It’s solidarity, stupid!

Few cases have triggered as stark reactions as Commission v Malta. In the ruling’s aftermath, many legal scholars and practitioners were quick to discard the decision. Guillermo Íñiguez noted a “particularly weak” legal reasoning. If it were one of his students, Steve Peers writes, the Court “would get nowhere near a 2:1” on an EU law exam. Also Martijn van den Brink finds the Court’s reasoning “profoundly maddening and mind-bending”, prioritising “political expediency over solid legal argumentation.” Similarly, Henley & Partners condemned the judgment as being “politically motivated” confirming “serious concerns about the increasing politicization of the EU’s legal institutions” – surprise, surprise. Dimitry Kochenov even sees the ruling as a new step leading the Union down the path of illiberalism.

Was Commission v Malta thus one of those instances where “hard cases make bad law”? A hard case it was for sure. From the outset, the Court found itself in a catch22. The EU’s political institutions – Commission and Parliament – had condemned the Maltese investment citizenship scheme for years. Moreover, media and NGOs revealed corruption, abuses and security issues. The legal framework, however, was thin, EU standards for the conferral of a Member State’s nationality missing. As such, important voices in the literature argued for dismissing the action – “anything else would be a constitutional outrage.”

Has this hard case made bad law then? While the ruling is bold, innovative, and goes far beyond established precedent, the Court’s reasoning remains brief, ambiguous, in some parts even obscure and sibylline. Yet, most of the Court’s “great” judgments have left room for interpretation. No doubt, Commission v Malta will be subject to many, very different, affirmative or critical interpretations. In the following, I will provide one – of several possible! – readings, which seeks to square the ruling with constitutional reasoning. At its heart, the ruling hinges on the value of solidarity and embraces a republican understanding of citizenship. In this spirit, the judgment is an expression of the Court’s larger turn to the Union’s common values in Article 2 TEU and may foreshadow further rulings, especially in the upcoming decision on LGBTIQ rights violations in Hungary.

General configuration: Transforming the relationship of nationality and Union citizenship

With Commission v Malta, the Court has submitted the acquisition of a Member State’s nationality – abstractly – to requirements under EU law. Concretely, the Court locates a limit for the conferral of a Member State’s nationality in the “very nature of Union citizenship”. The Member States may not exercise their prerogatives in a way that is “manifestly incompatible” with that nature (para. 95).

Relying on thick precedent, the Court starts by stressing that it is for each Member State to lay down the conditions for the grant and loss of its nationality. Still, when exercising these powers, they must have “due regard to EU law” (para. 81). So far, these limitations, such as proportionality requirements, concerned only the loss of nationality and Union citizenship. The grant of a Member States’ nationality, however, remained beyond the reach of EU law. After first indications in Wiener Landesregierung, Commission v Malta breaks new ground in this respect.

The Court arrives at this conclusion in two steps. First, it stipulates that “nationality of a Member State is formed by the special relationship of solidarity and good faith between that State and its nationals and the reciprocity of rights and duties” (para. 96). As such, the Court seems to develop an autonomous interpretation of the notion of “nationality” under Article 20(1) TFEU, which stipulates that “every person holding the nationality of a Member State shall be a citizen of the Union”. Yet, the Court does not stop there. In a second step, it turns this notion of “nationality” into a legal requirement. “Nationality” under Article 20(1) TFEU requires the existence of a “special relationship of solidarity and good faith”. The Member States may not manifestly deviate from this EU conception of “nationality”, as a precondition for Union citizenship under Article 20(1) TFEU.

This is surprising, to say the least. Usually, the Court employs an autonomous interpretation, when EU law “makes no express reference to the law of the Member States” (see e.g. Case C‑356/21, TP, para. 34). Article 20(1) TFEU, however, refers to the “nationality of a Member State” – and thus the Member States’ nationality laws. Pursuant to Declaration No. 2, the question of 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 that basis, the prevailing view is that the Treaties establish a “primacy of nationality over European Union citizenship”.

In Commission v Malta, the Court seems to reconfigure this relationship: while Union citizenship continues to depend on the Member States’ nationalities, Article 20(1) TFEU imposes – through an autonomous, EU specific notion of “nationality” – obligations on the Member States’ nationality laws. This is certainly a stretch, going to the margins of admissible “Rechtsfortbildung”. Still, Declaration No. 2 is not legally binding. It cannot prevent the interpretation of constitutional provisions of primary law in the face of new challenges. The Treaties are a “living instrument” after all.

Concrete requirement: The genuine link in disguise

What do these requirements flowing from Article 20(1) TFEU for the grant of nationality consist of concretely? According to the Court, a Member State may not manifestly disregard the requirement of a “special relationship of solidarity and good faith” (para. 99). How can we understand this “special relationship of solidarity and good faith”? Many, like Guillermo Íñiguez, have argued that the Court has abandoned the genuine link concept raised in the Commission’s plea. Indeed, the notion is nowhere to be found in the ruling’s main part. In any case, Martijn van den Brink notes that the genuine link argument was irrelevant to the case, as Nottebohm concerned the recognition of nationality, not its acquisition.

I disagree with this assessment. For one, the Court refers to nationality as a “special relationship of solidarity and good faith”. The German version speaks of a “besonderes Verbundenheits- und Loyalitätsverhältnis” as opposed to a “echte Bindung”, the French one of a “rapport particulier de solidarité et de loyauté” as opposed to a “lien reel”. Moreover, if we move to the Court’s review of the Maltese scheme, it ascertains a lack of any examination of “the existence and extent of an applicant’s ties with the Republic of Malta” (“Verbindungen” or “liens de rattachement”) (para. 116). What is this, if not a genuine link?

Further, the genuine link seems relevant to the case. As Ferdinand Weber and I argued elsewhere, it constitutes a general principle of public international law, namely an expression of the prohibition of abuse of rights. As such, it can be integrated into the EU legal order, leading to an interpretation of primary law in light of international law. This is not new. The Court has interpreted Article 21(1) TFEU in light of customary international law before. Certainly, Nottebohm and the genuine link pose limits to the recognition of nationalities, not their acquisition. Still, that does not necessarily render the concept irrelevant for this case.

First, Union citizenship emerges from an interaction of two legal orders – EU and national. Pursuant to Article 20(1) TFEU, any “person holding the nationality of a Member State shall be a citizen of the Union”. Following the Court’s reasoning outlined before, Union citizenship seems to require a certain form of “recognition”, namely of a Member State’s nationality for the purposes of Union citizenship. Second, we do not know what flows from the incompatibility of the Maltese investor citizenship scheme with EU law: does it limit the acquisition of Maltese nationalities in the first place? Or does it limit only the acquisition of Union citizenship? Or is it a limit on the recognition by other Member States? The latter two could easily be seen as a form of “non-recognition” in case of an abusive practice and thus be reconciled with Nottebohm’s genuine link.

Underlying reasoning: Its solidarity, stupid!

How does the Court justify the requirement of a “special relationship of solidarity and good faith”? In my view, the central consideration is the value of solidarity in Article 2 TEU. The Court recalls that Union citizenship enriches nationalities with a bundle of rights vis-à-vis the Member States, including free movement, equality, and political rights (Articles 18, 21, 22 and 24 TFEU).

After outlining the full range of rights associated with Union citizenship (paras. 85-90), the Grand Chamber states that Union citizenship is “thus” – “somit” or “ainsi” – “one of the principal concrete expressions of the solidarity” (para. 93). And indeed, the previously mentioned rights of Union citizens require mutual solidarity among the Member States. This observation is not new. As Advocate General Cruz Villalón noted, Union citizenship is “founded on the existence of a community of states and individuals who share a … commitment to solidarity”. By acquiring the nationality of a Member State “an individual is introduced into that community of … solidarity”. Even if the legislature and the Court have restricted some of these rights for economically inactive persons, Union citizens remain subject to a far more favourable regime than third-country nationals.

Such solidarity, however, needs a stable basis. Following the Commission’s plea (para. 50), the Court takes the view that this solidarity requires a link with a Member State society: “the special relationship of solidarity and good faith between each Member State and its nationals … forms the basis of the rights and obligations reserved to Union citizens by the Treaties” (para. 97). Later on, the Court stresses that the “special relationship of solidarity and good faith” is “justifying the grant of rights resulting, in particular, from Union citizenship” (para. 101).

Such an understanding, that solidarity is based on a certain form of belonging, finds support in conclusions by Advocate General Capeta. She observed that “solidarity is usually based on belonging to a community, … which allows for the exclusion of those who are not members of the community, given that burden sharing with them is perceived as unreasonable.” Along these lines, the belonging to European society is a central precondition for solidarity between the Member States and Union citizens. The genuine link can be understood as an expression of this belonging. This also explains, why the Court underlines that “Union citizenship is based on the common values contained in Article 2 TEU” (para. 95) – precisely: solidarity in Article 2 TEU!

Theoretical basis: Embracing a republican understanding of Union citizenship?

Unlike Dimitry Kochenov, I don’t understand the “special relationship of solidarity and good faith” as an identitarian coup against Union citizenship, mimicking the “petty nationalisms” of some of its Member States. By connecting Union citizenship to solidarity, which requires a certain belonging to the respective society, the judgment seems to embrace a republican understanding of citizenship, as Anja Bossow has already indicated.

Generally, we may distinguish between liberal and republican conceptions of citizenship. Liberal conceptions understand citizenship as a formal legal status that establishes certain rights. Obligations of citizens remain rather thin (i.e. obeying the law or paying taxes). Republican conceptions, by contrast, define citizenship in thicker terms. Following this account, citizens are more than consumers: they are active members of a political community. While liberal conceptions focus on status and rights, republican conceptions emphasise activity and duties.

A more demanding, republican understanding of citizenship requires something that goes beyond a mere legal form: it requires commitment. This understanding aligns well with a Union that is founded on the values enshrined in Article 2 TEU, which Armin von Bogdandy has read as a “republican manifesto”. In this spirit, the Court emphasises that “Union citizens participate directly in the democratic life of the European Union”. Hence, the “exercise by the Member States of their power to lay down the conditions for granting their nationality has consequences for the functioning of the European Union as a common legal order” (para. 89).

Such a commitment can be expressed in many forms: residence, family ties, certain achievements in the public interest (be it athletic, scientific, or societal), or any other stakes in the respective society. Ultimately, the Court leaves it to the Member States to define the conditions for a “relationship of solidarity and good faith”. They have “broad discretion in the choice of the criteria to be applied” (para. 98). The Court merely draws a red-line, which should not be crossed: commercialisation of citizenship does not comply with republican citizenship.