Updated with further analysis of the judgement, more to come...
Continuous Updates, Analysis, Reactions will be added throughout the day.
Key Legal Issues
- The competence of the European Union in matters of citizenship acquisition.
- The legal effect of the ‘genuine link’ doctrine on Member States' nationality decisions.
- The extent of national sovereignty under Article 9 TEU, Article 20(1) TFEU, and Declaration No. 2 on Nationality.
- The obligations of mutual recognition between Member States regarding the grant of nationality.
- Impact of the ruling on investor migration programmes in Europe and internationally.
Expected Outcome
The highly-influential Advocate General’s Opinion – EC v Malta published in October 2024 was expected to guide the court in it's final determination on the matter EC v Malta, on the two main areas:
AG Opinion on National Competence & Member State Sovereignty
The Advocate General’s opinion clearly supports Malta’s position that the Mediterranean member state should be allowed to serenely determine the rules on he acquisition and deprivation of Maltese citizenship within the Island's sovereign competence, subject to the limits applicable to the loss not acquisition of citizenship.
Legal Precedent on Genuine Links Requirement
The Advocate General’s opinion clearly supports Malta’s position that the Mediterranean member state should be allowed to serenely determine the rules on he acquisition and deprivation of Maltese citizenship within the Island's sovereign competence, subject to the limits applicable to the loss not acquisition of citizenship. The AG found evidence that disproves the EC’s contention that Malta grants citizenship without genuine links.
Key Findings of the EC v Malta Judgment
- Transactional citizenship breaches EU Law: The CJEU found that Malta’s MCES regime in its current state enables naturalisation without a real connection, which violates the spirit and letter of EU law.
- Violation of Article 20 TFEU: The scheme risks undermining the status of EU citizenship, which must remain tied to a genuine national bond.
- Breach of Article 4(3) TEU: Malta was found to have violated the principle of sincere cooperation by failing to safeguard the integrity of EU citizenship and mutual trust among Member States.
- Commercialisation of citizenship rejected: The Court explicitly condemned the practice of treating EU citizenship as a commodity, stating this is incompatible with the values of the Union.
Our Commentary
More will be added over the coming days...
A first study the judgement indicates that the Court has significantly departed from the detailed legal analysis applied by the Advocate General. No reference is made to pre-existing genuine links requirements within the 2020 citizenship rules that require personal, financial and investment ties to Malta in addition to 20 nights in-country, and not just 'legal residence'.
- In fact, the binding guidelines on the 2020 Maltese Citizenship Rules require applicants submitting an application for eligibility to include in his application a commitment letter describing how, during his residency period potentially leading to naturalisation as a Maltese citizen, the applicant and his/her family propose to integrate through the establishment of “personal, financial and investment ties” during the year/s leading to citizenship. (verbatim from the Rules' Handbook).
- This Residence Criteria Proposal Letter is an integral part of an application, and is processed together with deep and comprehensive disclosure of assets, explanations of source of wealth, as well as background checks conducted by the applicant’s agents, and further background checks by the processing agency financed by pre-determined due diligence fees payable on application by the applicant.
- Even after approval of eligibility, at various stages prior to the grant of citizenship, the Citizenship Agency verifies the completion of the commitments undertaken by the applicant family by way of personal, financial and investment ties, and in the case of material defaults, defer the grant of citizenship until the commitments are completed.
Key Official Documents
- Advocate General’s Opinion – EC v Malta (October 2024)
- Final CJEU EC v Mala Judgment Text
- European Commission Press Release (Background)
Maltese Government's Reactions
The Government of Malta takes pride in the wealth generated through this framework over recent years, which enabled the establishment of a national fund for investment and savings to address the needs of both present and future generations. The Government remains committed to continuing to attract the best investment, from which the Maltese and Gozitan people benefit. [PR250702en]
Impact on the Maltese Citizenship Rules
- The Court’s ruling requires Malta to legislate to comply with stricter minimum genuine links requirements. Malta must ensure that citizenship is not granted in a manner that undermines the concept of a genuine link and does not result in the commercialisation of Union citizenship. Legislative and regulatory reforms are expected to bring the framework into compliance with EU law.
The Government of Malta respects the decisions of the courts, while at this moment the legal implications of this judgment are being studied in detail, so that the regulatory framework on citizenship can then be brought in line with the principles outlined in the judgment. [PR250702en]
Impact on Existing Approvals
- For Other Member States: The judgment establishes that citizenship by investment schemes without a real and effective link to the granting Member State are incompatible with EU citizenship principles. Member States operating similar programmes must now carefully review their naturalisation policies to ensure they meet the standards set by the Court.
- For Investors: Individuals with applications in the process are advised to await our guidance from the authorities to comply with the requirements of the judgement.
- For the Investment Migration Industry: The ruling signals a significant tightening of the regulatory environment for citizenship by investment in Europe. Future programmes must incorporate substantive residence, integration, or other genuine connection requirements to remain viable within the EU framework.
European Citizenship Law Highlights
In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies.
Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.
Article 9 TEU
Frequently Asked Questions (FAQs)
What was the EC v Malta case about?
The case challenged whether Malta’s citizenship by investment scheme violated EU law requirements linked to nationality and genuine ties.
What did the Advocate General recommend?
The Advocate General's Opinion recommended dismissing the European Commission’s complaint, affirming Member State sovereignty over nationality rules.
Will citizenship by investment programmes continue?
If the Court follows the Advocate General’s reasoning, properly structured citizenship by investment programmes should remain legally valid in the EU.
What are the consequences for individuals holding citizenship by investment?
Citizens properly naturalised under national law continue to enjoy EU citizenship rights without further conditions.
Our Immigration Law Practice
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