Citizens of Somewhere Else? EU citizenship and loss of Member State nationality

Professor Steve Peers, University
of Essex*
*This blog post is adapted in
part from the forthcoming second edition of The
EU Citizenship Directive
(OUP, 2019), co-authored by me, Elspeth Guild
and Jonathan Tomkin
Member States’ rules on the
acquisition or loss of nationality are in principle a national competence. But
this issue is nevertheless central to EU law, because citizenship of the EU is based
on having the nationality of a Member State, according to Article 20(1) TFEU:
Citizenship of
the Union is hereby established. Every person holding the nationality of a
Member State shall be a citizen of the Union. Citizenship of the Union shall be
additional to and not replace national citizenship.
So in light of the importance of
Member State nationality to EU citizenship, can the loss of Member State
nationality be reviewed for compliance with EU law? The recent judgment in Tjebbes
was the latest of the CJEU’s rare opportunities to rule on this issue, and
offers some important clarification of the law.
The first ruling of the Court of
Justice on nationality issues was Micheletti.
In this case, one Member State’s authorities were reluctant to recognize the
nationality of another Member State which Mr Micheletti had acquired, given
that he was also (and initially) a national of a non-EU State. The CJEU started
by recognizing that ‘[u]nder international law, it is for each Member State, having due regard to Community law, to
lay down the conditions for the acquisition and loss of nationality’ (emphasis
added). This wording left the door slightly ajar for possible scrutiny of
Member States’ nationality laws, by hinting that Community (now EU) law might
place some constraints on national sovereignty on this issue.
However, it took nearly twenty
years before the Court began to elaborate on such constraints. In the meantime,
in the judgment in Kaur,
the Court referred to the principle that Member States could define their own
nationals, referring to a ‘principle of customary international law’ to this
effect. According to the Court, this left the UK free to define ‘several
categories of British citizens whom it has recognised as having rights which
differ according to the nature of the ties connecting them to the United
Kingdom’. The rights of these persons were defined in a declaration to the UK’s
Treaty of Accession, which was updated later following changes in British
nationality law, but that declaration did not deprive anyone of any EU law
rights, for ‘[t]consequence was rather that such rights never arose in the
first place for such a person’.
Subsequently, in the case of Rottmann,
the Court began to set out limits to national control of the loss of
nationality, as regards a person who (unlike Ms Kaur) had enjoyed the status of
EU citizenship, but then was deprived of it. Mr Rottmann was an Austrian
citizen and resident by birth, who later moved to Germany following the start
of an investigation against him for serious fraud. He applied for and obtained
German nationality, with the result that he lost Austrian nationality. But once
the German authorities found out about the previous proceedings in Austria,
which Mr Rottmann had not disclosed to them, they began the process of
withdrawing his German nationality; and it did not appear that he met the
criteria for the reacquisition of Austrian nationality either.
The CJEU began by agreeing that
in line with a declaration
to the TEU
and the Edinburgh
of Member States’ heads of government of 1992, Member States had
competence to determine who their nationals were. However, even if a matter
falls within national competences, the exercise of those competences must have
due regard to EU law. In this case, the ‘situation of’ an EU citizen who ‘is
faced with a decision withdrawing his naturalisation, adopted by the
authorities of one Member State, and placing him, after he has lost the
nationality of another Member State that he originally possessed, in a position
capable of causing him to lose the status’ of EU citizenship conferred by the
Treaties ‘and the rights attaching thereto falls, by reason of its nature and
its consequences, within the ambit of European Union law’.
Therefore the CJEU could rule on
the ‘conditions in which a citizen of the Union may, because he loses his
nationality, lose his status of citizen of the Union and thereby be deprived of
the rights attaching to that status’. This ‘does not compromise the principle
of international law previously recognised by the Court’ that Member States ‘have
the power to lay down the conditions for the acquisition and loss of
nationality’; rather it ‘enshrines the principle that, in respect of citizens
of the Union, the exercise of that power, in so far as it affects the rights
conferred and protected by the legal order of the Union’, such as ‘in
particular’ a withdrawal of naturalization as in the Rottmann case, ‘is amenable to judicial review carried out in the
light of [EU] law’.
In Mr Rottmann’s case, a
withdrawal of nationality due to deception could be compatible with EU law,
since it was in the ‘public interest’ and ‘it is legitimate for a Member State
to wish to protect the special relationship of solidarity and good faith
between it and its nationals and also the reciprocity of rights and duties,
which form the bedrock of the bond of nationality’. Withdrawal of nationality
on such grounds was provided for by international law, in particular the 1961 Convention
on the Reduction of Statelessness
and the Council of Europe’s European Convention on Nationality. It
was therefore up to the national court to determine the proportionality of the
decision in light of national and EU law. On this point, the national court had
to ‘take into account the consequences that the decision entails for the person
concerned and, if relevant, for the members of his family’ as regards the loss
of EU citizenship rights, assessing ‘in particular, whether that loss is
justified in relation to the gravity of the offence committed by that person,
to the lapse of time between the naturalisation decision and the withdrawal
decision and to whether it is possible for that person to recover his original
nationality’. While EU law did not ban the withdrawal of nationality before the
person concerned obtained again his original nationality – ie there was no
apparent ban on making the person concerned stateless – the national court had
to consider whether ‘the principle of proportionality requires the person
concerned to be afforded a reasonable period of time in order to try to recover
the nationality of his Member State of origin’. Finally, the Court made clear
that ‘the principles stemming from this judgment’ as regards the effect of EU
law on national powers in the area of nationality law ‘apply both to the Member
State of naturalisation and to the Member State of the original nationality’.
What is the impact of the Rottmann judgment? First of all, as for
the scope of the judgment, it did not seem to be relevant in this case that Mr
Rottmann had previously exercised free movement rights; the Court referred to
the loss of EU citizenship status in principle, not to the particular impact
upon people who had moved within the EU pursuant to the citizens’
or other provisions of EU law.
Secondly, what substantive rules
apply? The Court accepts the loss of citizenship can be justified on ‘public
interest’ grounds such as deception, subject to the application of the principle
of proportionality. However, it did not indicate how the public interest should
be weighted as compared to the individual interest in retaining EU citizenship
in this particular case. While the Court confirmed its analysis in Rottmann by reference to the Council of
Europe Convention on Nationality and the 1961 Convention on the Reduction of
Statelessness, it should be noted that the former Convention has been ratified
by fewer than half of the Member States, and only a slim majority of Member
States have ratified the latter. In fact, ten Member States have not ratified
either treaty.
Finally, procedurally, on the
facts of Rottman there had to be a ‘reasonable
period of time’ to pursue the re-acquisition of the original nationality, as an
aspect of the principle of proportionality. However, while the Court mentioned judicial
review there were no further details besides a reference to the national court’s
obligations to apply the principle of proportionality, and no specific mention
of administrative procedural rights.
Tjebbes concerns four different applicants: a dual citizen (since birth)
of the Netherlands and Canada; a Dutch citizen from birth who acquired Swiss
nationality via marriage; her daughter, a dual Dutch and Swiss citizen from birth,
who was listed on her mother’s passport when a child; and an Iranian national
from birth who acquired Dutch nationality.  Each of them, when residing outside the EU,
applied for a Dutch passport, but the authorities ruled that they had lost
Dutch nationality automatically due to residence outside the EU. This resulted
from Dutch law which provides for such loss after ten years’ residence abroad,
if the person concerned has the nationality of another State. That loss could
be prevented by residing in the EU for a year before the nationality was lost, or
by obtaining a declaration regarding the possession of Netherlands nationality
or a travel document or Netherlands identity card. There are also special rules
on minors, entailing loss of Dutch nationality to correspond with the parent’s
loss of that status.
The national court had doubts
about the notion of a general rule on loss of nationality (as distinct from a
decision to strip a person of nationality in an individual case, as in Rottman), as well as the specific issues
relating to loss of nationality by children, and so asked the CJEU to rule on whether
the Dutch rules are compatible with EU law.  The Court’s analysis began by specifically pointing
out that none of the persons concerned had moved within the EU. So its judgment
is concerned with EU citizenship as such, rather than loss of free movement
Reiterating the basic points of Rottmann (loss of nationality has to be
consistent with EU law, but a Member State can legitimately ‘protect the
special relationship of solidarity and good faith between it and its nationals
and also the reciprocity of rights and duties, which form the bedrock of the
bond of nationality’, the Court accepted that in general:
exercising its competence to lay down the conditions for acquisition and loss
of nationality, it is legitimate for a Member State to take the view that
nationality is the expression of a genuine link between it and its nationals,
and therefore to prescribe that the absence, or the loss, of any such genuine
link entails the loss of nationality. It is also legitimate for a Member State
to wish to protect the unity of nationality within the same family.
Applying that
principle to the facts of this case, the ten-year absence criterion in Dutch
law ‘may be regarded as an indication that there is no such link’. As for
children, ‘the lack of a genuine link between the parents of a child who is a
minor and the Kingdom of the Netherlands can be understood, in principle, as a
lack of a genuine link between the child and that Member State’.
This interpretation was supported
(as in Rottmann) by the Convention on
the Reduction of Statelessness which provides for the possible loss of
nationality ‘in similar situations’ as long as the person concerned ‘does not become
stateless’. The latter risk was ruled out by Dutch law. Also as in Rottmann, the Council of Europe Convention
on Nationality is relevant: providing that nationality can be lost in the event
of ‘no genuine link between that State and a national habitually residing
abroad and, in the case of a minor, for children whose parents lose the
nationality of that State’.
The applicable
safeguard (a request within the 10-year period for the issuing of a
declaration regarding the possession of Netherlands nationality, a travel
document or a Netherlands identity card, interrupting the 10-year period) was also
However, again as in Rottmann, national authorities and national
courts had to assess whether the loss of the nationality of the Member State
(and therefore EU citizenship) respects the principle of proportionality, as
regards ‘the consequences of that loss for the situation of the person
concerned and, if relevant, for that of the members of his or her family, from
the point of view of EU law’. In particular, loss of nationality ‘by operation
of law  would be inconsistent with the
principle of proportionality’ if there was no possibility for ‘at any time an
individual examination of the consequences of that loss for the persons
concerned from the point of view of EU law’, which could, ‘where appropriate’, mean
that the person concerned could ‘recover his or her nationality ex tunc in
the context of an application by that person for a travel document or any other
document showing his or her nationality’. In practice, Dutch law includes this
safeguard. It must entail:
an individual
assessment of the situation of the person concerned and that of his or her
family in order to determine whether the consequences of losing the nationality
of the Member State concerned, when it entails the loss of his or her
citizenship of the Union, might, with regard to the objective pursued by the
national legislature, disproportionately affect the normal development of his
or her family and professional life from the point of view of EU law. Those
consequences cannot be hypothetical or merely a possibility.
The examination
of proportionality must ensure that the national authorities and national
courts assess whether the loss of nationality is consistent with the EU Charter
of Rights, particularly the right to family life (Article 7 of the Charter)
and the obligation to take into consideration the best interests of the child (Article 24).
As regards the individual circumstances to be considered, it’s likely to be
relevant that the persons concerned:
would be
exposed to limitations when exercising his or her right to move and reside
freely within the territory of the Member States, including, depending on the
circumstances, particular difficulties in continuing to travel to the
Netherlands or to another Member State in order to retain genuine and regular
links with members of his or her family, to pursue his or her professional
activity or to undertake the necessary steps to pursue that activity.
It’s also relevant that the
person concerned ‘might not have been able to renounce the nationality of’ a
non-EU country, and whether there’s a ‘serious risk, to which the person
concerned would be exposed, that his or her safety or freedom to come and go
would substantially deteriorate because of the impossibility for that person to
enjoy consular protection under Article 20(2)(c) TFEU in the territory of
the third country in which that person resides’.
There are particular
safeguards for minors: the administrative and judicial authorities must ‘take
into account, in the context of their individual examination’, the possibility
that loss of nationality resulting from the loss of nationality by a parent ‘fails
to meet the child’s best interests as enshrined in Article 24 of the
Charter because of the consequences of that loss for the minor from the point
of view of EU law.’
In many respects, Tjebbes confirms the Court’s ruling in Rottmann: national competence to
regulate loss of nationality (and therefore EU citizenship) subject to minimum
standards developed by the Court due to the importance of EU citizenship;
taking account of international treaties as a source of those minimum
standards; broad deference to national determination as to what the grounds of
loss of nationality should be; a proportionality test which must take account
of individual circumstances, including those of family members; and the
requirement of judicial control.
However, a number of points are further
developed or new. First of all, it’s now clear beyond any doubt that loss of
nationality of a Member State raises issues because of the consequential loss
of EU citizenship regardless of whether the persons concerned have exercised
free movement rights. Secondly, in Tjebbes
the Court seems more concerned to avoid the persons concerned becoming stateless.
Thirdly, the Court confirms that
the issues which Member States may consider legitimate are not just the public
interest concerns arising from the deception in Rottmann, but also the simple lack of residence within the EU for a
sufficient period of time. (The Court does not comment on the hypothetical prospect
of loss of nationality due to the exercise of free movement rights within the EU, but this would obviously
be highly problematic in that it would penalise the use of free movement rights,
and therefore deter their exercise. The Court does not comment on the possible
relevance of the EU/Swiss free movement treaty as regards one of the persons
concerned). It was arguably already implicit from Rottmann that Member States can sanction even more serious offences
such as terrorism with a loss of nationality (and therefore EU citizenship).
Fourthly, the Court accepts that
nationality can be lost by means of a general rule, not just as a consequence
of an individual decision. However, it considers it essential that the general
rule on loss be complemented by a general safeguard – in this case, the
possibility of forestalling the loss of nationality via an application for an
identity document during the ten-year period. Fifthly, in both cases, the Court
places strong emphasis upon a review of the proportionality of the loss of
nationality, although the standards applicable are necessarily partly different.
In both cases, the individual consequences must be assessed, but instead of ‘whether
that loss is justified in relation to the gravity of the offence committed by
that person’ (Rottmann), the test in Tjebbes is a disproportionate effect on ‘the
normal development of his or her family and professional life from the point of
view of EU law’, although the argument on this issue cannot be purely
Furthermore, the Court requires
the assessment to consider limitations on the exercise of free movement rights
and consular protection (which are surely inevitable, except as regards Swiss
citizens – although again, the Court does not mention the EU/Swiss treaty) including
difficulties in travel to the EU (possibly a bigger issue if a visa requirement
would be imposed, as in the case of Iran as distinct from Canada or
Switzerland) as regards family links or professional activity. For minors, it
is hard to see how the best interests of the child are served by the child’s loss
of EU citizenship despite any decision by that child to leave the EU as an adult.
Sixthly, the Court emphasises not only judicial control, but also the
obligations of the administrative authorities. Finally, the Court places
significant stress on the EU Charter of Rights, which it did not mention in Rottmann.
However, there are still a number
of uncertain issues. The Court’s degree of concern about the risk of statelessness
seems to vary from the relative indifference in Rottmann to the implied safeguard in Tjebbes.  This leaves the important
question of the degree of certainty of obtaining the other country’s
nationality (an issue in UK case law and disputes) undecided. Also, it’s still
unclear how relevant the two international treaties the Court refers to in both
cases might be – given that a number of Member States have not ratified one or
both of them.   One wonders also if various limits on judicial
review or stemming from administrative procedure might be challenged for breach
of effectiveness.
Of course, there’s a limit to how
much the case law on this issue can develop if the Court keeps receiving about
one case per decade. It’s possible that the Court will soon get more though, if
the UK soon becomes a non-EU State. This raises a variety of issues, most
obviously whether UK nationals – who were citizens of the EU until Brexit Day –
lose EU citizenship on that date (unless they hold the nationality of a
remaining Member State)? The orthodox view is that they do, on the basis of the
Treaty wording: ‘Every national of a Member State shall be a citizen of the
Union.’ The obvious implication is that when your State of nationality ceases
to be a Member State, you are no longer a citizens of the Union. This
interpretation is reflected in the wording of the draft withdrawal
, which distinguishes between UK nationals and EU citizens, defining
the latter as citizens of Member States but not listing the UK as a Member
State. It also is implicit in the case law of the Court of Justice on loss of
EU citizenship, which is based on the assumption that EU citizenship is lost
when a person loses the nationality of a Member State. This is arguably a quite
different issue from a country ceasing to be a Member State.
The counter-argument is that the
Treaty only sets out the means of acquiring EU citizenship, not losing it. It
follows that Brexit cannot remove EU citizenship from those UK nationals who
already had it. A Dutch court initially decided
to ask the CJEU to clarify these issues (see discussion here),
but an appeal court decided
to block the case. The question might at some point be resolved by the CJEU one
way or the other. 

Brexit will also raise other
issues. In Member States that remove their nationality from citizens resident
outside the EU, the UK’s non-EU status will bring more of their citizens within
the scope of this rule. At the very least, should time spent in the UK when it
was a Member State be ignored for the purpose of this rule? Or should the rule
only apply to nationals who move to the UK after
Brexit? This raises the broader question of whether time spent in the UK before
Brexit day continues to have effect for the purposes of EU citizenship and free
movement law (ie for those EU27 citizens who married a non-EU citizen in the UK
and then returned to their State of nationality).

More generally, given the
importance of nationality to the essence of national sovereignty, the absence
of power for the EU to harmonise laws in this field, the TEU declaration and the
Edinburgh decision, there’s a strong case that the Court’s case law interfering
with the national rules on the loss of national citizenship is unjustifiable in
principle. However, this is vitiated by the great deference which the Court
gives to Member States on this issue in its case law. Ultimately, the
importance of this case law may be as an essential safeguard against any drift towards
authoritarianism in a Member State which might want to strip government critics
of their nationality for defying the ‘will of the people’. The problem is that
any government already inclined to flout the rule of law so flagrantly may well
ignore the CJEU’s rulings too. But this is a paradox to explore another day.
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