Has the European Court of Justice Challenged Member State Sovereignty in Nationality Law?
- Has the European Court of Justice Challenged Member State Sovereignty in Nationality Law?
- Gareth T. Davies: The entirely conventional supremacy of Union citizenship and rights
- Dimitry Kochenov: Two Sovereign States vs. a Human Being: CJEU as a Guardian of Arbitrariness in Citizenship Matters
- Michael Dougan: Some comments on Rottmann and the 'personal circumstances' assessment in the Union citizenship case law
- Oxana Golynker: The correlation between the status of Union citizenship, the rights attached to it and nationality in Rottmann
- Dora Kostakopoulou: European Union citizenship and Member State nationality: updating or upgrading the link?
- Gerard René De Groot and Anja Seling: The consequences of the Rottmann judgment on Member State autonomy - The Court’s avant-gardism in nationality matters
- Jo Shaw: Concluding thoughts - Rottmann in context
- All Pages
Setting the scene: the Rottmann case introduced
Jo Shaw *
In March 2010, the Court of Justice of the European Union (CJEU or Court) handed down its judgment in the long awaited case of Rottmann. The Court’s judgment is somewhat bolder and more direct in its phrasing than the earlier Opinion of Advocate General Maduro, which one blog described as being of ‘shocking prudence’. Whereas ‘kick off’ contributions to the EUDO-Citizenship Forum generally aim to provoke the debate by adopting a clear and perhaps provocative line on a controversial question, this short contribution instead lays out the facts of the case, identifies the general lines of argument which underpin the Court’s judgment, and suggests what might be the main areas which are likely to prove controversial in subsequent discussion.
Dr. Janko Rottmann was born in Austria and had Austrian nationality from birth. He was prosecuted in the mid 1990s in Austria for alleged fraud, but moved to Germany in 1995, apparently before criminal sanctions could be applied. The Austrian courts raised a warrant for his arrest. In Germany, meanwhile, he sought naturalisation as a German, but without disclosing to the German authorities that he was the subject of criminal proceedings in Austria. A decision granting naturalisation was made in February 1999. As a result of acquiring German nationality, Rottmann automatically lost his Austrian nationality by operation of law. In late 1999, the City of Munich, which had handled the request for naturalisation, was informed by the Austrian authorities about the criminal proceedings against Rottmann in Austria. It took the decision to revoke the naturalisation decision on the grounds that it had been obtained fraudulently. The effect of the withdrawal of German nationality, which did not entail automatic reacquisition by Rottmann of Austrian nationality under Austrian law, would render Rottmann stateless. In addition, of course, he would also lose his EU citizenship and thus all the rights which are attached to that status (e.g. free movement; non-discrimination, voting in European Parliament and local elections, diplomatic protection, etc.). By virtue of Article 17(1) EC/Article 20(1) Treaty on the Functioning of the European Union (TFEU) (post-Lisbon), it is the nationals of the Member States who are the citizens of the European Union.
Rottmann challenged the administrative decision to withdraw nationality under German law, and the German supreme Federal Administrative Court decided to stay the proceedings before it and make a reference to the European Court of Justice, seeking answers to two questions. These were as follows:
- Is it contrary to Community law for Union citizenship (and the rights and fundamental freedoms attaching thereto) to be lost as the legal consequence of the fact that the withdrawal in one Member State (the Federal Republic of Germany), lawful as such under national (German) law, of a naturalisation acquired by intentional deception, has the effect of causing the person concerned to become stateless because, as in the case of the applicant [in the main proceedings], he does not recover the nationality of another Member State (the Republic of Austria) which he originally possessed, by reason of the applicable provisions of the law of that other Member State?
- [If so,] must the Member State … which has naturalised a citizen of the Union and now intends to withdraw the naturalisation obtained by deception, having due regard to Community law, refrain altogether or temporarily from withdrawing the naturalisation if or so long as that withdrawal would have the legal consequence of loss of citizenship of the Union (and of the associated rights and fundamental freedoms) …, or is the Member State … of the former nationality obliged, having due regard to Community law, to interpret and apply, or even adjust, its national law so as to avoid that legal consequence?
The Opinion of Advocate General Maduro was quite cautious. Its main findings were the following:
- Several Member States challenged the admissibility of the reference for a preliminary ruling. AG Maduro found that the Court of Justice has jurisdiction in a case such as this. In reply to assertions by Member States that this case concerns a challenge in a German Court, to a German administrative decision taken against a German citizen, and is thus a “wholly internal situation” unconnected to EU law, AG Maduro noted that it was significant that the fact that Rottmann eventually found himself in the situation under review was because of a prior exercise of free movement rights – i.e. taking up residence in Germany, which in turn allowed him to seek the acquisition of German nationality by naturalisation. He went on to list a number of other cases in which the link with the free movement scenario was relatively weak in character, such Garcia Avello, which concerned rules on surnames in Belgium, affecting children born and resident in Belgium, whose parents had exercised free movement rights.
- In principle, the rules on acquisition and loss of nationality fall within the exclusive competence of the Member States, but that does not mean that they can act without regard for EU law. In particular, as is well established, a Member State cannot, in the case of a dual national with the nationality of another Member State and of a third state, refuse to recognise such a person as an EU citizen. To do so would be to deny such a person the benefit of the free movement rights under the Treaty.
- The types of norms of EU law that would constrain the Member States in such circumstances would be those deriving from international law (e.g. rules on the avoidance of statelessness) as well as those deriving from EU fundamental rights or from the duties imposed upon the Member States to cooperate with the Union and with each other (Articles 10 EC/Article 4 Treaty on European Union post Lisbon). The type of scenario which might engage such a breach of EU law obligations would be one involving mass naturalisations of third country nationals without prior consultation with EU partners.
- However, the case involving Dr Rottmann was different. International law does not prohibit the withdrawal of nationality from a person who has made false statements in the course of the naturalisation process, even if the effect of such a decision is to render the person stateless. Moreover, the Advocate General’s view was that the withdrawal of naturalisation was not connected to the exercise of free movement rights under EU law, and that therefore there was no reason based on this connection to EU law for the Court to scrutinise the national legislation itself, or to suggest to the national court that it should do so.
- As regards the question of the role of the Austrian authorities in such a scenario, AG Maduro saw this as a matter for Austrian law alone. As the fact of acquiring German nationality led automatically to the loss of Austrian nationality, AG Maduro judged that the fact that Dr Rottmann would become stateless, if the German decision withdrawing naturalisation became definitive, was a consequence of his intentional act of seeking and acquiring German nationality. The only creative legal suggestion Maduro felt able to make in the circumstances – and again he indicated that this was a matter for national law alone – was that since the effect of the withdrawal of the German nationality would be retrospective, Rottmann could be regarded as never having acquired German nationality at all, such that his reacquisition of Austrian nationality could happen automatically.
In stark contrast to the AG’s Opinion, the judgment of the Grand Chamber of the Court of Justice concluded that the national decision in question should be scrutinised under EU law by reference to a standard of proportionality.
In a judgment which is considerably briefer than the AG’s Opinion its reasoning runs as follows:
- First, the Court made no separate comments about admissibility, but rejected the contention that the case concerned a ‘wholly internal situation’. It noted that it is for each Member State to lay down the conditions for the acquisition and loss of nationality, but ‘having due regard to Community law’ (para. 39). It noted that ‘in situations covered by European Union law, the national rules concerned must have due regard to the [EU law]’ (para. 41). It then went on to make a very strong statement about the “reach” of Union citizenship and consequently the capacity of Member States to withdraw national citizenship where that results in the loss of Union citizenship:
‘It is clear that the situation of a citizen of the Union who, like the applicant in the main proceedings, is faced with a decision withdrawing his naturalisation, adopted by the authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status conferred by Article 17 EC [i.e. Union citizenship] and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law’ (emphasis added; para. 42).
Notably, the Court does not focus on a human rights imperative to avoid statelessness, but rather on the EU-specific rights which a person will lose. It justifies its argument by reference to the oft-repeated statement that ‘citizenship of the Union is intended to be the fundamental status of nationals of the Member States’ (para. 43). Commentators will want to look hard at this particular finding and compare it to the manner in which the Court has previously justified looking at national rules which have an impact upon the exercise of rights under Union citizenship, whereas here it looks directly at the status conferred under national law because of its effects on the rights conferred by Union law. It will be interesting to see how far this reasoning can be stretched. Could it result, for example, in the scrutiny of the German nationality law which requires a person who has acquired German nationality by birth in the territory as the child of a legally resident non-national to opt, within five years of reaching the age of eighteen, for either German nationality or the nationality acquired by descent. This rule only applies to those who hold dual German/third country national citizenship, since Germany does not object to citizens of other Member States continuing to hold dual citizenship. Not renouncing the nationality acquired by descent in such circumstances means losing EU citizenship. Is this an issue falling ‘by reason of its nature and its consequences’ within the ambit of EU law?
- Having decided that the issue was within the ambit of EU law, the Court then considered what standard of review is to be applied. It concluded that it is for the national court to apply a test of proportionality. Much of its subsequent discussion is devoted to assuring the Member States that it recognises that the withdrawal of naturalisation in circumstances such as these
‘corresponds to a reason relating to the public interest. In this regard, it is 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’ (para. 51).
Despite the fact that it wanted to assure the Member States of ‘the legitimacy, in principle, of a decision withdrawing naturalisation on account of deception remain, in theory, valid when the consequence of that withdrawal is that the person in question loses, in addition to the nationality of the Member State of naturalisation, citizenship of the Union’ (para. 54) under international and EU law, nonetheless the Court empowered the national court
‘to ascertain whether the withdrawal decision at issue in the main proceedings observes the principle of proportionality so far as concerns the consequences it entails for the situation of the person concerned in the light of European Union law’.
This is an explicit invitation to national courts to weigh considerations relating to the national interest (i.e. the severity of the deception, for example) against the significance of losing EU citizenship (loss of free movement rights and other Union citizenship rights; possible impact upon family members). It emphasised again in para. 56 of the judgment ‘the importance which primary law attaches to the status of citizen of the Union’. Specifically, the Court advised that ‘it is necessary to establish, 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’ (para. 56). Finally, in para. 58, the Court invited the national court to consider whether proportionality requires that the person affected ‘to be afforded a reasonable period of time in order to try to recover the nationality of his Member State of origin.’ This seems to hint at some relationship of cooperation needing to emerge between Member States in these circumstances.
- In its final comments, the Court noted that the German decision on withdrawing naturalisation had still not become definitive (because of the suspensive effects of the legal proceedings). In those circumstances, despite emphasising that the principles which it had established in the case applied to both Germany and Austria as the Member States of naturalisation and of original nationality, nonetheless it would be premature of the Court to rule on whether a decision not yet adopted (by Austria on the question of reacquisition) could be contrary to EU law.
In sum, there is much to ponder on in the Rottmann judgment, and much that might be regarded in some circles as a substantial increase in the effects of EU citizenship vis-à-vis national citizenship. Rottmann opens the way for further potential incursions in the sphere of nationality sovereignty, as aspects of nationality laws are held up for scrutiny against the standards inherent in EU law. What is the scope of review? It could be argued that an approach applied to cases of loss of citizenship might also apply to refusals of acquisition (e.g. certain types of refusal of naturalisation). More generally, does EU law now demand that all decisions on acquisition and loss of nationality be reasoned, such that judicial review can potentially be applied? And what approach might be expected of national courts now they have been invited to scrutinise such administrative decisions, by reference to the standard of proportionality, in the light of the effects of EU law and EU citizenship? And even if the scope and intensity of the judicial review proposed becomes clearer in the light of subsequent case law, what are the normative and political implications of the step change in the treatment of EU citizenship cases within Member States, which the Court appears to have placed on the agenda. This poses a huge challenge for EU law and politics for the future.
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