State Autonomy in Matters of Nationality
A new Investment Migration Research Paper with the title ‘Investment Migration and State Autonomy: A Quest for the Relevant Link’ was published in October 2019. The paper explores limitations imposed on State autonomy in matters of nationality by international law and EU law and its implications for investment migration. In so doing, it examines the Commission’s 2019 Report on investor citizenship and residence schemes in the EU, which deploys a genuine link-based narrative in its assessment of investment migration schemes.
State autonomy is in international law to a large extent unlimited, although it may not encroach upon international obligations in the area of protection of human rights. In the EU, Member States are (by their nationality rules) gatekeepers to the EU citizenship. When exercising their national autonomy they must observe EU law, most notably the principle of proportionality and the principle of sincere cooperation. The principle of proportionality plays a more important role in cases of loss than in cases of acquisition of nationality, as the Court of Justice of the EU’s cases Rottmann, Kaur and Tjebbes have demonstrated. Yet, the role of EU law is very limited. The principle of sincere cooperation may play an important role as regards defining the grounds for the acquisition of Member State nationality, and thus also for the investment migration. Importantly, there is no genuine link requirement imposed by EU law, as it was disregarded by the CJEU already in its first decision in the field of nationality in the Micheletti case, decided in 1990.
The paper concludes that the Commission’s reliance on a genuine link-based narrative is at odds with established principles of international and EU law. When and if investment migration matters reach the CJEU, the Court should be very restrained when assessing national investment migration rules. To this end, bringing a ‘romantic’ 19th century genuine link-like criteria into the realm of EU law is not desired.
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Matjaž Tratnik, PhD, Professor of International, EU and Comparative Law, University of Maribor, Faculty, Faculty of Law
Petra Weingerl, DPhil (Oxon), MJur (Oxon), Assistant Professor of the Department of European and International Law and International Cooperation, University of Maribor, Faculty of Law.