Opinion of Advocate General Szpunar delivered on 1 July 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:530
• Date: 01 July 2021
• Celex Number: 62020CC0118
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 1 July 2021 (1)

Case C‑118/20

JY

intervener:

Wiener Landesregierung

(Request for a preliminary ruling from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria))

(Reference for a preliminary ruling – Citizenship of the European Union – Articles 20 and 21 TFEU – Scope – Renunciation of the nationality of one Member State in order to obtain the nationality of another Member State in accordance with the assurance given by the latter to naturalise the person concerned – Revocation of that assurance on grounds of public policy – Statelessness – Criteria for acquisition of nationality – Proportionality)

Table of contents

I. Introduction

II. Legal context

A. International law

1. Convention on the Reduction of Statelessness

2. The Convention on the Reduction of Cases of Multiple Nationality

3. The European Convention on Nationality

B. EU law

C. Austrian law

III. The facts of the case in the main proceedings, the procedure before the Court and the questions referred for a preliminary ruling

IV. Legal analysis

A. Preliminary remarks

B. The first question referred for a preliminary ruling: does the situation at issue in the main proceedings fall within the scope of EU law?

1. The relevant case-law of the Court on the loss of citizenship of the Union

(a) The judgment in Micheletti and Others: the competence of the Member States as regards the acquisition and the loss of nationality must be exercised having due regard to EU law

(b) The judgments in Rottmann and Tjebbes and Others: confirmation and clarification of the principle established by the judgment in Micheletti and Others

2. The consequences of the contested decision in the light of EU law

(a) Application of the principles derived from the judgments in Rottmann and Tjebbes and Others to the situation at issue in the main proceedings

(b) The case-law stemming from the judgment in Ruiz Zambrano: deprivation of the genuine enjoyment of the substance of the rights conferred by citizenship of the Union

(c) The judgment in Lounes: the logic of gradual integration

3. The decision of the Republic of Estonia by which JY’s citizenship was relinquished

C. The second question referred for a preliminary ruling: the compliance of the contested decision with the principle of proportionality

1. The public-interest ground pursued by the legislation that formed the basis of the contested decision

2. Compliance with the principle of proportionality as regards the consequences entailed by the contested decision for JY’s situation

(a) The circumstances pertaining to the individual situation of the person concerned

(1) The nature of the offences

(2) The lapse of time between the date on which the assurance was given and that on which it was revoked

(3) The limitations on exercising the right to move and reside within the territory of the European Union as a whole

(4) The possibility for the person concerned to recover her original nationality

(5) The normal development of family and professional life

(b) The consistency of the national rules and their ability to achieve the road-safety objective

V. Conclusion

I. Introduction

1. The national legislation of a Member State allows it to revoke, on the ground of administrative offences related to road safety, an assurance as to the grant of nationality given to a national who, having the nationality of just one Member State, has renounced that nationality, and therefore his or her status as a citizen of the European Union, in order to obtain the nationality of another Member State, in accordance with the decision of the authorities of that latter State providing such an assurance; that therefore prevents that person from recovering the status of citizen of the Union.

2. In the present case, the Court is called upon to interpret Article 20 TFEU in the context of the case-law stemming from the judgments in Rottmann (2) and Tjebbes and Others (3) and to open the third phase of a relatively delicate chapter concerning the obligations of the Member States in the sphere of the acquisition and the loss of nationality in the light of EU law.

II. Legal context

A. International law

1. Convention on the Reduction of Statelessness

3. The Republic of Austria acceded to the United Nations Convention on the Reduction of Statelessness, which was adopted in New York on 30 August 1961 and entered into force on 13 December 1975 (‘the Convention on the Reduction of Statelessness’), on 22 September 1972. Article 7(2), (3) and (6) of that convention provides:

‘2. A national of a Contracting State who seeks naturalization in a foreign country shall not lose his nationality unless he acquires or has been accorded assurance of acquiring the nationality of that foreign country.

3. Subject to the provisions of paragraphs 4 and 5 of this Article, a national of a Contracting State shall not lose his nationality, so as to become stateless, on the ground of departure, residence abroad, failure to register or on any similar ground.

…

6. Except in the circumstances mentioned in this Article, a person shall not lose the nationality of a Contracting State, if such loss would render him stateless, notwithstanding that such loss is not expressly prohibited by any other provisions of this Convention.’

4. Article 8 of that convention provides, in paragraphs 1 and 3 thereof:

‘1. A Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless.

…

3. Notwithstanding the provisions of paragraph 1 of this Article, a Contracting State may retain the right to deprive a person of his nationality, if at the time of signature, ratification or accession it specifies its retention of such right on one or more of the following grounds, being grounds existing in its national law at that time:

(a) that, inconsistently with his duty of loyalty to the Contracting State, the person

…

(ii) has conducted himself in a manner seriously prejudicial to the vital interests of the State;

…’

2. The Convention on the Reduction of Cases of Multiple Nationality

5. The Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality, which was signed in Strasbourg on 6 May 1963 and entered into force on 28 March 1968, has been applicable to the Republic of Austria since 1 September 1975.

6. Article 1 of that convention, which is entitled ‘Reduction of cases of multiple nationality’, provides, in paragraph 1 thereof, that ‘nationals of the Contracting Parties who are of full age and who acquire of their own free will, by means of naturalisation, option or recovery, the nationality of another Party shall lose their former nationality. They shall not be authorised to retain their former nationality’.

3. The European Convention on Nationality

7. The European Convention on Nationality, which was adopted on 6 November 1997 within the framework of the Council of Europe and entered into force on 1 March 2000 (‘the Convention on Nationality’), has been applicable to the Republic of Austria since 1 March 2000.

8. Article 4 of the Convention on Nationality, which is entitled ‘Principles’, provides that the rules on nationality of each State Party are to be based on, inter alia, the principles that everyone has the right to a nationality and that statelessness is to be avoided.

9. Article 6 of that convention, which is entitled ‘Acquisition of nationality’, provides, in paragraph 3 thereof, that ‘each State Party shall provide in its internal law for the possibility of naturalisation of persons lawfully and habitually resident on its territory. In establishing the conditions for naturalisation, it shall not provide for a period of residence exceeding ten years before the lodging of an application’.

10. Article 7 of the Convention, which is entitled ‘Loss of nationality ex lege or at the initiative of a State Party’, provides, in paragraphs 1and 3 thereof:

‘1. A State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party except in the following cases:

a. voluntary acquisition of another nationality;

b. acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant;

…

d. conduct seriously prejudicial to the vital interests of the State Party;

…

3. A State Party may not provide in its internal law for the loss of its nationality under paragraphs 1 and 2 of this article if the person concerned would thereby become stateless, with the exception of the cases mentioned in paragraph 1, sub-paragraph b of this article.’

11. Article 8 of the same convention, which is entitled ‘Loss of nationality at the initiative of the individual’, provides, inter alia, that ‘each State Party shall permit the renunciation of its nationality provided the persons concerned do not thereby become stateless’.

12. Under Article 10 of the Convention on Nationality, which is entitled ‘Processing of applications’, ‘each State Party shall ensure that applications relating to the acquisition, retention, loss, recovery or certification of its nationality be processed within a reasonable time’.

13. Article 15 of that convention, which is entitled ‘Other possible cases of multiple nationality’, provides:

‘The provisions of this Convention shall not limit the right of a State Party to determine in its internal law whether:

a. its nationals who acquire or possess the nationality of another State retain its nationality or lose it;

b. the acquisition or retention of its nationality is subject to the renunciation or loss of another nationality.’

14. Article 16 of that convention, which is entitled ‘Conservation of previous nationality’, states that ‘a State Party shall not make the renunciation or loss of another nationality a condition for the acquisition or retention...