how.37 THE UNBREAKABLE LINK BETWEEN NATIONALITY AND EU CITIZENSHIP EU citizenship is established by the Treaty on the Functioning of the European Union,38 which also sets out the main rights attached to this status. Member States implement EU law when dealing with matters related to EU citizenship. At the same time, the only way to access this status is through acquiring the nationality of a Member State, i.e. in a procedure governed by domestic rules. The CJEU provides guidance on how to interpret and resolve this apparent contradiction. The well-established jurisprudence of the CJEU confirms that ‘implementing Union law’ equates to ‘acting in the scope of Union law’ (echoed also by the explanatory memorandum of the EU Charter of Fundamental Rights).39 The Court found that its interpretation extends beyond the direct implementation of EU law and includes legal actions that serve the fulfilment of EU obligations, even if they are not directly based on EU law. For example, in the 2013 Fransson case, this principle was applied to Swedish proceedings for the prosecution of a tax evader (not governed by EU law), as they served the objective of ensuring the collection of value-added tax and the avoidance of fraud (both of which are under the scope of EU law), and thus the proper implementation of EU law.40 The Fransson principle can be directly applied to the issue in focus as well: if a domestic legal proceeding (prosecution for tax evasion in Fransson, acquisition of nationality in our case) is clearly linked to an objective established under EU law (VAT collection and anti-fraud measures in Fransson, effective existence of EU citizenship), the domestic procedure is to be considered to fall within the scope of EU law. While addressing a somewhat different scenario, the 2010 Rottmann judgment of the CJEU can be evoked in support of this line of thinking: Having regard to the importance which primary law attaches to the status of citizen of the Union, when examining a decision withdrawing naturalisation it is necessary, therefore, 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 citizen of the Union. In this respect it is necessary to establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality.41 The Rottmann judgment, in explicit terms, solely deals with the loss of EU citizenship and the rights attached thereto – a scenario somewhat different from that of not being able to acquire EU citizenship. Nevertheless, those refugee children born in the EU who acquire no nationality at birth (see ‘Scenario 1’ in the next chapter) and, therefore, their country of birth must, under its international and/or domestic obligations, offer its nationality to them to prevent statelessness, are in a comparable situation. They are entitled to the nationality of a Member State and thus to EU citizenship (either at birth ex lege or later through a non-discretionary procedure), which they may be denied in practice, if the domestic legal safeguards are insufficient (in breach of international legal standards) or not applied effectively. In these circumstances, based on a parallel with Rottmann, Member States may arguably be acting within the scope of EU law.42 CONCRETE OBLIGATIONS UNDER THE EU CHARTER OF FUNDAMENTAL RIGHTS By virtue of Article 51 of the EU Charter, Member States are obliged to apply the rights therein when ‘implementing Union law’.43 As mentioned above, the implementation of EU law can include legal actions that serve the fulfilment of EU obligations, even if they are not directly based on EU law. The EU Charter is applicable to questions surrounding EU citizenship, and therefore, in order for states to fulfil this obligation, the acquisition of nationality. 37 38 39 40 41 42 43 A noteworthy example for a concrete standard in this respect is the obligation to observe the principle of proportionality when withdrawing nationality (which entails the loss of EU citizenship), based on the fact that nationality was obtained on deception – See: Janko Rottmann v. Freistaat Bayern, C‑135/08, 2 March 2010, Paras 55 and 58. Treaty on the Functioning of the European Union, Article 20. Explanations relating to the Charter of Fundamental Rights, 2007/C 303/02, 14 December 2007. Åklagaren v. Hans Åkerberg Fransson, C‑617/10, 26 February 2013, Paras 24-29. Janko Rottmann v. Freistaat Bayern, C‑135/08, 2 March 2010, Para. 56 – emphasis added. See a similar line of arguments with regard to naturalisation procedures in Gábor Gyulai, The Black Box of Nationality – The Naturalisation of Refugees and Stateless Persons in Hungary, Hungarian Helsinki Committee, pp. 10-13, 2015, http://www.refworld.org/docid/5792070a4.html Charter of Fundamental Rights of the European Union, Article 51 (1). 8