Professor Steve Peers, University of Essex*
*This blog post draws from the upcoming second edition of The EU Citizenship Directive (OUP, 2019), co-authored by myself, Elspeth Guild, and Jonathan Tomkin.
Typically, the rules governing the acquisition and loss of nationality are decided by individual Member States. However, this issue is central to EU law because, as stated in Article 20(1) TFEU, EU citizenship is reliant on possessing the nationality of a Member State:
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.
Considering the connection between Member State nationality and EU citizenship, can the loss of Member State nationality be reviewed for compliance with EU law? The recent Tjebbes judgment provided the Court of Justice of the European Union (CJEU) with a rare chance to address this question and offers significant clarification.
Background
The CJEU’s first ruling on nationality issues arose in the Micheletti case, where one Member State hesitated to recognize the nationality Mr. Micheletti acquired from another Member State due to his existing nationality from a non-EU state. The CJEU acknowledged that “[u]nder 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 statement implied potential limitations on national sovereignty in this area, suggesting that Community (now EU) law might influence Member States’ nationality laws.
However, it was almost two decades before the Court expanded on these limitations. In the meantime, the judgment in Kaur saw the Court uphold the principle of Member States defining their own nationals, citing a “principle of customary international law.” This principle, the Court argued, allowed the UK to establish “several categories of British citizens” with varying rights based on their connection to the UK. A declaration annexed to the UK’s Treaty of Accession defined these rights, which were later updated to reflect changes in British nationality law. Importantly, this declaration didn’t diminish any EU law rights, as such rights “never arose in the first place for such a person.”
The Rottmann case marked a shift where the Court established boundaries for national control over nationality loss, specifically regarding an individual who, unlike Ms. Kaur, had previously held EU citizenship but was subsequently stripped of it. Mr. Rottmann, an Austrian citizen and resident by birth, relocated to Germany after becoming subject to an investigation for serious fraud. He successfully applied for and obtained German nationality, consequently losing his Austrian citizenship. When German authorities uncovered the ongoing proceedings in Austria, which Mr. Rottmann had not disclosed, they initiated the process of revoking his German nationality. It appeared unlikely that he met the criteria to reacquire Austrian nationality.
Citing a declaration to the TEU and the 1992 Edinburgh Decision of Member States’ heads of government, the CJEU affirmed the competence of Member States to determine their nationals. However, the Court emphasized that the exercise of these competences must respect EU law. In this instance, the situation concerning an EU citizen facing the revocation of their naturalization by one Member State, potentially leading to the loss of their original Member State nationality and, consequently, their EU citizenship status and associated rights, “falls, by reason of its nature and its consequences, within the ambit of European Union law.”
Therefore, the CJEU could rule on the “conditions in which a citizen of the Union may, because he loses his nationality, lose his status of citizen of the Union and thereby be deprived of the rights attaching to that status.” This, the Court asserted, didn’t undermine the internationally recognized principle of Member States’ authority to establish conditions for acquiring and losing nationality. Instead, it upheld the principle that, for EU citizens, exercising this power “in so far as it affects the rights conferred and protected by the legal order of the Union” – like the withdrawal of naturalization in Rottmann – “is amenable to judicial review carried out in the light of [EU] law.”
The CJEU determined that the withdrawal of Mr. Rottmann’s nationality due to deception could align with EU law, given the “public interest” at stake. The Court argued it was “legitimate for a Member State to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality.” This stance found support in international law, notably the 1961 Convention on the Reduction of Statelessness and the Council of Europe’s European Convention on Nationality. Consequently, it fell to the national court to assess the proportionality of the decision in light of both national and EU law. In doing so, the national court had to “take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his family,” particularly regarding the potential loss of EU citizenship rights. The national court needed to evaluate “in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality.” Although EU law didn’t prohibit the withdrawal of nationality before regaining one’s original nationality, thereby avoiding statelessness, the national court had to consider if “the principle of proportionality requires the person concerned to be afforded a reasonable period of time in order to try to recover the nationality of his Member State of origin.” The Court explicitly stated that the “principles stemming from this judgment” concerning the impact of EU law on national powers related to nationality apply “both to the Member State of naturalisation and to the Member State of the original nationality.”
What are the implications of the Rottmann judgment? First, regarding its scope, the Court didn’t consider Mr. Rottmann’s past exercise of free movement rights to be a deciding factor. The judgment focused on the general loss of EU citizenship status, not its specific impact on individuals who had exercised free movement within the EU under the citizens’ Directive or other EU law provisions.
Second, what substantive rules are applicable? The Court acknowledges that a loss of citizenship based on “public interest” grounds, such as deception, can be justified, provided the principle of proportionality is applied. However, the judgment offered no specific guidance on weighing the public interest against an individual’s interest in retaining EU citizenship in this particular case. While the CJEU supported its reasoning in Rottmann by referencing the Convention on the Reduction of Statelessness and the European Convention on Nationality, it’s worth noting that fewer than half of the Member States ratified the former, and only a slight majority ratified the latter. In fact, ten Member States haven’t ratified either treaty.
Procedurally, the Rottman case established the need for a “reasonable period of time” to pursue the reacquisition of one’s original nationality as part of the proportionality principle. Although the Court mentioned judicial review, it provided no further details beyond referring to the national court’s obligation to apply the principle of proportionality. There was no specific mention of administrative procedural rights.
The latest judgment
The Tjebbes case involved four applicants: an individual holding dual citizenship (from birth) in the Netherlands and Canada; a Dutch citizen by birth who acquired Swiss nationality through marriage; her daughter, a dual Dutch and Swiss citizen from birth who, as a child, was included on her mother’s passport; and an Iranian national by birth who later acquired Dutch nationality. While residing outside the EU, each applicant applied for a Dutch passport. However, Dutch authorities determined that they had automatically lost their Dutch nationality due to residing outside the EU for over ten years and holding another nationality, as stipulated by Dutch law. This loss could have been prevented by residing in the EU for a year before losing nationality or by obtaining a Dutch nationality declaration, travel document, or identity card. Specific rules for minors result in the loss of Dutch nationality mirroring a parent’s loss of the same.
The national court expressed concerns about a general rule leading to nationality loss (as opposed to an individual decision, like in Rottman) and the specific implications for children. They requested the CJEU to determine whether the Dutch regulations align with EU law. The Court’s analysis started by highlighting that none of the individuals involved had exercised free movement within the EU. Therefore, the judgment focused on EU citizenship in principle, rather than the loss of free movement rights.
The Court, reiterating the fundamental points established in Rottmann—that the loss of nationality must comply with EU law, and a Member State can justifiably “protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality”—affirmed the following general principle:
when exercising its competence to lay down the conditions for acquisition and loss of nationality, it is legitimate for a Member State to take the view that nationality is the expression of a genuine link between it and its nationals, and therefore to prescribe that the absence, or the loss, of any such genuine link entails the loss of nationality. It is also legitimate for a Member State to wish to protect the unity of nationality within the same family.
Applying this principle, the ten-year absence criterion in Dutch law “may be regarded as an indication that there is no such link.” Regarding children, “the lack of a genuine link between the parents of a child who is a minor and the Kingdom of the Netherlands can be understood, in principle, as a lack of a genuine link between the child and that Member State.”
This interpretation found support (similar to Rottmann) in the Convention on the Reduction of Statelessness, which allows for nationality loss in “similar situations” as long as the individual concerned doesn’t become stateless, a risk mitigated by Dutch law. Further support was drawn from the European Convention on Nationality, which states that nationality can be revoked in cases of “no genuine link between that State and a national habitually residing abroad and, in the case of a minor, for children whose parents lose the nationality of that State.”
The existing safeguard—the option to request a Dutch nationality declaration, travel document, or identity card within the 10-year period to interrupt the process—was deemed relevant.
However, mirroring the Rottmann case, the Court stressed that national authorities and courts must ensure that the loss of Member State nationality (and consequently, EU citizenship) upholds the principle of proportionality. This assessment should consider “the consequences of that loss for the situation of the person concerned and, if relevant, for that of the members of his or her family, from the point of view of EU law.” Notably, the Court argued that nationality loss “by operation of law would be inconsistent with the principle of proportionality” if it didn’t allow for “at any time an individual examination of the consequences of that loss for the persons concerned from the point of view of EU law.” This examination could, “where appropriate,” entail reinstating the individual’s nationality retroactively during an application for a travel document or other proof of nationality. This safeguard exists within Dutch law and necessitates:
an individual assessment of the situation of the person concerned and that of his or her family in order to determine whether the consequences of losing the nationality of the Member State concerned, when it entails the loss of his or her citizenship of the Union, might, with regard to the objective pursued by the national legislature, disproportionately affect the normal development of his or her family and professional life from the point of view of EU law. Those consequences cannot be hypothetical or merely a possibility.
This proportionality assessment must ensure that national authorities and courts verify whether the loss of nationality aligns with the EU Charter of Rights, specifically the right to family life (Article 7) and the obligation to consider the best interests of the child (Article 24). Regarding relevant individual circumstances, it’s likely significant if the individuals:
would be exposed to limitations when exercising his or her right to move and reside freely within the territory of the Member States, including, depending on the circumstances, particular difficulties in continuing to travel to the Netherlands or to another Member State in order to retain genuine and regular links with members of his or her family, to pursue his or her professional activity or to undertake the necessary steps to pursue that activity.
Further considerations include whether the affected individual could renounce the nationality of the non-EU country and whether they risk facing a “serious risk” to their “safety or freedom to come and go” due to losing consular protection under Article 20(2)(c) TFEU in their country of residence.
Additional safeguards are in place for minors: administrative and judicial bodies must “take into account, in the context of their individual examination”, the possibility that a child losing nationality as a consequence of their parent’s nationality loss “fails to meet the child’s best interests as enshrined in Article 24 of the Charter because of the consequences of that loss for the minor from the point of view of EU law.”
Comments
The Tjebbes ruling largely reaffirms the Court’s stance in Rottmann: Member States retain competence over the regulations surrounding the loss of nationality (and by extension, EU citizenship), subject to minimum standards established by the Court due to the significance of EU citizenship. These standards draw upon international treaties, allowing for substantial national discretion in defining the grounds for nationality loss. A proportionality test, considering individual circumstances, including those of family members, is required, along with judicial oversight.
However, several points are further clarified or introduced. Firstly, it is now evident that the loss of Member State nationality raises concerns due to the accompanying loss of EU citizenship, irrespective of whether the individuals involved have exercised their free movement rights. Secondly, the Tjebbes ruling suggests a greater emphasis on preventing statelessness compared to the relative indifference shown in Rottmann.
Thirdly, the Court affirms that legitimate considerations for Member States extend beyond the public interest concerns of deception, as in Rottmann, to include a lack of residency within the EU for a defined period. (The Court doesn’t address the hypothetical scenario of nationality loss due to exercising free movement rights within the EU, which would clearly be problematic, as it would penalize and discourage the use of these rights. Additionally, there’s no mention of the possible relevance of the EU/Swiss free movement treaty regarding one of the individuals involved). The Rottmann ruling implicitly acknowledged that Member States could impose nationality revocation (and consequently, EU citizenship loss) as a sanction for even more serious offenses like terrorism.
Fourth, the Court accepts that a general rule, rather than an individual decision, can result in nationality loss. However, it deems it crucial that this general rule be balanced by a general safeguard—in this instance, the ability to preempt nationality loss by applying for an identification document within a ten-year timeframe. Fifth, both cases underscore the importance of reviewing the proportionality of nationality loss, though the applicable standards differ. While both scenarios necessitate an assessment of individual consequences, the criteria in Tjebbes shifts from “whether that loss is justified in relation to the gravity of the offence committed by that person” (Rottmann) to whether it results in a disproportionate impact on “the normal development of his or her family and professional life from the point of view of EU law.” However, arguments based on this criterion cannot be purely hypothetical.
The Court mandates that this assessment considers limitations on exercising free movement rights and consular protection (which are almost unavoidable, except perhaps for Swiss citizens—though again, the Court omits mentioning the EU/Swiss treaty). This includes potential travel restrictions to the EU (potentially more problematic if a visa requirement is imposed, as with Iranian citizens, unlike those from Canada or Switzerland) concerning family ties or professional pursuits. For minors, it is challenging to see how losing EU citizenship due to a parent’s actions, despite the child’s potential future decision to leave the EU as an adult, serves their best interests. Sixth, the Court emphasizes the obligations of administrative authorities, not just judicial control. Finally, the judgment places notable weight on the EU Charter of Rights, absent in Rottmann.
However, uncertainties persist. The Court’s concern over the risk of statelessness appears inconsistent, ranging from relative indifference in Rottmann to an implied safeguard in Tjebbes. This leaves the crucial question of certainty regarding acquiring another country’s nationality unresolved (a pertinent issue in UK case law and disputes). Furthermore, the relevance of the two international treaties cited in both cases remains unclear, considering a significant number of Member States haven’t ratified one or both. It raises the question of whether certain limits on judicial review or those stemming from administrative procedures could be challenged for undermining effectiveness.
The limited number of cases—approximately one per decade—reaching the Court naturally restricts the potential development of case law on this matter. However, the UK’s impending non-EU status could lead to an influx of cases. This raises several questions, most notably whether UK nationals, who held EU citizenship until Brexit Day, lose this status on that date (unless possessing the nationality of a remaining Member State). The prevailing view, based on the Treaty’s wording—“Every national of a Member State shall be a citizen of the Union”—is that they do. This interpretation suggests that when a State ceases to be a Member State, its nationals lose their EU citizenship. This is reflected in the draft withdrawal agreement, which distinguishes between UK nationals and EU citizens, defining the latter as citizens of Member States while excluding the UK. It is also implicit in the Court of Justice’s case law on the loss of EU citizenship, which operates under the premise that losing Member State nationality results in losing EU citizenship, a distinct issue from a country leaving the EU.
Conversely, some argue that the Treaty only outlines the path to acquiring EU citizenship, not losing it. Therefore, Brexit cannot strip UK nationals of their existing EU citizenship. A Dutch court initially decided to request clarification from the CJEU on these matters (see discussion here), but an appeal court decided against pursuing the case. The CJEU may eventually address and settle this question.
Brexit will undoubtedly trigger other issues. Member States with laws revoking citizenship for residents outside the EU will see an increase in affected individuals due to the UK’s non-EU status. At a minimum, should time spent in the UK during its membership be disregarded when applying this law? Or should it only apply to nationals relocating to the UK post-Brexit? This raises the broader question of whether time spent in the UK before Brexit continues to hold weight in matters of EU citizenship and free movement law (particularly for EU27 citizens who married non-EU citizens in the UK and later returned to their home country).
Considering the sensitivity surrounding nationality as a core element of national sovereignty, the EU’s lack of power to harmonize national legislation in this area, the TEU declaration, and the Edinburgh decision, there’s a strong argument against the Court’s interference in national laws regarding nationality loss. However, the Court’s significant deference to Member States on this issue in its case law weakens this argument. Ultimately, the importance of this case law might lie in its role as a safeguard against potential authoritarianism, where a Member State might attempt to revoke the citizenship of those critical of the government for defying the “will of the people.” However, a government willing to disregard the rule of law so blatantly might also disregard CJEU rulings, a paradox for another discussion.
Barnard & Peers: chapter 13
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