Stephen Coutts (University of Edinburgh)
The Court of Justice of the EU’s (CJEU) judgment in Commission v Malta is incredibly rich. It raises practical, doctrinal, constitutional and conceptual questions. This comment will address some, but certainly not all, of the issues raised by the judgment. Three points in particular will be addressed. Firstly, the integration of Union citizenship into the ongoing transformational constitutional jurisprudence, which began with Opinion 2/13. Secondly, the role of mutual recognition and mutual trust in the judgment. Thirdly, the meaning and significance of the new requirement imposed on Member States when attributing nationality, namely the ‘special relationship of solidarity and good faith’. Finally, a reflection is offered on the legitimacy of the reasoning of the Court.
Union Citizenship as a Constitutional Status
Firstly, this judgment integrates Union citizenship within the growing jurisprudence of the Court, which is developing (some might say transforming) and systematising the Union’s constitutional framework over the past ten years. This began in Opinion 2/13 with its finding of ‘specific characteristics arising from the very nature of EU law’ (para 166) rooted in the ‘common values on which the EU is founded’ (para 168) and implying ‘a structured network of principles, rules and mutually interdependent legal relations’ (para 167) and has been further developed in, for example Wightman and Hungary v Council, amongst other judgments. More recently, we have witnessed a particular emphasis has been placed on solidarity and the values contained in Article 2 TEU, which define ‘the very identity of the European Union as a common legal order.’
While Union citizenship is mentioned in passing in Wightman, it is in Commission v Malta that Union citizenship is properly incorporated within this constitutional jurisprudence and linked to principles such as solidarity and the Article 2 TEU values. Union citizenship is said to be an ‘integral part of [the Union’s] constitutional framework’ which is linked to the ‘process of integration that is the raison d’être of the EU itself.’ (para 89) This is in turn linked to the political rights of Union citizenship which, along with the democratic nature of the Union contained in Article 10 TEU, are the specific expression of the Article 2 TEU value of democracy (para 93) and solidarity which ‘forms the very basis of the process of integration’ (para 93). Commission v Malta adds a normativity to Union citizenship by linking it to the values of the Union, embeds it with the constitutional framework of the Union and furthermore ties this to the ‘process of integration’. It is the most complete expression of the constitutional nature of Union citizenship to date.
The concrete implications of constitutionalising of Union citizenship in this way are difficult to determine at this stage. As was pointed out at a recent online discussion hosted by the University of Edinburgh, the Court could very well be developing its jurisprudence to assist in upcoming cases, such as the pending Commission v Hungary. More generally, the federalising and constitutionalising of Union citizenship, which took place in Commission v Malta, could have implications for the scope of Union law and the application of the values of the Union and/or the Charter of Fundamental Rights.
Mutual Recognition and Mutual Trust
Secondly, it is worth highlighting the central role played by mutual recognition and mutual trust in the judgment, which is linked to solidarity (the point has also been made by Ruairi O’Neill, see also my comment on the Opinion of AG Collins). This constitutes the most convincing legal argument and one that is most textually based. The reasoning, as far as I reconstruct it, is that Article 4(3) TEU (the principle of sincere cooperation) entails an obligation to ‘refrain from any measure which could jeopardise the attainment of the Union’s objectives’. Establishing an area of free movement is clearly stated to be an objective of the Union in Article 3(2) TEU. (Interestingly, this area of free movement is based on a weaving together of Union citizenship, the AFSJ and the free movement of persons provisions of the internal market alongside Directive 2004/38/EC. [paras 84, 86 and 87]) The principle of mutual trust and mutual recognition between the Member States allows that objective, of an area without internal borders, to be created and maintained. Undermining the mutual trust is therefore a measure which jeopardises the attainment of creating and maintaining an area of free movement. That mutual trust is ensured by a requirement that Member State nationality law reflect ‘a special relationship of solidarity and good faith’ between the individual and the Member State concerned. A scheme such as that operated by Malta which is ‘transactional’ and ‘commercialised’ does not reflect such ‘a special relationship’. It therefore undermines mutual trust, which is required for securing an area of free movement. An objective of the Union is therefore jeopardised, and the scheme is contrary to Article 4(3) TEU.
However, a syllogistic reconstruction of the reasoning of the Court in relation to mutual recognition and mutual trust, while important from the point of view of justifying the outcome, does not quite capture the significance of using these concepts. Mutual trust and mutual recognition are seen certainly as mechanisms to allow this particular area of EU law (free movement and persons) to function. But they are also understood in a more constitutional sense in this judgment, linked with solidarity and the broader set of relations established between Member States. As pointed out by Van den Brink, critiques can be made of this reasoning both conceptually (the relationship and centrality of mutual recognition and mutual trust to free movement) and empirically (the extent to which the Maltese scheme in fact undermines mutual trust). This, however, misunderstands the way mutual trust and mutual recognition operate in this context. It is at a meta-constitutional, systemic level, ensuring broad trust within the system so that automatic mutual recognition can be expected and required from Member States. It does not operate at a micro-level, requiring the need for mutual trust and an assessment of whether, in fact, it is breached in each case. It is for this reason that it is probably unlikely that Commission v Malta overrules Michelletti and now allows Member States to question each other’s awards of nationality in the absence of a ‘special relationship’. The ‘special relationship’ requirement is enforced at a macro-Union level so that Member States are obliged to automatically recognise each other’s laws in each individual case.
A ‘Special Relationship of Solidarity and Good Faith’ and Member State Nationality
Thirdly, it is worth considering the conceptualisation of nationality in the judgment and in particular the formula, first mentioned in the public service exception caselaw and subsequently deployed in the citizenship deprivation cases, of a ‘special relationship of solidarity and good faith….and the reciprocity of rights and duties’ which ‘form the bedrock of the bond of nationality’ (Commission v Malta, para 96). It is important to point out precisely what the CJEU is developing here. It does not create some common, substantive, European criterion in order to acquire Union citizenship. On the contrary, the Court points out that ‘each Member State…has a broad discretion in the choice of criteria to be applied.’ (para 98). Instead, it requires that the connection with the Member States represented by nationality take a certain form or quality, namely that they ensure that these criteria reflect a ‘special relationship of solidarity and good faith’.
The ‘special relationship’ requirement is probably both more and less significant than what might appear at first sight. Certainly, it precludes certain bare, procedural, formal conceptions of nationality by Member States, such as citizenship by investment. Beyond this, it is too general a formula to draw any further conclusions, in the absence of further refinement and application in future cases. It may allow for a republican conception of citizenship, but does not require it. It certainly does not require some form of exclusionary, ethnically based ‘blood and soil’ form of membership, a return to the ‘petty nationalisms’ of the past. This is a gross misrepresentation of the judgment. In fact, if the judgment does meaningfully constrain Member State practices in this area, the most likely practices to be excluded are precisely those – extensive, multi-generational descent rules with little or no connection to the state – which reflect an outdated, quasi-ethnic conception of the nation. Moreover, the linking of Union citizenship to Article 2 TEU values in Commission v Malta would preclude any overtly racist conception of nationality, as was conceded by Malta at the hearing. The judgment may have a normatively positive impact on nationality laws by requiring a meaningful connection built on social relations rather than an abstract, ethnic conception.
Most likely it will allow for different conceptions of citizenship amongst the Member States, which retain ‘broad discretion in the choice of the criteria to be applied’ (para 98) and whose choices will only be called into question if they ‘manifestly disregard’ (para 99) the requirement for a such a special relationship. This is theoretically a high threshold according to which the Court should show significant deference to the Member States, although much will depend on how the Court applies this in practice. The greatest practical significance of the judgment may lie not in the substantive rules around citizenship acquisition and attribution but in procedural terms. Citizenship acquisition and attribution now fall within the scope of Union law and presumably the Charter and Article 47 CFR. Indeed, the practical impact of the citizenship deprivation cases on Member State nationality law has been almost exclusively on procedural grounds. In Rottmann, Tjebbes and subsequent cases, the CJEU has accepted as legitimate all grounds of justification for withdrawing citizenship but has imposed extensive procedural requirements such as an individualised proportionality test, a right to be informed and a right to reasons.
One intriguing aspect of the case is the paradox of a federalising judgment which reinforces nationality as an organising principle. It is the ‘special relationship’ with the Member State that is at stake, not the Union directly. This raises the conceptual question of the relationship between Union citizenship and nationality. On the one hand, Union citizenship has the effect of relativising nationality, at least as between Member States (hence the need for mutual trust) by rendering borders between those national communities more porous and equating the status of mobile Union citizens to nationals. At the same time, it is too simplistic to say that Union citizenship simply transcends or tames nationality or dissolves national political communities. The Court has made clear that it is a status of integration, the highest form of which takes the shape of naturalisation. More fundamentally, as pointed out eloquently by AG Maduro in Rottmann and reinforced in a more problematic manner in EP v Préfet du Gers, there is a deep ontological link between Union citizenship and (Member State) nationality. We are Union citizens, not despite, but precisely because we are nationals of a Member State. Union citizenship is founded on a coming together of national communities which forge a new type of relationship, based on mutual recognition, which operates not just at the inter-state level but extends to their individual members. This is why ‘the special relationship of solidarity and good faith between each Member State and its nationals also forms the basis of the rights and obligations reserved to Union citizens by the Treaties.’ (Commission v Malta, para 97).
On the Legitimacy of Constitutional Reasoning
Finally, the outcome in Commission v Malta is surprising, especially in its emphatic manner. That there are requirements imposed on Member States when granting nationality is not obvious based on the text of the Treaties and on the prior general understanding of the role of the EU in nationality law. However, the fact that this is a surprising judgment or one which is based on a particular constitutional interpretation of the Treaties does not make it illegitimate. It is certainly a judgment we can disagree with and critique. Indeed, the role of scholarship is precisely to critique, analyse and hold accountable, and there have been extremely useful and forensic critiques of the reasoning of the Court. However, this is not a judgment without plausible legal foundations. The duty of a court is not to give us the outcome we would expect or wish for or the ‘right’ judgment. Indeed, it might be pointless to speak of judgments which are ‘right’ or ‘wrong’ in this context. An apex court will necessarily be dealing with hard cases and indeterminate text alongside judicially developed principles located within a broader legal system. There are a myriad of potential outcomes and, if we accept it is the authoritative interpreter of the legal system, its answer is necessarily ‘right’ in a certain (realist) sense. Again, this is not to say it is immune from criticism, nor that it is free from constraints. It does have a duty. Not to give any particular outcome, but to provide us with legally justifiable reasons for the outcome it does settle on. What precisely constitutes legally justifiable reasons will depend on the legal system in question, its textual provisions, systemic concerns, written and unwritten principles and norms, and the methods of interpretation accepted within the relevant epistemic community. It is on the basis of this set of considerations that we should consider the judgment.
While this is not the place to engage in a wholesale assessment of the approach of the Court in Commission v Malta, it does contain legal reasoning which is based on the text of the treaties, broader normative considerations and a systemic understanding of the legal order. Whatever else it might be, Commission v Malta, is not Zambrano, whose notorious 7 paragraphs of reasoning engineered a radical shift in Union citizenship with scant justification. It is not ‘lawless law’, nor does it ignore the law. On the contrary, it is a legally rich judgment. As indicated above, Commission v Malta is best seen as the latest in a series of constitutional cases. These are transformational, are Court-led and contain a forceful judicial vision of the Union’s legal and constitutional order. But then again, so did Van Gend en Loos and Costa v Enel, ERTA, Internationale Handelsgesellchaft and Les Verts. We could go on. They can certainly be criticised. We can critique the appropriateness of this being Court-led, the scant textual basis and its use of the meta-telos of integration to shape its reasoning (one aspect of Commission v Malta not commented on here is the frequent invocation of the goal of integration in the judgment). However, Commission v Malta is invoking by now established principles and fits within an existing line of case law. It cites numerous provisions of the Treaty throughout, including Articles 1, 2, 3, 4 and 10 TEU, and a systemic understanding of the legal order. More thought is needed on precisely how these constitutional principles, concepts and provisions are combined and whether they convincingly justify an outcome which decisively shifts the law in this area and our understanding of Union citizenship. The judgment is surprising and radical, and its reasoning can certainly be criticised. But it deserves to be taken seriously.