JY, an Estonian national, applied for Austrian nationality. As Austria operates a 'single nationality' approach, JY renounced her Estonian nationality after receiving an assurance that she would be granted Austrian nationality once proof of her renunciation was given. This assurance was subsequently revoked due to the applicant committing two road traffic offences, leaving her stateless. In its judgment, the CJEU confirmed that the situation falls within the scope of EU law, and that the authorities' decision to revoke an assurance to grant Austrian nationality was incompatible with the principle of proportionality considering the gravity of the offences committed. The Court noted that the concepts of ‘public policy’ and ‘public security’ must be interpreted strictly and clarified their meaning, concluding that it did not appear that JY represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or a threat to public security in Austria. It also held that traffic offences, punishable by mere administrative fines, cannot be regarded as capable of demonstrating that the person is a threat to public policy and public security which may justify the permanent loss of their EU citizenship.
- Article 7(2) of the United Nations Convention on the Reduction of Statelessness
- Articles 4, 7, 8, 15 and 16 of the European Convention on Nationality
- Articles 20(1), 20(2)(a) and 21 of the Treaty on the Functioning of the European Union
- Paragraphs 10 and 20 of the Staatsbürgerschaftsgesetz 1985 (1985 Austrian Law on Citizenship)
The applicant was a national of Estonia at the time of her application for Austrian nationality on 15 December 2008. On 11 March 2014 she received an assurance from the competent Austrian authority that she would be granted nationality if she provided evidence within two years that her Estonian nationality was renounced. Relying on this assurance, she renounced her Estonian nationality on 27 August 2015 and submitted evidence of doing so to the Austrian authorities. The applicant has been stateless ever since.
On 6 July 2017, the authority examining her application revoked the decision expressing the assurance that Austrian nationality would be granted to her and rejected the applicant’s application for Austrian nationality. This was justified on the basis that the applicant had committed two serious administrative offences since receiving the assurance and had been responsible for eight administrative offences prior to this. The serious offences concerned a failure to display a vehicle inspection disc and driving under the influence of alcohol. She therefore no longer satisfied the requirements to acquire nationality contained in the Austrian Law on Citizenship.
The applicant’s appeal against this decision was dismissed by the Administrative Court in Vienna on 23 January 2018 and it was held that the assurance had to be revoked due to the offences committed, in accordance with the relevant provision in the Austrian Law on Citizenship. The applicant subsequently lodged an appeal against that judgment before the Supreme Administrative Court of Austria.
The referring court decided to stay the proceedings and submitted the following questions to the CJEU for a preliminary ruling:
"Does the situation of a natural person who, like the appellant in cassation in the main proceedings, has renounced her only nationality of a Member State, and thus her citizenship of the Union, in order to obtain the nationality of another Member State, having been given a guarantee by the other Member State of grant of the nationality applied for, and whose possibility of recovering citizenship of the Union is subsequently eliminated by revocation of that guarantee, fall, by reason of its nature and its consequences, within the scope of EU law, such that regard must be had to EU law when revoking the guarantee of grant of citizenship?
If the first question is answered in the affirmative:
- Is it for the competent national authorities, including any national courts, involved in the decision to revoke the guarantee of grant of nationality of the Member States, to establish whether the revocation of the guarantee that prevented the recovery of citizenship of the Union is compatible with the principle of proportionality from the point of view of EU law in terms of its consequences for the situation of the person concerned?"
With respect to the first question, the applicant argued that she had a legitimate expectation that she would be granted the nationality of a Member State and had involuntarily lost her EU citizenship. This was in response to the Austrian’s government submission that she had voluntarily renounced her EU citizenship, placing the contested decision outside the scope of EU law. She further argued that the Austrian authorities were obliged to comply with EU law and grant her nationality in order for her to retain her derivative citizenship of the EU conferred by Article 20 TFEU.
As for the second question, JY submitted in her observations that neither of the serious offences committed after the grant of the assurance was such as to result in the withdrawal of her driving licence. She stated that the penalties faced were fines amounting to EUR 112 and 300 respectively.
The referring court argues that neither the fact that the conditions for the revocation of the assurance were fulfilled nor the refusal to grant nationality in accordance with Austrian Citizenship law can be contested. Furthermore, it stated that Administrative Court responsible for revoking the decision found that in the light of the 1961 Convention on the Reduction of Statelessness, the ensuing statelessness of the applicant was proportionate. It argued that due to her statelessness at the time of both the revocation and the refusal to grant nationality, EU law did not apply to the case. That is, the judgments in Rottman and Tjebbes and Others were not applicable.
Addressing the first question, the CJEU began by recalling the judgments in Rottman and Tjebbes and Others. It found that situations in which a national of a Member State relinquishes their nationality and is therefore at risk of losing their EU citizenship fall within the ambit of EU law. Unlike the other cases, however, the contested decision itself did not directly result in a loss of EU citizenship. Despite the differing circumstances, the CJEU found that EU law did in fact apply to the case at hand because such a decision must take into account the fact that the individual was previously a national of another Member State and was therefore a citizen of the EU.
The CJEU went on to examine the nature of the applicant’s renunciation and found that the applicant had not made a voluntary renunciation. This is because she renounced her nationality of a Member State with the single aim of satisfying a condition to obtain the nationality of another. The applicant was therefore found to have had no intention of relinquishing her EU citizenship. Moreover, it found that to the extent that the condition of renunciation contained in such an assurance affects the status conferred by Article 20 TFEU, it falls within the ambit of EU law.
The CJEU noted that the applicant was entitled to the rights conferred by Article 21(1) TFEU which guarantees EU citizens the right to move and reside freely within Member States. The CJEU then considered the notion of gradual integration which informs the interpretation of this provision (Lounes, C- 165/16). In residing in Austria and applying for nationality of this Member State, the applicant has demonstrated an intention to become permanently integrated. It is therefore contrary to the logic of gradual integration for an applicant who has renounced their EU citizenship status with the aim of integrating more deeply into a Member State, to be excluded from the protection of EU law.
By reason of their nature and consequences, the grant of assurance and its subsequent revocation were found to fall within the scope of EU law.
On the second question, noting the fundamentality of the status granted by Article 20 TFEU, it stated that a revocation of an assurance to grant nationality that results in the loss of EU citizenship must be made only on legitimate grounds subject to the principle of proportionality. An assessment of the proportionality of a decision requires an individual assessment of the situation of the person concerned from the perspective of EU law, and, if relevant, that of their family. In this respect, the CJEU held that the gravity of the two offences committed after the assurance did not warrant its revocation. While the referring court relied on the public interest ground laid out in the domestic legislation, to reach the opposite conclusion, the CJEU held that the concepts of ‘public policy’ and ‘public security’, as a justification for derogating from the right of residence, must be interpreted strictly.
The CJEU held that the offences committed did not present a genuine, present and sufficiently serious threat to public policy or public security. Furthermore, it found that account could not be taken of the eight offences committed prior to the assurance as a basis for the revocation decision. Crucially, the CJEU held that revoking an assurance of naturalisation on the basis of a road traffic accident, that does not entail the withdrawal of a driving license, was not proportionate. The CJEU also considered the impossibility of her recovering her original nationality due to the requirement in Estonian law that she resides in Estonia for at least eight years.
In light of the significant consequences for the applicant’s situation, as regards, in particular, the normal development of her family and professional life, the decision was held not to be proportionate to the gravity of the offences committed.
On those grounds, the CJEU ruled that:
1. The situation of a person who, having the nationality of one Member State only, renounces that nationality and loses, as a result, his or her status of citizen of the Union, with a view to obtaining the nationality of another Member State, following the assurance given by the authorities of the latter Member State that he or she will be granted that nationality, falls, by reason of its nature and its consequences, within the scope of EU law where that assurance is revoked with the effect of preventing that person from recovering the status of citizen of the Union.
2. Article 20 TFEU must be interpreted as meaning that the competent national authorities and, as the case may be, the national courts of the host Member State are required to ascertain whether the decision to revoke the assurance as to the grant of the nationality of that Member State, which makes the loss of the status of citizen of the Union permanent for the person concerned, is compatible with the principle of proportionality in the light of the consequences it entails for that person’s situation. That requirement of compatibility with the principle of proportionality is not satisfied where such a decision is based on administrative traffic offences which, under the applicable provisions of national law, give rise to a mere pecuniary penalty.
Leonhard Call, The Austrian naturalisation procedure – disproportionate and in violation of international law, ENS blog (3 Mar 2022)
D. V. Kochenov and D. de Groot, Curing the Symptoms but not the Disease: CJEU’s Myopic Advances in the Field of EU Citizenship in JY, Verfassungsblog (20 January 2022)
David de Groot, CJEU asked to rule on acquisition of nationality in light of EU citizenship: The fundamental status on the horizon, GLOBALCIT Blog (16 June 2020)
- C-135/08, Rottman 
- C-165/14, Rendón Marín 
- C-165/16, Lounes 
- C-221/17, Tjebbes and Others