The Court of Justice of the European Union and nationality law: the cases of Micheletti, Kaur and Ro

Over the last few months the Future Citizen Institute has dedicated a number of publications on the relation between EU law and the national citizenship laws of the EU Member States. More about this can also be found in our responses to recent reports by EU institutions. The starting point in this discussion is the common knowledge that the EU currently has no direct competence in the field of citizenship, with Article 20(1) Treaty on the Functioning of the European Union stating that ‘citizenship of the Union shall be additional to and not replace national citizenship’. A briefing paper by the European Parliamentary Research Service also confirmed last year that ‘Member States retain full control over who can be recognised as a citizen’.

Still, with the introduction of EU citizenship a debate was started on the need for voluntary harmonization of the Member States’ nationality law rules in order to guarantee equal access to a status which according to the Court of Justice of the European Union (CJEU) in its Grzelczyk judgment ‘is destined to be the fundamental status of the member state nationals’. The CJEU has also handed down a handful of cases directly dealing with issues of nationality. Over the coming weeks we will discuss the seminal cases of Micheletti (1992), Kaur (2001) and Rottmann (2010).

We have seen on previous occasions that the general principle in the field of nationality law is State autonomy. However, certain constraints are imposed on States by international human rights conventions, including those which aim to reduce statelessness, prohibit discrimination on various grounds, and seek to protect the rights of the child. The question that arose in Micheletti was whether constraints also exist within the specific context of the European Union.

Micheletti concerned a dual Italian-Argentinean national who had been provisionally admitted to Spain for six months because he could show an Italian passport and was thus considered to be a Community national. (Given the institutional structure of the European project at that time the Court used the term Community national instead of EU citizen.) Before expiry of the six month term, he asked for a permanent residence card because he wanted to establish himself as a dentist in Spain. The Spanish authorities refused to grant this card on the basis of Spanish rules of private international law which provided that when confronted with a dual national who did not possess Spanish nationality, the nationality of the country where the person had habitually resided before coming to Spain should prevail. As a result, the Spanish authorities now saw Mr Micheletti as an Argentinean national, not as an Italian. The debate in Micheletti concerned the question whether these Spanish provisions were compatible with the European principle of freedom of establishment.

In answering the preliminary question submitted to it by a Spanish court, the CJEU stated that ‘it is for each Member State, having due regard to Community law, to lay down the conditions for acquisition and loss of nationality’. The Court also ruled that a Member State cannot restrict the effects of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty. Spain could therefore not make the recognition of Mr Micheletti’s status of Community national subject to the condition of habitual residence in Italy. If Italy regarded him as an Italian national, even if his habitual residence had been in Argentina, so had Spain.

The Court thus precluded the Member States from restricting the exercise of the freedoms guaranteed under EU law by relying on the Nottebohm judgment, which requires a genuine link between a person and a State in order for a nationality to be an ‘effective nationality’. It ruled that Member States are not permitted to make recognition of the status of Community national subject to a condition such as habitual residence in the territory of the Member State of which the person holds the nationality. Any other conclusion would mean, as stated in para. 12 of the judgment, that ‘the class of persons to whom the Community rules on freedom of establishment were applied might vary from one Member State to another’.

Author: Dr. Olivier Vonk