Investment Migration and State Autonomy: A Quest for the Relevant Link – IMC-RP 2019/4

Abstract

The paper explores limitations imposed on State autonomy in matters of nationality by international law and EU law and its implications for investment migration. 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 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. If a Member State lays down rules that enable citizenship by investment, the EU institutions might react, as the Maltese example shows. So far only the political institutions have reacted in this matter, without sensible legal arguments, though. Most recently, the Commission in its 2019 Report deployed a genuine link-based narrative that is at odds with established principles of international and EU law and highly problematic from the viewpoint of the principle of sincere cooperation. When and if the matter reaches 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.

KEYWORDS: EU Citizenship, Nationality, National Autonomy, Proportionality Principle, Principle of Sincere Cooperation, Genuine Link, Relevant Link, Investment Migration

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.