EU vs Malta Citizenship Sales Court Hearing on June 17th: “Commission Has Zero Chance,” Says Kochenov

The process that began with the European Commission initiating infringement proceedings in 2020 will come to a head later this month as the European Court of Justice hears the Commission’s case against Malta. Prof. Dimitry Kochenov – dubbed the “Passport Professor” in IMI, a leading scholar in EU citizenship law who heads the Rule of Law Research Group at the Central European University – maintains that the Commission will be “humiliated” in court.

In October 2020, the European Commission initiated infringement procedures against Malta and Cyprus over those countries’ operation of citizenship by investment programs. The Commission insists that CIPs are a violation of the principle of “sincere cooperation” enshrined in Article 4(3) of the Treaty of the EU because it confers citizenship in the absence of so-called “genuine links,” a contention disputed by Malta and scholars of EU citizenship law. 

After sending two letters of formal notice to Malta in 2021, in which it requested the country end its citizenship by investment program, the Commission sent a Reasoned Opinion to Malta in April 2022, effectively issuing a final demand to comply or see the matter escalated to the European Court of Justice. Malta rebuffed the Reasoned Opinion on the same day that it received it.

In September 2022, the Commission finally referred Malta to the European Court of Justice. No new developments had taken place in the case by the time the first court date was set earlier this year.

The first public hearing of the infringement case will take place at 14:30 on June 17th in the Grand Chamber of the European Court of Justice in Luxembourg.

Questioned as to whether he stands by his forecast from 2020 when he said the Commission would be “humiliated” if the case against Malta were to go to court, Professor Kochenov this week told IMI his prognosis remains unchanged:

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“The law is the same. The Commission stands zero chance, so they could attempt to settle. But this is not likely. Let us watch!”

While the note in the EU’s Official Gazette indicates the Commission will be represented by C. Ladenburger, E. Montaguti, and J. Tomkin, it does not specify who will defend the Republic of Malta. Kochenov would only say that it’s “a good friend, who is one of the most distinguished EU law practitioners and who has already won important cases for Malta.”

Following the hearing, during which both parties will present oral arguments, the Advocate General will have the chance to issue an opinion before the court makes its ruling, which is final and binding. Kochenov says that while the timing will be up to the court, “within a year, we should have a judgment.”

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