Kochenov: Commission Would Likely Be “Humiliated” If CIP-Matter Goes to Court Over “Genuine Links”

Prof. Dimitry Kochenov is Professor of EU Constitutional Law and Citizenship at University of Groningen, the author of Citizenship and the former chairman of the IMC. In this exclusive interview, he illustrates that the European Commission’s opening of infringement procedures against Malta and Cyprus on grounds that their CIPs are in breach of EU law and the principle of “genuine links” is not only legally groundless but also an absurd form of politically motivated bullying that goes against the values of the EU and showcases a flagrant abuse of power by the Commission.

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You’ve characterized the European Commission’s decision to bring infringement proceedings against Malta and Cyprus both ultra vires and “flawed action”. Can you elaborate on that?

Prof. Kochenov: In my initial reaction on Twitter, I paid homage to Harry Frankfurt’s little best-selleing book, in which he states that “one of the salient features of the world is that there is so much bullshit…” 

The Commission uses an argument that has no basis in the law as it stands today in the European Union. The argument is based on “genuine links”. It’s really very sad to see the Commission using this argument because it was precisely the “genuine links” ideology – besides the international law approach to such links as such – that was struck down in the European Court of Justice in the case of Micheletti almost 30 years ago, when the Court made it absolutely clear that EU citizenship has to be acknowledged without regard to any kind of substantive connection – besides the legal connection of possessing the status of citizenship itself – existing between the individual and the state.

If the Commission’s arguments made sense, that case would know a different outcome, since Spain argued – rightly, under international law of the day – that an Italian citizen who has never been to Italy and does not speak Italian does not have “genuine links” to Italy and is thus unable to be a recipient of rights under EU law. The Italian Advocate General laughed at this approach and the Court agreed. EU citizenship is, since then, precisely a legal status, like any other citizenship of a modern democracy. The only link that can be required is the link of nationality established under national law. 

This approach is not new or surprising. What the Commission seems to have forgotten in its embrace of a nationalist “thick identity” agenda is that the EU as an integration project was built precisely in order to oppose the nationalism connected to the “genuine links” ideology, which allows dismissing some people in possession of a legal status of citizenship as not “genuine” enough to enjoy the rights.

The core principle of EU law of persons is non-discrimination on the basis of nationality. It states, to put it very roughly, in simple language that any links – however “genuine” – with a particular Member State cannot matter: only the legal status of citizenship does. Being a “real Frenchman” or a “real Estonian” is irrelevant in EU law since discriminating on this ground is outlawed. 

The Commission, for the first time in the history of the EU (but repeating its own Report from 2019 which I thought was not just a triumph of incompetence, but a triumph of ideologised incompetence), invokes the “genuine links” with a nationality of a Member State argument in a case of EU citizenship accusing two Member States of violating EU law that has precisely prohibited “genuine links”.

The action is unquestionably ultra vires and absolutely unacceptable since it goes against the very rationale of the operation of EU citizenship law and essentially seeks to annul all its added value, by opening the door to proclaiming some nationals of the Member States as “non-genuine” with a sole purpose of dehumanizing them through the use of a prohibited, not just an irrelevant, legal ground.

In essence, the Commission argues that Mr Micheletti should have buggered off to native Argentina, or learnt Italian and spent years “at home” before seeking to use his EU rights in Spain, given that the “genuine links” with Italy were not there. Such nationalistic games unquestionably damage the Commission’s reputation as the guardian of the Treaties. The Commission betrays the promise of EU integration. It is the Commission, not Malta or Cyprus, that is abusing the law.

Of course, all these arguments have already been discussed with Malta and Cyprus, and the Commission has had full knowledge of how these programs operate and, in the case of Malta’s IIP, the programme’s conditions were endorsed in a common Malta-Commission press-release prior to its launch. Since then, the law has not changed at all, but the Commission probably senses that bringing principally anti-EU arguments in terms of normalizing discrimination based on phony grounds prohibited in EU law could allow it to gain political dividends in the circles opposed to the genuine promise of European citizenship. It is the “Chinese” and the “Russians”, after all, who “buy” EU passports.

Why is the precedent so clear on the matter of genuine links?

Prof. Kochenov: The European Court of Justice struck down the flawed cold-war understanding of citizenship as expressed in the 1955 Nottebohm case in the 1992 Micheletti case. In fact, the Court said expressly that the “genuine links” cannot possibly apply in the context of the internal market as the EU is built precisely in order to make the identities pertaining to any particular European nationality irrelevant.

This is a legal system where claiming that being Portuguese is better than being a Maltese is outlawed as unacceptable. Consequently, Malta cannot require someone to be a “genuine” Portuguese to get rights there. Just a Portuguese is fine. And to know who is Portuguese, whom do we ask? Right: we ask Portugal – not Estonia, not Nottebohm, and not the European Commission.

Should the contrary be true, all the millions of European citizens who have never visited the country, or even the continent of their nationality would be excluded from any rights in EU law. Balibarean apartheid européen, which is now reserved in Europe for non EU citizens, would thus apply to many millions more. Worse still, anyone exercising free movement rights in the EU – especially from birth – would be potentially outside the remit of EU law.

There are thus truly vital reasons why the invocation of “genuine links” is something that is prohibited by the European Court of Justice. “Genuine links” stand for a rightless nationalist fantasy, which the European Union has been created to destroy. The Commission behaves recklessly in pretending not to know it.

Ironically, the Commission does not need any “genuine links”, which it is so dutifully and so wrongly invoking. The Commission’s argument is so insidious and unnecessary since the problems it tells us it aims to solve are not related to citizenship at all; it sees problems with corruption and money laundering. To equate citizenship, however it is acquired, with corruption and money laundering is absurd, especially as part of this particular legal action, because the Commission definitely has potential ways to bring cases on the basis of solving problems with money laundering and corruption, matters that have no relation to citizenship per se. Daniel Sarmiento and Martijn van den Brink have studied this issue in detail. So, to say that citizenship is something that means corruption and money laundering is a non-starter.

Why would the Commission take these countries to the European Court of Justice, knowing that this very court has already set a very clear precedent that will make the genuine links argument inadmissible?

Prof. Kochenov: Obviously, it’s a political decision. I think the Commission’s idea is simply to threaten two small EU states into changing their national citizenship law in order to avoid legal action. The Commission would thereby ensure a power-grab into a new terrain. But I do sincerely hope that Malta and Cyprus do everything they can to make sure that this case actually reaches the court and results in the clarification of what EU law actually says on this subject. After all, the key principle of EU law is that the law is never clear, as Professor Somek explained.  

With citizenship, the core line of case-law, rather than proving the EU Commission’s professed confusion, is rooted in the Treaties: the member states have the right to decide who their nationals are. This is not a surprise. Without a citizenry, there is no nation; without a nation, there is no member state. So, the very existence of states as such is at stake – the Commission is ready to tell who is a Frenchmen and who is Maltese better than France of Malta and will need luck to repeat its absurd arguments with a straight face in front of a court of law. 

There is relatively clear case-law on when the EU can and should intervene on nationality matters – but these cases aim to introduce additional protections to defend individuals against outright abuse by own states – the latest example is the Dutch approach randomly punishing dual citizens for forgetting to renew a passport with the loss of all rights in the EU. Even here, the Court tells the Member States, serving a blow to the ‘fundamental status of the nationals of the Member States’ – if you are careful, you can continue with abuse, no problem – it’s your call. EU citizenship thus aims, at least theoretically, to defend the individual. It is not about defending the nationalist views of the Commission on purging the EU of all beings ‘non-genuine’ – against the states and their peoples.

Once the Commission starts telling member states that naturalization in the absence of ‘genuine links’ is, in fact, the equivalent of corruption and money laundering, it is opening a Pandora’s box and we don’t where the Commission will stop. Will it stop at descent-based acquisition of nationality? If not, that would affect the passportization of Sephardic Jews expelled in 1492 from Portugal and Spain whose descendants are now, dozens of generations later, being granted citizenship in those countries. Will the Commission start a case to argue that Sephardic Jew and their descendants are “not Spanish enough”? It is quite obvious that they are not and that nothing ‘genuinely’ connects them with that state, besides the grant of citizenship.

Will it tell Hungary that all the Hungarian citizens living in the Ukraine and Romania and Slovakia who have never been to Hungary are also in violation of some non-existent “genuine links” requirement? And what about those proclaimed Romanians in Moldova, the Irish in the US, the Bulgarians in Macedonia, or those proclaimed Italians in Argentina, like Mr Micheletti, who obviously did not have any “genuine links” with Europe besides BEING AN ITALIAN AND A EUROPEAN? 

If it is residence that matters the most for the Commission – then all the kin naturalisations should be prohibited, turning millions of Europeans into foreigners. If it is ‘blood’ that matters for the Commission, then, well, it is an unusual approach to look for all things genuine in the Union of values not counting racism (at least outside of Berlaymont) among its founding values.

As I showed in recent research with Justin Lindeboom, ironically, it is precisely the nationalist clinging of the Member States to the ability to set citizenship rules as they please that preserves the climate of tolerance and pluralism in the EU in this sphere. We called it “pluralism through its denial” – the pluralism the Commission is attacking in the name of “genuine” European blood purity and at Cypriot and Maltese expense.

What we are witnessing today is an illegal attempt of a negative harmonization of citizenship acquisition rules, which, besides being alien to the goals of the Union in Europe, is also directly prohibited by the Treaties, which tell us that EU citizenship is additional to the nationality of the member states besides informing that all the powers not conferred on the Union rest with the Member States.

As long as the Member States have not decided to request the Commission to police blood purity of the Sephardic Jews, Ukrainian Hungarians, and Italian Argentinians, the Commission should not count genuine racism among its tasks and turn its attention to achieving other goals, preferably picking the ones where it has the competence to regulate. The principle of sincere cooperation to which the Commission erroneously and insistently refers precisely demands that the member states throw the racism of “genuine links” out of the window by observing the law as stated in Micheletti. And this is, of course, the opposite of triggering the power of the Commission to vet the national decisions of the member states on who their citizens really are. 

Reynders could have made an honest argument, which is less nationalist. Such an honest argument could, it seems to me, connect the problems with their causes. Obviously, citizenship and belonging to the nation is not the cause of money laundering and, equally obviously, it is not the cause of corruption. Once one of the modes of citizenship acquisition is chosen by the Commission to stand for corruption and money laundering, my prediction would be that all the member states would have to join in in opposition to the Commission’s attempt at abuse of power.

Today, a Russian with Maltese passport who paid more to the Maltese state than many Maltese throughout their lifetime is not ‘genuine’, tomorrow a Ukrainian unable to speak Hungarian is not a ‘genuine’ Hungarian and a Greek great-grand-father is a generation too far for the ‘genuine’ Greek blood.

Nationalist tales help to establish Renan’s l’oubli et l’erreur historique but, when taken up by the Commission, the effects are quite different; by killing pluralism, they undermine nationhood since who is French and who is Maltese are presumed to be different things even if the Commission rightly senses that it could try to bully the smallest Member States here. In EU law, nationality really does not matter. At the national level, however, this is all there is: nationhood itself is at stake. 

Is it the commission’s intention to argue the case from a genuine links perspective or will it be on the basis of money laundering and corruption?

Prof. Kochenov: Well, as I mentioned, these are different theses. What I read in the press release is that the Commission attacks particular ways of acquiring Maltese and Cypriot citizenship, under the pretext of going against money laundering and corruption. These two issues could certainly appear as related but they are absolutely different. So, if you want to tackle corruption and money laundering, then you need to look at the rules how to make the governments more transparent and how to change the procedures for naturalizing investor migrants. But what does that have to do with citizenship?

The EU has far more powers to tackle money laundering and corruption than it has to impose particular views of citizenship on the Member States. As I mentioned, Sarmiento and van den Brink analysed this issue with great clarity. While the first has to do with improvement of governance and procedures in the Union, the second is an unacceptable assault on the essence of the Member States, for which the Commission doesn’t have any clear – or even implied – mandate.

Malta and Cyprus will now have to give satisfactory responses within two months or potentially see the Commission take it to the court. What do you expect will happen?

Prof. Kochenov: It’s trickier than that. The Commission has absolute discretion in any case, which means that it doesn’t matter what kind of arguments Malta and Cyprus make. Even if the Commission is perfectly satisfied with the outcome, it can still bring those cases to court, this is the law. Even if it is satisfied that any breach of EU law has stopped, it can still do it.

For Malta and Cyprus it is tricky: Beyond purely political bullying, Reynders has not made any legal argument at all – not even while boasting about legal arguments in Le Soir. And when no minimally tenable legal argument is made by an omni-powerful bully, it is difficult to see how one can respond. This is precisely why I believe that, ultimately, the response from two of the smallest states to the Commission does not matter in the end. And since we see how extremely politicized the Commission is on this issue, given that it overwhelmingly ignores the essence of the law, my prediction is that, unfortunately, no matter what arguments the Cypriots and Maltese bring, the Commission will go to court regardless. Trying to appease the Commission at this stage would be the most absurd, since it might dissuade it from going to Court – and then the bullying will continue.

And what will happen in court?

Prof. Kochenov: Most likely, the Commission will be humiliated. The Court commands overwhelming respect and authority within the EU – some recent hick-ups notwithstanding – and that’s not for nothing; the Court has prevented, on numerous occasions, the occurrences of or attempts at undue power grabs by many actors involved in the European integration process. The arguments brought by Malta and Cyprus will be abundantly clear precisely because the law is on the side of the member states – and then this kind of political bullying could actually be slowed down.

Would that be the end of it?

Prof. Kochenov: There is no end to politics. As long as we have politicized attacks not rooted in the letter and spirit of the law, as long as it’s obvious outright and immediately that the problems that the Commission outlines are not related at all to the solutions the Commission proposes – and the solution it offers, in this case, is the abolition of certain ways of naturalizing people in Malta and Cyprus by opening the Pandora’s box of ‘genuineness of citizenship’.

Citizenship, however, is but a procedural legal link, not a skin colour or an accent, pace Reynders. It cannot be otherwise. From the Commission’s position, it’s absolutely clear that this political issue will never go away as long as the Commission rides the wave of prejudice, which has been dominating its position on the issue of investment migration for years: “European citizenship is not for sale”. I explained the absurdity of this standpoint in a small polemic with Ayelet Shachar, pointing out that to say this means that the speaker has no idea what citizenship actually is about as a status of random distribution of inequalities in the world. Citizenship is dependent on blood. “Blood purity is not for sale!” – fine, Mr Reynders, but then who would like to live in your Union?

The Commission will face difficulties in front of the Court not so much because is has no competence on the matter or because of the flawed (in fact indecent, I should say, given the 20^th century of ‘genuine citizenships’ ) legal arguments. It will have difficulties given that most likely the member states will actually take the side of Malta and Cyprus and not the side of the Commission. And this will not mean that they are all for citizenship by investment. It is simply a sign of the necessity of lasting pluralism: the Commission would really be going against the most sacred core of what member state self-preservation as such is about. The fact that it will be trashing EU’s values in the process will not be helping either.

If the Commission knows it has such a tenuous case, what do you think their real motivations are?

Prof. Kochenov: Von der Leyen is no Delors. The Commission has been extremely ineffective if not weak over the last year, especially during the Covid-crisis. It has totally given up its authority to be present in regulating the internal market, especially the free movement of persons in the face of the pandemic. Apple will not be ‘repaying’ 13 billion euros. It has achieved zero success in all the cases that it tried to bring against Poland and Hungary on compliance with EU values: where it “won”, it is too late and the situation has deteriorated dramatically. People still die in the Mediterranean en masse while the Commission is protecting our ‘way of life’. The rights of Europeans in the UK are not secure and so on and so forth.

So, in the face of a situation where the Commission has, overall, been a failure, it is probably easiest for them to mobilize popular nationalist support behind this action because, as we know, there is a lot of prejudice against this particular form of citizenship acquisition. Too bad that the nationalists do not yet see that any Commission’s success down the road might make their passions even more obviously out of place, once the Commission tells a newly-naturalized member of a Polish diaspora that she is not ‘genuine’ enough to be called a Pole because she has never resided in the country.

Besides obviously pointing in the direction of alarmingly ugly nationalist under-currents, I think that, for the Commission, it’s a PR campaign that is also an attempt to save face and to detract attention from failures across the board in other cases.

But it will not succeed.