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Investment Migration Council, 16 Rue Maunoir, 1211 Geneva 6, Switzerland Investmentmigration.Org Investment Migration Council, 16 rue Maunoir, 1211 Geneva 6, Switzerland investmentmigration.org Organisation in special consultative status with the Economic and Social Council of the United Nations since 2019 European Commission Joint Transparency Register Secretariat ID: 337639131420-09 “The European Union can only act in those areas where its member countries have authorised it to do so, via the EU treaties. The treaties specify who can pass laws in what areas: the EU, national governments or both.”1 1 https://ec.europa.eu/info/about-european-commission/what-european-commission-does/law/areas- eu-action_en Investment Migration Council, 16 rue Maunoir, 1211 Geneva 6, Switzerland investmentmigration.org Organisation in special consultative status with the Economic and Social Council of the United Nations since 2019 European Commission Joint Transparency Register Secretariat ID: 337639131420-09 About the Investment Migration Council The Investment Migration Council (IMC) is the worldwide forum for investment migration, bringing together the leading stakeholders in the field. The IMC sets global standards, provides qualifications and publishes in-demand research in the field of investment migration aimed at governments, policy makers, international organisations, and the public. It is an impact focussed Swiss based membership organisation in special consultative status with the Economic and Social Council of the United Nations since 2019 and registered with the European Commission Joint Transparency Register Secretariat (ID: 337639131420-09). Investment Migration Council, 16 rue Maunoir, 1211 Geneva 6, Switzerland investmentmigration.org Organisation in special consultative status with the Economic and Social Council of the United Nations since 2019 European Commission Joint Transparency Register Secretariat ID: 337639131420-09 Table of Contents Introduction 5 Nottebohm and ‘Genuine Link’: Anatomy of a Jurisprudential Illusion 16 Peter J. Spiro EU Competence and the Attribution of Nationality in Member States 36 Daniel Sarmiento State Autonomy and Relevant Links under international and EU Law 62 Matjaž Tratnik and Petra Weingerl Policing the Genuine Purity of Blood: The EU Commission’s Assault on Citizenship and Residence by Investment and the Future of Citizenship in the European Union 101 Dimitry Vladimirovich Kochenov Index 122 Investment Migration Council, 16 rue Maunoir, 1211 Geneva 6, Switzerland investmentmigration.org Organisation in special consultative status with the Economic and Social Council of the United Nations since 2019 European Commission Joint Transparency Register Secretariat ID: 337639131420-09 Investment Migration Council, 16 rue Maunoir, 1211 Geneva 6, Switzerland 5 investmentmigration.org Organisation in special consultative status with the Economic and Social Council of the United Nations since 2019 European Commission Joint Transparency Register Secretariat ID: 337639131420-09 Introduction The role of the ‘genuine link’ requirement in international law and EU law has been explained by many distinguished scholars. For instance, Spiro, has discussed extensively the development of the ‘genuine link’ requirement in international law and the role of that requirement in citizenship matters. In the context of ICJ’s Nottebohm’s decision and the ‘genuine link’ requirement, Spiro concludes that: ‘Nottebohm is the most famous decision of an international tribunal relating to the subject of nationality, but the ruling is famous because it was and is infamous, at least among the college of international lawyers studying nationality law. The decision was discontinuous with pre-existing law’.1 Sarmiento has analysed EU competencies in the field of nationality in general, and in relation to investment migration programmes in particular, concluding the following: ‘the EU’s competence to introduce measures in [the field of nationality] to introduce a more uniform approach by the Member States, is problematic. Since its creation the EU has been based on a principle of conferred powers, but no power has been granted to the EU in the field of nationality’.2 Referring to the Report on investment migration programmes of the European Commission,3 Tratnik and Weingerl, conclude that ‘with its appalling approach to the question of the 1 Peter J Spiro, ‘Nottebohm and “Genuine Link”: Anatomy of a Jurisprudential Illusion’ IMC-RP 2019/1 <https://investmentmigration.org/wp-content/uploads/2020/10/IMC-RP-2019-1-Peter-Spiro.pdf> last accessed 7 July 2021, 9. 2 Daniel Sarmiento, ‘EU Competence and the Attribution of Nationality in Member States’ IMC-RP2019/2 <https://investmentmigration.org/wp-content/uploads/2020/09/IMC-RP-2019-2-Sarmiento.pdf> last accessed 7 July 2021, 31. 3 European Commission, ‘Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee of the Regions’ COM(2019) 12 final. Investment Migration Council, 16 rue Maunoir, 1211 Geneva 6, Switzerland 6 investmentmigration.org Organisation in special consultative status with the Economic and Social Council of the United Nations since 2019 European Commission Joint Transparency Register Secretariat ID: 337639131420-09 compatibility of investment migration schemes with EU law […], the Commission itself could legitimately be seen as in breach of the principle of sincere cooperation, which is closely linked to the principle of conferral’.4 Kochenov analysed the Report of the European Commission and the launch of infringement proceeding against Cyprus and Malta on 20 October 2020 further, noting that: ‘the Commission’s decision to misrepresent the law and go against the non-discrimination essence of EU citizenship to attempt to enlarge own Competences is but a dangerous political game’.5 The full articles of Spiro, Sarmiento, Tratnik and Weingerl, and Kochenov have been compiled in this work for better understanding of the problematic aspects associated with the EU’s approach and actions towards investment migration programmes. EU’s approach towards investment migration EU’s approach towards investment migration programmes is largely shaped by negative sentiment and glorification of citizenship. Investment migration refers to obtaining citizenship or residential rights by individuals in return for a financial investment or other contributions to the host country. Citizenship by investment specifically refers to the acquisition of citizenship for a financial or other contribution. Citizenship 6 is closely related to the territorial sovereignty of states. States have broad 4 Matjaž Tratnik and Petra Weingerl, ‘State Autonomy and Relevant Links under international and EU Law’ (previously 'Investment Migration and State Autonomy: A Quest for the Relevant Link') IMC-RP2019/4 <https://investmentmigration.org/wp-content/uploads/2020/09/IMC-RP-2019-4-Tratnik-and-Weingerl.pdf> last accessed 7 July 2021. 5 Dimitry Vladimirovich Kochenov, ‘Policing the Genuine Purity of Blood: The EU Commission’s Assault on Citizenship and Residence by Investment and the Future of Citizenship in the European Union’ (2021) 25(1) Studies in European Affairs (Centre for Europe, University of Warsaw), 56 last accessed 7 July 2021. 6 The term ‘citizenship’ is often interchangeably used with ‘nationality’, Article 2(a) European Convention on Nationality (adopted 6 November 1937, entered into force 1 March 2000) ETS No. 166 stipulates: ‘For the purpose Investment Migration Council, 16 rue Maunoir, 1211 Geneva 6, Switzerland 7 investmentmigration.org Organisation in special consultative status with the Economic and Social Council of the United Nations since 2019 European Commission Joint Transparency Register Secretariat ID: 337639131420-09 discretion, if not complete exclusivity, in deciding who qualifies as their citizens and under what circumstances. Indeed, states’ competence in the field of citizenship matters is only limited by binding rules of international law. Yet, the one and only rule that has been recognised as such is the element of voluntariness on the part of the individual acquiring the citizenship, which precludes non-consensual naturalisation.7 While other requirements have also been often discussed in the context of possible constraints on state sovereignty in the field of citizenship, none of them has developed into binding international law which may affect states’ competence in citizenship matters.8 One of the most commonly discussed cases that has been wrongly brought into connection with acquisition of citizenship is the Nottebohm case of the International Court of Justice (ICJ), which concerned the ‘genuine link’ requirement. As further explained, the ‘genuine link’ requirement has a very little significance in citizenship matters. Having said that, the European Commission recently brought ‘genuine link’ into connection with acquisition of citizenship despite the fact that the EU case law preserves the exclusive competence of Member States to regulate their citizenship matters, with the only exception being instances where it is necessary to ensure effective and uniform protection of the rights of EU citizens.9 The arguments, as well as motives, of the European Commission are problematic if not completely incompatible with the EU law.10 The launch of infringement procedures against Malta and Cyprus by the Commission is largely motivated by politics rather than law. Yet, agreeing with Kochenov, ‘law and politics follow different rationales and are most likely to of this Convention: a “nationality” means the legal bond between
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