Factual background to the proceedings

The Dutch-Canadian, Tjebbes, was born in Canada and acquired both her nationalities by birth. She lived in Canada permanently. In May 2003 she applied for and was granted a Dutch passport, which was valid until 2008. She submitted a request for a new passport in April 2014. That request for a passport was rejected because Tjebbes had lost her Dutch nationality in the meantime, although she did not receive any notification of that fact; a bit of an unpleasant surprise for someone who for many years had believed herself to be a Dutch national. In the other joined cases similar situations had occurred. Ms Koopman was actually born in the Netherlands, she spent her childhood in the Netherlands, and moved to Switzerland when she was 18 years old, where she married a Swiss national three years later. Her last Dutch passport was valid from July 2000 to July 2005. When she requested renewal of her passport in 2014 she was refused, because she was no longer a Dutch national. Her minor child also lost its Dutch nationality because, according to Dutch legislation, children automatically lose their Dutch nationality if the Dutch nationality of their parent(s) is withdrawn because of residence outside the EU. The final case concerns Ms Saleh Abady who was born in Iran, but who acquired Dutch nationality by Royal Decree of 3 September 1999. On 6 October 1999 a Dutch passport, which was valid until 6 October 2004, was issued to her. Since December 2002 Ms Saleh Abady had clearly had her principal residence in Iran without interruption. In October 2014 she submitted a passport application to the Embassy of the Kingdom of the Netherlands in Iran. Her application was rejected too, because she no longer had the Dutch nationality.

Hence, although none of the applicants could be considered to be in a kind of ‘Wonderland’, what they do have in common with Alice is the fact that they changed, in their case from being a Dutch national, and an EU citizen, into being the national of a third country, without any information or notification.

Legal framework and broader context of the case

In all these cases, the applicants’ nationality had automatically been revoked because of the fact that they had lived outside the Kingdom of the Netherlands and the territory of the European Union for more than ten years. Based on the Dutch Nationality Act, Dutch nationality is withdrawn automatically when a Dutch national permanently resides outside the Kingdom of the Netherlands and the European Union for ten years. This period of ten years is reset if the Dutch national requests and receives a passport or a special declaration of his or her Dutch nationality before the ten-year period is over (Article 15(4) of the Dutch Nationality Act). Moreover, if the Dutch national resides for a continuous period of one year in the Kingdom of the Netherlands or on territory where EU law is applicable, the period of ten years is also reset (Article 15(3) of the Dutch Nationality Act). In such situations, the period of ten years restarts and is recalculated starting from the day of the issuing of the passport or the receiving of the special declaration.

According to the Dutch Passport Act only persons with the Dutch nationality are entitled to apply for a Dutch passport. The case of Tjebbes and the other applicants started when they applied for a Dutch passport. According to the Dutch Passport Act (Article 9) a passport is granted to individuals with Dutch nationality. Only at that moment did the applicants hear for the first time that they no longer had Dutch nationality. A passport as such is, however, not regarded as proof of nationality, but solely as a travel document.Footnote ¹

Article 20 TFEU provides that every national of one of the member states is an EU citizen. EU citizenship does not replace national citizenship, but is additional to it. As a consequence, EU citizenship status is dependent on the nationality of one of the member states. EU citizenship provides EU citizens with certain, specific rights under EU law. EU citizens have, amongst other things, the right to move and reside freely in the European Union (Article 21 TFEU), the right to equal treatment with regard to social benefits in other member states (Article 24 of Directive 2004/38), electoral rights for the European parliament and municipal elections in a member state other than the member state of nationality (Article 24 TFEU). In that light, nationality laws can be regarded as the ultimate ‘gates’ to EU citizenship and its rights. The competence to regulate nationality laws is an exclusive competence of the member states. Declaration 2, annexed to the Treaty of Maastricht, explicitly underlines that whenever the Treaty refers ‘to nationals of the Member States, the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned’.

In earlier case law the Court had already held that the regulation of nationality was a matter for the member states, but that, at the same time, member states might not restrict free movement rights (in this case the freedom of establishment).Footnote ² In 2001 the Court ruled that for a citizenship question to fall under EU law, there must have been revocation of an existing EU citizenship status.Footnote ³ In the case of Kaur it was decisive that Ms Kaur had never actually had the status of EU citizen, because she had the status of British Overseas Citizen, without the right to enter, remain or reside in the United Kingdom without special authorisation.Footnote ⁴

In Rottmann the question was posed for the first time as to whether the revocation of nationality would fall under the scope of EU law. The Court ruled in that case that, although the member states are competent to regulate nationality rules, revocation of nationality of an EU citizen may fall ‘by reason of its nature and its consequences, within the ambit of European Union law’.Footnote ⁵ According to the judgment in Rottmann, the authorities have to balance the interests of the member state to revoke nationality against the consequences at stake for the individual. So, in Rottmann, the Court pointed out that the gravity of the crime and the consequences for Rottmann had to be considered by the German authorities. The Court ruled that an individual proportionality test should be applied, taking into account the consequences which the withdrawal ‘entails for the person concerned and, if relevant, for the members of his family’.Footnote ⁶

Judgment of the Court of Justice of the EU in Tjebbes

Referring to its previous case law on nationality and EU citizenship, especially to Rottmann, the Court repeated that it is for each member state to lay down the conditions for the acquisition and loss of nationality, while respecting international law, adding that in situations which fall within the scope of EU law, the nationality rules have to comply with EU law as well. The Court also underlined the fact that EU citizenship is designed to be the fundamental status of nationals of the member states which is a well-grounded phrase in the case law of the Court on EU citizenship.Footnote ⁷ The Court held that it is a legitimate aim to prevent multiple nationalities and to protect the special bond which a state has with its nationals. In that context the Court also referred to the Convention on the Reduction of StatelessnessFootnote ⁸ and the Convention on Nationality,Footnote ⁹ and considered that neither instrument prevents a state from withdrawing the nationality of their nationals as such.

The Court in Tjebbes held that (automatic) loss, by operation of the law, of nationality leading to loss of EU citizenship is allowable, as long as this can, ‘as an ancillary issue’,Footnote ¹⁰ be subject to a proportionality test of ‘consequences of that loss for the situation of each person concerned and, if relevant, for that of the members of their family’ by national authorities and national courts, and those bodies can ‘where appropriate, … 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’.^{Footnote 11} According to the Court, in such circumstances, the law complied with Article 20 TFEU, read in the light of the right to private and family life (Article 7 EU Charter of Fundamental Rights of the EU) and the rights of the child (Article 24 EU Charter), so that the child’s best interests must be considered in all acts relating to children, and the right to a ‘personal relationship and direct contact with both his or her parents’.

Just as in Rottmann, the Court in Tjebbes explained that a member state’s wish ‘to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality’ was legitimate.^{Footnote 12} The Court also said that the aim of the Netherlands of countering ‘the undesirable consequences of one person having multiple nationalities’, of precluding ‘persons from obtaining or retaining Netherlands nationality where they do not, or no longer have, any link with the Kingdom of the Netherlands’ and of restoring ‘unity of nationality within the family’ was legitimate, because, just as the Advocate General had argued, requiring a ‘legitimate link’ between a member state and its nationals is legitimate for reasons of public interest.^{Footnote 13} This holds true as long as the person in question does not become stateless, contrary to the Convention on the Reduction of Statelessness.^{Footnote 14} Support for this legitimacy can be found in the fact that a declaration of nationality, or the issuing of a passport or Dutch ID card is held to be a sign of such a ‘genuine’ link, because it interrupts the period of ten years required for nationality to be lost.^{Footnote 15}

As to the proportionality test, the Court required the possibility of an ancillary individual examination of the consequences of the loss of nationality for that person’s situation and his or her family, and ‘the normal development of his or her family and professional life’ and ‘[t]hose consequences cannot be hypothetical or merely a possibility’.^{Footnote 16} Moreover, the person must, if necessary, have the opportunity to ‘recover his or her nationality ex tunc in the context of an application by that person for a travel document or any other document showing his or her nationality’, as is already possible under Dutch law.^{Footnote 17}

Relevant circumstances are whether the person:

In these considerations, the Court differed from the Advocate General, who was of the opinion that an individual examination was not necessarily required and proportionality could also be included in a legal provision and thus be tested in abstracto, referring to the cases of Delvigne and Rottmann.^{Footnote 19}

Advocate General Mengozzi argued that the review of proportionality in Rottmann requires that all circumstances must be considered in a proportionality test, but suggests that the direct and more indirect consequences must be considered.^{Footnote 20} The Advocate General held that if, in Rottmann, even the immediate consequences of loss of EU citizenship and the fear that the person would become stateless were not necessarily deemed disproportionate, it is hard to see which other consequences of the loss of nationality must additionally be taken into account in a proportionality test.^{Footnote 21} According to the Advocate General, consequences for the person or his or her family, such as loss of social benefits or the right to reside in the EU or Ruiz Zambrano-like custody issues consequent on the loss of nationality are generally the results of subsequent administrative decisions, which are amenable to judicial review in the light of proportionality and EU law.^{Footnote 22} So, the Advocate General reasoned, he could not see why ‘such indirect, even hypothetical, consequences’ would have to be taken into account ‘if they cannot, in any event, cause it to annul that decision or to find that the national authorities should not have adopted that decision’.^{Footnote 23} So even in a Ruiz Zambrano-like case, the member state would have to ‘ensure that the person concerned can continue to reside in the territory of the European Union as a member of the family of citizens of the Union’, but not that that person has the nationality of the member state.^{Footnote 24} The Advocate General therefore argued that, following Rottmann, the proportionality test that requires that losing nationality must be proportionate and necessary to the public interest pursued, must be limited to the measure that has loss of EU citizenship as a direct consequence, and so to the grounds on the basis of which nationality has been lost, and not to ‘all the circumstances specific to each individual situation’ that could demonstrate a genuine link with the member state.^{Footnote 25} In such a context, according to the Advocate General, the question whether the loss of nationality is justified can perfectly be assessed in abstracto, not in concreto, and so can the question whether a person can ‘recover his original nationality’ and, although this is less clear, the ‘lapse of time between the naturalisation decision and the withdrawal decision’, according to Rottmann.^{Footnote 26} The Advocate General’s reasoning regarding the in abstracto assessment was not followed by the Court.

In the individual examination of minors, the Court briefly explained, as an addition to its proportionality test, that it must be considered whether the loss of nationality is in ‘the child’s best interests as enshrined in Article 24 of the Charter because of the consequences of that loss for the minor from the point of view of EU law’.^{Footnote 27} As to the proportionality test, the consequences of the loss of nationality for that person’s situation and his or her family must be considered.^{Footnote 28}

Comments

In Tjebbes the Court confirmed its previous case law that member states remain the ultimate gatekeepers to access to and exit from EU citizenship. However, the exercise of that competence has to be in conformity with the outer limits of EU law: namely that it has to comply with the principle of proportionality as one of the fences surrounding the competences of the member states in the field of nationality.

The Court performed a (common) two-step approach: it established first that member states are allowed to come up with a legitimate aim to revoke the nationality of an EU citizen, even if that has the consequence that this individual will no longer be an EU citizen. Secondly, however, that legitimate aim is subject to a proportionality test. A key issue in this case was whether the government could apply an abstract proportionality test, which it argued was already incorporated in Dutch legislation but which only applied under very specific circumstances, or should such a test be an individual, concrete and fully-fledged proportionality test? The case is interesting because although the Court held that the domain of nationality belongs to the member states, the Court at the same time imposed very detailed procedural requirements on the exercise of that competence.Footnote ²⁹

Consequences and conclusion

The consequences of Tjebbes are not ground-breaking, in the sense that Rottmann had already held that the loss of member state nationality was subject to EU law. The judgment of the Court in Tjebbes can be applauded for its lenient approach to the proportionality test, in the sense that it does not question the specific period of ten years. By doing so the Court leaves much discretion to the member states, which suits the sensitivity of nationality laws. At the same time the Court does require that member states include the possibility of an individual proportionality test, thereby protecting the rights of these particular EU citizens. The fact that the Court, again, refers to fundamental rights in an EU citizenship case, and to the Charter specifically, is to be praised too. EU citizenship is dependent on nationality laws, and still has an internal market-origin but by focussing on fundamental rights, EU citizenship is enriched constitutionally.

For wider implications of Tjebbes, attention has been drawn by scholars to Brexit and EU citizenship.Footnote ⁶⁶ In the case of Brexit, all UK nationals will lose their status as EU citizens. However, it has to be seen whether a situation of secession is comparable with the situation in Tjebbes. It would be more likely that British nationals could potentially retain their acquired rights, but they are unlikely to be able to successfully challenge the loss of their EU citizenship.

Another link can be made to Article 14 of the Dutch Nationality Act, introduced in 2017, to revoke the Dutch nationality of a person who joins an organisation that is on a list of terrorist organisations. The Dutch legislature introduced a specific option for judicial protection in Article 22a-22c. Basically, such a person who has lost his or her nationality may appeal within four weeks from the decision to withdraw Dutch nationality. If during that period the concerned national has not appealed, the District Court will review the decision automatically. In the light of Tjebbes there seems to be sufficient discretion for the Netherlands authorities to withdraw the nationality of suspected fighters, especially in the light of a mutual bond or special relationship with a national. Whether the aim of national security would be sufficient is definitely a matter for discussion, particularly because the attachment to a terrorist organisation does not have to be established by a national court under Dutch law.Footnote ⁶⁷ In terms of proportionality there seems to be no substantive issue, since individuals can challenge the individual decisions of the withdrawal of their nationality before the national courts and, in that context, proportionality is reviewed. The fact that the national is unable to be at the hearing is probably acceptable, in the light of the judgment in Sacko,Footnote ⁶⁸ under these circumstances. The Council of State ruled, in a case decided after Tjebbes, on the withdrawal of the Dutch nationality of jihadist fighters, that in revoking Dutch nationality not only does proportionality have to be assessed, but so also do other fundamental rights of EU law, such as the right to be heard.Footnote ⁶⁹ The Council of State first explicitly referred to Tjebbes in order to counter the reasoning of the State Secretary for Migration (de Staatssecretaris voor Justitie en Veiligheid) that EU law requires only a proportionality test.Footnote ⁷⁰ Subsequently, since the situation fell within the scope of application of EU law, the Council of State fully tested the Dutch law in the light of EU law principles, namely the right to an effective remedy and a fair trial, enshrined in Article 47 of the Charter of Fundamental Rights, and concluded that the restriction of that right was proportionate.Footnote ⁷¹ The revocation in question was deemed to be unlawful because the law in question had been applied retroactively.Footnote ⁷² Because the situation fell within the scope of EU law, linked to Tjebbes, the Council of State could actually assess other Charter rights too.

The Tjebbes judgment is not surprising, but it does reflect the broad jurisdiction of the Court even in cases that are very sensitive. The judgment, however, struck an appropriate balance between the interests of the state and of the individuals, so that both interests are guaranteed. It also poses further questions, for instance on the time limits for challenging the withdrawal, and also how to assess the criteria which the Court has established. When is the ‘normal development’ of the applicant’s ‘family and professional life’ disproportionately affected? What does the Court mean by ‘serious risk to safety’ because of a lack of consular protection? For the Dutch Council of State and the Dutch legislature the judgment means that the Dutch Act can be upheld, but also that a possibility to assess the proportionality should be created and that denaturalisation ex tunc should be revised. Overall, the Court does accept a system of automatic revocation of nationality but it demands effective remedies for those who are disproportionately affected.

Whereas Alice, at the end of the book, wakes up from her fictional dream, after the court case the applicants in this case are affected in real life by the Dutch law. The Court showed in Tjebbes that it has eyes for the individual consequences, but it gives the member states sufficient discretion to define who their nationals are.