Long Live Nottebohm

Next year, Nottebohm will be turning 70. Though certainly a landmark decision, Nottebohm, more often than not, has been declared the outlived product of “a ‘romantic period’ in international relations”. Only very recently, Weiler, on this blog, made the point that the argument of a genuine link – underpinning the case of the Commission against the Maltese golden passport scheme – is unconvincing and rests on a “tendentious reading of Nottebohm”. Accordingly, conditions for awarding nationality are solely to be decided by the MS themselves and must not be imposed or limited by way of a judicial fiat. Yet, in Commission v Malta, the CJEU may well reinvigorate a European debate about the genuine links that bind us. The answer, to be sure, will be momentous, and I, for once, would argue it is high time to make the point that nationality is not just anything a State makes of it. Thence, Nottebohm might celebrate a comeback.

The sovereign right of selling nationalities

According to Weiler, under the current constitutional framework, there is nothing that would prohibit MS from selling their nationality since MS are sovereign to determine who their nationals are. If anything, the flexibility clause of Art 352 TFEU could be employed to formulate common criteria that prohibit the monetarization of MS nationality and Union citizenship by extension. This understanding is further underpinned by the argument that – if I understand it correctly – if Germany is allowed to welcome 1 million refugees, Malta cannot be prohibited from selling its nationality and Union citizenship to a far smaller number of people.

Convinced? Yes, except no

Issues of nationality are notoriously sensitive. They relate to the identity of a State as a defined group of people and the question of rights and obligations of other States in relation to these people and their home state. In a legally complex ménage à trois, issues of national, international, and also European law, interact with each other. Yet, more often than not, they entail widely different conceptions. As such, the understanding that nationality is what any State makes of it, for example, has a distinctive national touch and is hard to square with the understanding that the notion of nationality has a peculiar meaning under international law. Whether one believes in Nottebohm and the genuine link requirement or not, the infringement action against Malta is a very good example that exemplifies this intricate problem.

Who is a Union citizen?

It should not come as a surprise that, also in the context of EU law, one faces the question of what the qualifying status of nationality, as it is used in the Treaties, means. According to Weiler and many others, the notion is effectively empty in itself, entailing a mere reference to the MS conception of nationality. However, in the case law of the Court, the notion of nationality is construed to refer to the notion of nationality as understood in international law. The Court, in its respective case law, has engaged in an interpretative exercise of identifying the boundaries of MS right to determine their nationality and overlayed them with further aspects that hark back to the “symbiotic” relationship of nationality and Union citizenship. At least the loss of nationality is subject to inherent limitations under EU law. Whether one considers this to be an outrageous example of competence creep or not, it can hardly be denied that not only the Court but also the MS over time have shown an interest in clarifying what nationality means. The German and more prominently the British Declaration on nationality, indeed, are documents intended to explicate the scope ratione personae of their complex nationality laws to the benefit of all other MS. The obligation of MS towards nationals of other MS and these other MS is thus built on the premise of a common and thus intrinsically limited understanding of the notion of nationality.

In this context, it is also worth recalling that the right to free movement – and with it the right to integrate into the society of another MS – is built on the premise that, ultimately, there is an obligation from MS to take back one’s own nationals. This obligation, however, is subject to a proportionality assessment meant to protect the right to integrate into the society of another MS. Any expulsion of a Union citizen must, therefore, be weighed against the individual interests of a citizen to remain in the host MS and his or her ties with the home MS. The underlying logic in this process is that, as a rule and on certain grounds, an expulsion is permissible – substantiating the obligation to take back one’s own nationals – subject to the exception, where the individual has stronger ties to and within the host MS. In the case of handing out passports without a genuine link, this fundamental logic is structurally turned upside down: Rather than asking what are the links of the individual with the host MS prohibiting an expulsion, we are faced with the question of what actually are the genuine links with the home MS that render an expulsion permissible in the first place. There certainly is ample room for debate on what can count as a genuine link and how to conceptualize the genuine link in broader terms. However, claiming that there is no room for a genuine link wildly exaggerates MS sovereignty over nationality and wildly understates the function of nationality in EU law.

The question for the Court

The Court, in the wake of Malta’s golden passport scheme, will now be confronted with the question of whether the practice of selling one’s nationality without any discernible societal links beyond a financial investment is compatible with the understanding of nationality. Moreover, whether the notion of nationality, coopted from international law, requires an underlying genuine link. Any limitation on the “unfettered sovereignty” to sell nationality in an eventual judgment would, however, in no way harmonize MS nationality laws. There still will be plenty of varied nationality laws and conceptions.

The idea of a genuine link is not particularly popular with many legal scholars, yet this issue goes beyond the confines of this blog post. It is, however, quite telling that the idea that nationality as an emanation of (personal) sovereignty requires more than just money or words, but some genuine commitment, still strikes a nerve after almost 70 years – and counting.

Regardless of the outcome, the Court’s judgment will have consequences. If the Court upholds the concept of a genuine link, other (dubious) passport practices will come under scrutiny. By contrast, if the Court rejects the claim of the Commission, the gates for a market of MS nationality and Union citizenship will be pushed wide open. In both cases, however, there will be calls and indeed an urge to set out more clearly what the nationality of MS in the context of EU law should and should not mean. And while I am very doubtful that Art 352 TFEU can be used to define or at least restrict the ambit of nationality – not least because the Court has constantly held that it is for MS to determine the criteria for the loss of and awarding a nationality – the ramifications of the latter approach are much more severe.

Nationals and refugees as a question of (limited) sovereignty

When Weiler suggested that the selling of nationality by Malta and Germany’s open arms to Syrian refugees could somehow be equated, he omitted to mention that Union citizens and third-country nationals are not equally enfranchised in the integration process. While Union citizens have a right to free movement and with it a right to integrate into the society of their host MS, third-country nationals in general do not enjoy such rights. Refugees, in particular, have no right to free movement and their status as refugees in one MS (arguably) does not have to be recognized by other MS. And even if they acquire a status as long-term-third-country-nationals, this status in the first place provides them with rights in relation to their principal host MS. This is in line with the underlying logic of European integration ever since. Leaving the rhetoric of Union citizenship aside, the fundamental logic of free movement of nationals of other MS and third-country nationals has always been that it is subject to a territorially bound responsibility of the home or respective host MS. This is not only reflected in the provisions concerning the limitations of the right to free movement but more profoundly can be discerned from the obligation – transplanted from international law – to take back one’s own nationals as well as the right to determine the “volumes of admission of third-country nationals coming from third countries to their territory in order to seek work” under Art 79 para 5 TFEU.

The individual enfranchisement in the process of European integration has always been premised upon the ultimate responsibility of MS to take care of their individuals. The solidarity of MS for other people, in other words, has always been limited and – as already indicated above – in a sense been “proportional” to the status of integration of an individual in a MS. With nationality – and Union citizenship – individuals are given the fullest right to free movement because their status as nationals presupposes a genuine integration in the society of their home MS that is substantiated by the ultimate obligation to take them back. Long-term third-country nationals, by contrast, acquire a right to free movement only upon having integrated into the society of the host MS over an extended period and are subjected to further limitations. Other third-country nationals, even refugees within the CEAS, are left out of the equation altogether because, under this logic, they are deemed to have no sufficient bonds that bind them to a particular MS. How this logic squares with the idea of a Union without internal borders, or whether it holds true in every case, and whether this logic is to be welcomed altogether, is certainly disputable. In the grander scheme of things, it is, however, the logic that underpins the individual integration within the constitutional set-up of the Union as it stands.

To equate Malta’s golden passport scheme with Germany’s Willkommenskultur not only ignores some fundamental differences but obfuscates the meaning of a status that is meant to legally encapsulate the relationship between an individual and a State. And though the bestowment of both statuses falls squarely within the sovereign domain of MS, the unionwide implications are different. While the decision to welcome said refugees in Germany is in principle limited to Germany, the status of Maltese nationality establishes these individuals as common subjects within the realm of EU law. If anything, a comparison between these two policy decisions thus infers that they cannot be compared and that the sovereignty claims of MS have to be weighed against differently structured Union interests.

The insistence on Art 4 para 2 TEU that sets out that the national identity of MS shall be respected, in fact, underscores this. Claims to national sovereignty are not absolute but are to be put in context and are thus limited in principle. It also follows that the lack of an EU competence to harmonize nationality laws does not mean that MS can regulate their nationality – a notion that has a fundamental meaning in and for EU law – ad libitum.

This is also true if one stretches the above comparison and argues that in the end many of these refugees will become German nationals. The difference between said German nationals and Maltese Golden passport holders is that the former will acquire their status only upon having lived, worked and integrated in Germany over quite some time, while the latter hinges on investment and keys to an expensive flat or house not to be sold for some five years. However one turns it, it is still apples and oranges. While the former is built on the premise of some form of societal integration that is presumed to establish a lasting bond, the latter is – intentionally – none of that sort. From the point of EU law this then reverts back to question of what is it that underpins Union citizenship and the right to integrate into the society of other MS: Is it “passport-power” as such or is it the understanding that nationality is a reflection – despite there being cases of false positives and negatives – of the individual’s societal integration in an ever closer Union among the peoples of Europe?

I’ll be back

In any event, in due course for Nottebohm’s 70^th anniversary, the Court of Justice will decide whether Nottebohm will go down in European legal history quietly or come back with a vengeance.