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What do citizenship commentators make of the CJEU ruling in Tjebbes?

When discussing the important Tjebbes ruling by the Court of Justice of the European Union last March, we promised to revisit the case once commentaries started to come in. Most authors agree that Tjebbes is the latest in a series of rulings on the relationship between Member State nationality and EU citizenship, including Micheletti, Kaur and Rottmann.

As summarized by Steve Peers, “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”. The applicants 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, though, they did not become stateless after losing their Dutch citizenship.

Peers notes that a number of points are further developed or new compared to earlier case law, including the Court’s confirmation 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”. Moreover, “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”.

Dimitry Kochenov takes issue with the Court’s ruling, arguing that the “evaporation” of one’s citizenship simply by failing to renew the passport before the expiration date puts ordinary law-abiding EU citizens in a worse position than known terrorists and ISIS sympathizers. René de Groot has criticized Dutch legislation by submitting that the persons who were at risk of losing their citizenship should ideally have been informed about this personally (by Dutch embassies), as they could hardly be expected to know about this risk themselves.

Stephen Coutts, calling the judgment “bold yet thoughtful”, notes how the CJEU “has intervened in Member State nationality law by laying down detailed procedural requirements in an area typically characterised by executive discretion”. In that sense Tjebbes is directly related to an Irish case we discussed recently dealing with the degree of judicial oversight of administrative decisions in the area of citizenship law. Coutts also applauds the Court for treading carefully in the sensitive field of citizenship, observing that “in its review, the Court merely asserts the legitimacy of maintaining a genuine link with the Member State, without assessing whether a ten-year rule, such as that contained in Netherlands legislation, in fact achieves that public interest. In doing so, the Court avoids the trap identified by the

Advocate General of being inevitably drawn to assessing the adequacy of national measures and hence the means by which a genuine link is maintained. Instead, the Court’s proportionality review is focused primarily on those consequences in Union law that flow from a withdrawal decision”.

Author: Dr. Olivier Vonk

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