Much has been said ever since that vote in the European Parliament on Malta’s Individual Investor Programme (IIP). However, I believe everything has to be put in its proper perspective.
Article 20(1) of the Treaty on the Functioning of the European Union (TFEU), introduced in 1992 by the EU Treaty of Maastricht, provides that “Citizenship of the Union is hereby established. Every person holding the nationality of a member State shall be a citizen of the Union.”
A declaration to the EU treaty made it clear that it is for each member State to decide for itself who is to be considered a national of that member State. In fact, “Declaration (no. 2) on nationality of a member State” attached to the Maastricht Treaty states:
“The conference declares that, wherever in the treaty establishing the European Community reference is made to nationals of the member states, the question whether an individual possesses the nationality of a member State shall be settled solely by reference to the national law of the member State concerned.”
On this declaration, Josephine Steiner and Lorna Woods, in their Textbook on EC Law (Eight ed.) p.183, say: “Thus, member states may only require that an individual provide appropriate identity documents and may not criticise the decision of another member State to recognise an individual as having the nationality of that member State.”
This approach predates the introduction of European citizenship. In the Micheletti case (C-369/90), the Court of Justice of the European Union (CJEU) held that the Spanish could not challenge the claim by Micheletti – who had Italian and Argentinian dual nationality – to be Italian since Spain did not recognise dual nationality.
According to the CJEU, the important point was whether the Italians recognised his claim (see, more recently, Stephen Saldanka and MTS Securities Corporation v. Hiross Holding AG (C-122/96).
And in R v. Secretary of State for the Home Department, ex parte Manjit Kaur, (C-192/99), the Court confirmed that the scope of European citizenship, as far as British subjects were concerned, was determined by the relevant British declarations on the subject.
It seems that the CJEU judgment in Rottmann v. Freistaat Bayern of March 2, 2010 (C-135/08) was being invoked by proponents who stated that the European Commission can institute legal proceedings against Malta. However, the facts of that case are much different from the IIP, in that it concerned loss of citizenship with the result that Janko Rottmann became stateless.
The issue of the Maltese IIP was recently the subject of a forum of the EUDO Citizenship, European University Institute. Dimitry Kochenov, chairman of the EU Constitutional Law unit at the Faculty of Law, University of Groningen argues that: “Following the Micheletti and the Rottmann decisions of the CJEU, the principles of EU law should be respected – and they are, since it is unlikely that the number of Maltese investor citizens will represent a problem in the EU context: the scale of sales will remain small – even compared with the extension of EU citizenship by other states where a connection with the State itself is unnecessary, such as turning Argentinians into Italians based on the romantic ideas of inter-generational community or distributing Hungarian passports in the Serbian province Voivodina.
“Importantly, there is nothing wrong at all with these practices which are democratic and legal and, thus, supply a strong argument in support of the Maltese law. Indeed, investing into your nationality is at least as random (read ‘sound’) as investing in a lawyer to discover your Italian heritage for the sake of claiming an Italian passport…
“Maltese democracy should be respected. Distorted dreams of the past, just as contemporary hypocrisy, are not worth defending. From a purely legal perspective, Malta’s case is solid: EU law is unquestionably on its side.
“From a human perspective, if I could have done it, I would definitely have bought EU citizenship instead of naturalising, which I experienced as a deeply humiliating process”.
The European Commission could not risk knocking on the unsure doors of the European Court of Justice
When commenting on Advocate General Miguel Maduro’s arguments in Rottmann that mass naturalisations of third country nationals by a member State might entail a breach of the duty of loyal or sincere cooperation contained in article 4(3) of the TEU, Jo Shaw, co-director at the Europa Institute agrees with Kochenov: “The effects of the Maltese provisions will be marginal in terms of numbers and, thus, have little impact on other member states. The case for a legal obligation under the treaties to moderate this type of national citizenship is rather weak… it is not arbitrary according to the norms of EU law.”
Consequently, in view of the above legal opinions, the writing was on the wall that the European Commission would be more prone to reach agreement with the Maltese government rather than risk knocking on the unsure doors of the CJEU.
As a final point, with regard to the question of whether citizenship acquired under the IIP might be withdrawn in the future, I would tend to agree with the advice of Malta’s Attorney General.
Such a move would infringe people’s rights to protection of their legitimate expectations as protected by Maltese and European law as well as by the Council of Europe’s Convention on Nationality, 1997 (ECN) and the consequent protection of possession of nationality in good faith.
Also, these tenets provide that the deprivation of nationality should only be effective after the person involved had the possibility to challenge the decision. Furthermore, article 11 of the ECN provides that decisions on the loss of nationality should be reasoned.
Finally, would it be possible to allow differential treatment of European citizens by naturalisation from those by birth in applying grounds for loss only on naturalised citizens and this in mass?
Ivan Sammut is a lawyer.