MEPs’ resolution on citizenship could have lasting effect in court action

The Maltese government is facing a serious threat of infringement procedures by the European Commission, over its decision to grant citizenship to applicants who pay €1.15 million in a donation, property acquisition and investment under the Individual Investment Programme.

European Commissioner Viviane Reding, who issued a scathing judgement of the IIP earlier on Wednesday in the European Parliament, has called on legal experts to examine the possibility of opening infringement procedures against Malta based on Article 4.3 of the Treaty of the European Union.

Under EU law, Malta is sovereign in determining its own citizenship laws, but Reding has said that under the principle of "sincere co-operation" Malta might have had to consult other member states before opening up Maltese, and consequently EU citizenship, to applicants of the IIP.

Article 4.3 calls on member states to "refrain from any measure which could jeopardise the attainment of the Union's objectives".

It has long been part of the EU treaties and the article has been referred to by the European Court of Justice in past judgments, with a lot of case law concerning the application of the principle of "sincere cooperation".

A European political expert, who declined to be identified, said Article 4.3 was a very comprehensive article.

"It refers to all national authorities in the broad sense, that is, executive, legislative and judicial, at supranational and sub-national level such as regions and local councils, and one with very dynamic and unpredictable consequences. In my judgement, I think that the Commission is not bluffing and it has sufficient legal grounds for proceeding. It is increasing the tempo and taking its time to start infringement procedures to allow Malta to adjust its law."

While the European Parliament last week singled out Malta in condemning the IIP, the Commission appears to be backing an effort to curtail all other efforts by member states who have set up similar citizenship schemes.

In infringement procedures, the Commission usually issues a warning to a member state which is then obliged to reply or comply with a request to amend its law and bring it in line with EU norms. The Commission sends a reasoned opinion in a second stage, before taking the matter to the European Court of Justice if the member state refused to comply.

The same political expert even said that critics of the European Parliament's resolution should not make light of the fact that the statement is non-binding.

"Those who say the resolution has no effect because it is not legally binding either know this is not true and are being insincere, or are living in a world of their own. If the case ends up the ECJ, that resolution and the robustness of the vote in its favour will become a reference point for the Court."

Citizenship is a national competence for member states, but since EU member states have entered into several agreements amongst themselves to facilitate free movement and because European citizenship gives national citizens certain rights even in the other member states, states are constrained by the commitments and obligations they have towards one another not to cross certain lines.

"Unfortunately, the Maltese scheme is the most brazen and insensitive to these unwritten 'constraints' and lends itself easily to a legal challenge," the political expert said.