Citizenship- A paradox by operation of (source) of law

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Mar 16, 2019
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In M.G. Tjebbes and Other v Minister van Buitenlandse Zaken C-221/17, the European Court of Justice is called upon to respond whether the loss of Netherlands nationality by operation of law, is compatible with EU law, and in particular, with Articles 20 and 21 TFEU, read in the light of the judgment of 2 March 2010, Rottmann (C‑135/08, EU:C:2010:104).

In the case gave rise to the judgment, on grounds of loss of nationality by operation of law, the Minister decided not to examine passport applications submitted by four Dutch nationals. The persons concerned are not nationals of another Member State, and as a consequence, the loss of their nationality, entails the loss of their citizenship of the Union.

Assessing the Netherlands legislation in the light of international and EU law, the ECJ ruled that the loss of nationality by operation of law is not in breach of Article 20 TFEU, read in the light of Articles 7 and 24 of the Charter of Fundamental Rights of the European Union, “in so far as the competent national authorities, including national courts where appropriate, are in a position to examine, as an ancillary issue, the consequences of the loss of that nationality and, where appropriate, to have the persons concerned recover their nationality ex tunc in the context of an application by those persons for a travel document or any other document showing their nationality

In the context of such an examination, the loss of citizenship of the Union, determines an obligation of due regard to the principle of proportionality, from the point of view of EU law.

In Belgium, the Law of 18 June 2018 has (re)introduced in the Code of Nationality ,the following provision :“A person in good faith who has been wrongfully granted Belgian nationality and who has been considered Belgian by the Belgian authorities for a period of at least ten years may, if the Belgian nationality is contested, acquire Belgian nationality in accordance with Article 15” (Article 17 Law of 28 June 1984).

When these persons have lost Belgian nationality? They have never lost, merely because they have never genuinely acquired Belgian nationality (despite of the fact that they have been granted the nationality).

These persons are Belgian nationals enjoying derived rights, until the day on which the nationality is formally contested. However, they are not Belgian nationals, because they have been wrongfully granted Belgian nationality. The statement that they are Belgian nationals, is both true and not true at the same time, merely a paradox.

Belgian nationality can be acquired by virtue of filiation. Where the proof of the filiation of a child to  a Belgian author, is established on the basis of an act which appears to be subsequent to the obtaining of  Belgian nationality by the latter, the doctrine of “diffuse loss” of nationality applies (P.WAUTELET, "The Belgian nationality in 2014 - balance finally found?", Larcier, CUP n ° 151, 2014, p.334 and p.375).

The situation become extremely complex, when upon reception of an application to renew a national passport, the competent authority finds that the nationality might have been wrongfully granted, and as a consequence, refuses to renew the passport, but as well to formally contest the nationality.

Considering as well the delay required to acquire Belgian nationality, it can be alleged that the application of the doctrine of “diffuse loss” , not accompanied by other measures , determines a legal loophole in regard to the period between the day on which the demand to renew the passport is lodged, to the day on which the person acquires Belgian nationality.

Such a legal loophole might have heavy consequences for the person concerned.

The question is whether the application of Article 17 in the context of “diffuse loss” of nationality, is compatible with EU law.

It must be distinguished between loss of nationality “by operation of law” and “diffuse loos” of nationality. In the former case the loss is ascertainable by the individual, and the latter may take appropriate actions to prevent it. In the latter case, the individual faces a very particular situation in which he/she suddenly finds out that:

  • Is deprived of the nationality of a Member State
  • Is deprived of the EU citizenship
  • In certain cases, is stateless

In regards to situations which determine the loss of the citizenship of the Union, the ECJ ruling underlines inter alia, the following elements:

  • The position to examine (there is no breach of Art 20TFEU read in conjunction with Article 7 and 24 of the Charter, if the national legislation provides for the right to challenge the loss, before national competent authorities, and where relevant national courts, on grounds of EU law, considering the principle of proportionality)
  • The examination is deemed to be initiated, if the person concerned lodges an application for a passport or other document states the nationality

It can be alleged that situations of “diffuse loss”, cannot be given a less favourable interpretation under EU law.

During the period between the day on which the demand to renew the passport is lodged, to the day on which the person acquires Belgian nationality, the latter is “exposed to limitations when exercising his or her right to move and reside freely within the territory of the Member States”, might be deprived of  the right “to pursue his or her professional activity or to undertake the necessary steps to pursue that activity” ,and in certain circumstances become stateless.

When the person concerned lodges a demand to renew the passport, the competent national authorities, are not in a position to examine the consequences of the refusal to issue a travel document or any other document showing his/her nationality, due to the fact that on the one hand, the person concerned might have been wrongfully granted Belgian nationality (and as a consequence is not a Belgian national), and on the other hand, the national legislation does not provide for any transitory measures.

The scholar may freely make recommendations de lege ferenda and even boldly propose new juristic methods, whereas the judge must make correct decisions in the light of the prevailing legal method” (Legal doctrine and legal theory -A Treatise of Legal Philosophy and General Jurisprudence-Springer, Dordrecht p 2).

Pursuant to the ECJ ruling, the competent national authorities must be in a position to examine (including national courts where appropriate), and not exclusively national courts. More ever, as the case at issue (i.e. diffuse loss of nationality), it is hard to define the prevailing legal method.

Having regard to the above considerations, by not providing for transitory measures in regard to the period between the day on which the demand to renew the passport is lodged, to the day on which the person acquires Belgian nationality, the application of Article 17 Belgian Code of Nationality, in the context of “diffuse loss” of nationality, is in breach of Art 20TFEU. 

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Tanel Feldman

Managing Partner, Immigration Law Associates

Corporate Immigration Law/Employment Law/Social Security Law/European Law

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