UPDATED 15.00 CET / A Special IMGW News Update
The Advocate General has just delivered his opinion on the European Commission’s case against Malta’s Citizenship by Investment (CBI) Programme, stating that the case should be dismissed.
“I propose that the Court dismiss the Commission’s action, order the Commission to pay its costs on those of the Republic of Malta.” – The Advocate General.
While non-binding, this opinion will follow the June 17 hearings and shed light on the programme’s next steps. However, a final ruling on the legality of Malta’s CBI programme is anticipated by the end of 2024 or early 2025.
Advocate General Defends National Sovereignty in Malta Citizenship Case, Dismissing EU Commission’s Concerns
The Advocate General, Collins, dismisses the European Commission’s case against Malta (Case C-181/23) on the grounds that EU law does not regulate the conditions under which Member States grant nationality, except in circumstances where such conditions threaten the fundamental values and objectives of the European Union.
Specifically, the Advocate General acknowledges that while the grant of nationality by a Member State automatically confers EU citizenship and access to EU-wide rights, the decision on who qualifies for national citizenship remains under the exclusive competence of Member States. This reflects the principle of conferral, which limits the scope of EU law to specific areas where the EU has been explicitly granted authority by the Member States.
Moreover, Malta argues that neither public international law nor EU law requires a “genuine link” between a naturalised individual and the granting state. Therefore, the Commission’s emphasis on the absence of a genuine link in Malta’s citizenship-by-investment programme does not hold sufficient weight under existing legal frameworks.
The Advocate General also notes that Malta’s scheme, which involves pre-determined investments or payments, does not systematically undermine the values of the European Union or the essence of EU citizenship. As a result, he recommends that the Court of Justice should dismiss the Commission’s action.
For the entire Court of Justice of the European document highlighting the Advocate General’s opinion, please download this document: https://bit.ly/ADVOCATEGENERALOPINION.
Background: What Has Happened So Far:
On June 17th, 2024, the European Commission’s case against Malta’s CBI Programme was presented before the Grand Chamber of the European Court of Justice (ECJ) in Luxembourg. This case delves into whether the programme, which offers Maltese citizenship in exchange for investments amounting to roughly €1 million, violates EU law. The Commission asserts that Malta’s programme grants EU citizenship without a “genuine link” to the country, thereby undermining the core concept of EU citizenship.
Key Arguments from the European Commission:
Violation of Union Law:
The Commission stressed that EU law prohibits citizenship programmes that exchange nationality for financial contributions without establishing a genuine link to the nation. Such practices, it argued, undermine the integrity of EU citizenship and erode mutual trust between member states.
Constitutional Significance:
The Commission highlighted the importance of EU citizenship, which guarantees rights such as free movement, residence, and employment across the Union. According to the Commission, Malta’s practice of granting these privileges without a real connection to the country devalues EU citizenship.
Mutual Trust:
Drawing on the 1992 Micheletti case, the Commission emphasised the principle of mutual trust among EU member states regarding nationality decisions. It argued that Malta’s CBI programme undermines this trust and called for stricter adherence to establishing genuine links before granting nationality.
Genuine Link Requirement:
The Commission insisted that a true connection between the individual and the state should exist before citizenship is granted. Malta’s programme, which requires only minimal physical presence, does not meet this criterion and, therefore, violates EU law.
Broader Legal and Constitutional Issues:
The Commission also pointed to the balance between national sovereignty and EU competence, underscoring that while nationality laws are a matter of national jurisdiction, they must still align with EU law.
Malta’s Defence:
Economic Investment as a Genuine Link:
Malta defended its programme by arguing that significant economic investment can establish a genuine link. The government cited rigorous compliance mechanisms to prevent risks such as corruption and money laundering.
Sovereignty in Nationality Laws:
Malta maintained that nationality laws fall within national competence and should not be subject to EU interference, arguing that its programme complies with EU law.
Historical Precedent:
The Maltese government pointed out historical instances where EU countries granted citizenship through investments or other contributions, positioning their scheme within a broader European legal tradition.
Court’s Questions and Observations:
The ECJ scrutinised the “genuine link” criterion, questioning whether economic investment alone suffices or whether a more substantive connection is necessary. Malta’s programme, which requires little to no physical presence, was challenged on these grounds.
Broader Implications:
The case raises significant issues regarding the balance between national sovereignty and EU integration. The court’s ruling will impact not only Malta but also other EU member states operating similar CBI programmes. The outcome is expected to redefine the criteria for granting citizenship within the EU, potentially enforcing stricter requirements for genuine connections between applicants and the countries granting citizenship.
Conclusion:
The ongoing case represents a tension between Malta’s assertion of national sovereignty over citizenship laws and the European Commission’s pursuit of preserving the integrity of EU citizenship. The forthcoming ruling will set a crucial precedent for how CBI programmes are regulated across the EU and may lead to tighter controls on the conditions for granting nationality within the Union.
The Advocate General’s opinion, expected today, will be an important step in determining the future of Malta’s CBI programme, although the final decision from the court will follow at a later date.
Media Restrictions:
IMGW News is unable to provide video footage of the hearing, as the ECJ prohibits the downloading or recording of such materials. Extracts from the ECJ’s website clarify that broadcasts of hearings do not constitute official records and hold no legal liability for the opinions expressed during the session.
