My thesis explores the limits set by international and EU law in the context of application of EU Member States’ exclusive competence to deal with citizenship/nationality issues, especially how they address the most important problems related to access to and loss of citizenship, statelessness, minority rights and non-discrimination. It also provides the first detailed exploration of the principle of proportionality which has been put forward by the Court of Justice of the European Union (CJEU) as the basis for restricting the competence of the Member States to determine the limits on the acquisition and loss of citizenship.
The right to a nationality provided in the Universal Declaration of Human Rights failed as a universally positive right. Article 15 of the Declaration does not answer the question: what kind of nationality or citizenship is a stateless person entitled to? International law requires that states do not create new stateless people through their laws but international human rights instruments do not include provisions to guarantee access to citizenship for stateless people, other than foundlings and minors who would otherwise be stateless.
The problem of statelessness is well documented in EU Member States: stateless people’s access to national citizenship and EU citizenship is effectively limited by the discretion of Member States with some exceptions, again mostly for preventing children from being born stateless. Mass migration and a surge in nationalism has brought about a situation in several countries in which large stateless populations face systemic discrimination. This has created further problems in accessing citizenship, or to put it differently, gaining membership in a political (and cultural) community, accessing collective control over the territory, and transitioning from the world of ‘aliens’ to the nationalist world ‘of one’s own’. Therefore, even for stateless people the tests or other proofs of knowledge of a national language, culture, history, laws, civic values, etc. are applied and, insofar as these protect the ‘core’ of state and society and are used to defend a modern (even liberal) state and its ‘identity’, their effects can be exclusionary. The non-discrimination principle does afford some safeguards against abuse of non-citizens’ rights, but there are serious limitations in its application.
The CJEU had a first good opportunity to consider the issue of statelessness in the 2010 Rottmann case, by tackling the problem of retaining the citizenship of the Union. The Court did not challenge the reasons for the state’s withdrawal of citizenship where it had been acquired by deception (as it was in the case of Dr Rottmann). However, this case represented the first clear shift from pre-Maastricht case law of the Court. In Rottmann, the CJEU underlined that ‘Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law’ and its principles, such as that of proportionality.
In light of Rottmann, the principles of European law should also be applicable to the issue of access to EU citizenship. Although determining access to national citizenship is not among the EU’s competences, the boundaries of Member States’ exclusive competence should become transparent not only when the issue is deactivation of EU citizenship but also, in my judgment, its activation. It may become an issue of EU law, if it is within reasonable doubt that access to national citizenship does not meet general European law standards, such as the principle of proportionality. This point may soon be tested before the CJEU in the pending JY v. Wiener Landesregierung case. What is perhaps most surprising is how little close attention has thus far been paid to the issue of proportionality in the context of citizenship. This is one gap in scholarly analysis my thesis intends to fill.
The principle of proportionality was first developed within the framework of constitutional law and legal theory. The principle is now set out in Article 5 TEU. For the particular circumstances of the Rottmann case the Court held it necessary to establish whether the loss of nationality was justified considering the gravity of the offence committed, the lapse of time between naturalisation and withdrawal decision, and the possibility to recover original nationality.
In the more recent Tjebbes case, the CJEU emphasised the importance of an ‘individual’ proportionality test. In this case, the main issue at stake was the application of Article 15(1)(c) of the Dutch Law on Nationality. This states that if a person holds dual citizenship, their Dutch nationality can be lost if they are resident for ten years outside the Netherlands or outside the territories of the EU; additionally, the minor children of such people may also lose their nationality (Art. 16(1)(d)). This was an example of people with dual citizenship being treated unequally compared with people with a single nationality, who cannot lose Dutch nationality since this would turn them stateless. In Tjebbes the Court offered the following circumstances as incompatible with the principle of proportionality: firstly, ‘the national rules do not permit at any time an individual examination of the consequences of that loss for the persons concerned from the point of view of EU law’; secondly, the rules ‘disproportionately affect the normal development of his or her family and professional life from the point of view of EU law [but] [t]hose consequences cannot be hypothetical or merely a possibility.’
In both Rottmann and Tjebbes references to international law were used by the Court inter alia to justify restrictive measures by Member States regarding their own nationals. In light of the CJEU’s Opinion 2/13, scholars have rightly criticised this approach as it undermines the autonomy of EU law in relation to Member State laws and international law; furthermore, such an approach may also compromise the autonomy of EU citizenship (Kochenov 2019). Considering the high position of human rights in the EU’s legal architecture – demonstrated in Kadi II – any limitation of fundamental rights should be analysed against the objectives of the EU and EU citizenship.
How should proportionality be tested in any particular instance? The CJEU formulated the classical proportionality test in the 1990 Fedesa case, later repeated in other cases. In this method, the usual proportionality test has four limbs. A negative answer at any limb means that the measure cannot be considered proportionate and further study of the question should be terminated. The first limb identifies whether the measure is legitimate. The second decides whether it is appropriate. The third decides whether it is necessary. The final limb is the proportional result, or proportionality stricto sensu: in this limb the measure is weighed to detect whether its positive and negative sides are properly in balance with each other. In particular, the stricto sensu test has been criticised, since it – in the words of Harbo (2010) – ‘apparently undermines the whole rationality of the proportionality principle, namely to provide some objective predetermined structures according to which the court’s reasoning should be conducted in hard cases. Thus, with reference to the stricto sensu test, the court could arguably decide either way’.
The proportionality test as such does not guarantee that the outcome will always be reasonable, moderate and consistent with human rights (Tsakyrakis 2009). The independence of the court cannot guarantee an appropriate result, since judges are part of society and may share popular attitudes and prejudices. No doubt, in Europe the main obstacle to the application of the principle of proportionality in the context of access to citizenship are contemporary approaches to nations and nationalisms and the fact that nationalism is hard to reconcile with democracy and human rights. In both Western and Eastern Europe, the ethnic legacy of the dominant cultural tradition may become an obstacle to accessing citizenship. Favouring one group implies by default worse treatment of all other groups. Packer (1999) rightfully underlines that ‘the nationalist project of the ‘nation state’ is incompatible with respect for human rights since it favours one cultural association (core nation) over all others: a regime of human rights virtually presumes one pluralist state.’
In any event, the constitutional and other legal provisions of Member States in terms of citizenship differ substantially from each other, and the outcomes of a proportionality test may not always be fully comparable with the European values laid out in Article 2 TEU. I would argue that in practical terms, when national authorities systemically fail to properly apply the principles of EU law regarding losing or acquiring citizenship, it is essential that the CJEU should use the opportunity to test for proportionality in national naturalisation requirements by activating Article 20 TFEU whenever possible. One way in which this could occur could be via the application of an EU citizenship test proposed by Mann and Purnhagen (2012). The argument is based on a combination of the reasoning in the European Rottmann and US Dred Scott cases. Such a test would be based on two main criteria: ‘First, whether EU citizens’ rights, which are stipulated by Article 20(2) TFEU, are substantially affected and, if so, why this is justified; and second, whether the solidarity between Member States that safeguards the existence of European citizenship would be endangered. It would only be in cases where Member States failed to (sufficiently) conduct this test that their decision could be subjected to review by the ECJ.’ I would argue that moving the reasoning into the sphere of the distinctive ‘European’ interests affected by the application of national rules on citizenship acquisition and loss would offer more secure ground for judicial decision-making in the future.
Harbo, T.-I. (2010), ‘The Function of the Proportionality Principle in EU Law’, European Law Journal, 16(2): 158-185, https://doi.org/10.1111/j.1468-0386.2009.00502.x.
Kochenov, D. (2019) ‘The Tjebbes Fail,’ European Papers, 4(1): 319–336.
Mann, D.J., Purnhagen, K.P. (2012) ‘The Nature of Union Citizenship between Autonomy and Dependency on (Member) State Citizenship – a Comparative Analysis of the Rottmann Ruling, or: How to Avoid a European Dred Scott Decision?’ Wisconsin International Law Journal, 29(3): 484–533.
Packer, J. (1999) ‘Problems in Defining Minorities’, in Fottrell, D., Bowring, B. (eds) Minority and Group Rights towards the New Millennium, Martinus Nijhoff, 233–274.
Tsakyrakis, S. (2009) ‘Proportionality: An Assault on Human Rights?’ International Journal of Constitutional Law, 7(3): 468–493.