Case C‑221/17

M.G. Tjebbes and Others

v

Minister van Buitenlandse Zaken

(Request for a preliminary ruling from the Raad van State (Netherlands))

 Judgment of the Court (Grand Chamber), 12 March 2019

(Reference for a preliminary ruling — Citizenship of the European Union — Article 20 TFEU — Articles 7 and 24 of the Charter of Fundamental Rights of the European Union — Nationalities of a Member State and of a third country — Loss of the nationality of a Member State and of citizenship of the Union by operation of law — Consequences — Proportionality)

1.        Citizenship of the Union — Provisions of the Treaty — Scope ratione personae — Citizen of the Union who is a national of one Member State only and who lost that nationality by operation of law — Included

(Art. 20 TFEU)

(see paragraph 32)

2.        Citizenship of the Union — Provisions of the Treaty — Nationality of a Member State — Loss, by operation of law, of that nationality because of the absence of a genuine link with that Member State — Loss of citizenship of the Union — Lawfulness — Conditions — Possibility for the national authorities and courts to examine the consequences of the loss of that nationality and to have the persons concerned recover it ex tunc – Observance of the principle of proportionality

(Art. 20(1) TEU; Charter of Fundamental Rights of the European Union, Arts 7 and 24)

(see paragraphs 35, 39, 40, 42, 44-48, operative part)

Résumé

EU law does not preclude the loss of the nationality of a Member State and, consequently, that of citizenship of the Union where the genuine link between the person concerned and that Member State is durably interrupted

On 12 March 2019, in its judgment in Tjebbes and Others (C‑221/17), the Court, sitting as the Grand Chamber, considered the issue of whether the loss, by operation of law, of the nationality of a Member State, entailing the loss of citizenship of the Union, is compatible with Articles 20 TFEU, read in the light of Articles 7 and 24 of the Charter of Fundamental Rights of the European Union. In the case in the main proceedings, the Netherlands Minister for Foreign Affairs had refused to examine the passport applications of Netherlands nationals who possessed a second nationality from a third country, on the ground that those persons, including a minor, had lost, by operation of law, their Netherlands nationality. The Netherlands minister’s refusal was based on the Law on Netherlands nationality, according to which an adult loses that nationality if he or she is a national of another country and has had his or her principal residence outside the European Union for an uninterrupted period of 10 years. Moreover, under that law, a minor loses, in principle, Netherlands nationality if his or her father or mother has lost his or her Netherlands nationality because of a lack of residence within the European Union.

The Court has held that EU law does not preclude, as a matter of principle, a Member State from prescribing for reasons of public interest the loss of its nationality, even if that loss will entail the loss of citizenship of the Union. It is legitimate for a Member State to take the view that nationality is the expression of a genuine link between it and its nationals, and therefore to prescribe that the absence, or the loss, of any such genuine link entails the loss of that nationality. It is also legitimate for a Member State to wish to protect the unity of nationality within the same family by providing that a minor loses his or her nationality when one of his or her parents loses that nationality.

However, for legislation such as the Netherlands legislation at issue to be compatible with Article 20 TFEU, read in the light of Articles 7 and 24 of the Charter of Fundamental Rights, it must allow the competent national authorities, including national courts where appropriate, to examine, as an ancillary issue, the consequences of the loss, by operation of law, of the nationality of the Member State concerned and, where appropriate, to have the persons concerned recover their nationality ex tunc in the context of an application by those persons for a travel document or any other document showing their nationality.

In the context of that examination, the national authorities and courts must determine whether the loss of that nationality, when it entails the loss of citizenship of the Union, has due regard to the principle of proportionality in the light of the consequences of that loss for the situation of the person concerned and, if relevant, that of the members of his or her family, from the point of view of EU law. That examination requires an individual assessment of the situation of the person concerned and that of his or her family in order to determine whether the consequences of losing that nationality might, with regard to the objective pursued by the national legislature, disproportionately affect the normal development of his or her family and professional life from the point of view of EU law, in particular the right to respect for family life as laid down in Article 7 of the Charter of Fundamental Rights.

As regards the circumstances of the individual situation of the person concerned, which are likely to be relevant for the purposes of that assessment, the Court mentions, in particular, the fact that following the loss, by operation of law, of his or her nationality and of the status of citizen of the Union, the person concerned would be exposed to limitations when exercising his or her right to move and reside freely within the territory of the Member States, including, depending on the circumstances, particular difficulties in continuing to travel to one or another Member State in order to retain genuine and regular links with members of his or her family, to pursue a professional activity or to undertake the necessary steps to pursue that activity. Also relevant are, first, the fact that the person concerned might not have been able to renounce the nationality of a third country and, secondly, the serious risk, to which the person concerned would be exposed, that his or her safety or freedom to come and go would substantially deteriorate because of the impossibility for that person to enjoy consular protection under Article 20(2)(c) TFEU in the territory of the third country in which that person resides.

In addition, with regard to minors, the competent authorities must take into account possible circumstances from which it is apparent that the loss of the nationality of the Member State concerned by the minor concerned fails to meet the child’s best interests as enshrined in Article 24 of the Charter of Fundamental Rights because of the consequences of that loss for the minor from the point of view of EU law.