From recognition to positive obligations: the ECJ’s judgment in Shipov (C-43/24)

 

 

By Marzia Genovese, Postdoctoral Lecturer and Researcher in Public Law at the European Documentation and Research Centre of the University of Pau (France).

Photo: Bulgaria Palace of Justice; photo credit Bim in Garten via Wikimedia Commons

      I.         Introduction

In K.M.H. v Obshtina Stara Zagora (Shipov, C-43/24), the Grand Chamber of the Court of Justice of the European Union (ECJ) held that Article 21 TFEU and Article 4(3) of Directive 2004/38, read in the light of Article 7 of the Charter of Fundamental Rights of the EU, preclude national legislation that does not permit a transgender Union citizen to amend certain data recorded in civil-status registers. The judgment builds upon the Court’s recent decision in Mirin and forms part of a broader line of case law concerning the relationship between free movement rights, personal status and gender identity.

The decision will likely be welcomed as a further step in the protection of transgender Union citizens exercising their free movement rights, yet the lines of reasoning adopted by both the Court and the Advocate General (AG) raise a number of conceptual and constitutional questions that remain insufficiently explored.

This contribution argues that Shipov marks a significant development in the evolution of Article 21 TFEU. Unlike Mirin, the case did not involve the recognition of a legal status previously acquired in another Member State. Instead, the Court used Article 21 TFEU to impose a positive obligation affecting the organisation of national civil-status law itself. At the same time, it does so through reasoning that leaves several conceptual and constitutional questions unresolved. In particular, the Court employs notions such as sex, gender and gender identity, without clearly identifying the legal category that Member States are required to recognise or modify. Additionally, the Court’s reasoning raises broader questions regarding the practical scope of Member State autonomy in matters of civil status.

The discussion proceeds in four steps. It first examines the conceptual uncertainty underlying the judgment. It then considers the shift from mutual recognition to self-standing positive obligations under Article 21 TFEU, before analysing the limitations of the AG’s reasoning as well. Finally, it reflects on the implications of Shipov for the relationship between Union citizenship and national competence in matters of civil status.

II. Conceptual ambiguity: what exactly must be changed?

One of the most striking features of Shipov is the conceptual ambiguity underlying the Court’s judgment. Throughout the proceedings, a number of distinct notions appear interchangeably, such as sex, gender and gender identity. Yet neither the Court nor the Advocate General clearly explain the legal relationship between these concepts or identify with precision which of them forms the object of the obligation imposed on Member States.

Such an obligation necessarily presupposes the identification of the legal category to be modified. Is EU law requiring the recognition of a person’s gender identity, the amendment of legal gender or the modification of civil-status records relating to sex? The judgment offers no clear answer.

The ambiguity culminates in the operative part of the judgment, where the Court refers to “data relating to gender, such as sex” (paras 36 and 56). This formulation is difficult to reconcile with a coherent conceptual framework. If sex and gender are distinct categories, as the Court itself appears to assume throughout the proceedings and it is also scientifically established, the judgment fails to explain why they can be treated as interchangeable for the purposes of civil-status registration. Conversely, if the two concepts are understood as functionally equivalent, the Court never justifies the use of separate terminology throughout its reasoning and moves fluidly between references to sex, gender identity and personal appearance without clarifying the legal significance of each concept.

This ambiguity is not merely semantic. It has direct implications for legal certainty. Member States remain, in principle, competent in matters of civil status. If EU law nevertheless requires them to modify certain entries contained in civil-status records, they must be able to determine with reasonable clarity and certainty which legal category is affected and what precisely must be recognised. By treating distinct dimensions as largely interchangeable, the Court risks obscuring the precise basis of the obligation imposed on Member States.

Moreover, the Court’s treatment of intersex and transgender persons illustrates the conceptual difficulties underlying the judgment (para 22). In assessing the Bulgarian legal framework, the Court appears to rely on the fact that national law permits the amendment of civil-status records in certain situations involving intersex persons whilst excluding such amendments for transgender persons. Yet the comparability of those situations is largely assumed rather than demonstrated.

This omission is significant. Intersex variations and transgender identity raise distinct legal and factual questions. The former concern biological conditions that may affect the classification of sex at the time of birth and, consequently, the accuracy of the original civil-status registration. The latter concern the recognition of a gender identity emerging after birth and whose legal implications are conceptually different from the correction of an allegedly inaccurate birth record. The Court does not explain why these situations should be treated as comparable for the purposes of civil-status registration, nor why legal solutions developed in one context should necessarily apply in the other.

Whether the situations ought ultimately to be treated alike is therefore not the central issue. The difficulty lies in the absence of a clear comparability analysis. By moving between different categories without defining the legal relevance of each of them, the judgment further reinforces the conceptual ambiguity already present elsewhere in its reasoning.

This difficulty is compounded by a second and arguably more fundamental question: does Shipov fit within the logic of the Court’s earlier citizenship case law at all?

III. From recognition to self-standing positive obligations

The Court presents Shipov as part of a broader line of case law concerning the exercise of free movement rights by Union citizens. Yet a closer examination reveals that the judgment departs in a significant respect from the logic underlying the Court’s earlier decisions on civil status.

Cases such as Grunkin-Paul, Coman and, more recently, Mirin were all built around a common premise: a legal status had already been lawfully acquired in one Member State and another Member State refused to recognise it. The obstacle to free movement arose from the coexistence of conflicting legal situations within the Union. In those circumstances, the Court relied on Article 21 TFEU to prevent Union citizens from suffering disadvantages resulting from the exercise of their right to move and reside in another Member State.

In Mirin, for example, the applicant had obtained legal recognition of his gender identity in the United Kingdom and sought recognition of that status in Romania. The Court’s intervention therefore remained rooted in a logic of mutual recognition. Romania was not required to create a new legal status; it was required to recognise one already validly established elsewhere in the Union.

Shipov presents a fundamentally different situation. The applicant had not obtained legal recognition of her gender identity in Italy or in any other Member State. No foreign administrative act, judicial decision or civil-status record existed that could serve as the object of recognition. The case therefore lacked the transnational legal element that had justified the Court’s intervention in previous cases. This distinction is not merely factual. It alters the very nature of the obligation imposed by EU law.

In the absence of any status acquired elsewhere, Bulgaria was not asked to recognise an existing legal situation. Rather, it was required to provide a mechanism through which a new legal status could be established under Bulgarian law itself. Article 21 TFEU thus ceases to operate as a principle of recognition and becomes a source of self-standing positive obligations affecting the organisation of national civil-status systems.

The significance of this shift should not be underestimated. Mutual recognition has traditionally allowed the Court to balance free movement rights with Member State autonomy. Whilst Member States remained free to determine the substantive conditions governing civil status within their own legal systems, they could not disregard legal situations lawfully established elsewhere. This logic preserved a degree of constitutional pluralism by distinguishing between the creation of legal status and its recognition.

In Shipov, however, that distinction becomes increasingly difficult to maintain. Once Article 21 TFEU is capable of generating obligations independently of any foreign status requiring recognition, the Court’s review is no longer confined to ensuring the continuity of legal situations across borders. It extends to the substantive content of national rules governing civil status. The competence formally remains national, but the outcome is increasingly shaped by EU law.

IV. The Advocate General’s ‘functional’ solution and its limits

 

If Shipov cannot be really explained through the logic of mutual recognition, a different justification is required. The AG sought to provide one by focusing on the functional role of identity documents in facilitating the exercise of free movement rights. Since identity documents play a crucial role in enabling Union citizens to move and reside freely within the Union, the Member State of nationality could not, in his view, maintain a system that prevented such documents from reflecting a person's lived gender identity.

The most problematic aspect of the Opinion, however, lies elsewhere. In paragraph 94, the AG expressly states that the original indication of the applicant’s sex should not be regarded as erroneous and should not be treated as a mistake requiring rectification. Two paragraphs later, moreover, he recalls the ECtHR’s recognition of the “historical nature” of birth records and of the continuing relevance of the sex assigned at birth for establishing facts predating gender reassignment. Yet the solution advocated by the Opinion ultimately requires the creation of a legal mechanism through which the same birth certificates may be amended in order to reflect a subsequently recognised gender identity.

The resulting tension is difficult to ignore. If the original registration was accurate and birth certificates serve, at least in part, a historical function, the Opinion never adequately explains why EU law nevertheless requires their amendment.

This tension is reinforced by the AG’s own discussion of Article 3(2) of Regulation 2025/1208. There, he acknowledges that EU law does not require Member States to include a reference to sex or gender on national identity cards and permits them to omit such information altogether, unlike the International Civil Aviation Organisation (ICAO) standards applicable to passports and other travel documents (all Member States, but not the EU, are parties to the Convention establishing the ICAO). If the objective pursued is the removal of obstacles to free movement, the necessity of amending birth certificates becomes considerably less obvious. The Opinion does not explain why that objective cannot be achieved through less intrusive means. As paragraph 82 of the Opinion makes clear, the perceived necessity of amending the birth certificate stems largely from the fact that Bulgarian identity documents are based upon that record, yet this approach risks extending the reach of Article 21 TFEU into matters that traditionally fall within Member State competence.

The AG’s functional approach thus succeeds in identifying a practical difficulty faced by the applicant, but it never convincingly explains why a birth certificate whose original entries are acknowledged to be accurate must nevertheless be altered in order to comply with EU law.

V. EU citizenship and national autonomy in matters of civil status

The preceding discussion ultimately points towards a broader constitutional issue. If Article 21 TFEU (which sets out EU citizens’ rights to move and reside freely in the EU) can require the amendment of civil-status records in the absence of any foreign status requiring recognition, what remains of Member State autonomy in matters of civil status?

The Court has consistently recognised that matters such as civil status, family status, names and personal identity fall, in principle, within the competence of the Member States (e.g., Runevič-Vardyn). At the same time, however, it has repeatedly held that those competences must be exercised consistently with EU law whenever the exercise of free movement rights is affected. The tension between these two propositions lies at the heart of Shipov.

Here, the Court expressly acknowledges that the issuing of identity documents falls within the competence of the Member State of nationality (para 47), yet it immediately adds that such documents serve to enable the exercise of the rights conferred by Article 21 TFEU. Once that connection is established, national rules governing civil-status registration become subject to review in light of both free movement and the fundamental rights guaranteed by the Charter, such as Article 7 (respect for private and family life).

This dynamic is further illustrated by the ECJ’s treatment of the Bulgarian Constitutional Court’s reasoning. The latter had previously interpreted the concept of sex contained in the Bulgarian Constitution as referring exclusively to biological sex and justified its interpretative decision in light of broader moral and religious rules and principles “prevailing over the interests of transgender persons” (paras 21 and 46). The ECJ rejected those arguments as potential justifications for the restriction of free movement and ultimately reaffirmed that neither the Member State’s competence in matters of civil status nor moral and religious considerations could justify the obstacles encountered by the applicant (paras 47-48). This logic culminates in paragraph 60 of the judgment, where the ECJ reiterates that rules of national law, even of constitutional rank, cannot undermine the effectiveness of EU law.

From the perspective of EU law, this result is hardly surprising. The principle of primacy would be significantly weakened if Member States could rely upon domestic constitutional concepts to avoid obligations flowing from Union law. Nevertheless, Shipov illustrates how the progressive expansion of Article 21 TFEU may affect the practical scope of Member State autonomy in areas that formally remain within national competence. This point is particularly significant when considered alongside the preceding sections.

To raise this concern is not to suggest that constitutional autonomy should operate as a shield against Union law. Nor is it to deny the legitimacy of protecting Union citizens against discrimination and/or unjustified obstacles to free movement. However, the broader the concept of an obstacle to free movement becomes, the greater the potential reach of EU law into areas that the Treaties continue formally to reserve to the Member States.

In this respect, Shipov may ultimately prove significant not only for legal gender recognition, but also for the constitutional development of Union citizenship itself. The judgment suggests that once a matter can be connected, even indirectly, to the exercise of free movement rights, the scope for maintaining distinct national approaches becomes increasingly narrow. Whether that development represents a natural consequence of Union citizenship or a more profound transformation of the relationship between EU law and national competences remains open to debate.

VI. Conclusion

Shipov is likely to be remembered as an important step in the Court’s case law on the rights of transgender Union citizens, yet its significance extends beyond the specific context of legal gender recognition.

The judgment suffers from a degree of conceptual ambiguity that is difficult to ignore. Throughout its reasoning, the Court moves between references to sex, gender and gender identity without clearly identifying the precise legal category that Member States are required to recognise or modify. This uncertainty is compounded by the Court’s equal treatment of intersex and transgender situations, whose comparability is largely assumed rather than demonstrated.

More fundamentally, Shipov marks an important step beyond the logic that characterised previous case law. Unlike earlier cases, no foreign legal status required recognition here. In this instance, article 21 TFEU was used not to ensure the continuity of a legal situation already established elsewhere in the Union, but to generate a positive obligation affecting the organisation of national civil-status law in circumstances where the transnational element appeared particularly weak. The AG’s attempt to justify that result through the functional role of identity documents is ultimately unpersuasive, not least because it fails to explain why birth certificates whose original entries are acknowledged to be accurate must nevertheless be amended in order to facilitate free movement.

Ultimately, the most significant issue raised by Shipov may not concern legal gender recognition at all, but the limits of Article 21 TFEU itself. Once the latter is capable of generating substantive obligations in areas formally falling within Member State competence, the distinction between the recognition of legal status and its creation becomes increasingly difficult to maintain. Whether the Court has provided a sufficiently clear and principled justification for that evolution remains an open question.

EU citizenship to get “thicker”: a case note on a public hearing

 

Jeremy Bierbach: lawyer, Franssen Advocaten; associate, Amsterdam Centre for European Law and Governance

Photo credit: Cedric Puisney, via Wikimedia Commons

Introduction

 

In Eric Stein’s groundbreaking 1981 article on the then-Court of Justice of the European Communities, “Lawyers, Judges, and the Making of a Transnational Constitution”,[1] he wrote:

 

Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe.

 

But the Court is now consciously stepping out from its traditional hermitage to give greater exposure to its role in upholding the rule of law in the European Union, at a moment in time when courts in many legal systems are increasingly being called on to rule on the permissibility of governments’ attempts to limit citizens’ rights. 

 

On 25 March 2025, a remarkable hearing took place before the Grand Chamber of the Court of Justice of the European Union. That I can even write about it is thanks to the Court’s introduction of a video streaming service, as of 26 April 2022.[2] While hearings involving oral pleadings before the Grand Chamber are not streamed live, they are made available with a delay (starting later on the same day), and remain available to view for an entire month after the hearing (as of 1 October 2024).[3] The streaming service has ingeniously patched audio streams of all of the languages of the EU over the video— or at least all of the languages for which interpretations are available, including the language of the case, just as if the viewer is sitting in the courtroom and turning the dial to select the audio for her or his earpiece. The Court’s most recent expansion of the streaming service was based on a conscious decision, with the imprimatur of the Council,[4] to increase the transparency of the Court’s workings and make the content of hearings, not just the Court’s own publications, available for academic analysis. 

 

The preliminary reference in Safi: background

 

I will hereby present the most interesting points that I transcribed from the hearing while it was available.[5]The language of this case, named Safi (a pseudonym for the plaintiff), was Dutch, because it concerned a preliminary reference from a district court in the Netherlands. At stake is the proper interpretation of Article 20 of the Treaty on the Functioning of the European Union (TFEU), which (with relatively minor differences from the current formulation) had been introduced as Article 17 of the EC Treaty with the Treaty of Maastricht founding the European Union in 1993 (current formulation below) :

 

1.   Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

 

2.   Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

 

(a)	the right to move and reside freely within the territory of the Member States;

 

(b)	the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;

 

(c)	the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;

 

(d)	the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.

 

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.

 

It is clear from the content of the streamed hearing in Safi (in which the Conclusion of Advocate-General Ćapeta will be issued on 4 September 2025, and the Court’s judgment can be expected sometime around the beginning of 2026), that Safi will be a very momentous judgment on Article 20, which can be said to represent the most idealistic norm of what EU citizenship is destined[6] to be. 

 

Safi will be the latest judgment in a saga on rights of residence for third-country national parents of young EU citizens (in those young EU citizens’ own member states of nationality), based on Article 20, that began with Ruiz Zambrano,[7] then continued with Rendón Martin,[8] and most recently the judgments on preliminary references from Dutch courts Chavez-Vilchez,[9] E.K.[10] (as a ruling on whether an Art. 20 right of residence is ‘temporary’ in the sense of Art. 3(2)(e) of the Long-Term Resident Directive, 2003/109) and X. v.Staatssecretaris van Justitie en Veiligheid (also known as Mère thaïlandaise d’un enfant mineur néerlandais).[11] 

 

The reason for the prominence of preliminary references from Dutch courts is that the Dutch government has consistently sought out the innermost boundaries of as stingy as possible an implementation of the Court’s case law on Art. 20. After Ruiz Zambrano, in which the third-country national father of a young Belgian child (whose mother was also a third-country national) was deemed to have a right of residence in Belgium based on Art. 20, the Dutch government considered that third-country national parents of young Dutch children would only have a right of residence if the other (inevitably Dutch national) parent was dead or otherwise incapacitated to care for the child alone. The Court put paid to that interpretation in Chavez-Vilchez, in which it ruled that denial of a right of residence to the third-country national parent, in cases where the Dutch parent was theoretically capable of caring for the child alone, but where the child was also dependent on the third-country national parent, would also mean that the child “be compelled to leave the territory of the European Union as a whole and thereby deprived of the genuine enjoyment of the substance of the rights conferred on him by” Art. 20, taking into consideration Art. 24(2) of the Charter of Fundamental Rights, the rights of the child.

 

The Court’s judgment in Mère thaïlandaise, in turn, was spurred by a preliminary reference on the Dutch government’s claim that the doctrine did not apply when the child (who in this case lived in Thailand with his grandmother) did not already reside in the Netherlands, or even in the EU. In this case, as well, the Court was compelled to complete the rather obvious syllogism that the right not to be compelled to leave the territory also implied a right not to be effectively denied access to the territory of the European Union by not be ensured of accompaniment by a third-country national parent on whom the child is dependent, and also further ruled on the significance of Art. 24(2) Charter.[12]

 

The preliminary reference in Safi was engendered by the Dutch government’s latest attempt to apply the Court’s case law as literally as possible. Ms. Safi (the Court’s pseudonym for the plaintiff) is the Moroccan mother of a young Dutch child, claiming a right of residence in the Netherlands, together with the child and her Dutch husband, based on Art. 20. However, she is in the possession of a permanent residence permit in Spain. Therefore, the Dutch government claims, her child would not in fact be compelled to leave the territory of the European Union as a whole; the child and his father can make use of Art. 7 of Directive 2004/38 (based on their right of freedom of movement, Art. 21(1) TFEU) to move to Spain, where the family could be intact.

 

Ms. Safi claims, on the other hand, that this would be anything but in the interests of the child: her son has language and learning disabilities and is currently receiving special education in his Dutch school. To be forced to go to a Spanish primary school in a completely new language would hinder his development even more. Moreover, her husband is unable to work and lives on a disability benefit, so he would be unlikely to be able to legally reside in Spain as a ‘worker’ on the basis of Art. 7 Directive.

 

The hearing

 

The Danish agent at the Court, as the representative of the only other member state to intervene, expresses support for the Dutch government’s standpoint. But the Dutch agent at the Court, responding to these arguments at the hearing, gives a rather hapless impression. The viewer would suspect that the baseline intransigence of all of the last five Dutch governments, when it comes to an unwillingness to generously interpret Art. 20 TFEU, is now amplified by the fact that the Dutch agent is being instructed by a civil servant (seated next to him) who is presumably representing the defendant, the Minister of Asylum and Migration, at the time Marjolein Faber-van de Klashorst of Geert Wilders’ hard-right Freedom Party (PVV).[13]

 

The agent appears to be unable or unwilling to respond to the A-G’s and the judges’ questions with compelling arguments based on EU law and the Court’s own case-law. In particular, his repeated insistence that the Dutch government’s decision to deny Ms. Safi’s application was in conformity with EU law because it ensured that the right to family life, based on Article 8 of the European Convention on Human Rights, would not be infringed (because the family could be intact in Spain), seems to arouse barely concealed irritation on the part of the Advocate-General when she is questioning him.  She goes on to ask, as to the substance of Art. 20 as established in Ruiz Zambrano (at 1h23m), why the child’s Art. 20 rights would be violated if he was compelled to move to Morocco, in the Dutch government’s view, but not if he was compelled to move to Spain. The Dutch agent can only speculate, in response (1h26m), that it might be more difficult for the child to move back to the Netherlands from Morocco in the future than it would be for the child to make use of freedom of movement to move back from Spain to the Netherlands or another member state. 

 

Turning to the Commission, the A-G asks, among other things (1h27m): “Article 20... says that the citizens of the Union shall enjoy the right to move and reside within the territory of the member states. Do you think that this might have any influence in this case? I mean, is the minor who is forced to move to another member state because his mom is not given the derived right of residence residing or moving "freely"?”

 

The agent of the Commission responds (1h28m, speaking Dutch, my transcription of the English interpreter): “If the child is forced to move to a member state where the child cannot live in a way that's compatible with his best interests and the right to family life, then that of course is not "free movement".”

 

Even more revealing were the questions and comments of the judges, first of all Vice-President Von Danwitz directly asking the agent of the Dutch government (speaking in French, my transcription of the English interpreter, 1h31m): “Now, we're getting the impression somewhat, or I'm afraid that I could get the impression, that here what is trying to be done is to take something that in my mother tongue is called "schwarzen Peter spielen". In other words, you want to avoid the social burden by passing the buck in relation to this particular family. Now, just before, you said that the Dutch authorities had concluded that in fact, in Spain, the family could live autonomously. They would be able to provide for their own subsistence. But if the Netherlands were to grant a right of residence to the mother of the child concerned, the mother would be able to start working again and could potentially allow the family to make ends meet. So the same trajectory that you suggest would be possible in Spain. So why doesn't such an option exist in the Netherlands?”

 

President Lenaerts immediately adds the clarification (speaking in Dutch, 1h34m, my translation): “May I be more blunt? The Dutch father now lives from a social benefit in the Netherlands. If the family is deported to Spain, then that benefit would no longer be paid out. That might create the impression that the Netherlands is dumping its social burden on another member state.”

Later on (1h41m), Judge Jürimäe, visibly irritated at an evasive answer provided by the agent of the Dutch government: 'Yes, but we just established that this is about the child and his Article 20 [Treaty on the Functioning of the European Union] rights, in conjunction with the Charter, and you [the Netherlands] are avoiding that issue in these proceedings. I'm talking about the rights of the child.'

Later on (1h43m): Judge Jääskinen: “Why are we having this case here? Does the Netherlands legislation include residence permits for the family members of Dutch citizens? ... I think in many member states you normally give a residence permit to the spouse or family member of a citizen, but in your member state, you have something more complicated.”

 

Later on (1h51m), in response to the agent of the Dutch government once more insisting, in response to the judge’s questions, that it can be assumed that the family would be able to be go together to Spain and there would thereby be no violation of art. 20 TFEU, Jääskinen says: “Doesn't this then mean, I refer to the ‘schwarzer Peter’ argument, that actually you are making an implied expulsion of your own citizens, you are counting that your own citizens are forced to leave because of the family circumstances?” 

 

President Lenaerts clarifies in Dutch (my own translation, improving on the English interpreter): “Judge Jääskinen’s question is in relation to what the Netherlands has pointed out: the Netherlands is expecting two of its own nationals, the father and the son, to leave the Netherlands, their own country of nationality, all to get rid of the mother.” 

 

Analysis

 

The Advocate-General’s Conclusion on 4 September, judging from the hearing, promises to be interesting. The questions that she can be expected to come to grips with are:

 

Whether an EU citizen (any EU citizen) can effectively be compelled to make use of freedom of movement based on Art. 21(1) from her or his own member state of nationality to a host member state, or if Art. 20 TFEU prohibits this. Then the following question would be when such a prohibition would be triggered:

 

-          with regard to young EU citizen children, when the rights of the child based on Art. 24(2) Charter are not taken into account; or

-          with regard to adult EU citizens, if the citizen in question is dependent on social assistance in his or her home member state and is unlikely to be able to satisfy the conditions set in Art. 7 Directive 2004/38 of being a worker, being self-employed or having sufficient resources.

 

As to the last subquestion: Vice President Von Danwitz’s question and President Lenaerts’s qualification of it were in fact quite revealing of this angle, which had probably not been envisaged by the parties in their own submissions. But their questions possibly foreshadowed the Court’s judgment Commission v. Malta,[14] which was handed down less than two months later, on 29 April 2025. In that judgment, the Court ruled that Malta’s citizenship by investment programme, by which the nationality of Malta, and therefore also EU citizenship, could be obtained in exchange for a nearly negligible period of actual residence and a substantial investment, violated Art. 20 TFEU and Art. 4(3) TEU, the principle of sincere cooperation. 

 

The Court thereby ruled that Art. 20 TFEU was not merely a Treaty right that is of interest for individuals, but that it also has a dimension relating to the interests of the member states severally, considering that the grant of nationality in one member state gives the holder access to freedom of movement in the entire Union. If one member state grants its nationality too easily, therefore, the movement of those newly minted EU citizens could be seen as noxious to the other member states.[15]  Critics of the judgment claimed that this meant that EU citizenship was being made to be “thicker”, in terms of setting substantive conditions for the grant of member state nationality.[16]

 

But it seems that the Court could rule in a similar vein that it is equally in violation of the principle of sincere cooperation for a member state to compel the movement of its own nationals to a host member state where they will potentially become a burden; therefore Art. 20 TFEU militates in favour of a right to remain in one’s own member state, where access to social assistance is unlimited.

 

It is the individual interests of the Union citizen that will be most augmented by the judgment on Art. 20 TFEU that is to be expected. It is perhaps not accidental that Ms. Safi and her child are (Dutch-) Moroccan, members of a heavily stigmatized minority in Dutch society. Geert Wilders, the leader and sole member of the PVV party that the defendant minister of the Dutch government served on behalf of, was in fact convicted on hate-speech charges in 2014 for making a promise to deport people (citizens and non-citizens alike) from Moroccan backgrounds.[17] In light of the final quote from President Lenaerts cited above, it certainly looks like the minister’s interpretation of EU law aimed to serve that very goal. Therefore, Art. 20 TFEU could serve as a key backstop against member states attempting to ‘alienize’ and effectively deport their own nationals; indeed providing a ‘thickness’ in terms of basic civil rights that EU citizens’ own member states’ legal systems may be lacking.

 

---

[1] E. Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’ (1981) 75 The American Journal of International Law1–27.

[2] https://eucrim.eu/news/new-streaming-service-at-cjeu-website/#:~:text=Since%2026%20April%202022%2C%20citizens,the%20delivery%20of%20the%20judgments.https://www.politico.eu/article/eus-top-court-embraces-digital-age-with-streaming-service/

[3] President of the Court Koen Lenaerts, in an interview with Prof. Katerina Linos, at 1h25mhttps://podcasts.apple.com/nl/podcast/cjeu-episode-2-european-union-court-of-justice/id1592768751?i=1000675376975&l=en-GB

[4] In the words of President Lenaerts himself, supra n. 3

[5] I previously presented them on 10 May 2025 at the conference of the European Union Studies Association, Panel 10L, in Philadelphia.

[6] ECJ Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve (2001), vol. C-184/99. “Union citizenship is destined to be the fundamental status of nationals of the Member States, 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.”, par. 31.

[7] https://curia.europa.eu/juris/liste.jsf?num=C-34/09

[8] https://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&num=c-165/14

[9] https://curia.europa.eu/juris/liste.jsf?language=nl&num=C-133/15

[10] https://curia.europa.eu/juris/liste.jsf?num=C-624/20

[11] https://curia.europa.eu/juris/liste.jsf?num=C-459/20

[12] For a critical note, however, see Harvey D. The Best Interests of the Child Need Not Necessarily be a Primary Consideration: ECJ 22 June 2023, Case C-459/20, X v Staatssecretaris van Justitie en Veiligheid (Mère thaïlandaise d’un enfant mineur néerlandais). European Constitutional Law Review. 2024;20(4):569-592. doi:10.1017/S1574019624000397 https://www.cambridge.org/core/journals/european-constitutional-law-review/article/best-interests-of-the-child-need-not-necessarily-be-a-primary-consideration/B0A6F9C4D7496110F50E2D9357967914?utm_campaign=shareaholic&utm_medium=copy_link&utm_source=bookmark

[13] The PVV withdrew all its ministers from government on 3 June 2025 over its insistence that the other coalition parties were not doing enough to put an immediate stop to asylum-related migration to the Netherlands, causing the government to collapse and go into caretaker mode; new elections for the lower house of Parliament will be held on 29 October 2025.

[14] https://curia.europa.eu/juris/documents.jsf?num=C-181/23

[15] I am consciously referencing the considerations of James Madison, Federalist 42, in favor of what became the unified rules for naturalization in the United States.

[16] https://verfassungsblog.de/eu-citizenships-new-essentialism/

[17] https://www.economist.com/europe/2025/08/28/after-a-year-of-chaos-the-dutch-hope-to-return-to-real-issues?giftId=0a5ba70a-777c-4d03-95b8-5c73bfa185a0&utm_campaign=gifted_article

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.