A follow-up decision by the Council of State of the Netherlands in the Tjebbes case

By Gerard-René de Groot (Maastrich University and University of Aruba), GLOBALCIT collaborator.

On 12 February 2020, the Raad van State (Council of State of the Netherlands, sitting as Supreme Administrative Court of the Netherlands) decided how the Netherlands authorities have to deal with the cases which gave rise to the preliminary ruling procedure decided by Court of Justice of the European Union on 12 March 2019 in re: Tjebbes and Others (case-221/17) (see here a previous GLOBALCIT post).

In Tjebbes the CJEU concluded that the principle of proportionality should also be applied in cases where the loss of Member State nationality and the associated loss of European citizenship occurs by operation of law due to the fact that the persons concerned were living more than ten years outside the European Union. Even under these circumstances, the proportionality of the loss must be established in each specific case. The same applies in cases were the loss of nationality by a parent is extended to minor children: the proportionality of the extension has to be assessed separately, with special attention for the best interests of the child.

The Council of State had to decide how to implement the ruling of the CJEU when applying Article 15(1)(c) (in conjunction with Article 15(3) and (4)) and Article 16 of the Netherlands Nationality Act. This was not an easy task, because these provisions provide for automatic loss of Netherlands nationality and at first sight do not allow for any proportionality test.

The preliminary rulings procedure dealt with four joint cases of persons who had lost Netherlands nationality due to permanent residence abroad and where the Minister of Foreign Affairs for that reason rejected an application for a Netherlands passport:

  • Ms Tjebbes was born in Canada and acquired Netherlands and Canadian nationality by birth. She lives in Canada. Her Netherlands passport was valid until 2008. A part of her childhood, she was living in the Netherlands and went there to school there.
  • Ms Koopman was born in the Netherlands as a Netherlands national but acquired Swiss nationality through her marriage to a Swiss national. Her Netherlands passport was valid until 2005. She lives in Switzerland, outside of the European Union. However, Switzerland has very special ties with the EU, which allow, among other things, for the free movement of persons.
  • As a result of Koopman’s loss of Netherlands nationality, her nearly eighteen-year-old daughter, Ms Duboux, also lost her Netherlands nationality.
  • The fourth case concerns an Iranian citizen, naturalised as a Netherlands citizen, living in Iran. Her Netherlands passport was valid until 2004. Of all the persons affected by this loss provision, her loss of European citizenship likely has the biggest impact. Given the visa requirements for Iranian nationals, she might face difficulties in visiting the European Union.

The Council of State now added two other cases on loss of Netherlands nationality due to residence abroad:

  • Mr. X born in The Netherlands, naturalised in Switzerland. He lives in the USA since 1997. He never had a Netherlands passport, but applied for a passport in 2015.
  • Ms Y born in The Netherlands as Moroccan national. In 1991 she was naturalised in The Netherlands and is since then a dual national. In February 2005 she went to the USA. She possessed a Netherland passport valid until 2007. In June 2015 she applied for a new Netherlands passport, which was rejected because of loss of her nationality earlier that year in February.

After having due attention to the Tjebbes ruling, the Council of State ascertains that the Netherlands Nationality Act does not provide for a legal basis for a decision that a person reacquires Netherlands nationality if this is lost under violation of the proportionality principle from the point of view of EU law. This violates Article 20 TFEU. This Article has direct effect. For that reason the Minister of Foreign Affairs can apply Article 20 TFEU and has to assess whether the consequences of the loss of nationality are in conformity with the proportionality principle of European law (para 11.1 of the judgment).

In para 11.2 the Council of State provides some guidelines for the application of the European proportionality test. The words “from the point of view of EU law” imply that it is necessary for a successful application of the proportionality principle that the consequences concerned are within the realm of EU law. The Council of State mentions the aspects mentioned in the Tjebbes ruling of the CJEU: the rights guaranteed by the Charter (inter alia respect for private and family life), the exercise of free movement rights and for minors the best interest of the child. In light of the Tjebbes ruling the Council of State points out that arguments not directly related to Union law are not relevant for the assessment of the proportionality of the loss of Netherlands nationality.  The Council of State gives as not relevant arguments: still feeling themselves as Netherlands nationals, feeling strong ties with the Netherlands, maintaining contacts with friends in The Netherlands and mastering the language of the Netherlands.

Detailed attention is paid to the relevant moment for which the consequences of the loss of Netherlands nationality have to be assessed in light of the proportionality principle (beoordelingmoment, i.e assessment-moment). Is an assessment ex tunc appropriate, which would be an assessment of the proportionality of the consequences at the moment of the loss of Netherlands nationality and European citizenship?  Or should the assessment take into account all consequences evident at the moment an application for a Netherlands passport or identity card is made or a judicial procedure requesting the determination of the possession of Netherlands nationality is initiated? Or is the assessment-moment of the consequences even the moment of a judicial decision? The Council of State concludes that an ex tunc assessment should be made, which implies that relevant are the consequences at the moment of the expiration of the period of ten years. However, the Council underpins that not only the consequences, which have already manifested themselves at that moment, should be taken on board during the proportionality assessment, but also the consequences that are at that moment were reasonably foreseeable (redelijkerwijze voorzienbaar).

The Council illustrated this approach with the example of Miss Duboux, the daughter of Ms Koopman, who lost her Netherlands nationality because of the loss of this nationality by her mother. She was at the time of loss more than 17 years and 11 months. On that age, it is reasonably foreseeable that she would start to study, possibly, – as she said during the court procedure – in one of the Member States of the European Union. This kind of consequences have to be taken on board when assessing the proportionality of the loss of nationality as prescribed by Tjebbes. Given the fact that the CJEU indicated that hypothetical consequences are irrelevant, the person concerned has to demonstrate (concrete onderbouwen) was reasonably foreseeable that (s)he would make use of rights or obligations linked to European citizenship.

The Council concluded that in all six cases the decision of the Minister of Foreign Affairs has to be annulled and orders that the Minister has to take new decisions within four months (para 12 of the judgment). Furthermore, the Council decided that in case of a negative decision of the Minister the person concerned has the right to appeal directly to the Council of State. Finally, the Council orders that the Minister has to pay the costs of the procedure (more than 25.000 Euros).

It is to be expected that the Minister will prepare the proportionality assessments carefully, after the persons concerned are asked to provide further relevant information in light of the judgment of the Council of State. During the procedure, the Minister submitted a letter to the Council in which it was argued for all six cases that the loss was not disproportional (see para 9 of the judgment). However, that conclusion was made on the basis of the files already available at the Ministry, without asking additional information of the persons concerned in light of the judgment of the CJEU. Later during the procedure, the Minister indicated that at least additional information is needed from the Iranian-Netherlands and Moroccan-Netherlands applicant (see para 11.3 of the judgment). However, the Council of State emphasised that all persons concerned should get the opportunity to submit extra information relevant for the proportionality assessment.

As a result, while the Court provides some substantial and temporal limitation of the scope of the interpretation of the proportionality principle, it will be pretty complicated for the administration and the courts to assess in all potential cases the proportionality of loss. Such assessment will be time consuming and hence expensive. The government of the Netherlands will realize this as well and will hopefully come soon with a proposal to delete or revise the relevant articles of the Nationality Act.