EU Advocate General Sides with Malta in Golden Passport Case, Affirming National Sovereignty Over Citizenship

October 04 2024 12:12:30 by PCLMedia

The European Commission's legal challenge against Malta's citizenship-by-investment program, commonly referred to as the "golden passport" scheme, has encountered a major setback. Advocate General (AG) Anthony Collins of the European Court of Justice (ECJ) issued a non-binding opinion favoring Malta, indicating that the Commission has failed to demonstrate that EU law requires a "genuine link" between an individual and a member state for citizenship to be granted. This opinion represents a significant legal development for EU citizenship law.

Malta's Sovereignty in Granting Citizenship

The central argument from AG Collins rests on the assertion that the power to grant citizenship falls squarely within the sovereign domain of individual EU member states. According to Collins, nationality is intrinsically tied to a state's sovereignty and national identity, as underscored in an annex to the Treaty of the European Union. This means that it is solely up to each member state to decide who qualifies for its nationality—and, by extension, EU citizenship—without any requirement for a specific "genuine link" under EU law.

Collins emphasized that while some states may impose their own requirements, such as a "genuine link," EU law does not mandate such a condition. He argued that requiring a uniform rule for nationality across all member states would disrupt the delicate balance between national and EU citizenship, encroaching on a domain member states have purposefully retained under their exclusive control.

Commission’s Concerns and Legal Action

The European Commission had launched legal proceedings against Malta, accusing it of breaching its duty to cooperate sincerely under the Treaty of the EU by granting citizenship to individuals with no meaningful ties to the country. The Commission feared that allowing wealthy individuals to effectively purchase Maltese citizenship could undermine the integrity of EU citizenship, which grants the right to live, work, and move freely across all member states.

This legal challenge comes after other EU countries, such as Cyprus and Bulgaria, had already scrapped similar programs. Malta remains the last EU country offering citizenship-by-investment, with a scheme that has evolved since its inception in 2014, now requiring investments of over €690,000 along with other financial commitments. Meanwhile, countries like Portugal, the Netherlands, and Spain have recently curtailed or eliminated their "golden visa" programs, which grant residency rather than citizenship, following concerns about money laundering, security, and speculative property investment.

Advocate General’s Key Arguments

AG Collins' opinion highlighted several key points. Firstly, while the EU Commission argued that Malta's program lacked a "genuine link" between the applicants and Malta, Collins countered that EU law imposes no such requirement. He reiterated that member states alone have the right to determine their own nationality laws, provided they do not contravene EU law in other areas, such as human rights or procedural fairness, particularly when it comes to the loss of nationality.

The opinion also underscored that the mutual recognition of nationalities among EU member states is a principle of respect for sovereignty, not a mechanism to standardize national laws. Collins warned that requiring member states to impose uniform citizenship conditions would amount to an unlawful erosion of their sovereignty and competence in this sensitive area.

Potential Implications

While AG Collins' opinion is not binding, it often influences the final decisions of the ECJ. Should the Court follow his recommendations, Malta’s citizenship-by-investment program would receive a significant legal reprieve, allowing the country to continue offering its "golden passports" under the current terms. The Maltese government, which has welcomed the opinion, views this as a victory that aligns with its long-standing position that citizenship issues fall within the national sphere of competence.

At the same time, the opinion has sparked renewed debate over the ethical and security concerns surrounding such programs, particularly in light of global money laundering risks and the potential for wealthy individuals, including sanctioned Russians, to use EU passports to evade sanctions. In 2022, the European Parliament called for a ban on citizenship-by-investment schemes, deeming them unethical and problematic from both legal and economic perspectives.

In summary, AG Collins' opinion provides a significant boost to Malta's golden passport scheme by affirming that EU law does not mandate a "genuine link" for the acquisition of citizenship. This legal interpretation emphasizes the sovereignty of EU member states in nationality matters and may pave the way for the ECJ to rule in Malta's favor. However, the broader concerns regarding the ethical and security implications of such programs remain unresolved, leaving room for continued scrutiny and potential reform at both national and EU levels.