The CJEU Judgment in Tjebbes: EU Citizenship, the Advent of the Charter, and Implications for the Loss of Nationality after Criminal Conviction

Nine years after delivering its judgment in the infamous Rottmann case, the Grand Chamber of the Court of Justice of the European Union (CJEU) recently adjudicated its second case on the loss of the nationality by a national of a Member State and the ensuing loss of EU Citizenship. Described as a ‘bold and thoughtful’ ruling, Tjebbes (Case C-221/17) is the second episode in the saga of the European Union (EU) law’s influence on domestic nationality law, which is traditionally considered as a core area of state sovereignty. In this judgment, the Court confirms what a joint reading of its earlier decisions in Rottmann (Case C-135/08) and Åkerberg Fransson (Case C-617/10) suggested; that Member States are obliged to act in accordance with the EU Charter of Fundamental Rights (the Charter, CFREU) when revoking nationality. After  a brief exposition of the Tjebbes judgment, this blog illustrates the considerable potential of the judgment to fundamentally influence the nationality laws of the Member States. The significance of the judgment is exemplified by arguing that the prohibition of double jeopardy effectively forecloses the denationalisation of persons convicted of serious criminal offences, such as treason or terrorism.

At the outset of this analysis, it must be noted that Member States retain exclusive competence over their nationality. The CJEU has confirmed that the Member States can legitimately ‘protect the special relationship of solidarity and good faith between [them] and [their] nationals’ by ‘[laying] down the conditions for acquisition and loss of nationality’ (Rottmann, paras. 51 and 39). In the Tjebbes case, the central issue was that in the Netherlands, this special relationship was deemed to be broken by long periods of absence from the Netherlands or the European Union. Accordingly, under Article 15(1)(c) of the Dutch Nationality Act, Dutch dual-nationals who reside outside the Netherlands or the European Union for more than ten years automatically lose their Dutch nationality. Crucially, this loss of nationality also entailed the loss of EU Citizenship for the applicants in Tjebbes. After all, EU Citizenship is conditional on being the national of an EU Member State under Article 20 of the Treaty on the Functioning of the European Union (TFEU) and hence lost when Member State nationality is lost. However, this loss of EU Citizenship also establishes the link with EU law and renders the latter applicable. In Rottmann the CJEU held that where the loss of nationality entailed the loss of EU Citizenship, this meant that the matter fell within the scope of EU law (para. 42). Consequently, Member States would have to act in accordance with EU law, which meant that they had to observe the principle of proportionality when revoking an individuals’ nationality. Whether this would also render the CFREU applicable was not addressed by the CJEU in Rottmann because the case arose a year before the Charter was given full legal effect through the Treaty of Lisbon.

Still, when the Court clarified the scope of application of the CFREU in the 2013 case of Åkerberg Fransson, its reasoning indicated that the CFREU would indeed apply to cases involving the loss of nationality. In Åkerberg Fransson, the Court essentially ruled that the Charter applied to matters that fell within the scope of EU law, which is now to be determined in accordance with the criteria developed in the subsequent Siragusa judgment (Case C-206/13). Yet, where the loss of Member State nationality entails the loss of EU Citizenship, these criteria are superfluous; after all, Rottmann categorically established that such measures must fall within the scope of EU law. In Tjebbes, the CJEU confirmed the applicability of the Charter whenever the loss of Member State nationality affects an individual’s EU Citizenship (paras. 32 and 45). In practice, the only exception to this are cases involving persons who also hold the nationality of another Member State.

The applicability of the CFREU to nationality law has the potential to fundamentally influence this core of Member State sovereignty. The capacity of the Charter to effectively foreclose the denationalisation of persons convicted of a serious criminal offence through the prohibition of double jeopardy (Article 50 CFREU) exemplifies this well. According to the GLOBALCIT database, eight Member States subscribe to this practice to sanction breaches of the aforementioned ‘special relationship of solidarity and good faith’: Belgium, Bulgaria, Cyprus, Denmark, France, Lithuania, Malta, and the Netherlands. In these countries, nationality is either lost automatically or revoked by administrative decision after a conviction at final instance for specific criminal offences (e.g. terrorism or treason). This practice has been the subject of extensive academic discourse, from both normative (Joppke) and positivist angles (Jesserun d’Oliveira). Yet, the Tjebbes judgment may well have rendered this discourse moot, at least from a legal positivist’s perspective. As aforementioned, it is argued that the prohibition of double jeopardy (Article 50 of the CFREU, equivalent to Article P7-4(3) to the European Convention on Human Rights (ECHR)), also known as the ne bis in idem principle, effectively proscribes the revocation of Member State nationality subsequent to a criminal conviction. This is particularly significant for France and the Netherlands, which have so far resisted the application of the prohibition of double jeopardy under ECHR law to administrative sanctions. France has made a reservation to Protocol 7 to exclude its application to offences outside the jurisdiction of the French criminal courts, whereas the Netherlands has not ratified the Protocol altogether.

Under Article 50 of the CFREU, the ne bis in idem principle prohibits trying or punishing a person for a second time in criminal proceedings for the same offence after they have received a decision at final instance. The principle covers inter-Member State cases where the two sanctions occur in different states. Although the wording of Article 50 CFREU only explicitly refers to criminal proceedings and punishment, administrative proceedings and sanctions do not fall outside of its material scope. The CJEU has followed the ECtHR in rejecting a formalistic distinction between criminal and administrative law and instead focussed on the nature of the sanction. In Bonda (Case C-489/10), the CJEU explicitly endorsed the ECtHR’s Engel criteria to determine whether an administrative law measure could be considered criminal in nature. This is initially indicated by: the legal classification of the offence, but ultimately determined based on (i) the nature of the underlying offence and; (ii) the degree of severity and nature of the punishment. These criteria are also applied in cases involving the combination of criminal and administrative law sanctions, as held by the ECtHR in Ruotsalainen and transposed by the CJEU in Åkerberg Fransson.

While the wording of Article 50 of the CFREU suggests that it is possible for states to derogate from this prohibition of double jeopardy, Tomkin observes that through Articles 52 and 53 of the CFREU, derogation is hardly possible in practice. After all, the standard of protection under the CFREU must at least be equivalent to that under the ECHR (Article 52(3) of the CFREU). Under Article P7-4(3) of the ECHR, derogation from the ne bis in idem principle is not possible. Hence, derogation from Article 50 of the CFREU is only possible in transnational cases, because these fall outside the scope of Article P7-4(3) of the ECHR. However, in the context at hand, nationality is commonly revoked in response to domestic criminal convictions. An exception to this is Cypriot and Maltese citizenship, which can be revoked subsequent to a conviction for an offence carrying a sentence of more than 12 months in any country. While this interference with Article 50 of the CFREU could be justified, it would be subject to the general conditions in Article 52(1) of the CFREU.

Arguably, the very nature of denationalisation subsequent to a criminal conviction brings the denationalisation of convicted persons within the scope of the ne bis in idem principle: these individuals lose their nationality after being convicted of a criminal offence. Although the denationalisation is a measure of administrative law, the seriousness of the underlying conduct (e.g. terrorism or treason) suggests that action taken in response is akin to a criminal law sanction. This is reinforced by the seriousness of the consequences of denationalisation. Not only does it involve the loss of all privileges that attach to national and EU citizenship, but it also constitutes a severe restriction on social, private, and family life. Denationalisation is commonly accompanied by an expulsion order, through which addressees are torn from their social environment and potentially separated from their family (in itself a potential interference with Article 7 CFREU). For this reason, Macklin and Bauböck have compared denationalisation to the ancient punishment of banishment. It follows that denationalisation subsequent to criminal conviction falls within the scope of Article 50 CFREU. Given that Article 53 CFREU effectively precludes derogations from the principle (leaving aside the Maltese and Cypriot exceptions), this type of denationalisation is effectively incompatible with EU law.

By confirming the applicability of the CFREU to measures of nationality law that affect EU Citizenship, the Tjebbes judgment has expanded the influence of EU law on the nationality laws of the Member States considerably. The principle of proportionality, introduced into the sphere of nationality law in Rottmann, has been joined by the entirety of the Charter. The almost absolute ban on denationalising persons convicted of criminal offences through the prohibition of double jeopardy illustrates the Charter’s potential impact on nationality laws well. Further obligations and limitations are likely to flow from the right to private and family life and the best interests of the child under Articles 7 and 24, respectively (as already indicated by Tjebbes itself), the principle of non-discrimination under Article 21, and the right to fair trial under Article 47 CFREU. Hence, the Tjebbes judgment mark the beginning of the increasing influence of EU law and the CJEU over the nationality laws of the Member States. Furthermore, the direct applicability and enforceability of the Charter in domestic courts considerably strengthens the position of individuals who face denationalisation.

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