The Court of Justice has handed down an interesting and important judgment on the loss of citizenship and its relationship to EU law.
In its judgment in Case C-135/08 Janko Rottmann v. Freistaat Bayern, the Court held that EU law, and in particular to Article 17 EC, allows a member State to withdraw from a citizen of the Union the nationality of that State acquired by naturalisation when that nationality was obtained by deception, on condition that the decision to withdraw observes the principle of proportionality.
The facts are a bit weird. Dr Rottmann was an Austrian originally, by birth. He moved to Munich in Germany in 1995 but just before then he was under investigation in Graz, Austria, because he was suspected of having committed a serious fraud. In 1997 the Austrian authorities issued a national warrant for his arrest. Dr Rottmann applied for German nationality in February 1998. During the naturalisation procedure he omitted to mention the proceedings against him in Austria. He became a naturalized German citizen in February 1999.
The naturalization in Germany of Dr Rottmann had the effect, in accordance with Austrian law, of causing him to lose his Austrian nationality. In August 1999 the city of Munich was informed by the Austrian that they had issued a warrant for Dr Rottmann’s arrest. In September 1999 the Austrian public prosecutor’s office informed the German authorities, inter alia, that Dr Rottmann had already been questioned as an accused person before the an Austrian court in July 1995.
In the light of those circumstances, the German authorities withdrew the naturalization with retroactive effect in July 2000, on the grounds that Dr Rottmann had not disclosed the fact that he was the subject of judicial investigation in Austria and that he had, in consequence, obtained German nationality by deception. He then challenged the decision to withdraw his naturalization before a German court which referred the issue of whether such a withdrawal of nationally was compatible with EU law.
The Court of Justice answered that in principle a member State can withdraw its nationality from an EU citizen if that nationality had been obtained by deception.
The first and biggest problem faced by the Court was whether the withdrawal of naturalization concerned EU law in any way or whether it was a purely internal, domestic issue. Interestingly, the Court held that the fact that Dr Rottmann had exercised his right of free movement by moving from Austria to Germany was not enough to constitute a cross-border element capable of connecting the withdrawal of naturalization with EU law.
Thus, the Court had to find another more serious connecting factor with EU law.
What it found as a connecting factor was the grave consequence in EU law of losing one’s nationality. It held that it is clear that the situation of a citizen of the Union who is faced with a decision withdrawing his naturalization, adopted by the authorities of one member State, and placing him, after he has lost the nationality of another member State that he originally possessed, in a position capable of causing him to lose the status conferred by Article 17 EC and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of EU law.
The Court recalled the important principle that it is for each member State, having due regard to EU law, to lay down the conditions for the acquisition and loss of nationality (Case C-369/90 Micheletti and Others, paragraph 10; Case C‑179/98 Mesbah  ECR I‑7955, paragraph 29; and Case C‑200/02 Zhu and Chen  ECR I‑9925, paragraph 37).
It recalled also that Declaration No 2 on nationality of a member State, annexed by the States to the final act of the EU Treaty, and the decision of the Heads of State and Government, meeting within the European Council at Edinburgh on December 11 and 12 1992, were intended to clarify the definition of the ambit ratione personae of the provisions of EU law referring to the concept of national, have to be taken into consideration as being instruments for the interpretation of the EC Treaty, especially for the purpose of determining the ambit ratione personae of that Treaty.
Nevertheless, the Court emphasized, the fact that a matter falls within the competence of the member States does not alter the fact that, in situations covered by EU law, the national rules concerned must have due regard to the latter (Case C‑274/96 Bickel and Franz  ECR I‑7637, paragraph 17 (as regards national provisions in the sphere of criminal legislation and the rules of criminal procedure); Case C‑148/02 Garcia Avello  ECR I‑11613, paragraph 25 (as regards national rules governing a person’s name); Case C‑403/03 Schempp  ECR I‑6421, paragraph 19 (as regards national rules relating to direct taxation); Case C‑145/04 Spain v United Kingdom  ECR I‑7917, paragraph 78 (as regards national rules determining the persons entitled to vote and to stand as candidates in elections to the European Parliament)).
But why must member States have due regard to EU law ? Because of the importance of EU citizenship. The Court stressed that citizenship of the Union is intended to be the fundamental status of nationals of the member States (Case C‑184/99 Grzelczyk  ECR I‑6193, paragraph 31; Case C‑413/99 Baumbast  ECR I‑7091, paragraph 82). Article 17(2) EC attaches to that status the rights and duties laid down by the Treaty, including the right to rely on Article 12 EC in all situations falling within the scope ratione materiae of EU law (Case C‑85/96 Martínez Sala  ECR I‑2691, paragraph 62, and Case C‑403/03 Schempp, paragraph 17). Thus, the member States must, when exercising their powers in the sphere of nationality, have due regard to EU law (Micheletti and Others, paragraph 10; Mesbah, paragraph 29; Case C‑192/99 Kaur  ECR I‑1237, paragraph 19; and Zhu and Chen, paragraph 37).
In those circumstances, it is for the Court of Justice to rule on the questions referred by the national court which concern the conditions in which a citizen of the Union may, because he loses his nationality, lose his status of citizen of the Union and thereby be deprived of the rights attaching to that status.
As to the second issue, which concerned the substance of the case, the Court held that in principle a member State may withdraw its nationality from a person who obtained it through deception and in particular can withdraw it even if that person does not recover his nationality of origin.
Nevertheless, the Court stated that it was for the national court to examine the proportionality of the decision to withdraw the nationality acquired as a consequence of deception.