by Daniela Cardoso, Jurist and Collaborating Member of CEDU
Keywords: Citizenship of the Union; nationality of one Member State acquired by birth; nationality of another Member State acquired by naturalisation; loss of original nationality by reason of that naturalisation; loss with retroactive effect of nationality acquired by naturalisation on account of deception practised in that acquisition; statelessness leading to loss of the status of citizen of the Union.
Court: ECJ | Date: March 2 2010 | Case: C-135/08 | Applicants: Janko Rottmann v. Freistadt Bayern
Summary: The European Court of Justice (ECJ) was referred for a preliminary ruling on proceedings that concerned a decision withdrawing the nationality, granted by way of naturalisation that, in turn, would result in the loss of the status of citizen of the Union.
Rottmann, an Austrian citizen, had acquired the German nationality through a naturalisation process from which, in accordance with the Austrian legislation, he automatically would lose his nationality of origin. The German authorities later found out that Rottmann had omitted the fact of being previously involved in serious criminal proceedings, and of being the main target of an arrest warrant. Due to this predicament, the German authorities decided to withdrew the German naturalisation with retroactive effect, on the grounds that the applicant had obtained German nationality by deception. Since these proceedings would result in the loss of the German nationality and, therefore, the citizen of the Union status as well, leaving him stateless, Rottmann challenged the decision from the German authorities.
The analysis made by the ECJ started to consider that, according to international law, it is within the competence of Member States to establish the conditions in which there is acquisition or loss of nationality. However, it also acknowledged that the exercise of this power can be subjected to further judicial control, when it affects rights and guarantees covered by EU law.
In fact, it is in the legitimate interest of the Member States to protect and foment the solidarity and good-faith relations among the State and their nationals, guaranteeing their loyalty, relation in which the concession of nationality is based. Accordingly, the ECJ states that EU law does not oppose to a decision of a Member State decision withdrawing the nationality, granted by way of naturalisation, when it was obtained by fraud, and as long as that decision goes through the proportionality test in regard to its consequences and effects in terms of EU law.
It is also relevant to highlight the opinion of the Advocate General which defended that there is a relation of reciprocity between the acquisition of nationality and the exercise of the rights that arise from the Treaty. Accordingly, the imposition of loyalty and good-faith in the process of acquisition of nationality, demanded by Germany, does not violate any EU law provision. Moreover, international law does not prohibit the loss of nationality even when the result is the statelessness.
Relevant Case law:
Ruling Micheletti, July 17 1992, Case C-369/90, Colet., p. I-2119
The ECJ highlights the fact that it is not possible for Member States to impose additional conditions for the recognition of the nationality granted by another Member State, arguing that it is within the competence of the State to determine who are its nationals. A national rule that would result in the automatic loss of nationality of a EU citizen, because, he decided to live in another Member State, would violate the right of free movement and residence within the scope of article 21 TFEU.
Ruling Comission v. Bélgium, Case C-149/79, Colet., p. 3881
In these proceedings, the ECJ stated that it is within the exclusive competence of Member States to determine the conditions of acquisition and loss of nationality, resulting this reasoning from the solidarity and reciprocity between rights and duties towards the State.