Two Sovereign States vs. a Human Being: CJEU as a Guardian of Arbitrariness in Citizenship Matters

Dimitry Kochenov

‘“Kafkaesque” is a word for which no adequate synonym exists’. Roz Safford, ‘Franz Kafka’s Quest for an Unavailable God’, San Francisco Chronicle, 5 April 1998.

Currently, the EU is still unable to decide who its citizens are. Meanwhile, it has been widely accepted that the obiter dictum contained in the famous paragraph 10 of the Micheletti decision[15] – on the ‘due regard to Community law’ point – holds; Rottmann reaffirmed this reasoning (para. 45) without giving it a much needed practical application.
That Rottmann would be decided in the way it was, was predictable, given all the case law on competences and the recent trend to leave more and more freedom to the national courts as demonstrated, inter alia, in Raccanelli[16] and Delay (2008),[17] where fundamental issues of EU law were sent back to the national courts to resolve. While such an approach can be regarded as a step towards strengthening the relationship of co-operation between the two levels of judiciary in Europe, reinforcing the EU’s co-operative federalism, if not as a step towards ‘citizenship pluralism’, as Davies suggested in his contribution, it can also be viewed as undermining the unity of the EU legal order.

The decision can rightly be criticised as not going far enough in introducing at least minimal logic and predictability into the current context of interaction between EU law and national law on issues of nationality. In this respect it is clearly a step backwards compared with the seminal decision in Micheletti¸ as it failed to clear the minefield of contradictions that plague the lives of numerous EU citizens in the context of the rising importance of the “ever closer Union” in Europe.

The elusive logic of nationality laws of the Member States is not only an obstacle on the way towards achieving the goals of the European integration project; it also negatively affects the lives of numerous EU citizens who are faced with random and unexplainable rules intruding in their lives virtually each time they come in contact with nationality regulation of the Member States. The latter presents a scary labyrinth of logically incomprehensible and often contradictory rules as completely justified by state ‘sovereignty’, ignoring the fact that while sovereignty confers competence, it does not require the bringing about of regulation which is illogical and unjust. Agreeing with Carens, it is submitted that competency considerations should not be used to shield Member States from criticism, since being in the position to regulate clearly cannot be construed to mean that bad decisions must be taken.[18] Unfortunately, the current Court has demonstrated that such long-awaited criticism is nowhere in sight, opting for easy solutions in compliance with the basic supremacy rationale.

While sharing the thoughts of the other commentators on the importance of the decision, this note takes a critical stance, focusing on four interrelated issues. Firstly, it critiques the Court’s failure to view the facts of Rottmann in the larger perspective of European integration where the crucial problems related to the rules of access to the scope ratione personae are bound, sooner or later, to be resolved. It is not right when law and logic part ways. Secondly, the note exposes the unwillingness of the CJEU to follow its own approach formulated in Micheletti, where a potentially harmful rule of international law was dismissed to give way to logical solutions for concrete problems arising in the context of European integration. Thirdly, it questions the legitimacy of the choice made by the Court to leave the application of the principle of proportionality to the national judicial authorities, rather than shaping the law at the EU level. Fourthly, it critiques the Court’s hélas not so uncommon failure to take the side of the individual in a situation when the answer to the question of whether the law to be applied is just is far from being clear. One should only hope that the CJEU will be ready to infuse common sense into the current state of affairs should the second chance arise. The ‘fundamental status of nationals of the Member States’[19] has been reinforced by the CJEU in a consistent line of recent rulings. Legal developments both at EU level and at the national level of the Member States have demonstrated with abundant clarity that EU citizenship and the nationality of the Member States are two coexisting meaningful legal statuses. Once one has the essence of both in mind, being misled by the fact that one is derivative from the other is impossible. AG Poiares Maduro has outlined this state of affairs in his Rottmann Opinion in an admirably clear way: ‘Union citizenship assumes nationality of a Member State but it is also a legal and political concept independent of that of nationality.[20] We are thus dealing with two autonomous legal statuses which are connected through acquisition: enjoying one is a precondition to possessing another.

Consequently, each qualifying Member State national is also a citizen of the European Union. The two different statuses are associated with different rights. Arguments have been made that such autonomous existence of two fundamental personal legal statuses should not necessarily imply that since the EU status is acquired via the national one it should also be lost via the national one in all cases.[21] In fact, when the Netherlands seemed to argue, in Eman and Sevinger[22] that those who leave the territory of the EU by moving into the parts of the Kingdom which are not covered by EU law ratione loci are not quite EU citizens, the CJEU squarely dismissed this supposition.[23] Pushing the meaning of “autonomous”to the extremes however, would imply that not only the loss of EU citizenship – an autonomous status – but also its acquisition should be governed autonomously from the Member States.

The position of separating the rules of acquisition of a supranational status (which remain at the national level) and the rules of its loss (which partly move to the supranational level) does not seem to be entirely logically coherent, since the issue of acquisition, which is bound to be derivative, is likely to loom large on the horizon any time when a claim of the lack of connection between national law and EU law in the issues of the loss of the status is made. It seems most impractical, if not impossible, to let two different legal orders govern the acquisition and the loss of the same legal status, since loss and acquisition are so obviously connected.

The logical resolution of possible conflicts, like the one at issue in Rottmann, can arise either through total separation of EU law and national law in the issues of governing the enjoyment of the two legal statuses in question (EU citizenship and Member State nationality), or through total harmonisation of nationality laws of all the Member States – a political impossibility in the current climate, notwithstanding the fact that six Member States already provide for different procedures of acquisition of Member State nationality along with EU citizenship as opposed to the Member State nationality alone for those who possess EU citizenship already.[24] A third alternative might consist in formulating clear supranational constraints on the exercise of the national level regulation, which seems the most feasible of the three, and is the approach advocated by the CJEU in Micheletti. The Rottmann Court failed to embrace the latter approach by delegating the application of proportionality to the national level.
1. The case of Dr. Rottmann exemplifies the untenable nature of the current half-way solution, where the statuses are separated in terms of rights, but their acquisition and loss are not. As a consequence, it is possible to rely on the status of EU citizenship and the rights associated therewith in order to change a Member State of nationality, which can bring about, in turn, not only the loss of the Member State-level statuses, but also the loss of the very status that enabled the relocation into the new Member State of nationality in the first place. AG Poiares Maduro was clear on this: ‘It was by making use of the freedom of movement and residence associated with Union citizenship which he enjoyed as an Austrian national that Mr Rottmann went to Germany and established his residence there in 1995, in order to initiate a naturalisation procedure.’[25]

The situation is beyond logical understanding: the possession of the status gives EU citizen a right to move to another Member State. Once this right is legitimately exercised, the naturalisation in that other state results not only in the loss of the first Member State-level status (i.e. Austrian citizenship), but also the second one (i.e. the German one). On top of it all, the status of EU citizenship, which is based on either of the two and which essentially enabled the initial switch between them is equally lost. What is it, if not a nightmare for any common sense lover?

The CJEU in Rottmann did not solve any of the logical inconsistencies of the current state of affairs. Instead of ruling that the legitimate use of EU citizenship cannot trigger statelessness, the Court inconsistently relied on international law, interpreting it in a way that goes against its fundamental principle: the limitation of the cases of statelessness. Rottmann is thus a rare example of international law on citizenship regarded uniquely through the lens of the exceptions contained therein. That Member States are free, both under EU law and under international law to decide who their citizens are, does not mean that international law necessarily allows statelessness to arise as a result of using EU citizenship status when crossing a border between Austria and Germany which is physically non-existent. Such interpretation of international legal rules on nationality is contrary to the very spirit of both EU law and international law.
2. The approach embraced by the court in Rottmann is a clear departure from its previous case law on nationality, exemplified by the sound Micheletti tradition, where the Court took a principled stance, refusing to accept the illogical orthodoxy of a “genuine connection” doctrine accepted in International law since Nottebohm,[26] saving both common sense and the common market. While Micheletti was a clear departure from an entirely arbitrary and potentially harmful rule of international law, openly dismissed by AG Tesauro as pertaining to the ‘romantic period of international law’,[27] Rottmann pretends to be faithful to international law by misinterpreting its main stance against statelessness.

Unlike Micheletti, where the Court dismissed the standing mainstream international law rule on recognition of nationalities to shape reasonable and logical regulation in the internal market, Rottmann went in the opposite direction of fetishising the few exceptions from the main rule of international law on statelessness. It did not even pretend to shape clear logical solutions. Such departure from a critical view of international orthodoxy is particularly strange after Kadi and Al Barakaat,[28] where the Court seemed to be more than willing to protect the rule of law and common sense.
3. Besides refusing to depart from a handful of exceptions from the main rule of international law, the Court made another move, which is likely to have potentially myriad harmful consequences and which equally departs from the Micheletti tradition. Rightly underlining the importance of the proportionality principle in deciding cases such as Rottmann, the actual application of proportionality was left to the Member States, notwithstanding the fact that the case specifically concerned the loss of the EU-level legal status, as the first question from Bundesverwaltungsgericht has clearly indicated.

Although such a “hands off” approach has recently been applied by the CJEU even in the issues which were previously considered as falling exclusively within the competence of the Union, like the definition of a ‘worker’, for instance, as O’Brien has demonstrated,[29] its application in Rottmann is particularly unfortunate, as it undermines the autonomous nature of EU citizenship. Refusing to take fundamental decisions having a direct bearing on its essence will ensure EU citizenship never becomes a true ‘fundamental status of the nationals of the Member States’, exposing the half-hearted nature of the mantra employed by the Court. We are only left to wonder about the suitability of the solutions to the outstanding problems posed by the conflicts and imperfections of the nationality laws of the Member States in the long term. Allowing the Member States to apply the test of proportionality[30] is a dead-end, unlikely to bring about clarity; indeed, it cannot result in anything other than fragmenting and obscuring the law even further, which threatens to bring about a definitive loss of any logical explanations of Member States’ nationality legislation in a situation when Member State nationalities as legal statuses connected with enforceable rights are losing their importance at an astonishing pace.[31]
4. The perspective of an ordinary human being caught between two omnipotent sovereign states able to destroy lives entirely without even noticing, is completely missing from the judgment. The Grand Chamber speaks of the need to apply proportionality ‘so far as concerns the consequences it entails for the situation of the person concerned in the light of European Union law … [and] … national law’[32] in such a way as if it is not absolutely clear that virtually all the rights of the person in question are at stake. How can any state-asserted interest whatsoever prevail against the need to make sure that statelessness, especially arising in the context such as the one at issue, be avoided?

It is deeply discomforting that the Court treats the issue of what essentially comes down to arbitrary deprivation of “the right to have rights” (paraphrasing Arendt) in such a way as if it was a technical issue of minor importance. In fact, the whole situation comes down to punishing Dr. Rottmann for using his right as an EU citizen to move from Austria to Germany and for being suspected of committing fraud by erasing him from the lists of members of any society, either national or supranational. The application of nationality rules of Germany and Austria functions in such a way that being suspected of a non-violent crime is regarded as sufficient in order to take away the very humanity of the person at issue.

This truly Kafkaesque situation to which “proportionality” is to be applied is precisely what the CJEU does not want to see, let alone resolve constructively. Instead of tackling the unfortunate consequence of co-application of nationality laws of two Member States to a situation of a real human being fully entitled to protection precisely at the supranational level given that the use of EU citizenship rights is unquestionably related to the problem at issue in the first place, the Court is seemingly technical and cold-blooded. Just like the revolutionary judges of the Stalinist Soviet Union it is unwilling to see the substance of the issue and the suffering it causes as long as formal rule of law has been applied.
5. How could the Court decide differently, taking all the aforementioned considerations into account? A). Acknowledging that the conventional idea of supremacy can also apply to citizenship issues is not enough to shape clarity and reason; more has to be done to ensure that the EU is a rule of law Union not only in a formal, but also in a substantive sense.
B). The dismissal of the Micheletti tradition – of approaching potentially harmful rules of international law critically – is premature. Before embracing international legal norms it is necessary to make sure that they are in line with the ideas of liberty and common sense, if not the rule of law. C). Application of international law, once a decision to do so has been taken, should include taking not only the exceptions from particular rules, but also fundamental principles, such as the impermissibility of multiplying the cases of statelessness into account. D). When proportionality is called upon to safeguard the coherence of the EU legal order it is naïf and counterproductive to expect such consistency to arise from the application of proportionality at the national level. E). Lastly, can the issues of statelessness be resolved through proportionality at all? What state interests can be weighed against the need to make sure that human beings are at least minimally protected, which in the current state of the law in the world which absolutely requires a nationality connection with a state? The Court’s answer pointing to the ‘wish to protect the special relationship of solidarity and good faith between [a State] and its nationals’[33] is hardly convincing, when juxtaposed with a complete legal elimination of a human being.
The Court failed in at least four respects: 1. It failed to create a suitable logical construct of interaction between Member State nationalities and EU citizenship which would be reasonable and explainable; 2. It failed to follow the Micheletti tradition of dismissing the rules of international law dangerous for the success of the European integration project – what it is clearly empowered, if not required to do; 3. It chose a wrong forum for the application of the principle of proportionality, which is crucial for the success in the shaping of if not uniform, then at least predictable and logically explainable rules on EU citizenship to be applied throughout the EU; 4. And, lastly, it failed to adopt a perspective of the individual, treating fundamental issues of crucial importance with little acknowledgement as to how much was actually at stake for a concrete person at issue, for Dr. Rottmann.

It remains to be seen if the future will bring more reasonable solutions to the questions this case has touched upon, which are among the most acute in EU law today and relate to the need to limit the abuse of Member States’ discretion in EU citizenship matters. It is clear at this point, however, that the EU will not be able to escape the necessity to play a more significant role in framing the rules determining who its citizens are, anticipated in the acquis academiques since long ago. Rottmannis an important step towards applying conventional supremacy to the nationality issues having a clear EU dimension. Yet, more importantly, it is also an opportunity missed, where the CJEU presented itself as a powerful guardian of arbitrariness in citizenship issues.