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New ruling by European Court of Justice on nationality: the Tjebbes case

In the triptych Micheletti, Kaur and Rottmann we discussed the position of the Court of Justice of the European Union over the last 25 years with regard to the role of national citizenship in the European Union. On 12 March 2019 the Court – in response to a preliminary question from the Dutch Council of State (Raad van State) – handed down its long-awaited ruling in the Tjebbes case, which involved a number of Dutch dual citizens who had automatically lost their Dutch citizenship (and therefore their EU citizenship) as a result of residing more than ten years outside the EU and without having applied for renewal of their Dutch passport during that period. Still holding the citizenship of a non-EU Member State, it’s important to stress that the individuals concerned did not become stateless after losing their Dutch citizenship. As comments on the case start to appear, some speculate that the case can be relevant for the citizenship deprivation practices that have been implemented in a number of EU Member States and which have attracted considerable media attention (see the Shamima Begum case in Britain).

We previously saw that in Rottmann the Court held that the loss of an EU Member State citizenship and the consequent loss of EU citizenship falls, ‘by reason of its nature and its consequences’, within the ambit of European Union law. This reasoning was also applied in Tjebbes, making the Court competent to answer the Council of State’s question on the compatibility of Dutch law with the Treaty provisions on EU citizenship (Articles 20 and 21 Treaty on the Functioning of the European Union).

In Tjebbes the Court set the scene by repeating a number of well-established principles, namely that citizenship law is a national competence which, however, must be exercised with due regard to EU law; that EU citizenship is intended to be the fundamental status of nationals of the EU Member States; and that ‘it is legitimate for a Member State to wish to protect the special relationship of solidarity and good faith’ as reflected in the concept of nationality. The Court recognised that the Dutch loss provision tried to avoid the undesirable consequences of multiple citizenship by opting for unity of nationality within a family. Finding no violation of the Dutch rule with the 1961 Convention on the Reduction of Statelessness or the 1997 European Convention on Nationality, the Court concluded that EU law does not preclude, in situations such as the present case, the loss of national citizenship and consequently the loss of EU citizenship.

However, the Court stressed again (as it did in Rottmann) the role of the principle of proportionality, concluding that national rules are inconsistent with this principle if they do not permit at any time ‘an individual examination of the consequences of that loss for the persons concerned from the point of view of EU law’. This is a particularly important statement because, contrary to the situation of Janko Rottmann, whose citizenship was actively withdrawn, the individuals concerned in Tjebbes had lost their citizenship automatically (in legal terms: by operation of law/ex lege).

What does it mean that EU Member States must have due regard to the principle of proportionality? The Court held that it follows from this principle that the consequences of the loss of citizenship must be examined by authorities and courts and that, where appropriate, the person concerned must be given to possibility to recover his or her nationality. In making such individual assessments, it should be decided whether the loss does not ‘disproportionately affect the normal development of [the person’s] family and professional life from the point of view of EU law’. Part of that examination of proportionality is an assessment of the consistency with fundamental rights, with the Court referring specifically to Article 7 (on the right to respect for family life) and Article 24(2) (on considering the best interests of the child) of the Charter of Fundamental Rights of the European Union.

Finally, the Court held that other important factors include whether the person concerned might not have been able to renounce the other nationality in order to circumvent the loss of Dutch citizenship, and also whether there is a serious risk that the person’s ‘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’.

As summaries and analyses of the case are slowly starting to appear (for example by the Scottish legal news), the Future Citizen Institute will revisit the case once its implications are more clear.

Author: Dr. Olivier Vonk

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