Abstract
The ruling of the Grand Chamber of the Court of Justice in Case C-118/20 JY v. Wiener Landesregierung EU:C:2022:34 follows the judgments in Rottmann and Tjebbes. These cases concern the relationship between EU law and national citizenship. In particular, they deal with the compatibility of national authorities’ decisions on loss of nationality with the proportionality principle. The JY v. Wiener Landesregierung case highlights the contradictory nature of nationality law, which cannot be fully understood from a purely domestic perspective and yet remains within the sphere of Member States’ competences. Overall, the decision of the CJEU in JY v. Wiener Landesregierung leaves a bittersweet taste in EU lawyers’ mouths. On the one hand, the Court appears to implicitly make clear its aversion for certain national practices. In doing so, it ensures, in the case in question, a higher degree of protection of EU law-derived rights. On the other hand, the ruling does not adequately ensure sufficient safeguards for similar future cases. Finally, the Court seems to have missed a significant opportunity provided by the principle of mutual trust.
Introduction
On 18 January 2022 the Grand Chamber of the Court of Justice (CJEU or Court) rendered its judgment in Case C-118/20 (JY v. Wiener Landesregierung). 1 In its ruling, the CJEU answered the request issued by the Austrian Supreme Administrative Court (Verwaltungsgerichtshof) for a preliminary ruling on the interpretation of Article 20 TFEU.
With its judgment, the Court clarified that an EU citizen who seeks to naturalize in another EU Member State cannot be deprived, due to national procedural requirements, of EU citizenship and the guarantees attached thereto, including the right to a proportionate decision. The ruling triggered different reactions amongst commentators. On the one hand, it has been argued that the judgment has an ‘unacceptable core’, 2 as it fails to set an absolute prohibition for certain national practices concerning naturalization procedures. On the other hand, the decision has been defined as a ‘step forward’ 3 in the CJEU's case-law, due to the Court's choice to directly carry out the proportionality assessment rather than leaving it up to national authorities. Such a choice, according to the critical view of another author, resulted however in the Court protecting individual rights ‘only thanks to the proportionality assessment […] and not by a direct challenge under EU law of the [national] practice’. 4
In this respect, while JY v. Wiener Landesregierung may well have provided the CJEU with the opportunity to declare the incompatibility of certain national practices with EU law, the hesitance of the Court must be understood in light of the contradictory interplay between EU and national law in citizenship cases. The ruling, nonetheless, while ensuring a high level of individual rights’ protection in casu, is not sufficiently ambitious in operationalizing the constitutional principle of mutual trust.
The present case note firstly provides a brief description of the facts of the case (section 2). It then offers an analysis of the Court's judgment, also referring to the relevant line of citizenship case-law, which includes judgments such as Rottmann 5 and Tjebbes (section 3). 6 Finally, this contribution critically assesses the ruling against the problematic division of competences, in nationality matters, between the EU and its Member States and against the role of the principle of mutual trust (section 4).
The facts of the case
JY, an Estonian citizen living in Austria, sought to acquire Austrian nationality. To do so, in compliance with the requirements of Austrian nationality law, 7 JY relinquished her Estonian citizenship in 2015. Pursuant to Austrian legislation, 8 JY obtained an assurance by the Austrian authorities as to the grant of citizenship. Nevertheless, in 2017, the Government of the Province of Vienna (Wiener Landesregierung) revoked the assurance on the basis of two administrative offences – failing to display a vehicle inspection disc and driving under the influence of alcohol – that JY committed after she had received the assurance, as well as eight administrative offences committed before the issuance of the assurance.
JY challenged the decision of the Wiener Landesregierung before the Administrative Court of Vienna (Verwaltungsgericht Wien). The action was rejected on the basis of Austrian nationality law, which provides that the assurance as to the grant of citizenship shall be revoked when the applicant does not have a positive attitude towards the State and represents a danger to law and order or public security or endangers other public interests. 9 JY brought an appeal before the Verwaltungsgerichtshof, which decided to stay the proceedings and refer two questions to the CJEU.
The first question revolved, in essence, around the applicability of EU law to circumstances such as those of the case at hand. In particular, the doubts of the referring court concerned the applicability of EU law to situations in which the person concerned had already formally lost his/her EU citizenship. Indeed, at the time of the proceeding, JY had already relinquished her Estonian citizenship but had not obtained Austrian nationality yet. With regard to the second question, the Verwaltungsgerichtshof asked the CJEU for further clarifications on the duty of national authorities to ensure the correct application of the principle of proportionality in circumstances such as those of the case at hand.
The judgment of the Court
As for the first question, the CJEU confirmed the applicability of EU law. More specifically, the Court observed that, even though JY was formally not an EU citizen at the time of the proceedings, her status stemmed directly from two elements: first, her willingness to obtain Austrian nationality; second, the procedure enshrined in Austrian law for naturalization. According to the CJEU, these two elements could not be interpreted as implying that JY had voluntarily renounced the status of EU citizen. 10
The reasoning of the Court is based on a substantive, effect-based rather than form-based assessment of the national procedures considered. Accordingly, such procedures must be ‘taken as a whole’ 11 and shall not be separately dealt with. Therefore, from the holistic perspective adopted by the CJEU, JY was an Estonian citizen at the time when the naturalization procedure began. Such an approach allowed the Court to refer to its own case-law, according to which ‘Union citizenship is destined to be the fundamental status of nationals of the Member States’ 12 and thus EU law applies whenever EU citizenship and the rights attaching thereto are at stake. 13
In addition, the Court reinforced its own findings by endorsing the argument of AG Szpunar, 14 who had referred in his Opinion to the logic of gradual integration applied by the Court in Lounes. 15 In a nutshell, JY, who had exercised her free movement rights under Article 21(1) TFEU, was seeking naturalization, that is, an even deeper degree of integration within the host Member State. According to the Court, the loss of free movement rights and the very status of citizen of the Union stands in sharp contrast with the ‘underlying logic of gradual integration that informs that provision of the FEU Treaty’. 16
With all of this taken into consideration, the Court concluded that a situation such as that of JY fell within the scope of EU law.
With regard to the second question, concerning the duty of national authorities to effectively apply the principle of proportionality, the reasoning of the CJEU started again from the consideration that EU citizenship is ‘destined to be the fundamental status of nationals of the Member States’. 17 The exercise and the effectiveness of the rights attaching thereto, in turn, depend on the application by Member States of their national citizenship laws ‘having due regard to [Union] law’. 18
Remarkably, the CJEU went beyond the Opinion of the AG when it held that, although ensuring the effet utile 19 of those rights is mainly a duty of the Member State of naturalization, also the Member State of original nationality may be responsible. 20 In other words, on the one hand, Austria should have refrained from revoking the assurance as to the granting of nationality if there were no legitimate grounds or the decision was not complying with the principle of proportionality. 21 On the other hand, Estonia should have not adopted a decision concerning JY's deprivation of Estonian nationality before JY acquired Austrian nationality. 22
As for the legitimacy of the grounds invoked by Austria, the CJEU recalled its own case-law in Rottmann 23 and Tjebbes 24 to reiterate that Member States can in principle shape their citizenship law in such a way that it reflects the existence of a special relationship between the citizens and the State. More specifically, building on Article 15(b) of the European Convention on Nationality 25 and Article 7(2) of the Convention on the Reduction of Statelessness, 26 the CJEU confirmed that, as already observed by AG Szpunar, 27 it is legitimate for a Member State ‘to take the view that the undesirable consequences of one person having multiple nationalities should be avoided’. 28
With regard to the application of the principle of proportionality, the Court preliminary remarked that, when national authorities carry out their individual assessment of a certain situation, 29 they should take into account the special ‘importance which primary law attaches to the status of citizen of the Union’. 30 Subsequently, the Court examined the criteria governing the application of the proportionality principle. In particular, the CJEU focused, firstly, on the possibility for JY to recover Estonian nationality and, secondly, on the gravity of the offences committed by JY.
Firstly, although the Court stressed the practical obstacles preventing JY from recovering Estonian nationality, 31 it observed that such difficulties could not per se be decisive in limiting Austria's right to revoke the concerned assurance. 32
The CJEU secondly focused on the gravity of the offences committed by JY. The Court held that the eight administrative offences committed before the granting of the assurance could not be taken into account as a basis for the deprivation of the assurance, as they were already known by Austrian authorities when the assurance was granted. 33 Then, the CJEU assessed the other two administrative offences in the light of their nature and gravity. The Court observed that, under Austrian law, those offences normally resulted in merely administrative and relatively low fines and did not even lead to the withdrawal of the driving license. Moreover, pursuant to Austrian citizenship law, those offences were not per se enough to trigger the withdrawal of naturalization. 34
The Court concluded that, also considering that the public policy and public security grounds invoked by Austria shall be restrictively interpreted, 35 the measure taken by the Wiener Landesregierung was not proportionate to the nature and gravity of the offences committed by JY. 36
The hesitant Court: Tightrope walking between ill-concealed criticism and calls for mutual distrust
This section is aimed at offering a critical appraisal of the judgment. 37 In particular, the focus is placed, first, on the underlying tension between the Court's extensive interpretation of EU citizenship law and Member States’ competences over nationality law. Then, the contribution focuses on the key role (that should be) played by the principle of mutual trust.
To this end, the starting point of the analysis is the question on the compatibility with EU law of the requirement, under domestic law, for citizens of a Member State to renounce their nationality in order to naturalize in another Member State.
According to some authors, the Court failed to answer this question, 38 which is of particular importance vis-à-vis the relationship between national law, EU law and international law. 39 Indeed, pursuant to Article 7(1)(a) of the 1961 Convention on the Reduction of Statelessness, ‘[if a] State permits renunciation of nationality, such renunciation shall not result in loss of nationality unless the person concerned possesses or acquires another nationality’. However, Article 7(2), crucial for the arguments of both the AG and the Court, provides an exception for cases in which the person ‘has been accorded assurance of acquiring the nationality’ that (s)he sought.
From an EU law perspective, two main issues arise. Firstly, the requirement to renounce to the nationality of the home Member State might seem contrary to the inherent logic of the process of integration. Secondly, the right of a Member State to require the renunciation of previous nationality and then withdraw the assurance of granting citizenship appears to be problematic from the perspective of the principle of mutual trust, as enshrined in Article 4(3) TEU.
Member States’ autonomy, proportionality and integration
In JY v. Wiener Landesregierung the Court confirmed the legitimacy, in principle, of the aim of preventing an individual from having multiple nationalities. 40 Scholars have outlined several arguments against the legitimacy of this objective. 41 Amongst them, it is remarkable that the aim of avoiding multiple nationalities stands in contrast with the logic of gradual integration to which both the Court and the AG refer when answering the first preliminary question. 42 In fact, further integration in the life of the host Member State is likely to create more situations within which individuals will qualify for multiple citizenships. In an ‘ever closer union’, 43 national law's dislike of multiple nationalities should be considered, if not undesirable, at least problematic. EU law itself, however, acknowledges that nationality law, including the requirement to renounce previous nationality, falls within the domain of Member States’ competences. 44 Hence the paradox, within citizenship law, of European integration as a perpetual ‘process of loss’ 45 – a process which incessantly erodes national autonomy while simultaneously, and somewhat contradictorily, reiterating the existence of a core of Member States’ retained powers. 46
Against this background, the Court finds itself in an uncomfortable position. It strives to find a balance between EU principles and values on the one hand and respect for the autonomy of national citizenship laws on the other. The unfortunate result is that the Court is often accused of either limiting Member States’ discretional powers 47 or failing to ensure adequate protection of citizens’ rights. 48 In this respect, the present comment does not completely adhere to the abovementioned view that the CJEU, with a short-sighted and ‘uncritical finding’, 49 failed to take a position on the Austrian law requiring the renunciation of previous nationality. In fact, it is here submitted that the Court, in a feat of tightrope walking, made its way to its final destination, that is, JY's protection against the consequences of the loss of Union citizenship. In doing so, the CJEU implicitly censured the national practices at stake. The judgment offers at least two hints pointing in this direction.
First, the Court forwarded an ill-concealed critique on Austrian law requirements when stressing that they cannot undermine the exercise and effectiveness of the rights attached to EU citizenship. 50 In particular, the Court held that, although Estonia was also responsible, ‘the obligation to ensure the effectiveness of Article 20 TFEU falls primarily on the [Member State of naturalisation]’. 51
A further confirmation of the Court's aversion to the Austrian rules seems to come from the level of detail of the proportionality assessment.
52
While proclaiming that it is for national authorities to apply the principle of proportionality to individual situations, the Court itself engaged in a deep and wide-ranging analysis of the facts of the case. The tension becomes even more evident when considering the Opinion of AG Mengozzi in Tjebbes: ‘in an extreme – and I hope purely hypothetical – case, where the legislation of a Member State provides for withdrawal of an individual's naturalisation entailing loss of citizenship of the Union as a result of a road traffic offence, the disproportionate nature of that measure would be clear because of the disparity between the low degree of gravity of the offence and the dramatic consequence of losing citizenship of the Union. Such a review would by no means require the individual situation of the person to be taken into consideration’.
53
The hypothetical case invoked by AG Mengozzi is slightly different from the situation in JY v. Wiener Landesregierung. In the latter case Austria had not naturalized JY yet, but only granted her an assurance. In fact, Austrian law does not allow the deprivation of citizenship on the basis of offences such as those committed by JY. Nevertheless, the substance of the two cases is comparable. It is thus remarkable that the Court decided to carry out such a detailed assessment irrespective of the manifestly disproportionate nature of the measure at stake.
Interestingly, in the Conclusions of the 2013 UNHCR Expert Meeting of Tunis, it is held that ‘[t]here is an implicit obligation under the 1961 Convention that once issued, assurances may not be retracted on the grounds that conditions of naturalization are not met, thereby rendering the person stateless’ 54 and it is maintained that the issuance of an assurance is acceptable only ‘if the assurance is unconditional and does not leave any discretion to the authorities’. 55 There must be, in other words, a cautious approach to the issuance and withdrawal of assurances. Building on this interpretation, it might thus be argued that the Court decided to engage in a thorough and unnecessary scrutiny of the measure concerned precisely because it wanted to restrict the room for manoeuvre of the Austrian authorities. The Court tried to steer the application of Austrian citizenship law, without openly declaring the latter's incompatibility with EU law but de facto so implying.
A second element hints at the Court's keenness to protect JY's rights from the effects of Austrian law. To detect it, it is necessary to take a step back and look to the first part of the ruling. There, the commendable effort of the CJEU to reinforce the protection of individual rights is confirmed by the effect-based approach, highlighted above in section 3, used to define the scope of application of EU law. This perspective allowed the Court to focus on the substance of the whole procedure rather than on the individual implications of each of its steps.
Such an approach towards administrative procedures follows the view taken by the CJEU in cases regarding the effects of legislative reforms and/or judicial decisions. First, with regard to legislative reforms, in Commission v. Poland, 56 a case concerning the independence of the Polish Supreme Court, the CJEU simultaneously took into consideration a number of provisions of the Polish New Law on the Supreme Court. Those provisions dealt with both judges’ retirement age and the special derogating powers conferred upon the President of the Republic. In that case, the Court concluded that the legislative measures at stake, taken as a whole, were not ‘designed in such a way that those judges [were] protected from potential temptations to give in to external intervention or pressure that is liable to jeopardize their independence’. 57 Second, with respect to the role of judicial decisions, in Euro Box Promotion and Others 58 the CJEU observed that certain decisions of the Romanian Constitutional Court in conjunction with Romanian rules on limitation periods had ‘the effect of precluding the effective punishment acting as a deterrent of a quite specific category of persons’ 59 and could thereby cause a systemic risk of impunity in the Romanian legal order.
Although it is thus possible to draw a parallel between those two rulings and the judgment in JY v. Wiener Landesregierung, it must nevertheless be highlighted that in the latter case the situation was not wholly internal but involved two Member States. In other words, whereas the Polish case concerned a set of national rules and the Romanian case dealt with national judicial decisions, in JY v. Wiener Landesregierung the Court considered as a whole the effects of the administrative procedures of two different Member States. Even though a cumulative reading of the effects of different national laws was already implicit in Rottman, 60 in that case the link between German and Austrian laws was somehow accidental. There, the individual concerned had lost his Austrian nationality de jure, 61 thus irrespective of his will. In JY v. Wiener Landesregierung, instead, JY's will, that is, to naturalize in Austria and not to lose Union citizenship, was key for the Court to take a further step, that is to say, to consider the procedure as a whole. This is an interesting development in the Court's case-law and is inherent in the very nature of citizenship law. Citizenship law which ‘depends on a simultaneous operation of a number of legalities’ 62 and produces complexities that cannot be managed from a mono-systemic perspective.
In conclusion, in JY v. Wiener Landesregierung the Court did not fully abstain from showing disapproval of Austrian rules. It adopted a broad approach to define its own jurisdiction, stressed Austrian responsibility and left no discretion to national authorities in the assessment of an apparently obvious case. The implicit nature of this criticism is a consequence of the compromise between the CJEU's own role as guardian of EU law-derived rights and the recognition of national legislative autonomy. Unfortunately, while such a compromise allowed Luxembourg judges to protect JY in casu, it did not allow them to declare once for all the illegality of the requirement to renounce previous nationality in naturalization instances. The result is that, in the absence of uniform standards of legality under EU law, 63 future JYs have no guarantee of adequate protection.
Withdrawal of assurances and mutual trust
So far, this comment has assessed the constraints on competence faced by the Court vis-à-vis its willingness to ensure EU law safeguards ‘against broken promises’. 64 It has been highlighted that the Court was understandably hesitant and decided not to strike down Austrian law concerning the procedure for naturalization, and in particular the requirement to renounce previous nationality and the practice of issuing assurances. The question is now whether the Court could nonetheless have taken a step further and declared the incompatibility of withdrawal of assurances with EU law.
This contribution subscribes to the Opinion of the AG, who pointed out that ‘that assurance created not only legitimate expectations on JY's part but also confidence on the part of the Estonian authorities which is deserving of protection by the principle of mutual confidence’. 65 Instead, not only did the Court regrettably avoid mentioning Article 4(3) TEU, but it even seemed to encourage, at least to some extent, distrust between Member States when it criticized Estonia for depriving JY of Estonian nationality before being sure that the Austrian nationality had been acquired by its (former) citizen.
Once the Court accepted responsibility for JY's protection, its assessment could, possibly more productively, have had recourse to a cornerstone principle such as that of mutual trust between Member States. The principle of mutual trust applies in fields where there is no harmonization but the need for sincere cooperation between national legal systems. 66 This is the case for citizenship law, where loyal cooperation is of the essence to coordinate the effects of different domestic regulatory schemes. 67 Building on the applicability of the principle of mutual trust in cases concerning the loss of EU citizenship, the last part of this analysis thus takes the view that the Court should have declared the withdrawal of an assurance as to the granting of nationality as incompatible with EU law.
It was noted above that the Court criticized, without legal consequences, 68 Estonia for having failed to ensure JY's protection from the risk of statelessness. According to the CJEU, Estonia could have done so by, for instance, making the effectiveness of the deprivation decision conditional upon the actual acquisition of the new nationality. 69 In other words, according to the Court, Estonia should not have trusted the assurance issued by Austria, as both countries were jointly responsible for protecting JY against the loss of Union citizenship. 70 The critical position of the Court towards Estonia seems somehow supported by the UNHCR Guidelines on Statelessness No. 5, according to which ‘[w]here a Contracting State makes loss of nationality under Articles 5–7 of the 1961 Convention conditional upon acquisition of another nationality, such acquisition of nationality should be certain and imminent’. 71 It could be argued that Estonia was not certain of JY's imminent acquisition of Austrian citizenship and should have thus prevented JY from losing her Estonian nationality.
However, in Opinion 2/13, the CJEU explained that the principle of mutual trust requires ‘each of [the Member] States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law’. 72 It follows that ‘save in exceptional cases, [Member States] may not check whether [an]other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU’. 73
The cases of the European Arrest Warrant (EAW) 74 and EU asylum law 75 confirm that, under exceptional circumstances, departure from an absolute interpretation of the mutual trust principle is necessary to ensure the protection of fundamental rights. 76 The Court leaves the door open for derogation from that constitutional principle in presence of systemic or generalized deficiencies in one Member State with regard to the protection of individual rights. The other Member States, when aware of such deficiencies, shall practise lawful distrust. That is, they shall suspend the execution of an EAW or the transfer of an asylum seeker to that Member State. 77
It should be therefore assessed whether Austrian nationality law gives rise to systemic or generalized deficiencies in the protection of EU citizens’ rights. However, as shown above, in JY v. Wiener Landesregierung no evidence was provided, based on past conduct, that Austrian authorities do not guarantee lawful individual assessments of withdrawal decisions. In other words, there was no indication that could legitimize distrust. The Court in fact limited its evaluation to the existence, in the specific case, of an individual assessment carried out by national authorities in compliance with the principle of proportionality. It follows that Estonia had to presume the compatibility of Austrian nationality law with EU law, including the proportionality principle, and could not be required to predict that, in a specific concrete case, Austrian authorities would have carried out an aberrant proportionality assessment. That is to say, there was no ground for derogation from the constitutional principle of mutual trust.
Finally, as observed above, the UNHCR Guidelines require countries to allow for renunciation of nationality only when the acquisition of a new nationality is certain and imminent. It is here argued that the assurance granted by other Member States’ authorities must be regarded as fulfilling those criteria, precisely in light of the high constitutional value of the principle of mutual trust within the EU legal order. Thus, Estonia had legitimate grounds to rely on the assurance granted by Austria in order to deem JY's acquisition of Austrian nationality certain and imminent. In that respect, in JY v. Wiener Landesregierung the CJEU missed an opportunity to declare the incompatibility of the withdrawal of assurances with Article 4(3) TEU.
Conclusions
In its JY v. Wiener Landesregierung judgment, the Court ensured the protection of one EU citizen from the undesirable effects stemming from the loss of EU citizenship. While the result is commendable from the perspective of that individual, this did not shield the judges from commentators’ criticism concerning the case-by-case approach taken by the CJEU in loss of citizenship cases.
Such an approach, however, should be understood in light of the contradictory relationship between EU integration and Member States’ retained competence in citizenship matters. Aware that ‘crossing a jurisdictional line to enhance a citizen's rights might […] be defensible in substantive terms, but it will raise questions about undue encroachment of national regulatory autonomy’, 78 the Court confirmed on paper Member States’ responsibility to assess the proportionality of their own action within the framework of nationality law. In practice, the CJEU engaged in an unnecessarily detailed analysis that suggests its aversion towards the national rules at stake. In essence, the Court implicitly confirmed that, although citizenship matters are in principle regulated by national law, when it comes to cases concerning the protection of the rights attached to EU citizenship ‘[t]here simply is no nucleus of sovereignty that the Member States can invoke, as such, against the Community’. 79
On the one hand, such a judicial technique, coupled with the effect-based approach adopted towards the assessment of administrative procedures, allowed the Court to guarantee a higher degree of protection of EU law-derived rights. JY v. Wiener Landesregierung can be said to mark, in that respect, a ‘step forward’ in the Court's case-law. On the other hand, the Court could have seized the opportunity to go slightly further and declare the unlawfulness of at least certain practices envisaged by national citizenship laws. To that end, recourse to a powerful constitutional tool such as the principle of mutual trust would have allowed the setting of a more ambitious precedent.
Footnotes
Acknowledgments
I thank the reviewer for the helpful comments on the submitted draft. I am also grateful to Pauline Melin, Mateus Correia de Carvalho and Nora Vissers for their insightful comments on earlier versions of this case note. All errors remain my own.