Can EU Citizenship be put up for sale? A presentation by Dr Alina Tryfonidou

On the 28th of March Dr Alina Tryfonidou gave a presentation to UCLan Cyprus’ law students, in which she discussed the idea of selling EU citizenship, and whether this should be possible. Dr Tryfonidou is an Associate Professor in EU Law and the School of Law Director of Taught Postgraduate Studies at the University of Reading.

As Dr Alina Tryfonidou critically argued, there are not many legal sources covering the citizenship sale topic. In 2014, during a European Union Institute (EUI) workshop in Florence different ways of approaching this issue were discussed through a series of papers, even though a clear answer as to whether the citizenship should be up for sale does not exist. The issue of people buying citizenship is a trendy matter, with them benefiting from different citizenship investment programmes. Dr Tryfonidou contrasted such programmes with ‘ordinary naturalisation’, which all countries offer. Ordinary naturalization requires that individuals pay a fee for the citizenship procedure, but does not allow the direct buying of citizenship. There are several tests that a person can take, through which the member states need to actually make sure that the person undertaking the test has integrated with the specific culture.

As previously mentioned in the research seminar, multiple nationalities can be bestowed by birth or naturalisation. The International Court of Justice clearly asserts that nationality is recognised when the interested parties have links with the society of the state.

Dr Tryfonidou also made reference to Van Gend en Loos v Nederlandse Administratie der Belastingen (1963), a case that gave rights to individuals, and not only to the EU member states. In this case, the ECJ noted that ‘the Community’ constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage’. Thus, the individuals that are ‘subjects’ of EU law are all the member state nationals who are also EU citizens and benefit from rights as such.

Citizens of the European Union member states do not have to apply for EU citizenship. The original aims of the Union were mostly of an economic nature, as the EU wanted to build a common market. Consequently, member states ratified the treaty of Maastricht by attaching a declaration stating that only the member states have the right to decide who their nationals are and, by extension who are the Union citizens. The ECJ has applied this approach but it also stressed that when the Member States do so, they also need to comply with EU law.

Coming back to the matter of naturalisation, this is divided into various procedures. The ordinary naturalisation procedure focuses on the links that an individual has with the society of a Member State. A number of other naturalisation procedures permit the granting of Member State nationality to individuals who do not have – and may never establish links – with the society of a State. Significantly, some schemes grant nationality to persons who are willing to pay a large amount of money and/or make a significant investment in a Member State, also known as the ‘Citizenship for Sale programmes’.

Are citizenship for sale programmes in breach of EU law? This could lead to discrimination on the ground of property and a violation of the principle of equality. Generated by the emergence of equal opportunity debates, when wealthy people pay a significant amount of money to buy a specific citizenship, discrimination arises. Citizenship should not be reduced to a ‘tradable commodity’. Citizenship as a member of polity requires the existence of close ties with that polity. Citizenship sale programmes contradict this. With this in mind, Dr Tryfonidou critically demonstrated two possible ways of addressing the discrimination that might arise through such programmes; first, through the infringement proceedings under Art. 258 of the Treaty of Functioning of the European Union (TFEU), and second, through the principle of sincere cooperation under Article 4(3) of the Treaty of European Union (TEU). She also added that European Union institutions could make a declaration following the ECJ’s reasoning in Airola v Commission of the European Communities (1975) that for the purposes of European Union law, Member State nationality acquired through such programmes is not effective as such programmes breach the principle of equality.

We wanted to thank Dr Tryfonidou for devoting valuable time to share her views with us.

Written By Natalia Hadjipapa

Posted in EU Law, Events