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

The entirely conventional supremacy of Union citizenship and rights

Gareth T. Davies

Rottmann is a case which we will probably look back on as an important step in the gradual absorption of national citizenship within Union citizenship. In older cases, such as Micheletti and Garcia Avello,[6] the Court has remarked that national laws on citizenship must have ‘due regard to Community law’ and that Union citizenship is destined to be the “fundamental status” of Europeans. The hints have therefore long been public that the Court does not consider national citizenship to be superior to, or autonomous of, its Union cousin. Rottmann is the first case, however, in which these propositions rise above the level of rhetoric and lead to a reordering of the relationship between national and Union legal orders in this field.

In a manner which is reminiscent of some of the other seminal cases in EU law – Costa v ENEL,[7] van Gend en Loos,[8] Cassis de Dijon,[9] Baumbast,[10] and Gryzelczyk,[11] to name a few – the Court has hung a very far reaching judgment on a relatively innocuous and sympathetic fact set. In the particular circumstances of the case it is hard to object to the substance of the Court’s intervention and it is difficult to portray it as an outrageous interference. The Court is, after all, merely trying to prevent a lack of co-ordination between states leading to a Union citizen becoming unnecessarily stateless. Moreover, it does not dictate any concrete result, simply asking the national judge to ensure that national rules are proportionate and do not lead to statelessness if this is reasonably avoidable. Now, who could object to that? It seems both eminently sensible in substance and deferential to the ultimate decision-making power of the national judge.
Yet the importance of the judgment is not in the substantive answer which the Court gives to the questions asked, but in the principle which makes that answer possible, and which is therefore established by this case: at least some aspects of national citizenship now fall within the scope of EU law, and are therefore subject to its authority, and to the authority of the Court of Justice.
This proposition can be unpacked into three questions:
(1) What does it mean to say that national citizenship falls within the scope of EU law? (2) Which aspects exactly fall within this scope? (3) What are the practical consequences?


National citizenship within the scope of EU law
In ruling that the revocation of Mr Rottmann’s German citizenship must be tested against the EU law principle of proportionality the Court unequivocally finds that this revocation, and the German laws governing it, fall within the scope of EU law. If that were not the case the Court of Justice would have no competence to address the matter.
This finding is not surprising to someone looking at the Treaty with a fresh and unbiased eye. Since the TFEU states that every citizen of a Member State is also a citizen of the Union it follows that any national measure determining the scope of national citizenship also affects the scope of Union citizenship, and as such the scope of EU rights. It is obvious that national citizenship law therefore falls within the sphere of EU law, meaning that it is not autonomous of EU law and must respect its rules and principles. Those familiar with EU law will know that even in areas where the Member States have primary competence, such as criminal law and healthcare and education, there is an obligation not to exercise these competences in a way contrary to EU law. In particular, where these competences impact on free movement and the rights of Union citizens and businesses they are subject to the relevant principles of EU law and must conform to them. Citizenship, at first glance, would seem to be an entirely analogous field: one where Member States have the primary competence to determine their own laws concerning access to and deprivation of national citizenship, but nevertheless subject to the principle that where this competence impacts on EU law rights – which it always does, since every national citizen is a Union citizen – they must respect EU law and its rules and principles.
So far so banal, and Rottmann is indeed a very conventional application of EU law. However, citizenship has always been regarded as in some sense ‘different’, and textbooks commonly emphasise that Union citizenship is “subordinate”, or “dependant” and that Member States continue to be the gatekeepers, deciding as an exercise of unfettered sovereignty who they will admit to citizenship status. There is however little legal support for this perspective. The Court has indeed often said that Member States in principle determine their own citizenship laws, but this statement is entirely compatible with the proviso that they must do so in conformity with EU law.

The most powerful argument against the Court in Rottmann is based on declaration no 2 on nationality of a Member State, annexed to the TEU. This states that whether an individual is a national of a Member State is ‘to be settled solely by reference to the national law of the Member State concerned’. One might easily think that this gives the Member States carte blanche. However, the Court was unfazed. It breezily found that merely because a matter is governed by national law does not mean that the national law in question is exempted from the obligations of EU law. It is not clear, in the light of this, what the declaration is worth. It may be no more than a rejection of harmonisation of national citizenship, although of course even judicial intervention as in Rottmann is harmonisation of a sort.

One might find the Court’s approach unconvincing were it not so familiar. It has repeatedly taken this approach to national competences, for example in Bickel and Franz[12] and Geraets-Smits,[13] confirming the principle of national legislative freedom, but emphasizing the EU law limits to this freedom. Rottmann was, for the EU lawyer, only to be expected. If the Member States had actually wished to protect national citizenship freedom in a more effective and durable way they needed to use a more explicit and unambiguous form of wording, and probably a somewhat harder instrument than a declaration. Indeed, the choice for this relatively weak legal form, rather than a protocol, may almost be taken as a concession that there is no serious intention to narrow the Treaty text, merely a half-hearted expression of national sentiment.

Be all that as it may, the Court has decided, and EU law now applies to, at the very least, some aspects of national citizenship law. This has two hard and immediate consequences: where national laws and measures on citizenship or nationality conflict with EU law they will not be applicable, and where there is doubt about whether such conflict exists it will be the Court of Justice which is the final authority, not national courts. A minor coup d’etat has been staged, and the Court has announced that it is now the supreme adjudicator on (at least some aspects of) the acceptable content of national citizenship law.

This makes the question of exactly which aspects of national citizenship fall within the scope of EU law all the more burning.

Which aspects of national citizenship are within EU law?
Rottmann has unusual facts. An Austrian becomes a German, and as a result is required to give up his Austrian nationality. His German nationality is later revoked because of fraud, but he has no longer an automatic right to reacquire Austrian nationality. He is therefore left stateless. In particular, he has lost his Union citizenship, which he possessed both as an Austrian and a German.

It is possible to argue that the case is limited to these facts, or at least similar ones. This limited view reads Rottmann as saying that: where a Union citizen transfers national citizenship between two Member States, then the Member State of which he becomes a citizen cannot revoke their grant of citizenship without taking into account the effect on the individual’s EU rights and considering whether their revocation is proportionate. This is such a specific context, that it does not seem to matter so very much.

However, neither the judgment nor common sense provides much support for this narrow view. Firstly, the reason why the revocation of Mr Rottmann’s German nationality fell within the scope of EU law was because it affected his status as a Union citizen, and therefore his capacity to benefit from EU law rights. This reasoning would apply to any withdrawal of national citizenship from an individual who did not also possess the citizenship of another Member State. It may also be noted that the fact that Mr Rottmann had moved between Member States seems to be irrelevant. He was, at the time of the case, in fact a German living in Germany, and in any case, whether an individual has migrated or not, if Union citizenship is withdrawn from them their capacity to enjoy EU citizenship rights is also withdrawn.

The key question is whether a distinction can be drawn between revoking or withdrawing citizenship, and failing to grant it (or granting it). If taking away Union citizenship is now clearly subject to EU law, is it necessarily also the case that refusing to grant Union citizenship, or indeed granting it, are equally so subject?

It is hard to avoid an affirmative answer. Coming back once again to the fundamental logic of the case, the principle is that EU law applies to national measures which impact upon, or attempt to limit, that EU law and its associated rights. Is it not clear that a refusal to grant national citizenship, with a consequence that Union citizenship is also denied, impacts upon an individual’s capacity to enjoy EU law rights? If a state were to deny citizenship to an individual for some outrageous and disproportionate reason, does the logic of Rottmann not say that EU law would prevent this? Would it not be unconvincingly scholastic to say that disproportionately taking away Union citizenship rights engages EU law, but disproportionately denying them does not?

The judgment sends mixed messages. The Court states generally that ‘Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law’, and that ‘the exercise of that power, in so far as it affects the rights conferred and protected by the legal order of the Union, as is in particular the case of a decision withdrawing naturalisation such as that in issue in the main proceedings, is amenable to judicial review carried out in the light of European Union view’. It also hints, in the last part of the judgment, that a refusal by Austria to reinstate Mr Rottmann’s Austrian nationality might be challengeable under EU law, suggesting that it is not just the act of withdrawal of citizenship which EU law governs.

Yet, on the other hand, the Court also distinguishes Rottmann from Kaur,[14] an earlier case in which a refusal to grant full British nationality was challenged. In Rottmann, says the Court, the applicant is deprived of Union citizenship which he had previously enjoyed, whereas in Kaur the applicant had never enjoyed such rights and therefore could not be deprived of them. The clear implication is that it is only the deprivation of Union rights which is within EU law, not the denial of them.

Such a position would be highly illogical, and inequitable. EU law has always been concerned with measures which prevent the exercise of rights just as much as with those which hinder them. A state cannot defend measures hindering free movement by arguing that it has successfully prevented businesses or individuals from engaging in cross-border activity, and so therefore EU law does not apply. Preventing individuals from acquiring EU law rights is an obstruction of those rights, and therefore subject to EU law. Since an exclusion from Union citizenship impacts just as much on the scope and enjoyment of that citizenship as a deprivation, there is no reason why EU law should be more engaged in one circumstance than another. It is suggested that all national citizenship and nationality law impacts upon the capacity of individuals to enjoy Union citizenship, and is therefore within the scope of EU law.

How much does it matter?
Only a minority of Member States intervened in Rottmann, and some national authorities are relatively relaxed about its findings because they take the view that in practice they will rarely apply. The rules governing access to, and withdrawal of, national citizenship, vary from state to state but in general are based on familiar notions of inheritance, birth, fraud, and so on, none of which are likely to be found to be disproportionate by the Court. The possibility that a particular application in a particular odd situation – such as Rottmann – might conceivably be disproportionate is not enough to justify policy concern. Nothing in the case suggests that the Court envisages widespread intervention in the structure of national citizenship law.

This is certainly a plausible reading. The centrality of proportionality and the conventionality of citizenship concepts in the Member States does mean that dramatic effects of EU law are not obviously likely. This is particularly so given that it will usually be national judges who must apply the proportionality principle to the national measures – they are unlikely to wield an anarchic knife.

However, one should be cautious before dismissing EU law as harmless. Union citizenship is an example of a concept which was widely seen as bringing no substantive content in its early years, but has gradually developed into a peg upon which the Court has been able to hang important judgments, impacting on many areas of national law and policy, from access to benefits to the law on surnames. There may well be more aspects of national citizenship law vulnerable to EU law than a first glance suggests. It will be not so much the wider principles which will be potentially conflicting, but their use and application in particular circumstances.

For example, in the Netherlands, there has been considerable discussion concerning the withdrawal of Dutch nationality from first or second generation Dutch citizens who commit serious or multiple crimes. Some of the proposal envisaged could result in the stripping of Union citizenship from those who were born Union citizens, and who commit crimes which might not even be serious enough to justify their deportation under the citizenship directive. It is far from obvious that an appeal to EU law would be hopeless here.

Another example is recent Spanish nationality policy, which has made access to Spanish nationality for many South Americans of Spanish descent relatively easy. This has been very popular, and resulted in a large number of new Spaniards. The background to the policy is multi-facetted, but one factor which made it politically possible was the awareness that many of the new Spaniards who came to Europe would not stay in Spain but go to other Member States. Spain created Union citizens, in the knowledge that many would become residents of other states of the Union. There was a degree of political objection to this in various states, and it is also not self-evident that such a use of national citizenship policy would be, or should be, independent of some degree of EU law policing. Beyond a certain point even the grant of Union citizenship could be seen as disproportionate because of its (disproportionate) impact on other Member States.

A third kind of situation which might be challengeable under EU law is where national citizenship law results in apparently arbitrary results. Colonial or historical reasons may mean that one group of people have fairly easy access to national citizenship, while for others it is much harder, and while these differences may be explainable in terms of history, they may also be viewed in the light of non-discrimination rules and equality on the basis of race and religion. The position of Gurkhas, Gastarbeiters, residents of Hong Kong, or Germanic minorities in Transylvania are all open to critical analysis from this perspective. The fact that the Court in Kaur explicitly refused to go down this path should not be taken as determinative here. If there is one lesson to be learnt from Union citizenship, it is that the law develops, and if there is a second lesson it is that the underlying logic of Union citizenship is what largely determines the path of that development. The best way to understand Rottmann and its importance is to return to the principles upon which the judgment rests:

i. Union citizenship is destined to be the fundamental status of nationals of the Member States ii. Access to national citizenship is access to Union citizenship. Therefore, rules governing access to national citizenship are subject to EU law.
The consequences of these findings are that rules concerning national citizens must be proportionate, and respect the general principles of EU law:
i. Proportionality in this context should presumably be understood in a way similar to its general EU law meaning. Here that would entail that rules which prevent access to national/Union citizenship must not go further than necessary, and must entail a justifiable balance of interests. ii. The general principles of EU law include a prohibition on discrimination, which may be understood as encompassing discrimination on the grounds of e.g. race, religion, ethnicity, sex, sexuality, disability and age. iii. The final arbiter in disputes on the above questions is the Court of Justice.
Whether it is now misleading to describe Union citizenship as secondary, or dependent, is open to debate. It is suggested that the most precise description of the current state of affairs is to say that the two levels of citizenship are intertwined in a mutually dependent way, neither able to develop without taking account of the other. Perhaps one should avoid hierarchical thinking, and speak of citizenship pluralism.