Mr. Rottmann and the scapegoat
Wed, Sep 30, 2009 posted by Pescatorius
Mr. Janko Rottmann was an Austrian who obtained German nationality in 1999, shortly alter having moved to Germany. As a consequence of his new nationality, he lost his previous Austrian nationality.
But he lied: when asked about his criminal record, Mr. Rottmann didn’t mention a conviction that was pending against him in Austria. When the German authorities were informed of this circumstance, they revoked Mr. Rottmann’s nationality, turning him stateless.
The German Supreme Court made a reference to the ECJ raising doubts about the compatibility of this decision with article 17 TEC, which establishes a European citizenship.
Miguel Maduro has delivered this morning an Opinion of a shocking prudence. According to the Advocate General, the fact that European citizenship derives from Member State nationality, and the exclusively State-based character of nationality rules, impede the ECJ from scrutinizing national obstacles that may hinder article 17 TEC.
Maduro’s stance is very formalistic and, at times, contradictory. He struggles to set aside a case like Mr. Rottmann’s, but agrees with the Court’s case law in which Member State nationality provisions have come under fire from Community Law. His argument is that a situation like Rottmann’s would have protection under the Treaties if he had exercised free movement.
However, Maduro considers Mr. Rottmann had not exercised free movement at all.
It appears that underlying the Opinion’s stance lays the fact that Mr. Rottmann had committed fraud when applying for German nationality. But is that enough to keep him outside the gates?
In these dangerous times in which the Court appears to be quite happy to take steps backwards (Liga Portuguesa, Förster…), isn’t Maduro’s argument way too tempting to set aside?
Is Mr. Rottmann going to be a delicious scapegoat for upcoming restrictions in the Court’s citizenship case-law?
Let’s keep our fingers crossed and let’s hope not.
October 1st, 2009 at 2:47 am
Thank you for pointing me to Mr. Maduro’s Opinion and also for adding your own to it!
I read both with great interest and I believe that he Miguel Maduro due more credit for his arguments than you are willing to give him.
I agree with your finding, that Mr. Rottmann could become a scapegoat of sorts, in so far as he might serve as an exemplary case in which the ECJ determines the limits (once again, as in Förster) of its wide interpretation and fuzzy judgements on Art. 12, 17, 18 EC.
However, I’m also of the opinion that this case cannot be reduced to its potential as a political turning point. Instead, its legal configuration demands a decision that follows Maduro’s general thrust.
As far as I could tell, the cases he likens Mr. Rottmann’s to all share one important difference with the latter. There was no fraudulent behaviour involved.
This is quite a vital point, because as Maduro states, multiple international conventions, to which both Germany and Austria are parties, allow their signatory states to deprive a citizen of their country of their respective nationality if it was obtained by fraud.
This, in and of itself certainly doesn’t demand the same interpretation for the provisions of the EC-Treaty but since there is no obligation under international law that forces states to grant (and, specifically, allow its nationals to retain their) nationality under all circumstances, the proverbial coast is clear for a query to the EC-Treaty in this matter.
I agree with Maduro’s argument that although states aren’t completely free in their legislation concerning nationality and the loss of it, there is a certain domain in which member states retain their autonomy. European citizenship can never be dominant of nationality, in so much as it cannot determine its outermost boundaries. Even if the passage in Mr. Maduro’s Opinion concerning the ideological bond of loyalty, rights and duties that binds us as Europeans and us as citizens of our countries is a little declamatory, it serves to illustrate a point.
European citizenship is an accessory to citizenship of a member state. It doesn’t seem legitimate to call upon the former (the accessory) to prohibit the revocation of the latter (the base).
I’m eagerly awaiting the judgement of the ECJ in this matter which should provide ample supple for further discussion on the European citizenship and its limits!
Best regards,
Flavio Trillo
October 1st, 2009 at 9:39 am
L.S.,
I read the opinion more as attaching to the fraud that was committed. In par. 33 of the opinion, the two factors are mentioned together: Mr. Rottmann did not exercise his Treaty freedoms and he committed fraud. The former is tempered somewhat by the (correct) remark in par. 11 that the case is not “wholly internal”, because
“Herr Rottmann hat von seinem Recht, sich innerhalb der Gemeinschaft frei zu bewegen und aufzuhalten, das an die ihm als österreichischem Staatsbürger zustehende Unionsbürgerschaft geknüpft ist, Gebrauch gemacht, als er 1995 nach Deutschland einreiste und dort seinen Wohnsitz nahm.”
So I read this opinion as saying mostly that, whatever limits Community Law may impose on the citizenship law of the Member States, it does not forbid the punishing of liars (”disloyal applicants”). Par. 33:
“Im Gegenteil erscheint mir der Entzug einer durch betrügerische Handlungen erworbenen Staatsangehörigkeit dem legitimen Interesse des Staates zu entsprechen, sich der Loyalität seiner Angehörigen zu versichern. Seine Loyalität dem Staat gegenüber unter Beweis zu stellen, dem man angehört, ist eine der Pflichten, die den Status begründen, den der Einzelne in seiner Eigenschaft als Angehöriger dieses Staates genießt, und diese Pflicht beginnt bereits mit dem Erwerb der Staatsangehörigkeit. Eine Person aber, die im Einbürgerungsverfahren absichtlich falsche Angaben macht, kann nicht als loyal gegenüber dem Aufnahmestaat angesehen werden. Im Übrigen lässt das Völkerrecht aus diesem Grund den Verlust der Staatsangehörigkeit in einem solchen Fall zu, selbst wenn dies den Eintritt von Staatenlosigkeit zur Folge hat.”