chapter 17 Member State Nationality, EU Citizenship and Associate European Citizenship A.P. van der Mei* Introduction According to Article 20 tfeu, “[E] very person holding the nationality of a Member State shall be a citizen of the Union”.1 The wording of the provision thus suggests a notably simple relationship between EU citizenship and Mem- ber State nationality: to be an EU citizen one must be a Member State national. Third country nationals cannot acquire EU citizenship. Loss of nationality im- plies automatic loss of this privileged status. When a Member State withdraws from the EU its nationals become third country nationals.2 From the case law of the Court of Justice of the European Union (cjeu), however, it follows that the relationship between EU and national citizenship is not as clear and straightforward as the Treaty text suggests. To be sure, the cjeu has never recognised, and not even suggested, any exceptions to the rule that EU citizenship is reserved for Member State nationals. Rather, in the well- known Rottmann ruling,3 it confirmed the exclusive link between EU citizen- ship and national citizenship. What the cjeu did say in this ruling – and this is what complicates the relationship between the two citizenships – is that Member States must, before taking a decision withdrawing “their” nationali- ty, consider the consequences of such a decision for the person concerned as regards the loss of the rights he/she enjoys as an EU citizen. Loss of EU citizen- ship or the rights attached to it may preclude the lawful application of national rules on deprivation of national citizenship. * Professor of European Social law, Maastricht Centre for European Law. The author thanks Dr. Hoai- Thu Nguyen for her valuable comments on an earlier draft of this contribution. The usual disclaimer applies. 1 See also the almost identically worded Article 9 teu. 2 The same holds true when a region or comparable entity secedes from a Member State and becomes a new independent State. See further Marrero González, G. (2017). Civis Europaeus Sum? Consequences with Regard to Nationality law and EU Citizenship Status of the Indepen- dence of a Devolved Part of an EU Member State. Oisterwijk: Wolf Legal Publishers. 3 Court of Justice, judgment of 2 March 2010, case C- 135/ 08, Rottmann, para. 39. © A.P. van der Mei, 2020 | DOI:10.1163/9789004433076_018 This is an open access chapter distributed under the terms of the CC-BY-NC 4.0 license.A.P. van der Mei - 9789004433076 Downloaded from Brill.com10/01/2021 07:08:18PM via free access 442 van der Mei This is not just a theoretical matter. In recent years, questions concerning the loss of Member State nationality and the implications for EU citizenship have emerged, and increasingly so, in various contexts.4 A first one concerns the fight against terrorism. Various Member States have adopted laws making it possible or easier to deprive convicted or suspected terrorists of their nation- ality. As commentators have observed,5 not only international law and echr law but also EU law, including the norms on EU citizenship, may restrict Mem- ber States law and policies on nationality deprivation. Further, in response to increased migration and the proliferation of multiple citizenship, various States have enacted laws aimed at singular citizenship. Acquisition of the na- tionality of a third State may result in loss of a Member State nationality and, thus, EU citizenship. In Tjebbes6 the cjeu was given the opportunity to specify its holdings in Rottmann and to determine its significance for situations involv- ing national fights against multiple citizenship. And finally, there is of course Brexit. The UK’s decision to withdraw from the EU has triggered numerous questions concerning the rights and interests of UK nationals. Early 2018, an Amsterdam court, in the ‘Brexpats’ case,7 an- nounced its intention to ask the cjeu whether a hard Brexit indeed implies that UK nationals will become ‘ordinary’ third country nationals. In the end the preliminary question was not referred to Luxembourg, but Brexit and the Brexpats case do trigger interesting questions on the status and rights of na- tionals of former EU Member States and, more generally, the link between EU and national citizenship. 1 Deprivation of Member State Nationality For a proper understanding of Tjebbes and the questions that arose in the case, let us first recall the lessons from Rottmann. 4 For a comprehensive overview of Member States’ rules and policies on loss of nationality and its implications for EU citizenship see Carrera Nunez, S. and de Groot, G- R. (2015). European Citizenship at the Crossroads – The Role of the European Union on Loss and Acquisition of Na- tionality. Oisterwijk: Wolf Legal Publishers. For theoretical reflections on loss of nationality and its significance for EU citizenship see Bauböck, R. and Peskalev, V. (2015). Citizenship Deprivation – A Normative Analysis. CEPS Paper in Liberty and Security in Europe, No.82, available at www.ceps.eu. 5 See e.g. Cloots, E. (2017). The Legal Limits of Citizenship Deprivation as a Counterterror Strat- egy. European Public Law 23 (1), pp. 57– 92. Tjebbes and Others. 6 Court of Justice, judgment of 12 March 2019, case C- 221/ 17, 7 Rechtbank Amsterdam, C/ 13/ 640244 / KG ZA 17– 1327, ECLI:NL:RBAMS:2018:605. A.P. van der Mei - 9789004433076 Downloaded from Brill.com10/01/2021 07:08:18PM via free access EU Citizenship and Associate European Citizenship 443 First, while Member States are competent in nationality matters, they must exercise their powers with due regard for EU law.8 Second, decisions depriving a person of his or her nationality are subject to review under EU law whenever loss of EU citizenship or the rights attached to it are at stake. It is not necessary that the person concerned has exercised free movement rights.9 Third, Member States are entitled to protect the special relationship of soli- darity and good faith, as well as the reciprocity of rights and duties, which form the bedrock of the bond of nationality.10 Fourth, when deciding on possibly withdrawing a nationality, Member States must observe principles of EU law, including the principles of propor- tionality,11 legitimate expectations and equality.12 Fifth, as regards proportionality, the cjeu demands from Member States to balance national interests, such as combatting the acquisition of their nation- ality by deception or fraud, against the implications of a possible withdrawal of nationality for the person concerned.13 Sixth, if proportionality is respected, Member States are entitled to with- draw nationality, which, if the person concerned does not hold the nationality of any other Member State, in turn implies the loss of EU citizenship. In Tjebbes the Court was asked to clarify Rottmann in a case which con- cerned Dutch nationality law. The relevant rules stipulated that Dutch nation- ality is lost, by operation of law, if the person concerned also possesses a ‘for- eign’ nationality, and has lived outside the EU for an uninterrupted period of ten years. In addition, according to the Dutch nationality rules, where a parent loses Dutch nationality on grounds of having lived in a third country for ten years, his or her minor children are deprived of Dutch nationality too, unless they would become stateless. Are these rules, so the Court was asked in Tjeb- bes, compatible with the Treaty provisions on EU citizenship? Adults Unlike the German rule at stake in Rottmann, the Dutch rule under consider- ation did not seek to combat wrong or fraudulent acquisition of nationality. 8 Rottmann, cit., paras. 39– 41 and 45. 9 Ibid., para. 42. 10 Ibid., para. 51. 11 Ibid., para. 55. 12 de Groot, G- R. and Wautelet, P. (2014). Reflections on Quasi- Loss of Nationality in Comparative, International and European Perspective. CEPS Paper in Liberty and Security in Europe, No. 66, pp. 27 et seq. 13 Rottmann, cit., para. 56. A.P. van der Mei - 9789004433076 Downloaded from Brill.com10/01/2021 07:08:18PM via free access 444 van der Mei Rather, the goal was to fight multi- citizenship and to ensure that nationals have and retain a genuine link with the Netherlands. Following its Advocate Gener- al,14 the Court accepted the aim of the Dutch legislature as a legally sound one: it is legitimate for a Member State to take the view that nationality is the expression of a genuine link between it and its nationals, and therefore to prescribe that the absence, or the loss, of any such genuine link entails the loss of nationality.15 In that regard, a criterion such as laid down in Dutch legislation of residence outside national territory for a given period may be regarded as an indication that there is no such link.16 The legitimacy of this, so the Court observed, is supported by international law. For example, the European Convention on per- mits State parties to withdraw nationality in case of a lack of a genuine link between the State Party and a national habitually residing abroad, provided it concerns persons with double or multiple nationality, who do not run the risk of becoming stateless.17 A Member State, in principle, thus may prescribe for reasons of public inter- est that its nationality is lost in case of long-term residence abroad, even if this were to imply of loss of EU citizenship. The more difficult question, however, concerned proportionality. Tjebbes involved a national provision that with- draws nationality by operation of law. It should be noted that it is plain that the Dutch legislature did not blindly pursue the above- stated ‘genuine link- aim’.