European Union and the European Union and the Nationality Laws of the Nationality Laws of the

Member StatesMember States

Prof. Dr. Gerard-René de GrootProf. Dr. Gerard-René de Groot

17-12-201017-12-2010

Influence European UnionInfluence European Union

Article 20 (1) TFEU (old 17 (1) EC) Article 20 (1) TFEU (old 17 (1) EC) (introduced in 1992 by the Treaty of (introduced in 1992 by the Treaty of Maastricht on the European Union) Maastricht on the European Union) provides:provides:

‘‘1. Citizenship of the Union is hereby 1. Citizenship of the Union is hereby established. Every person holding the established. Every person holding the nationality of a Member State shall be a nationality of a Member State shall be a citizen of the Union.’citizen of the Union.’

Influence European UnionInfluence European Union

"Declaration (no 2) on nationality of a Member "Declaration (no 2) on nationality of a Member State“ (attached to the Maastricht Treaty) i.a.:State“ (attached to the Maastricht Treaty) i.a.:

‘‘The Conference declares that, wherever in The Conference declares that, wherever in the Treaty establishing the European Community the Treaty establishing the European Community reference is made to nationals of the Member reference is made to nationals of the Member States, the question whether an individual States, the question whether an individual possesses the nationality of a Member State shall possesses the nationality of a Member State shall be settled solely by reference to the national law of be settled solely by reference to the national law of the Member State concerned.’ the Member State concerned.’

Influence European UnionInfluence European Union

No measures (regulations or directives) of No measures (regulations or directives) of EU in the field of nationality lawEU in the field of nationality law

Only (some) indirect influenceOnly (some) indirect influence

Case law confirms the autonomy in Case law confirms the autonomy in nationality matters: Micheletti, Kaur, Chen, nationality matters: Micheletti, Kaur, Chen, EmansEmans

2-3-2010 : Rottmann2-3-2010 : Rottmann

Janko Rottmann 2-3-2010Janko Rottmann 2-3-2010

Austrian naturalised in Germany in 1999Austrian naturalised in Germany in 1999 Loss of Austrian nationality because of Loss of Austrian nationality because of

voluntary acquisition of a foreign nationalityvoluntary acquisition of a foreign nationality Par. 27 (1) StaatsbürgerschaftsgesetzPar. 27 (1) Staatsbürgerschaftsgesetz Art. 1 Treaty of Strassbourg 1963 Reduction Art. 1 Treaty of Strassbourg 1963 Reduction

cases of multiple nationality (was 1999 still cases of multiple nationality (was 1999 still in force between Austria and Germany)in force between Austria and Germany)

Janko RottmannJanko Rottmann

Austrian naturalised in Germany in 1999Austrian naturalised in Germany in 1999 Discovery of fraudDiscovery of fraud Deprivation of German nationality because Deprivation of German nationality because

of fraud committed during naturalisation of fraud committed during naturalisation procedure in 2000procedure in 2000

Consequence Consequence statelessness statelessness

Janko RottmannJanko Rottmann

Deprivation : Violation of EU law?Deprivation : Violation of EU law? Preliminary ruling procedure by Preliminary ruling procedure by

BundesverwaltungsgerichtBundesverwaltungsgericht

Is EU law involved?Is EU law involved?

Influence EU law on grounds of acquisition Influence EU law on grounds of acquisition and loss of nationality?and loss of nationality?

Not an internal matter: EU Law is involvedNot an internal matter: EU Law is involved Opinion Maduro 30-9-2009 :Rottmann could Opinion Maduro 30-9-2009 :Rottmann could

only fullfil the residence requirement for only fullfil the residence requirement for naturalisation after having used right of free naturalisation after having used right of free movement (nr. 11)movement (nr. 11)

Is EU law involved?Is EU law involved?

ECJ (nr. 42):ECJ (nr. 42): It is clear that the situation of a citizen of the

Union who, […], is faced with a decision withdrawing his naturalisation, […] falls, by

reason of its nature and its consequences, within the ambit of European Union law.

Nr. 43: Nr. 43: citizenship of the Union is intended to be the fundamental status of nationals of the Member States

Indirect influence EUIndirect influence EU

Possible via general principles of EU lawPossible via general principles of EU law

A) violation of the A) violation of the obligation of solidarityobligation of solidarity (art. 10 ECT) (e.g. grant of nationality to a (art. 10 ECT) (e.g. grant of nationality to a large number of persons, without large number of persons, without consultation with EU) (Maduro, nr. 30; in consultation with EU) (Maduro, nr. 30; in casu not relevant)casu not relevant)

Indirect influence EUIndirect influence EU

B) no loss of nationality MS ifB) no loss of nationality MS if violation of violation of fundamental rightsfundamental rights guaranteed under guaranteed under international law (normally deprivation has international law (normally deprivation has to be recognised in order to activate to be recognised in order to activate statelessness avoiding provisions; EU statelessness avoiding provisions; EU could react differently and continue to treat could react differently and continue to treat persons involved as European citizens) persons involved as European citizens) (compare Maduro, nr. 29; in casu not (compare Maduro, nr. 29; in casu not relevant)relevant)

Indirect influence EUIndirect influence EU

C) no loss of nationality MS because of C) no loss of nationality MS because of (continuous) residence abroad in other MS (continuous) residence abroad in other MS (would violate (would violate free movement rightsfree movement rights) ) (Maduro, nr. 32; in casu not relevant)(Maduro, nr. 32; in casu not relevant)

D) D) protection of legitimate expectations protection of legitimate expectations (Maduro, nr. 31; but in casu not relevant, (Maduro, nr. 31; but in casu not relevant, because fraud can not establish legitimate because fraud can not establish legitimate expectations). expectations).

Indirect influence EUIndirect influence EU

E) E) principle of equalityprinciple of equality (Maduro, nr. 34) (Maduro, nr. 34) F) F) proportionalityproportionality: no deprivation : no deprivation

nationality MS if this reaction would be nationality MS if this reaction would be disproportional (not mentioned by Maduro, disproportional (not mentioned by Maduro, but by ECJ)but by ECJ)

MaduroMaduro

Deprivation does not violate EU lawDeprivation does not violate EU law

Reacquisition of Austrian nationality must be Reacquisition of Austrian nationality must be decided on the basis of Austrian law; no decided on the basis of Austrian law; no obligation under EU law, except if violation obligation under EU law, except if violation of principle of equality!of principle of equality!

ECJ: power MS restrictedECJ: power MS restricted

Nr. 48 [The exercise of] power to lay down the conditions for the acquisition and loss of nationality, […], is amenable to judicial review carried out in the light of European Union law.

Deprivation because of fraud could Deprivation because of fraud could be allowedbe allowed

Nr. 50: Nr. 50: withdrawing naturalisation […] based on the deception practised by the person concerned in connection with the procedure for acquisition of the nationality in question, […] could be compatible with European Union law.

But observe principle of But observe principle of proportionality!proportionality!

Nr. 55: Nr. 55: In such a case, it is, however, for 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, in addition, where appropriate, to examination of the proportionality of the decision in the light of national law.

It is necessary to take into account It is necessary to take into account (Nr. 56)(Nr. 56)

The consequences that the decision entails for the person concerned

and, if relevant, for the members of his family with regard to the loss of the rights enjoyed by every citizen of the Union.

In particular (Nr. 56)In particular (Nr. 56)

In this respect it is necessary to establish, in particular, whether that loss is justified in relation

A. to the gravity of the offence committed by that person,

B. to the lapse of time between the naturalisation decision and the withdrawal decision and

C. to whether it is possible for that person to recover his original nationality

Recovery of original nationality?Recovery of original nationality?

Deprivation may also be possible if original Deprivation may also be possible if original nationality is not recovered (Nr. 57), BUTnationality is not recovered (Nr. 57), BUT

Nr. 58: Nr. 58: It is, nevertheless, for the national court to determine whether, before such a decision withdrawing naturalisation takes effect, having regard to all the relevant circumstances, observance of the principle of proportionality requires the person concerned to be afforded a reasonable period of time in order to try to recover the nationality of his Member State of origin.

Should Austria allow recovery?Should Austria allow recovery?

Nr. 62: Nr. 62: 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

BVerWG 11-11-2010BVerWG 11-11-2010

Deprivation is in this case in conformity with Deprivation is in this case in conformity with proportionalityproportionality

Rottmann does not get extra time to Rottmann does not get extra time to regulate reacquisition Austrian nationalityregulate reacquisition Austrian nationality

Question: what will Austria decide?Question: what will Austria decide? Second Rottmann procedure to ECJ?Second Rottmann procedure to ECJ?

Consequences Rottmann rulingConsequences Rottmann ruling

Proportionality principle has to be observed Proportionality principle has to be observed by MSby MS

But also other general principles of EU lawBut also other general principles of EU law

EqualityEquality Protection of legitimate expectationsProtection of legitimate expectations

ExamplesExamples

Deprivation of nationality should only be Deprivation of nationality should only be effective after person involved had effective after person involved had possibility to challenge decisionpossibility to challenge decision

Identity fraud: in some states unequal Identity fraud: in some states unequal treatmenttreatment

ExamplesExamples

Obligation to make a choice between a iure Obligation to make a choice between a iure soli acquired nationality and a iure sanguinis soli acquired nationality and a iure sanguinis acquired nationality acquired nationality proportionality? equal proportionality? equal treatment?treatment?

Decisions on acquisition and loss of Decisions on acquisition and loss of nationality should be reasoned? Art. 11 ECNnationality should be reasoned? Art. 11 ECN

Possibility to challenge decisions? Art. 12 Possibility to challenge decisions? Art. 12 ECNECN

ExamplesExamples

Is it allowed to apply some grounds for loss Is it allowed to apply some grounds for loss only on naturalised citizen? only on naturalised citizen? differential differential treatment of European citizen by birth and treatment of European citizen by birth and those by naturalisationthose by naturalisation

Protection of legitimate expectations/ Protection of legitimate expectations/ protection of possession of nationality in protection of possession of nationality in good faithgood faith

ExamplesExamples

Integration tests as condition for Integration tests as condition for naturalisation: as such not problematic naturalisation: as such not problematic

but what with their content?but what with their content?

Is it possible to challenge the result?Is it possible to challenge the result?

Consequences for MSConsequences for MS

The general principles of EU law have to be The general principles of EU law have to be implemented in nationality laws of MSimplemented in nationality laws of MS

Otherwise: preliminary ruling procedures/ Otherwise: preliminary ruling procedures/ decisions of ECJdecisions of ECJ

Coordination of implementation of the Coordination of implementation of the general principles would be desirablegeneral principles would be desirable

CoordinationCoordination

By EU?By EU? Preferably in cooperation with Council of Preferably in cooperation with Council of

Europe as expert in nationality mattersEurope as expert in nationality matters

Ergo: implementation of general principles Ergo: implementation of general principles of law in nationality law also on the agenda of law in nationality law also on the agenda of the Council of Europeof the Council of Europe