Citizenship Case Law
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|Case C-135/08 Janko Rottmann v Freistaat Bayern [details ▼]||Germany, Austria||European Court of Justice||02/03/2010|
Case C-135/08 Janko Rottmann v Freistaat Bayern
Facts and judgment
Dr. Janko Rottmann was born in Austria and had Austrian nationality from birth. He was prosecuted in the mid 1990s in Austria for alleged fraud, but moved to Germany in 1995, apparently before criminal sanctions could be applied. The Austrian courts raised a warrant for his arrest. In Germany, meanwhile, he sought naturalisation as a German, but without disclosing to the German authorities that he was the subject of criminal proceedings in Austrian. A decision granting naturalisation was made in February 1999. As a result of acquiring German nationality, Rottmann automatically lost his Austrian nationality by operation of law. In late 1999, the City of Munich, which had handled the request for naturalisation, was informed by the Austrian authorities about the criminal proceedings against Rottmann in Austria. It took the decision to revoke the naturalisation decision on the grounds that it had been obtained fraudulently. The effect of the withdrawal of German nationality, which did not entail automatic reacquisition by Rottmann of Austrian nationality under Austrian law, would render Rottmann stateless. The Court advised the national court to ascertain whether the withdrawal decision at issue in the main proceedings observes the principle of proportionality so far as concerns the consequences it entails for the situation of the person concerned in the light of European Union law. It emphasised in para. 56 of the judgment ‘the importance which primary law attaches to the status of citizen of the Union’. Specifically, the Court advised that ‘it is necessary to establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality’ (para. 56). Finally, in para. 58, the Court invited the national court to consider whether proportionality requires that the person affected ‘to be afforded a reasonable period of time in order to try to recover the nationality of his Member State of origin.’
Art 17 EC (Art 20 TFEU)
Opinion of the Advocate General
Advocate General M. Poiares Maduro (30/09/2009): In principle, the rules on acquisition and loss of nationality fall within the exclusive competence of the Member States, but that does not mean that they can act without regard for EU law. In particular, as is well established, a Member State cannot, in the case of a dual national with the nationality of another Member State and of a third state, refuse to recognise such a person as an EU citizen. To do so would be to deny such a person the benefit of the free movement rights under the Treaty (Case C-369/90 Micheletti  ECR I-4239). The types of norms of EU law that would constrain the Member States in such circumstances would be those deriving from international law (e.g. rules on the avoidance of statelessness) as well as those deriving from EU fundamental rights or from the duties imposed upon the Member States to cooperate with the Union and with each other (Articles 10 EC/Article 4 Treaty on European Union post Lisbon). However, the case involving Dr Rottmann was different. International law does not prohibit the withdrawal of nationality from a person who has made false statements in the course of the naturalisation process, even if the effect of such a decision is to render the person stateless. Moreover, the Advocate General’s view was that the withdrawal of naturalisation was not connected to the exercise of free movement rights under EU law, and that therefore there was no reason based on this connection to EU law for the Court to scrutinize the national legislation itself, or to suggest to the national court that it should do so.
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