The Court of Justice of the EU and nationality law: Rottmann
Having discussed the Micheletti and Kaur judgments in recent weeks, we now move to the final and most recent CJEU case in the field of nationality, namely Rottmann. Janko Rottmann was an Austrian national by birth who acquired German nationality through naturalization in 1999, thereby losing his Austrian nationality. However, during the naturalization procedure he had not mentioned that he was the subject of criminal proceedings in Austria. It was only after his naturalization that the German authorities were informed of Rottmann being subject to criminal proceedings, and that already in 1997 Austria had issued a warrant for his arrest. In the light of those circumstances, Rottmann’s naturalization was withdrawn with retroactive effect on the ground of deception. As he had lost his Austrian nationality upon naturalization in Germany, the withdrawal of the naturalization not only rendered him stateless but also provoked the loss of European citizenship.
The preliminary question submitted by the German court asked whether it was contrary to Community law that Rottmann lost his European citizenship as a result of the combined effect of the lawful withdrawal of his naturalization by the German authorities and the non-automatic recovery of his original Austrian nationality.
The CJEU repeated its statement from Micheletti that it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality. However, despite the fact that nationality law falls within the competence of the Member States, the loss of European citizenship and the rights attached to it brought the present situation within the scope of EU law. The reason for deciding that Rottmann’s situation fell within the scope of EU law can be considered very radical, certainly in comparison to the Advocate General’s ‘conservative’ argument that it was Rottmann’s exercise of his free movement right which triggered EU law. The Court decided as follows (para. 42):
It is clear that the situation of a citizen of the Union who, like the applicant in the main proceedings, 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 conferred by Article 17 EC and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law.
Several commentators feel it is this paragraph which makes Rottmann so important. According to Jo Shaw, ‘in Rottmann the connection which the Court draws between EU law and national law is the simple fact that by losing national citizenship a person will also lose EU citizenship rights’. In other words, in the Rottmann case the Court did not rely on the existence of a cross-border element, which is the traditional approach of triggering the application of EU law.
Another noteworthy section of the judgment is where the Court tries to give some substance to the abovementioned Micheletti statement. According to the Court (para. 48),
the proviso that due regard must be had to European Union law does not compromise the principle of international law … that the Member States have the power to lay down the conditions for the acquisition and loss of nationality, but rather 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, as is in particular the case of a decision withdrawing naturalization such as that at issue in the main proceedings, is amenable to judicial review carried out in the light of European Union law.
The judicial review carried out by the Court in this case led to the conclusion that the withdrawal of Rottmann’s naturalization (and consequent loss of European citizenship) could be compatible with European Union law: both the 1961 Convention on the Reduction of Statelessness (Article 8(2)) and the European Convention on Nationality (Article 7(1) and (3)) allow the deprivation of nationality when that nationality was acquired by means of fraudulent conduct. Such a deprivation cannot be considered to be an arbitrary act as prohibited by the Universal Declaration of Human Rights (Article 15(2)) and the ECN (Article 4c).
Importantly, the Court adds that such withdrawal must observe the principle of proportionality. When examining a decision withdrawing naturalization, it is necessary for the national court ‘to take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his family with regard to the loss of the rights enjoyed by every citizen of the Union’ (para. 56).
It is hard to see how the Court could have reached a different substantive outcome in Rottmann; the treaties to which it referred explicitly allow statelessness which is the result of the withdrawal of a nationality acquired by means of fraudulent conduct. Nevertheless, the judgment is a particularly relevant addition to the Court’s case law in the field of nationality law. Future judgments might clarify, first, whether any withdrawal decision leading to the loss of EU Citizenship now indeed falls within the material scope of EU law. And, second, what the exact degree of judicial review by the CJEU will be after the introduction in Rottmann of a proportionality test.
Author: Dr. Olivier Vonk