by
Javier Carrascosa González, Professor of Private International Law at the University of Murcia, Spain,
Many years ago the fantastic and big-selling-hits-at-that-time band BONEY M released a song called "Love For Sale". It sounded weird, at least to many of us, that love could be for sale. Nevertheless, in 2017, new times, new problems. Now citizenship may be also for sale.
The European Parliament motion for a resolution of 16 January 2014 on EU citizenship for sale (OJ C 482 of 23 December 2016) pointed out that certain Member States, such as Malta, have introduced some laws which directly or indirectly constitute a kind of "sale of EU citizenship" to third-country nationals. In fact, by making a substantial monetary investment in a Member State, this can grant its nationality to the investor, a third-country national. The "sale" of Maltese nationality automatically implies the sale of EU citizenship as a whole without being subject to any residence requirement (see: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+MOTION+B7-2014-0030+0+DOC+PDF+V0//EN).
Such privileged systems of access to the nationality of a Member State could be contrary to the principle of loyal cooperation between the Union and the Member States. This can make EU citizenship a "good for sale". A abrupt change of nationality that takes place by buying a Member State nationality can have big impact on the determination of applicable law to many EPIL issues: divorce, child custody, contracts, alimony, matrimonial regimes, and so on.
However, the measures that the EU can adopt to stop this "sale of citizenship" must be scrupulously respectful to the exclusive competence of each Member State in the field of nationality law. Each Member State determines who has or does not have the nationality of that particular State. This principle, well grounded in some well known judgements rendered by international courts, (let us mention: PCIJ Opinion 7 February 1923 [nationality decrees in Tunisia and Morocco], PCIJ Opinion 15 September 1923 [Polish nationality], ICJ 6 April 1955 [Nottebohm]. PCA 3 May 1912 [Canevaro - double Italian-Peruvian]) as well as in some important judgements rendered by the ECJ (EJC 7 July 1992, Micheletti n. 10-11, EJC 2 October 1997, C-122/96, Saldanha ECJ 16 July 2009, C-168/08, Hadadi, ECJ 2 March 2010, C-135/08, Rottmann n. FD 39, 45), is of paramount importance.
Even if the ECJ has underlined that the Member States must exercise their exclusive competence in the field of nationality with full respect to the European Union Law, -as it has been established in ECJ 2 October 1997, C-122/96, Saldanha, ECJ 11 November 1999, Mesbah, C-179/98, FD 29, STJCE 19 October 2004, Zhu and Chen, C-200/02, ECJ 24 November 1998, Bickel And Franz, C-274/96, n. 17, ECJ 2 October 2003, Garcia Avello, C-148/02, n. 25, ECJ 12 July 2005, Schempp, as. C-403/03 n. 19, ECJ 12 September 2006, C-145/04, n. 78, ECJ 2 March 2010, C-135/08, Rottmann, n. 48, 51 and 57-, the truth is that the Member States Sovereignty is at stake. Only a Member State has the power to decide who has its nationality and who do not. However, if citizenship may be bought... Does this mean that State Sovereignty is also for sale?
As William Shakespeare wrote, "there is nothing either good or bad but thinking makes it so".
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