to be limited to the principle of proportionality, but to EU law in general. Additionally, it would serve the CJEU to extend the scope of the question to include an assessment whether the naturalization procedure of Austria is in conformity with EU law.

Time to take a stance on dual EU citizenship

There is an additional reason why the method employed by Austria violates the free movement rights, but this requires a longer explanation.

One should consider this case in a large and complex web of different lines of case-law.

In my Article on the “Free Movement of Dual EU Citizens”, I have explained that the C-165/16 Lounes case has created a rather complicated situation. This is due to the distinction made by the CJEU between ‘single’ EU citizens – being persons who have the nationality of only one Member State – and ‘dual’ EU citizens – being persons who have the nationality of more than one Member State.

As I explained in that Article, when a person returns to their Member State of nationality, and this is the only Member State of which (s)he has the nationality, the ‘right to return’ case-law applies (C‑370/90 Surinder Singh; C‑291/05 Eind; C-456/12 O&B, discussed here; C-230/17 Altiner and Ravn). This means that the person will only retain those rights derived from EU law that (s)he had made use of prior to the return while residing in another Member State. As was shown, prior to C-165/16 Lounes, problems arose for dual EU citizens when they moved between Member States of nationality, being on the one hand excluded from the scope of Directive 2004/38, while on the other hand only rights that were acquired on the basis of the Directive could be retained.

After C-165/16 Lounes, on the contrary, a dual EU citizen who returns or moves to one of his or her Member States of nationality, would not only be able to retain rights which were previously used, but continues to be able to derive new rights from the EU citizenship framework. This means that a single EU citizen is not treated in the same manner as a dual EU citizen would in a Member State of nationality, while both have made use of their free movement rights. While single EU citizens are still affected by reverse discrimination, dual EU citizens are only affected by it if they have never moved to and resided in the Member State in which they were born and of which they have the nationality.

I wrote that this differentiation is dangerous. I also stated that the CJEU should consider situations where the EU citizen had to renounce or automatically lost their original Member State’s nationality upon naturalization in another Member State, like in the case at hand.

I considered that one may not make a distinction between persons who acquired a nationality at birth and those who acquired it by naturalization. The reasoning of the CJEU in Lounes would have required a further distinction between persons who had naturalized and previously had the nationality of another Member State and those that had the nationality of a Third Country prior to naturalization. This would create immense problems.

Consequently, an application of C-165/16 Lounes to naturalized EU citizens who lost the previous nationality, without completely abolishing reverse discrimination, is impossible.

I stated that if the CJEU considered that there are two lines of case-law – one concerning single EU citizen returners and one concerning dual EU citizens – , it would have to restrict Member States as to requirements of renouncing the previous nationality if this is the nationality of another Member State and to the automatic loss of the nationality upon acquisition of another Member State’s nationality.

I considered that the requirement of renunciation of the previous nationality would equal a requirement to choose for the ‘single EU citizen’ framework and, therefore, to forego rights; and equally the automatic loss of a Member State’s nationality would be for the sole reason that the person wanted to become more integrated in the Member State of residence. This also meant that a person with only the nationality of a Member State with a strict ‘single nationality’ policy would be at an enormous disadvantage, since (s)he would have to naturalize twice in order to get within the dual EU citizen framework. In order to get within the ambit of this framework, a person who is a national from a Member State with a strict ‘single nationality’ policy would, in a first stage, have to lose this nationality by naturalizing in another Member State which permits multiple nationalities; and subsequently, in a second stage, acquire, additionally to this newly acquired nationality, another nationality from another Member State. While a person who originally already had the nationality of a Member State that permits dual nationality, would immediately start at the second stage.

In the case C-230/17 Altiner and Ravn, which concerned returners, the CJEU had the opportunity to make C-165/16 Lounes applicable to single EU citizens and end reverse discrimination. This opportunity has passed and the Court repeated its ‘right to return’ case-law without any significant change.

One should be aware though that, whatever happens in C-118/20 JY, this case will have an impact in other areas of EU law. For example, the C-386/02 Baldinger case of the CJEU where the Court accepted Austria’s refusal to continue to grant certain pension rights to a person who lost Austrian nationality upon acquisition of Swedish nationality, will have to be revisited.

The Court will have to follow through with the line it has taken and declare in C-118/20 JY that these automatic loss clauses and requirements to renounce the other Member State’s nationality are incompatible with EU citizenship.

If it does not, there will be no more legal EU citizenship framework building up to a fundamental status, but just a random set of cases which had potential, once upon a time. That is not the story we would like to tell.

Conclusions

The case C-118/20 JY v. Wiener Landesregierung, concerning the revocation of a guarantee of the grant of Austrian nationality, is more than a case on loss of EU citizenship. It is the first case where the CJEU will have to rule on the acquisition of EU citizenship.

It was considered here that the preliminary questions referred imply that the Austrian rules concerning the duty to renounce the previous nationality are compatible with international law and EU law in general. It was demonstrated that they are not.

It has been shown that the guarantee of the grant of Austrian nationality violates international law to such an extent by being revocable that any naturalized person in Austria might argue that (s)he might still have the original nationality, due to the fact that the renouncement had been contra legem. It was furthermore considered that Austria, in having a guarantee that is revocable, violated the principle of mutual trust.

Additionally, it was argued that not only Article 20 TFEU is applicable to the case, as the referring court insinuated, but also, and especially, Article 21 TFEU.

It was maintained that the CJEU will additionally have to consider that this case is an extension of its Lounes judgment. In Lounes and subsequently in Altiner and Ravn, the Court has made a distinction in the EU citizenship framework between ‘single’ EU citizens and ‘dual’ EU citizens. In JY it will now have to complete this distinction by decreeing that it is no longer permissible for a Member State to require that a person who wants to naturalize has to forego rights by renouncing his or her other Member State’s nationality. Equally, Member States will no longer be permitted to provide for the automatic loss of their nationality when one of their nationals acquires the nationality of another Member State.

One should keep a close watch on this case as it will have an impact in many areas of EU law. The fundamental status of EU citizenship might be on the horizon.

Barnard & Peers: chapter 13

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