The CJEU delivered its judgment in the Tjebbes case. Sparking vibrant academic discussions and only further confusing the referring national court, the case actually fits in the broader mosaic of the contemporary issues of EU citizenship.
Facts of Tjebbes
The case began with a misunderstanding between four individuals and the Dutch Minister for Foreign Affairs (Tjebbes, para. 2). All four are women who have been holding Dutch citizenship and another nationality (id., paras. 13-16). In 2014, after living outside of the Netherlands for a long time, they have applied to renew their passports and the Dutch Minister for Foreign Affairs rejected their applications based on the loss of Dutch nationality by operation of law (id., para. 17). Having lost their cases in The Hague District Court (id., para. 18), the four individuals appealed (id., para. 19).
Essentially, the Council of State (the body that was hearing the appeals) referred the matter of the compatibility of the Dutch nationality law with the EU acquis to the CJEU (id., para. 26). The referral concerned the provisions that provided for loss of the Dutch citizenship by a person holding dual nationality (id., para. 29) after a ten-year period of uninterrupted residence abroad with an option to stop the clock ticking by different means, including renewing the passport at a Dutch consulate (id., para. 22). The main underpinning of the Council’s doubts was whether the statutory provisions meet the requirements of proportionality (id., paras. 20-21) vaguely laid down in Rottmann.
The AG developed a two-element test, relying on the Rottmann case (AG Opinion, paras. 48-50). The first element is the public-interest objective of the measure, the second element is the principle of proportionality (id., para. 50).
As to the first criterion, AG Mengozzi came to the conclusion that the measure pursues a legitimate public interest in maintaining a genuine link between the Netherlands and the citizens (id., para. 50). This is particularly so because the measure targets only those who are in possession of dual nationality in order to avoid creating statelessness (id., para. 55).
As to the second criterion, according to the AG, the Dutch law passes this requirement as well (id., paras. 62, 115). AG Mengozzi relied on Delvigne, interpreting it as establishing that a statutory scheme that does not include any examination of individual circumstances can, in principle, be proportionate (id., paras. 64-67). Presenting a peculiar understanding of Rottmann (id., paras. 68-76, 83-90), the AG concludes that not all the circumstances shall be examined to asses proportionality but only those three laid down in the Rottmann decision (id., para. 55) (the gravity of the act leading to the loss of citizenship, the lapse of time between the acquisition of citizenship and its loss, the existence of a possibility to recover citizenship). Applying the matrix of this analysis, AG Mengozzi notes that it is possible for a person to easily interrupt the ten-year period (AG Opinion, para. 94), there is an opportunity to acquire the Dutch citizenship after its loss through a fast track (id., para. 101) and concludes that the Dutch law is thus proportionate (id., para. 114).
The Court seems to be a bit biased against dual nationality as it notes that such situations have ‘undesirable consequences’ (Tjebbes, para. 114). Without acknowledging it, the Court applied the two-part test articulated by the AG (id., paras. 33, 40). On the public legitimacy, the Court contended that the Dutch law was pursuing a legitimate aim (id., para. 39), as it provided for an easy way to interrupt the ten-year period (id., para. 38) and finds support in the Convention on the Reduction of Statelessness (id., para. 37). As to the proportionality principle, the Court departed from the AG’s opinion stating that there always should be an individual examination (id., paras. 41-42). However, the Dutch law, in view of the Court, actually requires the Minister for Foreign Affairs and the courts of law to conduct an individual assessment of the consequences of the loss of the citizenship (id., paras. 43-45) (as Prof Van den Brink points out, it was an obvious misunderstanding of the Dutch law by the CJEU). Summarising its findings, the Court found that the Dutch law is compatible with the EU acquis (id., para. 48).
The case may be criticised on a myriad of accounts, most of them being political rather than legal. For example, the Dutch law did not provide for the loss of citizenship in the case of 10-year residence in another Member State (id., para. 36). As the core rationale behind the law was maintaining ‘a genuine link’ (id., para. 35) between the state and its nationals, it is questionable whether such an exemption is justified, especially in light of Étienne Balibar’s apartheid européen ideas. However, this critique actually targets the Dutch state and its legislative choices rather than the decision of the Court and EU law that it shapes.
The academic community was largely unsatisfied with the decision, calling the case ‘so deeply problematic and most principally antagonistic to the logic of EU integration and meaningful EU citizenship,’ simply ‘unjustified,’ and ‘full of carefully balanced paradoxes.’
Autonomisation of EU Citizenship
All the struggle and annoyance that surround Tjebbes and the related case law of the Court actually stem from a fundamentally wrong perception of EU citizenship.
On the one hand, the CJEU steps in the situation of a probable loss of Member State nationality because it entails the risk of losing EU citizenship and all the associated rights. On the other hand, this logic suggests that Member States cannot revoke their nationalities at all as it leads (allegedly inevitably) to the EU citizenship revocation. Indeed, as the Court noted in Ruiz Zambrano, Member States cannot adopt ‘measures which have the effect of depriving citizens of the Union of the … rights conferred by virtue of their status as citizens of the Union.’
The very fragile consensus artificially distilled from the case law is that Member States are free to decide who their nationals are, providing ‘due regard’ to EU law. And this due regard means the principle of proportionality. The problem is that this weak argumentation ends in the conclusion that EU law effectively replaces national laws on citizenship. And this is something that the TEU definitively prohibits, specifically providing that ‘[c]itizenship of the Union shall … not replace national citizenship.’
The only solution to this deadlock is embracing the fact that EU citizenship is autonomous. EU citizenship is independent of the nationalities of the Member States. The only remaining link between the two is how EU citizenship is being acquired. To get EU citizenship, one still has to get a Member State’s passport; from that point onwards, the two uneasy bedfellows go separate ways.
Linda Bosniak gives grounds to assume that there are substantial grounds for developing transnational citizenship within the EU. She specifically refers to the EU as the place where the denationalisation of citizenship is at the most advanced stage nowadays. Moreover, the effective removal of borders within the EU creates grounds for talking about the emergence of European personhood as one of the many fundaments for the autonomisation of EU citizenship. Espen Olsen has written on the subject by means of the contrast between the ideas of a nation-based Europe and cosmopolitan Europe. Sanja Ivic has recently written a whole book on the matter, focusing on the EU as a postnational political community. Samantha Besson and André Utzinger recognise the possibility of the evolution of EU citizenship from market citizenship to fully-fledged political citizenship.
Whatever further developments are, Tjebbes is a case that certainly deserves to appear in the next editions of the textbooks on EU law. On a broader scale, this case will be either yet another marcher in the parade of horribles of EU citizenship law or a trigger of the embracement of the autonomisation of EU citizenship as a reality that has already arrived here.
Autonomous EU citizenship is now the biggest mamihlapinatapai of European integration. According to Vladimir Nabokov, ‘the breaking of a wave cannot explain the whole sea’ (Vladimir Nabokov, The Real Life of Sebastian Knight (1941)). And indeed, Tjebbes is breaking of only one wave; admittedly, however, the sea of the European project is very turbulent and stormy nowadays.