Brexit means Brexit for UK nationals and EU citizenship: analysis of an Advocate-General’s opinion

 

Professor Steve Peers, University of Essex

Did British citizens retain their EU citizenship after Brexit? The EU and the UK government assume not, but some Brits have begged to differ.

The issue has reached the EU courts in several ways. Three cases went directly to the EU General Court, challenging the EU Council’s decision to conclude the withdrawal agreement, on the grounds that the agreement (in the applicants’ view) wrongly removed their EU citizenship. Last August, the EU General Court rejected all these cases for lack of standing; the applicants have all appealed to the CJEU. (See my compilation of Brexit litigation for further details).

Two cases reached the CJEU via national courts sending questions about the interpretation of EU law and the validity of the decision to conclude the withdrawal agreement. This route does not raise standing problems. The first of these cases (Case C-673/20 EP) has led to an opinionof an Advocate-General of the CJEU yesterday – which argued that British nationals have lost their EU citizenship as a result of Brexit, and the decision concluding the withdrawal agreement was valid.  

Summary of the opinion

The opinion begins by quoting Article 9 TEU: “Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship” – and noting that Article 20(1) TFEU is nearly identical. It then summarises the specific issue in this case: the loss of local election voting rights of a UK citizen in France, due to her loss of the status of EU citizen (which entails such voting rights) as a consequence of Brexit. Interpreting these Articles in the context of the Treaties as a whole, the Advocate-General states that:

Article 9 TEU and Article 20(1) TFEU provide that Union citizens must be nationals of a Member State. Union citizenship is additional to, and does not replace, nationality conferred by the Member States. In that context, it is important to acknowledge that the Member States could have decided to pool their competences and to confer on the European Union the power to determine who is entitled to become a Union citizen. That explicit choice by the Member States not only renders the European Union powerless to create Union citizenship independently from nationality as conferred by the Member States, but also raises a constitutional barrier to such a power being implied under Union law. [para 22]

This is an answer to those who argue that the EU could confer EU citizenship as such on Brits, Russians or any other nationals of non-EU countries. It leads to his next point, dismissing the relevance of the previous CJEU judgments on the limits of the loss of EU citizenship which were referred to by the applicant (Rottmann, Tjebbes and Wiener Landesregierung – see discussion here) on the grounds that they all concern the loss of EU citizenship via means of loss of nationality of a Member State.

By comparison, the UK’s withdrawal from the EU took place on the basis of Article 50 TEU, which had the consequence of the UK ceasing to be a Member State. Article 50(3) TEU states explicitly that ‘the Treaties shall cease to apply’ to a State that leaves the EU when a withdrawal agreement enters into force, or ‘failing that’ two years after its notification to leave (unless that time frame is extended by mutual agreement). The opinion interprets this to mean that:

…In consequence, the United Kingdom no longer resolved, inter alia, to establish a citizenship common to that of the nationals of EU Member States or to create an ever closer union among the peoples of Europe. Since the existence of Union citizenship depends upon the acquisition and possession of the nationality of a Member State, and the United Kingdom voluntarily abandoned that status in the manner prescribed by Union law, British nationals ceased to be Union citizens. [para 28]

He then examined – and dismissed – the specific arguments made by the applicant. First, she argued that she retained her EU citizenship despite the UK leaving the EU. In his view, since the EU ‘has freely determined that acquisition of citizenship of a Member State is a condition precedent for the conferral of Union citizenship’, her argument that links to a State ground a claim to that State’s nationality fail. Equally, in his view, her argument that her links with France prevent deprivation of her EU citizenship must fail, as she could always claim French nationality (and therefore EU citizenship): “[w]ithout her possession of the nationality of a Member State, France cannot recognise EP as a Union citizen.”

Although EU citizenship, according to case law, aims to integrate EU citizens into the society of the host State, this did not mean, in the Advocate-General’s view, that the history of such integration in an individual case prevented the loss of EU citizenship:

…In addition to the objection that EP, like all other British nationals, ceased to meet the essential precondition for the enjoyment of the status and benefits of Union citizenship, namely Member State nationality, as a direct consequence of the United Kingdom’s sovereign decision to withdraw from the European Union, it may further be observed that the integration of third-country nationals into the societies of the Member States is not among the goals furthered by Union citizenship. [para 34]

A brief reference in the Rottmann opinion to the independence of EU citizenship from Member State nationality was not relevant either, as that opinion also made it clear that nationality of a Member State was a condition to have the status of EU citizen: “far from supporting the proposition advanced by EP, point 23 of the Opinion of Advocate General Poiares Maduro in Rottmann entirely undermines it” [footnote omitted].

…It describes the rationale for Union citizenship being contingent upon holding the nationality of a Member State as the Member States’ mutual commitment to construct a new form of civic and political allegiance on a European scale. By its sovereign decision to leave the European Union, the United Kingdom signalled its clear determination to repudiate that commitment. In the context of that act by a sovereign State, an individual cannot seek to rely upon his or her British nationality to assert a claim either to Union citizenship or to its benefits. [para 37]

A technical argument about the scope of the transition period in the withdrawal agreement (discussed here) failed too: the opinion concludes that only someEU law continued to apply to Member States as regards UK nationals during that period, and this did not include voting rights in local elections.

The opinion then returns to the argument that the judgments in Rottmann, Tjebbes and Wiener Landesregierung – which require that the loss of EU citizenship via the loss of Member State nationality require an individual decision subject to proportionality, legitimate expectations, and the right to be heard – apply to Brexit. Here, the Advocate-General reiterates more fully that the earlier rulings do not apply by analogy to a State withdrawing from the EU:  

…The principle of proportionality requires that a competent authority balance conflicting rights and norms before taking a decision affecting an individual. The circumstances of this case require no balancing by the deciding authority that would take account of EP’s personal circumstances. As a direct result of the sovereign decision of the United Kingdom to withdraw from the European Union, a person in EP’s position lost the right to vote and to stand as a candidate in municipal elections in France, her Member State of residence. It is that sovereign decision, not that of a Member State or any authority thereof, that caused EP to lose the benefit of those rights. [para 42]

The applicant could not compare herself to a stateless person, as she remains a national of the UK:

…She can address any issue that she may have concerning her status or rights as a British national to the United Kingdom authorities. France or the European Union are incapable of playing any role in such a dispute. [para 43]

The same applied to her argument based on legitimate expectations:

…Any breach of legitimate expectations that EP may wish to ventilate concerning her status as a Union citizen is to be addressed to the United Kingdom, which has withdrawn from the European Union, and not to either the French authorities or to the European Union. [para 44]

And also to the argument that ‘the French authorities stripped her of the right to vote and to stand as a candidate in municipal elections, thereby depriving her of the right to participate in the democratic process’:

…Any deprivation of her right to participate in the democratic process as a British national arises exclusively as a consequence of United Kingdom law. [para 45]

Nor could she rely upon the principle of non-discrimination on grounds of nationality, in Article 18 TFEU, because although that principle applied to UK citizens during the transition period in general, the specific issue of voting rights was excluded from it by the withdrawal agreement, and non-EU citizens are in a different position than EU citizens. However, it remains to Member States, if they so choose, to allow non-EU citizens to vote in local elections.

Finally, in light of his analysis, the Advocate-General answers the specific questions referred by the national court to the effect that:

-          due to the UK’s decision to leave the EU and the withdrawal agreement, UK nationals are no longer EU citizens; any legal questions arising from this are a matter for the UK, outside the CJEU’s jurisdiction;

-          various Treaty articles and the withdrawal agreement do not preserve EU citizenship rights for UK nationals, because the UK has ceased to be a Member State and ‘the exercise of rights conferred by Union law does not furnish any legal basis upon which an individual’s status as a Union citizen falls to be determined’; and

-          the decision concluding the withdrawal agreement is valid, because the loss of voting rights follows from the UK’s decision to leave the EU, considering that the EU (according to prior case law) has a wide discretion in external relations and did not exceed the margins of that discretion.

More fundamentally, as to whether the withdrawal agreement ‘infringes certain principles underlying EU identity and is disproportionate since it contains no exception to the rule that British nationals lose the rights attaching to Union citizenship’, the opinion argues:

…Since the United Kingdom’s sovereign choice to leave the European Union amounts to a rejection of the principles underlying the European Union, and the Withdrawal Agreement is an agreement between the European Union and the United Kingdom to facilitate the latter’s orderly withdrawal from the former, the European Union was in no position to insist that the United Kingdom fully adhere to any of the European Union’s founding principles. Nor could the European Union secure rights that, in any event, it was not bound to assert on behalf of persons who are nationals of a State that has left the European Union and who are therefore no longer Union citizens. Finally, since Union citizenship depends upon the possession of Member State citizenship, no response other than the exclusion of British nationals from the definition of Union citizens was possible whilst remaining within the scope of the Treaties. [para 75]

Comments

Advocate-General’s opinions are not binding on the CJEU judges, so this is not the final word on the legal issues yet. But let’s examine what the opinion would mean if the judges follow it.

The opinion is, first and foremost, a complete rejection of the argument that UK citizens retain EU citizenship after Brexit. It explicitly applies whether those UK citizens have exercised free movement rights or not; and although it is focussed on voting rights (the subject-matter of the case) there is no logical reason to limit its effect to voting rights only. So the free movement rights of EU citizenship have also been lost – after the end of the transition period. (The applicant’s technical arguments about whether the transition period exceptions applied to Member States – even if those arguments had been successful – would anyway be moot now, following the end of that period).

The Advocate-General mentions the prospect of the applicant obtaining French citizenship (therefore EU citizenship), but not all UK citizens would find that route so easy. However, this is not crucial to the main logic of his legal argument, which is simply that EU citizenship depends on holding the nationality of a Member State – and the UK is no longer a Member State.

Moreover, in the view of the Advocate-General, the responsibilityfor the UK no longer being a Member State is solely that of the UK, given that the UK took a unilateral decision to leave the EU. This is consistent with prior CJEU case law (see Wightman and Shindler, discussed hereand here). It follows implicitly that this case was not about whether Brexit itself was legally valid, since that was a matter for UK law (and that issue was not even raised by the national court). This is apparently sufficient in itself to defeat the argument relating to legitimate expectations, without needing to examine whether the EU created such expectations.

The Advocate-General does not discuss the common line of argument that ‘there is no provision explicitly detailing what happens to EU citizenship when a Member State leaves the EU’, presumably because he considers his conclusion as to the requirement of a link to the nationality of a Member State sufficient. If necessary, though, the response to that argument is simply that (as the opinion points out), Article 50 states that the Treaties cease to apply to the withdrawing Member State; and the Treaties create the concept of EU citizenship.

As for the analogy which the applicant sought to draw between Brexit and the prior CJEU judgments on the loss of EU citizenship, the opinion convincingly argues that the prior judgments confirm the link between Member State nationality and EU citizenship, not weaken it. For if EU citizenship could exist independently of holding Member State nationality, on the basis that the person concerned had once held the nationality of a Member State, then those judgments would have reached their conclusions on an entirely different basis. The whole point of the prior judgments is that the loss of Member State nationality fell within the scope of EU law because it led to the loss of EU citizenship.

The applicant’s argument turns on an assumption that EU citizenship is a status linked to individuals, not a status linked to a state’s membership of the European Union. But while there could well be an argument that EU citizenship should be based on the former approach, the wording of the Treaties (as the opinion confirms) points inescapably to the latter. Member States simply did not choose to create a status of EU citizenship independently from that of nationality of a Member State.

A further argument, not discussed by the Advocate-General, is that a comparison with the means of acquisition of EU citizenship is unhelpful to the applicant too. Brexit is a collectiveloss of EU citizenship, not an individual loss; so the better analogy is not with the case law on individual loss, but with the mechanism of collective acquisition. And the means by which nationals of the last 16 Member States to join the EU collectively obtained EU citizenship was those States’ accession to the EU on the basis of Article 49 TEU. It logically follows that the collective loss of EU citizenship follows logically from the parallel process of leaving the EU set out in Article 50.  

Photo: Garry Knight, via Wikimedia commons

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Residents of everywhere? The CJEU rules on loss of immigration status due to absence from the territory

 

Professor Steve Peers, University of Essex

Immigration status is often lost due to a certain period of absence from the territory of the country which granted it. But what if that absence is briefly interrupted? The CJEU addressed that issue in a recent judgmentconcerning non-EU citizens with EU long-term resident status – which may also be relevant to those covered by EU free movement law and the Brexit withdrawal agreement.

Background

The recent judgment interpreted the EU’s long-term residence (LTR) directive, adopted back in 2003and amended in 2011to include refugees and people with subsidiary protection, which the Commission plans to propose amendments to in April. Ireland, Denmark, and the UK (when a Member State) opted out of the legislation – although the Directive is now relevant to British citizens as non-EU citizens (I previously discussed its application to UK citizens here).

After five years’ legal residence, the Directive provides that non-EU citizens can apply for long-term residence status in a Member State, subject to meeting certain conditions, which guarantees them a degree of equal treatment, a modest facilitation of the prospect of moving to another Member State (falling short of free movement law), and some protection against expulsion. The Directive exists alongside national forms of permanent residence, so not all those eligible for it will have it: some will have the purely national version.

Once obtained, how can EU long-term residence status be lost? Article 9 of the Directive provides that it is lost or withdrawn due to fraud, expulsion, or ‘in the event of absence from the territory of the Community for a period of 12 consecutive months’ (emphasis added). Member States may provide that ‘absences exceeding 12 consecutive months or for specific or exceptional reasons’ do not lead to loss or withdrawal. They may also remove the status where there is a ‘threat to public policy’ due to serious offences, falling short of the threshold for expulsion. LTR status from one Member State is also lost once it is obtained after gaining it from another Member State after residing there.

There is a second provision on absence, providing that LTR status is lost after six years’ absence from the Member State that granted it – although a Member State may provide that the status is nevertheless retained ‘for specific reasons’. (This appears to be limited to cases where the LTR status holder moved to another Member State). As regards both of the rules on absences, Member States ‘shall provide for a facilitated procedure for the re-acquisition of long-term resident status’, which ‘shall apply in particular to the cases of persons that have resided in a second Member State on grounds of pursuit of studies’. However, the conditions and procedure for re-acquiring this status ‘shall be determined by national law’.

Finally, LTR status cannot be lost solely due to the expiry of an LTR residence permit, and if the loss of LTR status does not lead to removal, ‘the Member State shall authorise the person concerned to remain in its territory if he/she fulfils the conditions provided for in its national legislation and/or if he/she does not constitute a threat to public policy or public security’.

The CJEU judgment

The recent judgment concerned a Kazakh citizen with LTR status from Austria. He applied for renewal of his permit in 2018, but the Austrian authorities turned his application down in 2019 because, for the five-year period between August 2013 and August 2018, he had only spent a few days each year within the EU. He argued that the ‘absence’ exception must be interpreted strictly, so that a return to the EU territory for only a few days within each year was sufficient to interrupt the break, and justify the continuation of his LTR status. In his view, it was not necessary to show that he was ‘physically established’ or had his ‘habitual residence’ in the territory. The national court (the Administrative Court of Vienna) was sympathetic to this interpretation, but asked the CJEU questions to confirm it.

In the Court’s view, in the absence of any reference to the national law of Member States, the concept of ‘absence’ had to be ‘regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union…taking into account the wording of that provision, its context, and the purpose of the rules of which it forms part’.

Starting with the wording of the clause, most language versions used a term ‘equivalent’ to ‘absence’. The Court noted that ‘the usual meaning of that term in everyday language’ was ‘the physical ‘non-presence’ of the long-term resident concerned in the territory’ of the EU; hence ‘any physical presence of the person concerned in that territory is capable of interrupting such an absence’. Although the German and Dutch language versions of the Directive used words which implied instead ‘staying or remaining’ on EU territory, ‘and could therefore, depending on the context, imply a more permanent presence than a physical presence of any duration’, those words could also refer to ‘a mere physical non-presence’; and otherparts of the German and Dutch language versions of Article 9 did use words ‘which correspond to the concept of ‘absence’’.

Secondly, the context of the Directive provided for the permanence of LTR status, ‘subject to Article 9’. So permanent LTR status was ‘the general rule’, and Article 9 was a ‘derogation’ which must be interpreted ‘strictly’. This ‘suggests that there should not be a broad interpretation of Article 9’, ie it is should not be interpreted to mean that ‘mere physical presence’ was insufficient to interrupt absence from the EU.

Also, the rule on acquisition of LTR status expressly ‘requires the presence of the person concerned in the relevant territory to go beyond a mere physical presence and that it be of a certain duration or have a certain stability’ – ie to ‘reside…legally and continuously for five years immediately prior to the submission of [his or her] application, subject to the periods of absence permitted under Article 4(3) of that directive.’ Details like this are lacking in the provision on loss of status, which ‘in particular’ does not say that ‘the presence of the person concerned in that territory must be of a certain duration or have a certain stability such as’ having ‘his or her habitual residence or centre of interests in that territory’. Nor are there ‘any other conditions relating to the duration or nature of that presence’, such as ‘an ‘actual and authentic link’ with respect to the same territory’, like ‘family members or assets’.

Finally, as for the objective of the Directive, the preamble stated that it aimed at integration of long-term resident non-EU citizens into the territory of the EU, by bringing their status closer to that of EU citizens and ‘establishing equal treatment with the latter in a wide range of economic and social fields’. This supported an interpretation of Article 9 to mean that those who have demonstrated they are sufficiently ‘settled’ to obtain LTR status ‘are, in principle, free, as are EU citizens, to travel and reside, also for longer periods, outside the territory of the European Union, without that thereby entailing the loss of their long-term resident status’, subject to not being absent for 12 consecutive months.

Also, the objective of legal certainty – which the preamble refers to as regards procedural rights – must also apply to the issue of loss of the status (referring to the Commission’s proposal, which stated that the sole grounds of losing LTR status should be listed in the proposal). The Court’s interpretation best met the objective of legal certainty, as the ‘maintenance of’ LTR status was ‘dependent on a clear, precise and predictable criterion relating to a simple objective event’.

Finally, the purpose of the absence rule was to prevent non-EU citizens from keeping LTR status where it no longer served any purpose in achieving the objective of integration.  It referred to the purpose of the parallel clause on the loss of permanent residence status under EU free movement law, ie justification for that loss because ‘the link with the host Member State is loosened’.  Although the free movement Directive and the long-term residence Directive

…differ from one another in terms of their subject matter and objectives, the fact remains that, as the Advocate General also pointed out, in essence, in points 40 to 43 of his Opinion, the provisions of those directives may lend themselves to a comparative analysis and, where appropriate, be interpreted in a similar way, which is justified, in particular in the case of [the provisions on loss due to absence], which are based on the same logic. [para 43]

It followed that the link is loosened only after an absence for 12 consecutive months; and to interrupt that absence, ‘it is sufficient for the long-term national concerned to be present…in the territory of the European Union, even if such presence does not exceed a few days’. This must, however, ‘be distinguished from the situation where there is evidence that such a resident has committed a misuse of rights’, although there was no evidence of such a misuse in this case.

Comments

The Court’s reasoning in this judgment is largely convincing. Its approach to interpreting the wording of the law is consistent with prior judgments, as regards a uniform interpretation under EU law in the absence of a reference to national law, and siding with the majority of language versions – and furthermore, as the Court points out, the German and Dutch language versions do not unambiguously suggest the opposite interpretation either. As for the context of the law, both the ‘interpret the rule widely/interpret derogations strictly’ approach and the a contrario approach (where the drafters wanted to specify there were requirements beyond mere presence on the territory, they expressly did so) are consistent with the Court’s usual canons of interpretation.

On the other hand, its analysis as regards the objective of the Directive is less persuasive. It starts out by referring to the objective of integration, which may point to the opposite interpretation to that which the Court reaches: can it easily be argued that a non-EU citizen who spends only a few days a year on EU territory for a five-year period is still integrated into a Member State’s territory? The Court narrowly avoids painting itself into this corner by framing integration as a form of equality with Member States’ citizens, who can come and go as they please without losing citizenship. But in fact some Member States do withdraw their nationality – and therefore EU citizenship – due to absence, in combination with other factors, and the Court has even ruledon that issue. The comparison with EU free movement law isn’t too convincing, because the Court has not yet ruled on the interruption of absence point in that context. And while the legal certainty point is convincing as far as it goes, it is undercut both by the Court’s lack of clarity on what a ‘few days’ interruption of absence means exactly, and by its creation of a ‘misuse of rights’ exception, which it does not define further except to assert that the exception does not seem to apply in this case.

Are these two points the same – ie a yearly dash through Schiphol airport in transit between Heathrow and New York does not count as interruption of absence? If so, the rule must be further explained. Or are they, as it appears, two different rules? If so, those two rules need to be explained further.

As for the implications of the judgment, it is first and foremost surely logical that this judgment applies to the second method of losing LTR status due to absence, ie by six years’ absence from the Member State that granted the status. It would be very odd to interpret an essentially identical concept appearing in the same Article of the same Directive differently. The judgment also strongly implies that the grounds of loss of status are exhaustive, and that the other grounds for loss of status should be interpreted narrowly. (However, note that in a previous judgmentthe Court interpreted the ‘fraud’ ground for loss of status broadly, ie it was lost even when the non-EU citizen concerned had not personally committed that fraud). The judgment is not relevant by analogy to periods of absence while accruing the initial five years’ legal residence to obtain an LTR permit, because there is a more specific rule applicable there.

Going outside the LTR Directive, the Court’s judgment explicitly suggests that the rules on absence in free movement law must be interpreted the same way – ie ‘Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.’ Due to its close links with free movement law, it is arguable that the absence clause in the Brexit withdrawal agreement should also be interpreted this way (‘Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding 5 consecutive years.’)

 

Barnard & Peers: chapter 26

Photo credit: Uri Baruchin, via wikicommons

 

Continue reading Residents of everywhere? The CJEU rules on loss of immigration status due to absence from the territory

Protecting the right to a nationality for children of same-sex couples in the EU – A key issue before the CJEU in V.M.A. v Stolichna Obsthina (C-490/20)

 

Patrícia Cabral, Legal Policy Officer, European Network on Statelessness*

The enjoyment of LGBTIQ* rights varies across Europe, including the recognition of same-sex partnerships or marriages and the recognition of legal parentage between children and those who raise them as parents – regardless of biology, gender or sexual orientation. As a result, rainbow families in Europe (families where a child has at least one parent who identifies themselves as lesbian, gay, bisexual, trans, intersex or queer) can face problems with recognition of civil status, birth registration and access to birth certificates, leaving some children in these families either stateless or at risk of statelessness.

Such cases have occurred across several countries in Europe and reflect a wider concerning trend within the EU, where LGBTIQ*-related discriminatory laws and practices by Member States impact on the child’s right to a nationality and their access to EU citizenship. The Court of Justice of the European Union (CJEU) will now have an opportunity to address this issue in a pending case concerning a child born to same-sex parents in Spain.

The case before the CJEU

The case before the CJEU, V.M.A. v Stolichna Obsthina, Rayon ‘Pancharevo’ (C-490/20), concerns a child born in Spain, to a British mother and a Bulgarian mother, who had entered into a civil marriage in the UK before the birth of the child. Spain issued a birth certificate, which recorded both mothers as the child’s parents, but which does not specify whether one of the women is the biological mother. The Bulgarian mother subsequently applied for the issuance of a birth certificate for the child in Bulgaria. The Bulgarian authorities refused to issue a birth certificate, on the grounds that no evidence was provided about the child’s parentage with respect to her biological mother, and that the registration of a birth certificate with two female parents was contrary to public policy, as same-sex marriages are not permitted in Bulgaria.

One of the questions asked by the domestic court to the CJEU is whether the Bulgarian authorities can refuse to issue a birth certificate on the grounds that the applicant refuses to provide information on who is the biological mother. The CJEU is also asked to consider how to strike a balance between the national and constitutional identity of the Member States (protected by Article 4(2) TEU) on the one hand, and the right to respect for private and family life and the best interests of the child on the other (Articles 7 and 24(2) of the EU Charter of Fundamental Rights).

The domestic court noted that the refusal to issue a birth certificate by Bulgaria constitutes an obstacle to the issuance of identity documents and may impede the exercise of the child’s rights as an EU citizen, asking the CJEU whether this affects the interpretation of EU law. Even though it recognises that without a birth certificate the child would be unable to acquire identity documents and exercise EU citizenship rights, the domestic court does not explicitly address the impact that this may have on the child’s right to a nationality and the risk of statelessness in its request for a preliminary ruling.

In the request for a preliminary ruling, the domestic court assumes that the child would be entitled to British nationality, considering the impact that Brexit would have in the exercise of her rights as an EU citizen. However, new evidence has subsequently been submitted to the court that the UK has since refused nationality to the child (based on special provisions that do not allow a parent who acquired British nationality by descent to pass on their nationality to a child born outside the UK). As neither of the mothers holds Spanish nationality, although she was born in Spain, the child did not acquire Spanish nationality at birth. She would need to rely on a safeguard in law which ensures that children born in Spain who would otherwise be stateless can acquire Spanish nationality. However, to apply this safeguard it must be demonstrated that the child is unable to acquire any other nationality. The Bulgarian authorities’ denial of access to identity documents, which are essential for the child to evidence her Bulgarian nationality and effectively enjoy her right to Bulgarian nationality, contradict the fact that according to Bulgarian law, the child is entitled to Bulgarian nationality (see below for further elaboration on this point).

This poses a particular and paradoxical challenge in this case, in terms of the ability of the child to provide evidence that she is effectively prevented from acquiring another nationality in order for her to be able to take advantage of the Spanish safeguard. Furthermore, had the child been born in a country without a safeguard that protects children born stateless on the territory, the situation would remain unresolved and the child would be stateless due to discriminatory birth registration practices by the Bulgarian authorities. Given that the UK and Spain have both confirmed the child is neither a British nor a Spanish national, the child is currently stateless, or at least at risk of statelessness. While it is unfortunate that the domestic court did not address the impact on the child’s right to a nationality, the CJEU is free to reformulate the questions referred to it and provide all the elements of interpretation of EU law relevant to the case, including those related to access to EU citizenship and statelessness. This is a fundamental issue that the CJEU must resolve in this case.

In its request for a preliminary ruling, the court asks whether Member States have broad discretion as regards the rules for establishing parentage, however the issue is not the establishment of parentage but rather the recognition in Bulgaria, of the legal parentage established in Spain. In line with caselaw from the CJEU and the European Court of Human Rights (ECtHR), the margin of discretion that Members States have in the recognition of parentage, particularly when this impacts on the child’s best interests and identity, is narrower than for the establishment of parentage. As further explained in this piece, doubts remain as to whether the domestic authorities are refusing to recognise the legal parentage established between the child and her mothers as evidenced by the Spanish birth certificate, or whether they recognise the parentage but refuse to issue a birth certificate. Whichever position the authorities are taking, it has a severe impact on the child’s rights and the refusal to issue a birth certificate results in denying her Bulgarian nationality and thus access to EU citizenship.

Discriminatory birth registration practices negatively impact the fulfilment of children’s rights

Most, but not all of us, have had our births registered. Birth registration involves the official recording of a birth within the civil registry, which records both the fact of the birth and its characteristics. It often results in a birth certificate issued by the civil registrar that provides proof that the child has had their birth registered and is essential evidence of a child's family ties as well as their place of birth. These are key aspects of legal identity and can be critical to establishing the child’s nationality, as nationality is usually acquired either through the parents (jus sanguinis), the place of birth (jus soli), or a combination of the two.

Lack of birth registration is not the same as statelessness, yet it heightens the risk of leaving children without a nationality. Given the key information birth registration provides about individuals and their links to a State, either through the parents or place of birth, not having a birth registered or a birth certificate evidencing registration can contribute to difficulties establishing these links and consequently expose them to the risk of statelessness. Children in this situation face severe obstacles in exercising the rights to which they are entitled under international law such as the 1961 Convention on the Reduction of Statelessness and the 1989 Convention on the Rights of the Child (CRC), including access to education, healthcare and social security. In the case of children born to EU citizens, lack of birth registration and consequent impacts on acquiring a nationality will also impede on their ability to exercise their rights as EU citizens, including free movement rights.

Ultimately, it is never in the child’s best interests to be left stateless, even for a short period of time. As stressed by UNHCR in its Guidelines on Statelessness No. 4, “it follows from Articles 3 and 7 of the CRC that a child must not be left stateless for an extended period of time: a child must acquire a nationality at birth or as soon as possible after birth”.

In its concluding observations to the Bulgarian government in 2018 (CCPR/C/BGR/CO/4), the UN Human Rights Committee noted with concern that same-sex couples married abroad and their children are denied access to civil registration, and made recommendations towards eliminating discrimination on the basis of sexual orientation or gender identity. Such discriminatory birth registration practices against same-sex couples often have a serious impact on the child’s right to a nationality and may render a child stateless, leading to other violations of the child’s rights. This is the situation in the current case, where the Bulgarian authorities have refused to issue a Bulgarian birth certificate for the child on the basis of birth, gender and sexual orientation.

Somewhat paradoxically, in the current case the domestic court has seemingly recognised the legal parentage between the child and the Bulgarian mother, as evidenced by the Spanish birth certificate, through its conclusion that the child would anyway be a Bulgarian national by virtue of having a Bulgarian mother (although see below why this assertion is questionable). Given the legal parentage has been recognised by the Bulgarian authorities in this way, the refusal to issue a birth certificate on the basis of establishing parentage constitutes direct discrimination based on birth, sexual orientation and gender. According to Article 60(2) of the Bulgarian Family Code, the mother of the child is the woman who gave birth to the child, therefore the woman who has not given birth is not considered a mother. However, in a similar situation of an opposite sex couple this issue would not arise, as both parents would be included in the birth certificate without requiring proof of parentage. Such discrimination is not justifiable and requesting information on the biological parentage in this case therefore constitutes a violation of Article 21(1) EU Charter of Fundamental Rights (CFR).

This discrimination based on the sexual orientation of the parents and its impact on the child’s acquisition of nationality is further at odds with the Convention on the Rights of the Child, ratified by all EU Member States, as all children have the right to be registered immediately after birth and the right to acquire a nationality without discrimination of any kind and irrespective of the child’s or their parent’s status (Articles 2 and 7 CRC). The case also raises other important questions beyond the scope of this commentary, but which have been discussed by other experts.

Denial of a child’s nationality in practice, despite entitlement in the law, leads to statelessness

According to the 1954 Convention relating to the Status of Stateless Persons, a stateless person is somebody who is not considered as a national by any State under the operation of its law. This has been authoritatively interpreted by UNHCR as requiring “a mixed question of fact and law”, meaning that statelessness is not just about the letter of the law, but about how the competent authorities apply the law in a specific case. UNHCR also asserts that “under the operation of its law” is not synonymous with “by operation of law”, a term which signifies that acquisition of nationality is automatic in nature, as opposed to other non-automatic mechanisms to acquire nationality (such as through naturalisation).

According to the Bulgarian court, the question of the child’s right to a nationality does not arise in this case as a result of the authorities’ refusal to issue a Bulgarian birth certificate for the child. The court states that the child is still a “Bulgarian national by operation of law”. This suggests that the child would be automatically considered a national under Bulgarian law, but it must be noted that nationality cannot be established by court (Article 4 of the Law on Bulgarian Nationality) and regard must be given to how the law is applied in practice. According to UNHCR’s guidance, asserting whether a person is considered a national under a State’s law and practice requires evaluating evidence issued by the competent authorities. When nationality is acquired automatically, i.e. “by operation of law”, birth registration is usually the document that provides evidence of acquisition of nationality. By refusing to issue a birth certificate, which provides evidence of the legal parentage between the child and her Bulgarian mother, the authorities are also denying the child access to identity documents which are essential for her to evidence her Bulgarian nationality and to effectively enjoy her right to a nationality and all rights derived from it. By extension, the child is also prevented from enjoying her EU citizenship, which the CJEU has reiterated to be “the fundamental status of nationals of the Member States”.

As noted by UNHCR, “where the competent authorities treat an individual as a non-national even though he or she would appear to meet the criteria for automatic acquisition of nationality” – as in the case at hand, where the authorities are preventing access to identity documents – “it is their position rather than the letter of the law that is determinative in concluding that a State does not consider such an individual as a national”.

Denial of EU citizenship and related rights

Refusing to issue a birth certificate should therefore be interpreted as a refusal to recognise Bulgarian nationality, rendering the child stateless. This would also automatically impact on the child’s access to EU citizenship and on the enjoyment of the rights derived from it. As the CJEU held in the Zambrano case, Article 20 TFEU “precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union”. The refusal to issue a birth certificate means she would be unable to evidence the acquisition of Bulgarian nationality and has no entitlement to any other nationality of an EU Member State, which would result in a denial to acquire EU citizenship and entirely deprive the child from enjoying her rights as an EU citizen.

Furthermore, the CJEU has held that the concept of public policy as justification for a derogation from a fundamental freedom must be interpreted strictly. In the Coman ruling (discussed here), it noted that the obligation to recognise same-sex marriages, for the purpose of granting a derived right of residence to a third-country national, does not undermine the national identity of Member States protected by Article 4(2) TEU or pose a threat to public policy. While Member States are free to decide whether to allow marriage between persons of the same sex, they are precluded from imposing national measures which may obstruct the exercise of free movement rights and such measures must comply with the EU Charter of Fundamental Rights. Although in Coman the CJEU addressed the granting of a derived right of residence to a third-country national who was married to an EU citizen, the principles outlined in the judgment could be applied to the present case in V.M.A. v Stolichna Obsthina.

Upholding EU commitments to equality for rainbow families

The EU has made important strides towards recognising and upholding the rights of children of rainbow families and their parents in recent years, not least with the recent introduction of a five-year LGBTIQ Equality Strategy, which includes protecting the rights of rainbow families as one of four key pillars for action between 2020-2025. As President von der Leyen asserted in her State of the Union address, “if one is parent in one country, one is parent in every country”. As part of the strategy, the European Commission commits to bringing forward a legislative initiative on the mutual recognition of parenthood and to explore possible measures to support the mutual recognition of same-sex partnership between Member States. This builds on work in recent years by the Commission under its List of Actions to advance LGBTIQ equality to address free movement and cross-border issues, through its dialogue with Member States to remove obstacles concerning the recognition of birth certificates of children born to same-sex couples in another Member State.

Furthermore, in order to improve legal certainty for EU citizens exercising their free movement rights, and to ensure a more effective and uniform application of the free movement legislation across the EU, the European Commission committed in the LGBTIQ Equality Strategy (as also described in the EU Citizenship Report 2020) to review the 2009 guidelines on free movement in 2022 and to ensure that the updated guidelines reflect the diversity of families, and to help all families, including rainbow families, to exercise their right to free movement.

Through these initiatives, the EU demonstrates the responsibility of both the EU and its Member States to remove barriers to birth registration and to ensure the recognition of birth certificates of children born to rainbow families, the legal parentage of the children and any consequences on the child’s right to a nationality.

In 2021, the EU will publish a 2021-24 strategy on the rights of the child, providing a comprehensive framework for EU action to promote and protect children’s rights, and including recommendations for action by other EU institutions, EU Member States and stakeholders. This presents a further opportunity for the EU to outline action to protect the rights of children of rainbow families, including the right to a nationality.

The role of the courts in respecting the best interests of the child and upholding the child’s right to a nationality

Nationality law usually falls within a Member State’s competency. However, as the CJEU emphasised in Rottman, when exercising their powers in the sphere of acquisition and loss of nationality, Member States must have due regard to EU law, including upholding the EU’s values and the rights enshrined in the EU Charter of Fundamental Rights. (See discussion of later CJEU case law here)

Under its Article 53, the level of protection granted by the provisions of the EU Charter of Fundamental Rights is at least equivalent to the protection granted by the European Convention on Human Rights (ECHR) and international law, including the CRC. It is therefore essential for the CJEU to draw from international jurisprudence on the right to respect for private and family life in the consideration of this case, as well as to consider the right to a nationality, the principle of non-discrimination and the best interests of the child in line with international human rights law.

Case law from the ECtHR affirms that the recognition of parentage and acquisition of nationality fall within the ambit of the right to respect for private and family life (e.g. Mennesson and Genovese), as protected by Article 8 ECHR and Article 7 CFR, and provides guidance to its interpretation. Particularly in Mennesson, the ECtHR has stressed that respect for private life requires that everyone should be able to establish details of their identity as individual human beings, which includes the legal parent-child relationship, emphasising that children have a right to legal identity.

The child’s right to a nationality is further protected under Article 15 UDHR, Article 24(2) ICCPR, and Articles 3 and 7 of the CRC. The UN Human Rights Committee has recently found that failure to identify statelessness and assess a child’s nationality status led to a violation of the right to a nationality (Zhao v Netherlands). Furthermore, in their General Comment No 14, the Committee on the Rights of the Child recognises that the best interests of the child might conflict with other interests, including the public interest, and notes that authorities must bear in mind that the right of the child to have their best interests taken as a primary consideration means that the child's best interests are not just one of several considerations, nor should they be considered on the same level as all other considerations. Rather, they take priority in all circumstances, “especially when an action has an undeniable impact on the children concerned” (CRC General Comment No 14 para 40), as is the situation in this case.

The courts play a key role in interpreting national legislation and thus aligning domestic practice with the regional and international human rights framework. While domestic courts must not lose sight of their international obligations, the regional courts have a further responsibility to ensure that the diversity of national jurisdictions does not compromise respect for fundamental rights or the best interests of the child. Cases similar to the one presently before the CJEU have been reported across Europe, with children born to same-sex couples facing discrimination in recognition of civil status documents and in access to birth registration and identity documents, particularly in Poland, Bulgaria and Ireland. The nationality laws of all Member States must be applied in a non-discriminatory manner and with respect for fundamental rights, especially when they have a direct impact on the enjoyment of EU citizenship. Currently, children are being born stateless or at risk of statelessness in the EU and denied EU citizenship, solely because of a prejudice towards their parents’ sexual orientation. The CJEU therefore has an essential role to play in supporting progress towards a seamless implementation of international standards on statelessness and human rights law in all EU Member States, and towards a Europe where no child is born stateless.

*Rebloggedfrom the European Network on Statelessness blog

Barnard & Peers: chapter 13

Photo credit: Laurent Verdier, via Wikimedia Commons

Continue reading Protecting the right to a nationality for children of same-sex couples in the EU – A key issue before the CJEU in V.M.A. v Stolichna Obsthina (C-490/20)

CJEU asked to rule on acquisition of nationality in light of EU citizenship: The fundamental status on the horizon? (C-118/20 JY v Wiener Landesregierung)

David A.J.G. de Groot, EU-CITZEN Network*

* I would like to thank Tania Isacu, Rainer Bauböck and Gerd Valchars for their very useful comments.

Introduction

The Supreme Administrative Court of Austria has requested a preliminary ruling from the Court of Justice of the European Union (CJEU) in the case C-118/20 JY v. Wiener Landesregierung, concerning the revocation of a guarantee of the grant of Austrian nationality.

Austria maintains a strict ‘single nationality’ policy, meaning that wherever possible, it requires that a person has only Austrian nationality and no other. Consequently, Austrian nationality is lost in most cases automatically upon voluntary acquisition of another nationality. Equally, Austria requires that upon acquisition of its nationality all previous nationalities have to be relinquished. Austria, as opposed to e.g. Germany, has made no exceptions to this rule where the previous or future nationality is the nationality of a Member State.

C-118/20 JYconcerns the procedure for acquisition of Austrian nationality, and more specifically at which moment during the procedure the previous nationalities have to be lost, and whether this is in conformity with the rules on EU citizenship.

Facts of the case

It is unclear from the facts when JY exactly moved to Austria. What is known is that JY applied on 15 December 2008 for Austrian citizenship. At the time, JY held Estonian citizenship and was therefore an EU citizen. More than five years later, in March 2014, the authorities granted her a guarantee of the grant of Austrian nationality, which would enable acquisition of Austrian nationality on condition of providing proof that the previous nationality had been relinquished.

Technically speaking, at this moment she was still not an Austrian national.

She subsequently relinquished her Estonian citizenship on 27 August 2015. Consequently, from that moment on she was stateless.

On 6 July 2017, the authorities revoked the original guarantee of the grant of Austrian nationality and rejected her application for Austrian citizenship.

The reasons provided by the authorities was that JY had committed two serious administrative offences since the decision on the guarantee of the grant of Austrian nationality. These, in combination with eight prior offences (all speeding offences), made her ineligible for naturalization. The two serious administrative offences concerned a failure to provide a compliant vehicle inspection disk and driving under the influence of alcohol.

Based on this, the Administrative Court considered that her future conduct could not be ascertained.

Additionally, the Administrative Court considered that the C-135/08 Rottmann decision of the CJEU was not applicable, since at the time of the revocation decision, JY no longer was an EU citizen, as she was stateless. The court furthermore considered that the breaches were of such a serious nature that the revocation of the guarantee was proportionate in light of the 1961 Convention on the reduction of statelessness. Also, the requirements for revocation of the guarantee as provided for in the Austrian Citizenship Act were considered fulfilled.

On appeal, the Supreme Administrative Court referred the following questions to the CJEU:

Does the situation of a natural person who, like the appellant in cassation in the main proceedings, has renounced her only nationality of a Member State of the European Union, and thus her citizenship of the Union, in order to obtain the nationality of another Member State, having been given a guarantee by the other Member State of grant of the nationality applied for, and whose possibility of recovering citizenship of the Union is subsequently eliminated by revocation of that guarantee, fall, by reason of its nature and its consequences, within the scope of EU law, such that regard must be had to EU law when revoking the guarantee of grant of citizenship?

If the first question is answered in the affirmative,

Is it for the competent national authorities, including any national courts, involved in the decision to revoke the guarantee of grant of nationality of the Member States, to establish whether the revocation of the guarantee that prevented the recovery of citizenship of the Union is compatible with the principle of proportionality from the point of view of EU law in terms of its consequences for the situation of the person concerned?

Analysis

There are many different issues in this case.

Primarily, there is the question: is EU citizenship applicable? Does it only have to be taken into account? Or, has it in fact been violated?

In its C-369/90 Michelettijudgment, the CJEU stated back in 1992 that “under International law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality” (emphasis added). This was consistently repeated in the EU citizenship cases C-192/99 Kaur, C-200/02 Zhu and Chen, C-135/08 Rottmann and C-221/17 Tjebbes (discussed here). Therefore, the role of EU citizenship in this case will feature quite prominently.

However, before we delve into the questions of whether and how EU law is applicable, we should wonder whether the procedure applied by Austria for acquisition of nationality is actually even in conformity with international law.

Relinquishment requirement under international law

The Austrian authorities and the referring court seem to be under the impression that this method of using a temporary guarantee for the acquisition of nationality in order for the person to relinquish their other nationality is in conformity with international law. In short: it is not!

By de facto requiring that before a final assessment for naturalization the person has already relinquished all nationalities and consequently is stateless, Austria is violating the 1961 Convention on the reduction of statelessness and the European Convention on Nationality (ECN). By making a full reassessment of the eligibility (with the exception of the income requirement, a reassessment of which had been considered in violation with the Constitution) after the other nationalities have been relinquished, thus by conducting an assessment ex nuncand not ex tunc, the law deviates from international standards.

The guarantee given by Austria did not satisfy the criteria of Article 7(2) of the 1961 Convention, which provides that “A national of a Contracting State who seeks naturalization in a foreign country shall not lose his nationality unless he acquires or has been accorded assurance of acquiring the nationality of that foreign country.” In the 2013 Tunis Declaration of the UNHCR, concerning the interpretation of the 1961 Convention, it is stated that loss of the previous nationality should in principle only occur upon acquisition of the other nationality. An exception is provided where an assurance for the future acquisition is given. However, the Declaration clearly states that such an assurance for the grant of nationality may not be “retracted on grounds that conditions for naturalization are not met”. It is equally provided in the Declaration that the state of previous nationality may only provide for loss of its nationality if the guarantee provided is “unconditional and does not leave any discretion to the authorities of the country.” Since the guarantee made by Austria was not unconditional, could be and was actually retracted based on a new assessment of eligibility, Austria can be considered in violation of international law.

Additionally, by giving the impression that its nationality will be acquired and thus a renouncement of the previous nationality will not cause statelessness, Austria has violated the principle of mutual trust in EU law. Every renouncement made in accordance with the nationality laws of the other Member States in order to obtain Austrian citizenship in essence violated those other Member States’ laws and commitments to the prevention of statelessness.

Paradoxically, one could consider that any guarantee ever made by Austria, irrespective of whether the nationality was acquired later or not, had no legal value under international law. Thus, Austria may have created a situation where many naturalized citizens have technically never lost their previous nationality, because the renouncement was contra legem at the time it was made (due to the fact that it would have rendered the person stateless and the guarantee could not provide sufficient assurance that it would not). Only those naturalized citizens who would have lost the previous nationality automatically due to voluntary acquisition of Austrian nationality (e.g. previous nationals of the Netherlands, Lithuania and Slovakia) would only have Austrian citizenship.

Question 1 - EU citizenship law applicable

The Administrative Court considered that EU law, and specifically EU citizenship, was not applicable to the case because at the moment of the decision revoking the guarantee, JY was already stateless and no longer an EU citizen.

This is a rather narrow interpretation and also rather galling considering the fact that it was the Austrian procedure for the acquisition of nationality that created that situation in the first place.

One should consider the question of applicability of EU law, and specifically EU citizenship, from two slightly different perspectives: (1) EU citizenship (Article 20 TFEU) and (2) free movement (Article 21 TFEU).

(1) Taking the view point of Article 20 TFEU, the case already clearly falls within the ambit of EU citizenship, but not necessarily for the reasons pointed out by the referring court.

The referring court makes this a case of loss of EU citizenship, while arguably it is actually a case of acquisition of EU citizenship.

As was stated above, the CJEU has consistently held that the Member States must have due regard to Union law when laying down the conditions on acquisition and loss of nationality. However, until now there have been no cases concerning acquisition of nationality. National courts seem to believe that only where the nationality, and thus EU citizenship, is lost, does EU law comes into play. However, arguing so, they forget that EU law is equally applicable to the acquisition of nationality.

This principle of applicability of EU law to the acquisition of the nationality of a Member State should apply irrespective of the nationality of the person prior to the acquisition, be it that of a Member State, a Third-Country or when the person is stateless.

In the present case, though, since JY had the nationality of a Member State before starting the procedure for acquisition of another Member State’s nationality – which Austria cannot deny considering that it applied the facilitated naturalization criteria for EU citizens on the basis of Article 11a(4)(2) of the Austrian Citizenship Act to JY – the applicability of EU law to the case is beyond doubt.

Any arguments brought forward by the Austrian authorities that the moment of revocation of the guarantee is the point of reference for establishing whether the nationality of the person makes EU citizenship law applicable (which is irrelevant, as explained, since it concerns an acquisition and not a loss case) conflicts with the principle of estoppel. It was the Austrian guarantee that did not fulfil the requirements to ensure that JY would have been an EU citizen.

(2) The referring court has only made reference to Article 20 TFEU in its submissions; however, one should consider that Article 21 TFEU is equally applicable.

Prior to becoming stateless, JY was an EU citizen who made use of her right of free movement by residing in a Member State other than the Member State of nationality. Consequently, her residence prior to becoming stateless was based on Directive 2004/38.

In its judgment C-165/16 Toufik Lounes(discussed here), the CJEU stated that “the rights conferred on a Union citizen by Article 21(1) TFEU, […] are intended, amongst other things, to promote the gradual integration of the Union citizen concerned in the society of the host Member State.” The Court furthermore considered that “Union citizens, […] who, after moving, in the exercise of their freedom of movement, to the host Member State and residing there for a number of years pursuant to and in accordance with Article 7(1) or Article 16(1) of Directive 2004/38, acquire the nationality of that Member State, intend to become permanently integrated in that State.”

Thus, according to the CJEU, naturalization by an EU citizen in the Member State of residence is the ultimate proof of having become permanently integrated in the society of the host Member State.

The CJEU considered that “it would be contrary to the underlying logic of gradual integration that informs Article 21(1) TFEU to hold that such citizens, who have acquired rights under that provision as a result of having exercised their freedom of movement, must forego those rights –– in particular the right to family life in the host Member State –– because they have sought, by becoming naturalised in that Member State, to become more deeply integrated in the society of that State.”

Considering that the CJEU stated that one could not allow an EU citizen to forego rights by becoming more deeply integrated in the society of the host State, a fortiori one cannot expect a Union citizen to gamble away his or her EU citizenship on the possibility of becoming more deeply integrated in the society of the host State, not only foregoing some rights, but the entire legal framework their existence in that State and personal identity are based on. For, from the moment she became stateless, Directive 2004/38 seized to be applicable to JY.

This case, therefore, goes beyond mere Article 20 TFEU, since the rights acquired under Article 21 TFEU are equally at stake.

For that reason, under all circumstances the questions would have to be rephrased in order to include Article 21 TFEU.

The answer to the first preliminary question is thus a definite ‘yes, EU law has to be taken into consideration when a guarantee to acquire the nationality of a Member State is revoked.’

Question 2 - EU law violated

In its second question, the referring court wonders if the national authorities have to consider whether the revocation of the guarantee that prevented the recovery of citizenship of the Union is compatible with the principle of proportionality from the point of view of EU law in terms of its consequences for the situation of the person concerned.

This is the wrong question.

The reference in the question to the principle of proportionality is a consequence of the erroneous reasoning of the referring court that the case concerns loss of nationality, while – as explained above – it actually concerns acquisition of nationality. If indeed it were to concern loss of nationality, then it would be clear based on C-135/08 Rottmann and in C-221/17 Tjebbes that it is mainly the principle of proportionality that has to be observed when it concerns the loss of the nationality of a Member State and of EU citizenship. In C-221/17 Tjebbes the Court listed multiple criteria which have to be observed in such cases. In the present case concerning acquisition of nationality, while the principle of proportionality of course has to be observed, this is by far not the only part of EU law that will have to be considered.

It should be noted at this point that the Administrative Court considered the traffic violations ‘serious crimes’ capable of and proportionate for justifying a revocation of the guarantee. Driving under influence might cause a situation where the consequences could result in a criminal offence; however, the referring court also stated that according to its recurring case-law such a violation will cause revocation of the guarantee irrespective of the actual volume of consumption in the case. If we consider e.g. a situation where the volume is very low, but just above the permitted limit, this cannot be equated to an offence which requires a long prison term (in Austria it does not. The two administrative offences solely resulted in fines totalling €412). It should definitely not be an administrative offence that renders you stateless.

I would like you to also think about the other violation of not having a compliant vehicle inspection disk. Just consider the next time when you have to bring your car to the vehicle inspection that your nationality might depend on it. Would you consider this reasonable? For the time being, I would advise any person who is considering to ever naturalize in Austria to sell their car.

Considering the fact that it concerns ‘recovery of citizenship of the Union’, one should wonder first whether the entire situation that led to this can be considered compatible with EU law.

As was already explained above, the guarantee of the grant of nationality was not unconditional and could be retracted. Therefore, the guarantee did not even fulfil the requirements under international law.

Since EU law is applicable, the Charter of Fundamental Rights of the EU (CFR) and the general principles of EU law are also applicable.

One should consider that JY’s legitimate expectations have clearly been violated. She acted in complete good faith by renouncing her Estonian citizenship in order to acquire the Austrian nationality. This good faith has been thoroughly betrayed.

One should, furthermore, consider that there might be a violation of JY’s right to private life as protected by Article 7 CFR. This is due to the fact that nationality, just like all other civil status, is governed by private life. A requirement to become stateless in order to acquire another nationality, and then additionally refuse the grant of this nationality, is an unjustifiable violation of the right to private life.

Furthermore, as was explained above, we are presented here with a clear violation of Article 21 TFEU. No EU citizen should ever have to forego all rights derived from EU law in order to become more permanently integrated in an EU host State.

The second question should therefore be rephrased in order for it not to be limited to the principle of proportionality, but to EU law in general. Additionally, it would serve the CJEU to extend the scope of the question to include an assessment whether the naturalization procedure of Austria is in conformity with EU law.

Time to take a stance on dual EU citizenship

There is an additional reason why the method employed by Austria violates the free movement rights, but this requires a longer explanation.

One should consider this case in a large and complex web of different lines of case-law.

In my Article on the “Free Movement of Dual EU Citizens”, I have explained that the C-165/16 Lounes case has created a rather complicated situation. This is due to the distinction made by the CJEU between ‘single’ EU citizens – being persons who have the nationality of only one Member State – and ‘dual’ EU citizens – being persons who have the nationality of more than one Member State.

As I explained in that Article, when a person returns to their Member State of nationality, and this is the only Member State of which (s)he has the nationality, the ‘right to return’ case-law applies (C‑370/90 Surinder Singh; C‑291/05 Eind; C-456/12 O&B, discussed here; C-230/17 Altiner and Ravn). This means that the person will only retain those rights derived from EU law that (s)he had made use of prior to the return while residing in another Member State. As was shown, prior to C-165/16 Lounes, problems arose for dual EU citizens when they moved between Member States of nationality, being on the one hand excluded from the scope of Directive 2004/38, while on the other hand only rights that were acquired on the basis of the Directive could be retained.

After C-165/16 Lounes, on the contrary, a dual EU citizen who returns or moves to one of his or her Member States of nationality, would not only be able to retain rights which were previously used, but continues to be able to derive new rights from the EU citizenship framework. This means that a single EU citizen is not treated in the same manner as a dual EU citizen would in a Member State of nationality, while both have made use of their free movement rights. While single EU citizens are still affected by reverse discrimination, dual EU citizens are only affected by it if they have never moved to and resided in the Member State in which they were born and of which they have the nationality.

I wrote that this differentiation is dangerous. I also stated that the CJEU should consider situations where the EU citizen had to renounce or automatically lost their original Member State’s nationality upon naturalization in another Member State, like in the case at hand.

I considered that one may not make a distinction between persons who acquired a nationality at birth and those who acquired it by naturalization. The reasoning of the CJEU in Lounes would have required a further distinction between persons who had naturalized and previously had the nationality of another Member State and those that had the nationality of a Third Country prior to naturalization. This would create immense problems.

Consequently, an application of C-165/16 Lounes to naturalized EU citizens who lost the previous nationality, without completely abolishing reverse discrimination, is impossible.

I stated that if the CJEU considered that there are two lines of case-law – one concerning single EU citizen returners and one concerning dual EU citizens – , it would have to restrict Member States as to requirements of renouncing the previous nationality if this is the nationality of another Member State and to the automatic loss of the nationality upon acquisition of another Member State’s nationality.

I considered that the requirement of renunciation of the previous nationality would equal a requirement to choose for the ‘single EU citizen’ framework and, therefore, to forego rights; and equally the automatic loss of a Member State’s nationality would be for the sole reason that the person wanted to become more integrated in the Member State of residence. This also meant that a person with only the nationality of a Member State with a strict ‘single nationality’ policy would be at an enormous disadvantage, since (s)he would have to naturalize twice in order to get within the dual EU citizen framework. In order to get within the ambit of this framework, a person who is a national from a Member State with a strict ‘single nationality’ policy would, in a first stage, have to lose this nationality by naturalizing in another Member State which permits multiple nationalities; and subsequently, in a second stage, acquire, additionally to this newly acquired nationality, another nationality from another Member State. While a person who originally already had the nationality of a Member State that permits dual nationality, would immediately start at the second stage.

In the case C-230/17 Altiner and Ravn, which concerned returners, the CJEU had the opportunity to make C-165/16 Lounes applicable to single EU citizens and end reverse discrimination. This opportunity has passed and the Court repeated its ‘right to return’ case-law without any significant change.

One should be aware though that, whatever happens in C-118/20 JY, this case will have an impact in other areas of EU law. For example, the C-386/02 Baldingercase of the CJEU where the Court accepted Austria’s refusal to continue to grant certain pension rights to a person who lost Austrian nationality upon acquisition of Swedish nationality, will have to be revisited.

The Court will have to follow through with the line it has taken and declare in C-118/20 JY that these automatic loss clauses and requirements to renounce the other Member State’s nationality are incompatible with EU citizenship.

If it does not, there will be no more legal EU citizenship framework building up to a fundamental status, but just a random set of cases which had potential, once upon a time. That is not the story we would like to tell.

Conclusions

The case C-118/20 JY v. Wiener Landesregierung, concerning the revocation of a guarantee of the grant of Austrian nationality, is more than a case on loss of EU citizenship. It is the first case where the CJEU will have to rule on the acquisition of EU citizenship.

It was considered here that the preliminary questions referred imply that the Austrian rules concerning the duty to renounce the previous nationality are compatible with international law and EU law in general. It was demonstrated that they are not.

It has been shown that the guarantee of the grant of Austrian nationality violates international law to such an extent by being revocable that any naturalized person in Austria might argue that (s)he might still have the original nationality, due to the fact that the renouncement had been contra legem. It was furthermore considered that Austria, in having a guarantee that is revocable, violated the principle of mutual trust.

Additionally, it was argued that not only Article 20 TFEU is applicable to the case, as the referring court insinuated, but also, and especially, Article 21 TFEU.

It was maintained that the CJEU will additionally have to consider that this case is an extension of its Lounes judgment. In Lounesand subsequently in Altiner and Ravn, the Court has made a distinction in the EU citizenship framework between ‘single’ EU citizens and ‘dual’ EU citizens. In JY it will now have to complete this distinction by decreeing that it is no longer permissible for a Member State to require that a person who wants to naturalize has to forego rights by renouncing his or her other Member State’s nationality. Equally, Member States will no longer be permitted to provide for the automatic loss of their nationality when one of their nationals acquires the nationality of another Member State.

One should keep a close watch on this case as it will have an impact in many areas of EU law. The fundamental status of EU citizenship might be on the horizon.

Barnard & Peers: chapter 13

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Continue reading CJEU asked to rule on acquisition of nationality in light of EU citizenship: The fundamental status on the horizon? (C-118/20 JY v Wiener Landesregierung)