Passport scheme: CJEU Advocate General says European Commission fails to prove case against Malta

By: independent.com.mt

Oct 04 2024
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Passport scheme: CJEU Advocate

The Advocate General of the Court of Justice of the European Union (CJEU), Anthony Collins, is of the opinion that the European Commission has failed to prove that EU law regarding citizenship requires the existence of any 'genuine' or 'prior genuine' link between a Member State and an individual other than what is required under the state's domestic law in order to lawfully grant citizenship.

In an opinion published by his office Friday, Collins said that following an amendment to the Maltese Citizenship Act in July 2020, "the Republic of Malta adopted subsidiary legislation 1, which included the 'Maltese Citizenship by Naturalisation for Exceptional Services by Direct Investment scheme' 2". He continued that under the 2020 scheme, foreign investors could apply for naturalisation upon fulfilling a number of conditions, which were primarily of a financial nature.

The Advocate General said that throughout these proceedings, the Commission must prove that a Member State has not fulfilled an obligation placed on it at EU law and that it may not rely upon any presumption in order to do so. He continued that the Commission's oral submission of the case confirmed that the complaint is based upon proof of the existence of a requirement under EU law that a 'genuine link' must exist between a Member State and its nationals as a means of preserving the integrity of EU citizenship.

According to Collins, "Declaration 2 on nationality of a Member State annexed to the final act of the Treaty of the European Union 5 reflects the view of the Member States that their respective conceptions of nationality touch on the very essence of their sovereignty and national identity, which they do not intend to pool." He continued that the declaration adds that the Member States have decided that it is for each of them alone to determine who is entitled to be one of their nationals and therefore an EU citizen.

Acknowledging this, Collins said that while a Member State may require proof of a genuine link under its own nationality laws, EU law does not define or require the existence of such a link for an individual to acquire or retain nationality.

Having said that, the Advocate General continued that although EU law does not set conditions for the exercise of powers that Member States have chosen to retain, "that exercise must not breach EU law in situations that come within the latter's scope". He continued that whilst EU law may constrain the exercise of a Member State's sovereign prerogative, in principle, to grant or withdraw citizenship, "that limitation applies only where that Member State acts in a manner contrary to EU law".

Collins commented that it is mutual recognition of and respect for the sovereignty of each State for the duty under EU law to recognise nationality granted by another Member State. He said that it is not a means to undermine the exclusive competencies that the Member States enjoy in this domain.

"There is no logical basis for the contention that because Member States are obliged to recognise nationality granted by other Member States, their nationality laws must contain any particular rule," he remarked.

Collins said that to find otherwise would "upset the carefully crafted balance between national and EU citizenship in the Treaties and constitute a wholly unlawful erosion of Member States' competence in a highly sensitive field which they have clearly decided to retain under their exclusive control."

With that said, it was clarified that the Advocate General's opinion is not binding on the Court of Justice, and that it is the role of the Advocates General to propose to the Court a legal solution to the cases for which they are responsible in complete independence. As it stands, the Judges of the Court are beginning deliberations in this case, and judgment will be given at a later date.

Government welcomes opinion

In a statement, the Home Affairs Ministry said that "the Government of Malta welcomes the Advocate General's positive opinion, which recommends that the Court of Justice of the European Union dismiss the European Commission's action. The Government is encouraged by the Advocate-General's recognition of several key arguments advanced by Malta before the Court of Justice."

"While encouraged by this development, the Government will continue its detailed assessment of the Opinion to ensure a comprehensive understanding of its potential implications. it is important to note that the Advocate General's Opinions are advisory and not legally binding on the Court of Justice. Advocates General provide independent legal solutions to the cases they handle, and their opinions serve as recommendations to the Court."

"In this respect, the Government now awaits the final judgement to be delivered by the Court of Justice at a later date."

The Minister for Home Affairs, Security, and Employment, Byron Camilleri, expressed satisfaction with the opinion of Advocate General Collins, "which reflects the same or similar arguments that Malta has advanced in recent years. This follows sustained efforts to ensure that citizenship remains within the national sphere of competence. While we await the final judgment, this is a step in the right direction. We will continue working in the best interest of our country."