Anthony Parry / Dec 2024
Image: Shutterstock
With a decision expected imminently by the European Court of Justice (ECJ), this case highlights the delicate balancing act between national sovereignty and EU integration. The outcome will play a significant role in defining future debates on European nationality.
The European Commission has challenged Malta’s "golden passport" scheme in the European Court, arguing the current route to Maltese nationality offered through investment neglects the need for a "genuine link" to the country. Malta’s answer is that the European Commission has failed to establish that there is any requirement at all for a genuine link, under either EU or international law. Their position points to Declaration 2 annexed to the Treaty on European Union, which affirms that Member States retain full sovereignty over nationality laws.
Declaration 2 also underpinned a recent opinion of the Court’s Advocate General, leading him to suggest that the Court dismiss the case. According to AG Anthony Collins, the Declaration “reflects the view of the Member States that their respective conceptions of nationality touch on the very essence of their sovereignty and national identity, which they do not intend to pool”. This view - that nationality is a matter of national identity - is one that Article 4(2) TEU obliges the EU to respect. As such, EU law requires Member States to recognize each other’s nationality grants without imposing additional conditions, reinforcing the sovereignty retained in this area.
The Court is not bound to follow the opinion of its AG, but it does so in around 70% of cases. The Court is likely to be sympathetic to the Commission’s underlying argument that the pathway to European citizenship shouldn’t be abused. However, anti-abuse or anti-avoidance measures have to be proportionate and case by case. On the whole, the Commission’s case seems misconceived. Ahead of the AG’s opinion, other prominent legal voices have warned against this potential overreach. Prof J.H.H. Weiler, of the NYU School of Law, perhaps overstates the matter only a little when he describes the infringement case as “a crass attempt by the Commission to circumvent proper constitutional and decisional procedures required under the Treaties”.
The Court may want to look at whether it can construct an anti-abuse proviso and try to find for the Commission accordingly. But this case is the wrong vehicle for that because the Court cannot substitute itself for the national legislature or a formal amendment of the Treaty. In its recent Perle judgment, the European Court affirmed that according to a general principle of EU law, EU law cannot be relied on for abusive or fraudulent ends but that rather begs the question whether the Commission can presume that national legislation is of itself inherently for abusive or fraudulent ends. That is obviously not the case here.
While the UK is of course no longer a Member State of the European Union, the interplay of UK nationality law with EU law goes back to UK Accession in 1992 and provides further helpful context. The Declaration on Nationality has a considerable history, going back to a Declaration enshrined in the UK Act of Accession to the EEC (the forerunner of today’s European Union). In it, the UK set out explicitly their national categories of persons to whom the new treaties were to apply: those with “right of abode” and those with right to reside in the UK – not the case with all the then categories of UK citizen.
The interplay between UK nationality law and EU law has come up many times and notoriously in the context of withdrawal of citizenship. The recent Begum case concerning one of the three girls who joined Isis gained a lot of media attention, but there have been a good many others including the Pham case which was decided in 2015 (while the UK was still part of the European Union). The Pham judgment, which was referred to with approval in the Begum case, leaves no doubt that for the UK courts it is UK law which is decisive in nationality cases.
The Court should not allow itself to be drawn into trying to construct anti-abuse measures as a means of making up for the absence of treaty rules. The grounds for the Court rejecting the Commission’s infringement case are straightforward, as laid out by their own AG.
