Bold and Thoughtful: The Court of Justice intervenes in nationality law Case C-221/17 Tjebbes

By Stephen Coutts


 Tjebbes is a bold and yet thoughtful judgment. It pushes the boundaries of the role of EU law in nationality matters and yet does so in a manner that both respects the primacy of the Member States in regulating this area of law, and acknowledges the genuine Union-interest in the manner in which denaturalisation decisions impact on Union citizens. It provides a follow-up and elaboration of the judgment in Rottmann, confirming the applicability of Union law in nationality law and detailing the nature of its intervention. This intervention is of both a procedural and a substantive kind, requiring an individual examination of any decision withdrawing nationality having regard to a set of consequences linked to the status of Union citizenship.

Summary of Judgment

Tjebbes concerned a Netherlands provision providing for the automatic loss of nationality for Netherlands nationals who were resident outside the Netherlands (or any other Member State of the European Union) for ten years or more.[1] This ten-year period could be interrupted relatively easily by either residing in the Netherlands for a period of one year or alternatively by applying for a national ID card or identity document, including a passport or making a declaration of nationality.[2] A further provision provided that the children of individuals denaturalised by virtue of the ten-year rule would also lose their Netherlands nationality.[3] Netherlands nationality could be regained after one year’s residence in the Netherlands.[4] Three of the applicants, resident outside the Netherlands, lost their nationality by operation of the ten-year rule. A fourth applicant, the daughter of one of the first three applicants, lost her Netherlands nationality by virtue of being a child of a Netherlands national denaturalised by operation of the ten-year rule. All four challenged a decision by the Minister refusing to issue new passports.[5]

The Opinion of AG Mengozzi was above all wary of intruding too much into this sensitive area, still considered a core element of national sovereignty. Indeed, the AG characterised nationality law – the law determining the boundaries of the national community – as part of the national identity of the Member States, to be respected under Article 4(2) TEU (para. 107). While the measure clearly fell within, and fell to be assessed under, Union law, this was restricted to assessing the proportionality of the legislative measure in general and not an individual examination of each administrative decision (para. 118). To do otherwise would involve the Court of Justice in assessing the criteria selected by Member States when determining whether an individual had a genuine link or not to the Member State concerned (paras. 113-114). Having made this determination, AG Mengozzi found that the ten-year rule did pursue a genuine public interest i.e. maintaining a genuine link between the individual citizen and the relevant Member State and was proportionate, particularly in light of the ease with which the ten-year period could be interrupted (paras. 119-127). The rule relating to children of adult citizens denaturalised by virtue of the ten-year rule was disproportionate in that it went beyond what was necessary to secure the public interest of restoring unity of nationality within the family while taking into account the best interests of the child (paras. 128-149).

The Grand Chamber of the Court of Justice departed from the AG in a number of respects. After determining, following Rottmann, that the matter fell within the scope of Union law and required justification and to be proportionate, the Court found, drawing on international law instruments, that the need to ensure a genuine link with the Member State was a public interest capable of justifying denaturalisation and that a ten-year rule such as that contained in the Netherlands nationality law was an appropriate means of achieving this (paras. 34-39). However, an individual examination by the national authorities having regard to the consequences under Union law was required (paras. 40-42). These consequences included the possibility of maintaining or developing a professional or family life across the Union, the possibility of maintaining a family life by continued access to the Union, the right to consular protection in a third state in which the individual was resident and the rights to family and private life and the best interests of the child contained in Articles 7 and 24 of the Charter of Fundamental Rights (CFR) (paras. 40-46).



The judgment is rich and touches on various aspects of Union citizenship and its relationship to the nationality of the Member States. In my comments, I will focus on three inter-related points. Firstly, the bold manner in which the Court of Justice has intervened in Member State nationality law by laying down detailed procedural requirements in an area typically characterised by executive discretion. Secondly, the thoughtful manner in which this is done, limiting its substantive intervention to areas where there is a genuine Union interest. Thirdly, the manner in which the judgment reflects how these consequences identified by the Court reveal and clarify certain aspects of Union citizenship and in particular the link between Articles 20 and 21 TFEU.

Firstly, the judgment is bold. Following Micheletti, Chen and especially Rottmann it is undoubtedly the case that nationality law is not an area of Member State sovereignty shielded from Union law as some core area of national self-expression. Tjebbes elaborates on this line of caselaw (especially Rottmann) and details the consequences of this in both substantive and procedural terms. The procedural dimension is perhaps the most intrusive, requiring an individual examination and indeed a remedy of re-instating nationality if the measure is deemed to be disproportionate (para. 42 of the judgment). It is worth pointing out the possible impact of such a requirement in an area characterised by executive discretion, especially when combined with primacy and the principles of equivalence and effectiveness. It is likely to empower individuals and national judiciaries and ‘constitutionalise’ (in the sense of rendering it a rights-based process) denaturalisation decisions. While some intervention in this area was inevitable once the drafters of the Treaties decided that Union citizenship would be a derivative status, ‘inextricably linked’ to nationality law,[6] the approach of the AG demonstrates that alternative, less intrusive options were available to the Court, which preferred to emphasise citizens’ rights rather than Member State discretion in the process.

That preference however, does not entirely exclude a consideration of the interests of Member States. In the substantive requirements outlined by the Court (those policy issues to be taken into account in the proportionality assessment), the Court is thoughtful and carefully delineates those matters which are the purview of Member States in determining who is and who is not a member of their political communities, and those which are properly the preserve of Union law. While assessing the overall policy choice contained in the ten-year rule as part of the proportionality analysis and in particular whether it is a legitimate public interest, this review is of a light-touch nature (although it is a relatively uncontroversial goal in light of international law instruments). In its review, the Court merely asserts the legitimacy of maintaining a genuine link with the Member State, without assessing whether a ten-year rule, such as that contained in Netherlands legislation, in fact achieves that public interest. In doing so, the Court avoids the trap identified by the Advocate General of being inevitably drawn to assessing the adequacy of national measures and hence the means by which a genuine link is maintained. Instead, the Court’s proportionality review is focused primarily on those consequences in Union law that flow from a withdrawal decision.

In doing so the Court illuminates certain core features of Union citizenship. Firstly, we should point out the basic fact, which may be missed because so obvious, that the judgment underlines the link between Member State and Union citizenship both in the operation of law (which really is obvious) but also in the underlying criterion of political membership. The absence of a genuine link with one of the Member States is sufficient to justify loss of Union citizenship; being a member of a national political community is necessary to be a Union citizenship. This point is fundamental and important in an era when some scholars are advocating an autonomous Union citizenship (see, for example, Kostakopoulou and Garner). Secondly, in outlining the consequences for Union citizenship, the Court identifies what it believes the core of that status to be. This is to build a family and professional life across the Member States, both in actual existence and the possibility of such a life. Two aspects of this should be pointed out confirming new and old trends in Union citizenship. Firstly, while the decision is not decided on Article 21 TFEU grounds,[7] there is a clear link between the status of Union citizenship referred to in Article 20 TFEU and at stake in the judgment and the rights of free movement and residence. But those rights are to be understood in their totality in the sense of offering a set of life opportunities to individual citizens across the Union as a whole. This confirms recent links made between Article 20 TFEU and Article 21 TFEU rights in Rendon-Marin and especially Chavez-Vilchez. Secondly, this list of rights confirms an older trend in Union citizenship or more accurately part of the pre-history of Union citizenship; its market citizenship legacy. Note the Court emphasises the ability of the individual Union citizen to pursue a family life and professional life. For a discussion on the consequences of citizenship, the absence of any political or public dimension is striking. Despite the affirmation of the right to vote in European Parliament elections in Delvigne, the absence of any mention of political rights (including local voting rights or the right to participate in a citizens initiative) is notable and gives a very clear indication of the private and professional, as opposed to public and political, nature of Union citizenship.

Tjebbes is a rich judgment full of carefully balanced paradoxes. It is both progressive and conservative, bold and thoughtful. It is progressive and bold in intervening deeply into Member State nationality law, possibly fundamentally changing it by imposing procedural requirements and constitutionalising one of the few areas of executive discretion and dominance and one that lies at the core of national sovereignty. It is explanatory in offering the Court’s vision of what is the core of Union citizenship and the relationship between the rights of free movement and residence, and what they offer in their totality to the individual citizen. However, for all its dynamism, it is also conservative, confirming the private nature of this citizenship and its internal market origins.

[1] Tjebbes, paras 9 and 10.

[2] Ibid, para 10.

[3] Ibid, para 11.

[4] Tjebbes (Opinion of AG Mengozzi), para 9.

[5] Tjebbes (Judgment), para 11.

[6] Case C-135/08 Janko Rottmann v Freistaat Bayern (Opinion of AG Poiares Maduro) EU:C:2009:588, [2010] ECR I-1449, para 23.

[7] Tjebbes (n 1), para 28.