Key Legal Issues
- The competence, if any, of the European Union in matters of citizenship.
Commission's Complaint: National Competence has Limits
- The Commission notes that while Member States can set rules for acquiring nationality, EU law limits this power.
- Mutual trust is essential for EU citizenship, and Member States must not create citizenship rules that undermine its essence, value, and integrity.
- EU citizenship is intended to be the fundamental status for nationals of Member States.
- EU law imposes significant obligations on Member States regarding their treatment of EU citizens who seek to exercise their rights.
- Granting Member State nationality automatically confers EU citizenship and its associated rights, impacting other Member States and the EU.
- Therefore, Member States must consider EU law when granting nationality to third-country nationals (the principle of sincere cooperation - Article 4(3) TEU - and the integrity of EU citizenship - Article 20 TFEU).
Malta's Response on National Sovereignty
- Since ancient times, States have sought to attract wealth and prosperity by encouraging an influx of high-net-worth individuals through the grant of citizenship or its equivalent
- The power to attribute nationality lies at the very core of national sovereignty. It is attached closely to the conception and the development of a Member State’s national identity that Article 4(2) TEU requires the European Union to protect.
Advocate General's Opinion on Member State Competence
- The Commission has not proven a breach of the Treaty provisions governing citizenship - there is, therefore, no basis, in law or in fact, for the claim that the Republic of Malta is in breach of the duty of loyal co-operation. (AG Opinion, para. 40).
- Malta confirmed that, in exchange for payment of a specific financial contribution, a single year’s legal residence in that Member State suffices for the purposes of naturalisation. (AG Opinion, para. 41).
- The Commission based its single complaint upon the existence of a requirement under EU law – and under international law – that, in order to preserve the integrity of EU citizenship, there must be a ‘genuine link’ between a Member State and its nationals. (AG Opinion, para. 41).
- The enjoyment of EU citizenship is entirely dependent upon the existence of Member State nationality, and established case-law gives each Member State exclusive competence to lay down the conditions under which its nationality may be acquired and lost. (AG Opinion, para. 44)
As I indicated in my Opinion in Préfet du Gers,(38) the Member States could have decided to pool their competences and to confer on the European Union the power to determine who may become an EU citizen. They have chosen not to do so.
Advocate General, Opinion, para. 44.
- Declaration No 2 on nationality of a Member State, annexed to the final act of the Treaty on European Union exposes the extent of Member State prerogatives in the area of citizenship, stating that the acquisition of Member State nationality automatically results in the acquisition of EU citizenship, which all other Member States are bound under EU law to recognise. (AG Opinion, para. 45).
… 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…’
Declaration No 2 on nationality of a Member State.
- Member States clearly chose not to pool their respective conceptions of nationality since these touch the very essence of their sovereignty and national identity. (AG Opinion, para. 45).
- Article 9 TEU, Article20(1) TFEU and Declaration No. 2 do not permit the EU institutions, or other Member States, to introduce any conditions for the recognition of the nationality of another Member State, as confirmed by the Court in the Micheletti and Zhu and Chen judgements. The corollary of this is that "Member States are not required to have a shared conception of what constitutes nationality and that the rules for its grant can diverge". (AG Opinion, para. 48)
- The AG agreed with Malta's assertion that the review of the withdrawal of MS nationality should not be subject to the same EU rules as its acquisition, given extra attention is given to avoid consequences of deprivation of EU citizenship such as statelessness. (AG Opinion, para. 52).
It follows from the Nottebohm judgment that, at least in the ICJ’s opinion, the rules for the grant of nationality are a matter for individual States.
Advocate General, Opinion para, 56.
- "A duty under EU law to recognise nationality granted by other Member States is a mutual recognition of, and respect for, the sovereignty of each Member State– not a means to undermine the exclusive competences that the Member States enjoy in this domain. To find otherwise would upset the carefully crafted balance between national and EU citizenship in the Treaties and constitute a wholly unlawful erosion of Member States’ competence in a highly sensitive field which they have clearly decided to retain under their exclusive control. (AG Opinion, para. 57, emphasis added).
The Role of the Advocate General of the Court
History: The office of the Advocate General was introduced into the Treaty of Rome under the influence of the French who proposed a French model that allowed an official to offer legal advice to the court on cases being tried.
Appointment: Advocates General are members of the Court of Justice of the EU, and are appointed under the same procedure as judges and enjoy the same privileges (immunity) and cannot be removed from offices before the end of their 6-year term.
Role: However, unlike judges they only have an advisory role and do not take part in the decision-making process of the Court. The Advocate General assists the court by writing impartial opinions. In principle, the opinion of an Advocate General is sought in all cases to be tried by the CJEU, unless the Court decides that there is no new point of law (30% of cases annually, but clearly not this case).
Influence of Opinions on Final Judgements: AG Opinions are not binding but are often followed by the CJEU. In the absence of dissenting opinions filed by the CJEU judges, the opinions of the Advocates General therefore play an important role and are referred to in later cases. The CJEU is not bound by these opinions; nonetheless, according to empirical research, in the case of an action for annulment of an EU act, the CJEU is 67 % more likely to annul it if doing so was advised by an Advocate General. (if interested, read more on the role of Advocate General here).
The Decision of the Court of Justice, EU
The Advocate General’s opinion clearly supports Malta’s position that the Mediterranean member state should be allowed to serenely determine the rules on he acquisition and deprivation of Maltese citizenship within the Island's sovereign competence, subject to the limits applicable to the loss not acquisition of citizenship.
It is to be noted that the Advocate General's opinion is not binding on the Court and that the final decision ultimately lies in the hands of the Court of Justice of the European Union.
As the judges deliberate, we can expect the final judgement as early as December 2024 or in the early months of 2025.
Inquiries
Should you wish to discuss the implications of this opinion on your application or on your existing citizenship, please reach out to us for a complimentary chat. But please bear in mind that the final decision will be out in the coming months.
Our Maltese Citizenship by Investment Services
We offer the following services in relationship to Malta Citizenship by Investment:
- advising you on your eligibility and your chances of success before filing your application;
- providing you with pre-immigration legal and tax advice;
- guiding you with the preparation and forwarding of the necessary documentation;
- vetting and preparing all supporting documentation for submission;
- assisting you with the purchase / rental of property in Malta including applications for AIP permits (foreigners need AIP permit to purchase property in Malta), reviews of your contract, liaising with the notary.
Applications for Maltese Citizenship by Investment are to be made to and processed wholly by Agenzija Komunita Malta. Dr Priscilla Mifsud Parker is a Licensed Agent, holding licence AKM-ACCA.
