The consequences of the Rottmann judgment on Member State autonomy - The Court’s avant-gardism in nationality matters

 

Gerard René De Groot and Anja Seling

 

Introductory remarks
The very welcome judgment in Rottmann can be regarded as a milestone in the sphere of nationality law. Certainly the approach followed by the CJEU is active, yet the Court’s approach can be characterised as judicial avant-gardism and should not be seen as erroneous behaviour. It became clear that the CJEU is willing to challenge Member States’ autonomy in nationality matters. As has been rightly acknowledged by Davies and Kochenov in their contributions, the judgment cannot be considered as very surprising, or as coming somewhere out of the blue based solely on the CJEU’s creativity. No, this was certainly not the case in view of the Court’s previous rulings, especially with regard to Micheletti[47] which has been described by some commentators as ‘impérialisme communautaire’.[48] Moreover, the active stance of the Court with regard to shaping the concept of Union citizenship is clear in cases such as Baumbast,[49] Martínez-Sala,[50] Grzelczyk,[51] Garcia Avello[52] and Bidar,[53] to name but a few, to the extent that the Court declared the status of Union citizenship to be fundamental and thus endowed the formerly merely economically motivated concept with considerable strength. In so doing, it gave clear hints which no one could possibly neglect. Already in 1996 Hall argued that the introduction of Union citizenship places an important limit on the power of the Member States to deprive an individual of his or her nationality.[54] Thus, the readiness of the Court to dare to take a further step in this “holy” domain of the Member States could have been easily foreseen. The signs were clearly there and therefore to speak of an outrageous or wrong approach taken by the Court cannot be supported. On the contrary, it has to be welcomed that the Court ruled as it did. Firstly, the Court did not overstep its competences since it left it to the national courts to proceed further with the issue regarding the principle of proportionality, and secondly, the attempt to help an individual not to become stateless is a legitimate aim.

However, what makes the case so unique is that for the first time, the question was raised as to the extent of discretion available to the Member States to determine who their nationals are and whether the powers of the Member States to lay down the conditions for the acquisition and loss of nationality can still be exercised without any right of supervision for EU law (Opinion Maduro, para. 1). The indirect influence of Union law on nationality laws of the Member States was therefore directly addressed in Rottmann.
The questions which the judgment poses are multiple. Firstly, since the Court has ruled that the issue at stake falls within the scope of European Union law, it needs to be clarified to which situations within the sphere of nationality law the scope of Union law now applies, how far it reaches and what kind of situations it engages with. In addition, as pointed out by all contributions, the question of the relationship between Union citizenship and national citizenship has to be addressed. Does the judgment, as noted by Davies, point to a re-ordering of this relationship in favour of Union citizenship? Does Rottmann indeed point in the direction of the abandonment of the hierarchy of the two concepts and is it time to rather speak of citizenship pluralism as he suggests? Moreover, the possible concrete consequences on nationality laws of the Member States have to be analyzed. It seems clear that some provisions in the Dutch Nationality Act, to take just one example, are not in line with the principle of proportionality and should therefore be amended.

Scope of the ruling
The question as to precisely which situations fall within the scope of Union law after Rottmann is crucial. Do the statements of the Court in paragraphs 42 and 43 to the effect that Union citizenship must be regarded as a fundamental status and certain national acts engaging Union citizenship fall by reason of their very nature within the ambit of EU law mean that in consequence all situations which concern the granting or loss of nationality and which result consequently in the acquisition or loss of Union citizenship fall within the scope of Union law? More bluntly, does this mean that Member States are now obliged always to take into account Union law in their decisions whether to grant or to revoke national citizenship, in case Union citizenship would be in danger of being lost? In this respect, it might be helpful to differentiate between different situations. The case at stake reflects a situation in which a citizen of a Member State who possessed the nationality of another Member State but lost the latter due to the acquisition of the new Member State nationality. The loss of the newly acquired Member State nationality consequently means loss of Union citizenship. The Court found that such a situation falls undoubtedly within the scope of Union law (paras. 42-43). Another situation would be that a citizen of a Member State loses that nationality but still possesses the nationality of another Member State and therefore does not lose Union citizenship. Does such a situation clearly not also touch upon EU law?

Again a different situation arises with regard to a third -country national who becomes naturalised in a Member State and therefore acquires Union citizenship. After his naturalisation he moves to another Member State. He is then confronted with a procedure of deprivation of his Member State nationality and accordingly of Union citizenship. The wording of paragraph 42 does not seem to cover such a situation. However, in Metock the Court already found that the freedom of movement for Union citizens ‘must be interpreted as the right to leave any Member State, in particular the Member State whose nationality the Union citizen possesses, in order to become established under the same conditions in any Member State other than the Member State whose nationality the Union citizen possesses’.[55] This may have as a consequence, that third -country nationals naturalised in a Member State of the European Union also fall within the scope of Union law when they are threatened with the loss of their previously acquired Union citizenship status on condition that they have made use of the right to free movement. Lastly, does a situation involving a third -country national who is naturalised in a Member State and therefore also becomes a European citizen but who does not make use of his free movement rights, and who loses Member State nationality and accordingly Union citizenship fall within the scope of Union law too? Is such a situation covered by paragraph 42 of the judgment? Does the Court thereafter view Union citizenship as by definition not an internal matter or, as outlined by Maduro, is it only not an internal matter after use has been made of the Union citizen’s free movement rights (Opinion, para. 11)? The answer to this question is not very clear but following Metock it is most likely to be negative.[56]

What seems to be clear is that situations where unequal treatment between those Union citizens who made use of their free movement rights within the European Union and therefore enjoy stronger protection not to lose their nationality and those who took up residence in a third country and thus enjoy less protection should be avoided, as Golynker has shown. This would imply a distinction between for example “average” Dutch citizens and those carrying little Union stars around their heads.[57]

In addition, the question arises whether only the loss of nationality falls within the scope of EU law, or whether this is also the case with national acquisition. Even though the Court differentiated between the situation in Rottmann and that in Kaur (see para. 49), it appears rather ill-founded to assume that situations in which the granting of Union citizenship is at stake do not fall within the scope of Union law (see the contribution by Davies). This could also be concluded from para. 62, where the Court emphasizes ‘that the principles stemming from this judgment with regard to the powers of the Member States in the sphere of nationality, and also their duty to exercise those powers having due regard to European Union law, apply both to the Member State of naturalisation and to the Member State of the original nationality.’ Therefore, Austria has to observe these principles when Rottmann applies for reacquisition of Austrian nationality.
Possible consequences on Dutch nationality law
So far few contributions to this forum have pointed out the potential consequences the judgment will have for the nationality laws of the Member States. The Court ruled that the loss of Union citizenship and the rights attached to that status is amenable to judicial review carried out in the light of European Union law (para. 48). This will most certainly entail a scrutiny of the nationality laws of the Member States. In the following some possible examples will be outlined with regard to a scrutiny of Dutch nationality law.[58]

In particular, problems could arise with regard to Articles 14 and 15 (1) (d) of the Netherlands Citizenship Act which regulates the loss of Dutch Nationality by deprivation. Generally, the principle of proportionality also applies in Dutch national law. However, in addition, following Rottmann, citizens need to have the chance before their newly acquired Member State nationality may be revoked to reacquire their old nationality. Moreover, in the light of the Rottmann ruling, it is questionable whether the Court will accept that deprivation becomes effective immediately, before a decision of revocation becomes unchallengeable. According to Dutch law, after revocation of Dutch nationality by the Dutch Minister of Justice the person immediately loses his Dutch passport even if the person concerned challenges this decision.[59] It can be questioned whether this is in accordance with EU law and in particular with the principle of proportionality. In addition, with regard to Article 15 (1) (d) of the Netherlands Citizenship Act, it is doubtful whether deprivation of Dutch nationality because of failing to have made ‘every effort to divest himself of his or her original nationality’ can be accepted if a person concerned after having lost Dutch nationality can again be naturalised without making ‘every effort to divest himself of his or her original nationality’. It can be assumed that the Court will not accept such a situation as being compatible with the principle of proportionality. In particular, decisions relating to deprivation of nationality, where the person concerned promised to renounce his or her old nationality, but then subsequently discovers that this act actually costs a lot of money, seem to stand very uneasily with the principle of proportionality. In fact, the Council of State found it impossible to prevent the deprivation by using the argument of the high costs encountered.[60] However, after the loss of Dutch nationality, the person involved could apply again for naturalisation and ask for a waiver of the requirement of renunciation due to the high costs involved.

Further, difficulties may arise with regard to Article 14 (1) which is concerned with cases of identity fraud (submission of false personal data, like a false name, age or place of birth) during the naturalisation procedure. If this type of fraud is discovered and the naturalisation took place after 1 April 2003, Article 14 (1) is applicable: deprivation of nationality is possible, but the principle of proportionality has to be observed. Problems actually arise with naturalisations which happened before 1 April 2003. According to the decision of the Supreme Court (Hoge Raad) of 30 June 2006,[61] it is possible to conclude that a person never acquired Dutch nationality because of the identity fraud during the naturalisation procedure. Only in exceptional circumstances in which it is clear that the person could be sufficiently identified even though incorrect personal data were provided to the authorities and these data did not constitute a real obstacle for the assessment of the application for naturalisation, would the grant of Dutch nationality nevertheless be valid. These rules, which are applicable to citizens who naturalised before 1 April 2003, clearly cannot be said to meet the proportionality test. In addition, the principle of equality which Advocate General Maduro mentioned in his Opinion (para. 34) is certainly not in line with this approach. The fact that there is unequal treatment between those who were naturalised before 1 April 2003 and those after 1 April 2003 clearly constitutes a breach of this principle.

Moreover, in line with the suggestion made by Davies, the amendment of Article 14 (2) of the Dutch Citizenship Act[62] which allows for deprivation of Dutch nationality in case of certain criminal offences ‘which might not even be serious enough to justify their deportation under the citizenship directive’, may be problematic in the light of Union law.

Last but certainly not least, the principle of the protection of legitimate expectations which Advocate General Maduro also potentially views as being capable of restricting the legislative power of the Member States in the sphere of nationality (para. 31) cannot be disregarded by the Dutch authorities either. Until now, the courts in the Netherlands repeatedly ruled that the protection of legitimate expectations is not a ground for acquisition of Dutch nationality.[63] It is likely that this view can no longer be maintained. To disregard the general principles as mentioned above, like the principle of proportionality, the principle of equal treatment and the principle of the protection of legitimate expectations will not be tolerated in Luxembourg. It can be concluded that Rottmann urgently requires amendments to be made with regard to Dutch rules governing the loss of nationality in order to prevent long court proceedings and preliminary ruling questions.

Overall, even though the judgment can be considered as judicial activism with possible far-reaching consequences with regard to the relationship between Union citizenship and Member State nationality as well as on the national nationality rules, the judgment could be foreseen following Micheletti, in that the CJEU is prepared to influence nationality laws in case there is a clear breach of Union law. Moreover, it shows the CJEU’s important role of ensuring that the rights of the individual are protected when Member State rules lead to results undesirable in perspective of Union law. Whether the Court indeed has changed the roles of Union citizenship and Member State nationality will become clearer in future cases. However, it should not be feared that Union citizenship prevails over national citizenship, since Article 20 TFEU makes it very clear that Union citizenship shall only be additional to and not replace national citizenship. Therefore, the prospect of decoupling Union citizenship from Member State nationality is not feasible at this point in time.