Vlieks 143 national court that eventually had to consider the complaints of the applicants9—was confronted with the question whether EU law precluded the aforementioned provisions in the Law on Nationality in view of the absence of an individual assessment based on the principle of proportionality.10 Essentially, the Council of State was uncertain about the discretion that Member States have in their provisions on conditions for loss of nationality.11 It therefore requested a preliminary ruling of the CJEU. 3 Background: Rottmann To fully understand this case and the questions asked by the Council of State to the Court, we need to reconsider the case of Rottmann. This case concerned withdrawal of nationality by the German authorities because nationality was acquired by deception. In this case, the withdrawal of nationality would also result in Rottmann becoming stateless, thereby losing his EU citizenship. The CJEU’s decision made clear that the situation of a citizen of the Union who could lose EU citizenship and the rights attached thereto falls within the ambit of EU law.12 In particular, the Court held that it was not contrary to EU law or the concept of EU citizenship that a Member State withdraws nationality—even if this would result in statelessness of the person concerned—as long as the principle of proportionality is observed in the decision to withdraw.13 This means that it is necessary to take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his family with regard to the loss of the rights enjoyed by every EU citizen.14 In previous cases, the Court had already noted that Member States should have due regard to EU law when laying down the conditions for the acquisition and loss of nationality.15 Rottmann was considered a landmark case and next step in this line of reasoning because it raised, for the first time, the question of the extent of the discretion available to EU Member States to determine who their nationals are.16 Furthermore, the approach that the CJEU took in this case was characterized as ‘active’ and even as ‘judicial avant-gardism’, which demonstrated the Court is ‘willing to challenge Member States’ autonomy in nationality matters.’17 At the same time, the case was criticized for not recognizing the autonomy of EU citizenship (in relation to national citizenship)18 and failing to protect an individual from being stripped of nationality and ensuing statelessness.19 Furthermore, it was noted that future cases would make clear whether the CJEU has indeed changed the roles of EU citizenship and Member State nationality.20 Tjebbes provides a follow-up to Rottmann, in which the Court elaborates on the application of the proportionality test introduced in the latter case. 4 Genuine Link, EU Citizenship & Proportionality: the CJEU’s Judgment in Tjebbes In Tjebbes, the Court reaffirms that the situation of persons who face loss of nationality of a Member State and thereby loss of EU citizenship, like the applicants in this case, falls ‘by reason of its nature and its consequences’ within the ambit of EU law.21 This means that Member States must have due regard for EU law when exercising their powers in nationality matters. In particular, the CJEU holds that it is, in principle, legitimate to provide for loss of nationality after 10 years of residence in a third country as the Netherlands 9 10 11 12 13 14 15 16 17 18 19 20 21 See also Tjebbes (n 1) paras 17–19. Tjebbes (n 1) para 26. See also Opinion of AG Mengozzi (n 4) para 2. Rottmann (n 2) para 42. ibid, para 55. ibid, para 56. eg Case C-369/90 Micheletti and Others ECLI:EU:C:1992:295 [1992] ECR I-4329, para 10; Case C-192/99 Kaur ECLI:EU:C:2001:106 [2001] ECR I-1237, para 19; Case C-200/02 Zhu and Chen ECLI:EU:C:2004:639 [2004] ECR I-9925, para 37. Opinion of AG Poiares Maduro in Case C-135/08 Janko Rottmann v Freistaat Bayern ECLI:EU:C:2009:588 [2009] para 1. GR de Groot & A Seling, ‘The Consequences of the Rottmann Judgment on Member State Autonomy – The European Court of Justice’s Avant-Gardism in Nationality Matters’ (2011) 7 European Constitutional Law Review 150. eg D Kostakopoulou, ‘European Union Citizenship and Member State Nationality: Updating or Upgrading the Link?’ in J Shaw (ed), Has the European Court of Justice Challenged Member State Sovereignty in Nationality Law (EUI Working Papers RSCAS 2011/62) 21ff. eg D Kochenov, ‘Two Sovereign States vs. a Human Being: CJEU as a Guardian of Arbitrariness in Citizenship Matters’ in J Shaw, in J Shaw (ed), Has the European Court of Justice Challenged Member State Sovereignty in Nationality Law (EUI Working Papers RSCAS 2011/62) 11ff. De Groot & Seling, ‘The Consequences of the Rottmann Judgment on Member State Autonomy’ (n 18) 160. Tjebbes (n 1) para 32. See also Rottmann (n 2) paras 42, 45.