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ECJ judgment in the Rottmann case: member states can withdraw nationality acquired by fraud if the principle of proportionality is observed

The European Court of Justice issued its judgment in the case Janko Rottmann v Freistaat of Bayern Case C-135/08 on 2 March 2010.


The judgement confirms that a Member State of the European Union may withdraw its nationality, granted by way of naturalisation, from a citizen of the Union, when that person has obtained it by deception, even if as a consequence the person concerned loses his citizenship of the Union because he no longer possesses the nationality of any Member State. In such a case, however, the withdrawal decision must observe the principle of proportionality.


Dr. Janko Rottmann was born in Graz (Austria) as a national of Austria. In 1995 he took up residence in Munich after an investigation about suspected serious fraud had been initiated against him in Graz. In February 1997 the Landesgericht für Strafsachen Graz issued a national warrant for his arrest. Rottmann applied for German nationality in February 1998 and was naturalized a year later. During the naturalisation procedure he failed to mention the proceedings against him in Austria. His naturalisation in Germany had the effect, in accordance with Austrian law, of causing him to lose his Austrian nationality. In August 1999 the city of Munich was informed by the muncipal authorities of Graz that a warrant for Dr Rottmann’s arrest had been issued in Graz. After hearing the applicant the Freistaat Bayern withdrew the German naturalisation by decision of 4 July 2000 with retroactive effect, on the grounds that the applicant had obtained German nationality by deception. The withdrawal of his naturalisation obtained in Germany has not yet become definitive because it was appealed by Rottmann. The decision to withdraw Rottmann’s naturalisation was upheld by the Bayerischer Verwaltungsgerichtshof (administrative court of the Land of Bavaria) on 25 October 2005 even though it implied that Rottmann would become stateless. Rottmann appealed again to the German Bundesverwaltungsgerichtshof (Federal Administrative Court), which decided to refer the following questions to the Court of Justice for a preliminary ruling:

 

1) 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?

 

(2) [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 judgment issued by the ECJ on 2 March answers as follows: “It is not contrary to European Union law, in particular to Article 17 EC, for a Member State to withdraw from a citizen of the Union the nationality of that State acquired by naturalisation when that nationality was obtained by deception, on condition that the decision to withdraw observes the principle of proportionality.” The ECJ has decided not address the question whether Austria is obliged to restore Rottmann’s original citizenship as this question must first be decided by Austrian courts.

 

Read the press release on the decision of the ECJ.

Click here for the full text of the Court judgment.

Read the opinion of the Advocate General in French or German.