CJEU - Tjebbes and Others

The authorities refused to examine the applications of Dutch nationals, with dual nationality of a non-EU country, for renewal of their Dutch passports. The decision was based on the fact that they had lost their Dutch nationality because they possessed a foreign nationality and had their principal residence for an uninterrupted period of 10 years outside the Netherlands and the EU. The CJEU found that Member States may lay down rules regulating the loss of their nationality and, as a result, the loss of EU citizenship, where the genuine link between the person and that State is durably interrupted. Nevertheless, the loss of nationality must respect the principle of proportionality, which requires an individual assessment of the consequences of that loss for the person from the point of view of EU law.

Case name (in original language)
Tjebbes and Others v Minister van Buitenlandse Zaken
Case status
Decided
Case number
Case C-221/17
Citation
Judgment of 12 March 2019, Tjebbes and Others v Minister van Buitenlandse Zaken, Case C-221/17, EU:C:2019:189
Date of decision
State
Court / UN Treaty Body
Court of Justice of the European Union
Language(s) the decision is available in
Estonian
Finnish
Greek
Latvian
Lithuanian
Maltese
Slovenian
Bulgarian
Croatian
Czech
Danish
Dutch
English
French
German
Hungarian
Italian
Portuguese
Romanian
Slovak
Spanish
Swedish
Applicant's country of birth
Canada
Applicant's country of residence
Canada
Relevant Legislative Provisions
  • Law on Netherlands Nationality (Rijkswet op het Nederlanderschap) – Articles 6, 15, 16
  • Law amending the Law on Netherlands Nationality (acquisition, granting and loss of Netherlands nationality) (Rijkswet tot wijziging Rijkswet op het Nederlanderschap (verkrijging, verlening van het Nederlanderschap)) - Article IV
  • Treaty on the Functioning of the European Union – Articles 20, 21
  • EU Charter of Fundamental Rights – Articles 7, 24   
  • Convention on the Reduction of Statelessness 1961 – Articles 6, 7
  • European Convention on Nationality – Article 7
Facts

There were four applicants, each dual nationals with the Netherlands and a non-EU Member State nationality. The fourth applicant was the second applicant’s daughter, having acquired Netherlands nationality through her mother. At the time of the applications, each applicant lived in their non-EU country of nationality.

Each applicant had at some time held or been entered in a Netherlands passport. The passports were issued between 1999 and 2003 and were valid for five years. In 2014 the applicants made fresh applications for a Netherlands passport.

The Minister refused to consider the passport applications because he considered the applicants to have lost their Netherlands nationality. This was because they were foreign nationals who had been resident outside the Netherlands for more than ten years or, in the case of the fourth applicant, because their parent had been so resident. This was in accordance with Articles 15(1)(c) and 16(1)(d) of the Law on Nationality.

The applicants complained against the Minister’s decision. Their complaints were rejected and the applicants brought actions in the District Court. The District Court dismissed the actions of the first, second and third applicants, but found that the fourth applicant’s action was well founded. The Court annulled the Minister’s decision to reject the fourth applicant’s complaint, but upheld the Minister’s original decision not to consider the passport application.

The applicants appealed to the Netherlands Council of State which referred the cases to the Court of Justice for the European Union for a preliminary ruling.

The Council of State asked the CJEU whether Articles 20 and 21 TFEU read with the Charter of Fundamental Rights precluded legislation such as Articles 15(1)(c) and 16(1)(d) of the Law on Nationality from the point of view of EU law. Namely, was legislation incompatible where it provided for a person to lose their Netherlands nationality, and consequently their citizenship of the Union, on the grounds that they resided or, in the case of minors, that their parents resided, outside the Netherlands for an uninterrupted period of ten years, without an individual examination, based on the principle of proportionality, of the consequences of that loss for the situation of that person? The question was posed with a particular focus on the principle of proportionality as set out in Rottmann.

Decision & Reasoning

The Court decided on the question of whether, under EU law, national legislation could provide for a person to lose their Member State nationality, and consequently their Union Citizenship, without an individual examination of the proportionality of that loss.[27]

It also found that the situation of individuals at risk of losing their Union Citizenship because of losing their citizenship of a Member State fell within the ambit of EU law. [32]

The Court held that there were legitimate reasons to introduce legislation such as the Law on Nationality. Namely, it was legitimate for the State to seek to protect the special reciprocal relationship it had with its nationals. The State may take the view that the absence or loss of a genuine link between a national and the State should entail the loss of nationality. The State could also legitimately take the view that unity of nationality within a family unit should be protected. [33]-[35]

A lack of habitual residence could be taken to indicate that there was no genuine link between a person and the State. Further, if there was no genuine link between a parent and the State, this could be taken to indicate a lack of a genuine link between the child and the State. [35]-[36]

In principle, the provisions of the 1961 Convention on the Reduction of Statelessness supported the legitimacy of such provisions. In particular, Articles 6 and 7(3) to (6) provided that a State could not deprive a person of their nationality so as to make them stateless. The national legislative provisions in question only applied to dual nationals. Article 7 of the European Convention on Nationality provided that a State Party could provide for the loss of its nationality where there was no genuine link between a national habitually residing abroad and the State and, in the case of children, where the nationality had been lost by its parent. [37]

The Netherlands legislation in question also provided for a person to retain their Netherlands nationality by, within the 10-year period, requesting the issuing of a declaration regarding the possession of Netherlands nationality, a travel document or a Netherlands identity card.  [38]

The Court concluded that EU Law did not in principle preclude legislative provisions such as those in the Law on Nationality. This included situations where the effect of those provisions was to deprive a person of their Union citizenship. Referring to Rottmann, the Court held however that it is for the national authorities to determine whether the loss of nationality and the loss of Union citizenship was proportionate with regard to the consequences of that loss for the situation of the person concerned and their family members. If the relevant national rules did not allow for any individual assessment, this would be inconsistent with the principle of proportionality. National authorities must assess, as an ancillary issue, the consequences of the loss of nationality and, where appropriate, have the person concerned recover their nationality ex tunc through an application for a travel document or any other document showing their nationality. [39]-[42] The Court also held that, as part of the examination of proportionality, national authorities should ensure that the loss of nationality is consistent with fundamental rights guaranteed by the Charter, in particular the right to respect for family life (Article 7), read in conjunction with with the obligation to to take into consideration the child’s best interests in terms of Article 24(2) of the Charter. [45]

The Court held that the circumstances of the individual situation that may be taken into account in the assessment of proportionality may include the limitations when exercising the right to move and reside freely within the EU, difficulties in continuing to travel in the EU to retain links with family members, to pursue one's professional activity [46].

Therefore, the Court found that Article 20 TFEU, read with Article 7 and 24 of the Charter, did not preclude a Member State from enacting legislation providing under certain conditions for the loss, by operation of law, of its nationality and which also entails the loss of Union citizenship. However, that Member State has to be in a position to carry out an assessment of the consequences of the loss of nationality on the person concerned. Specifically it should assess whether the loss of nationality and Union citizenship had due regard to the principle of proportionality from the point of view of EU law. [48]

Outcome

The CJEU held that EU law did not preclude a Member State's legislation providing under certain conditions for the loss, by operation of law, of its nationality and which also entails the loss of Union citizenship. However, that Member State has to be in a position to carry out an assessment of the consequences of the loss of nationality on the person concerned. Specifically it should assess whether the loss of nationality and Union citizenship had due regard to the principle of proportionality from the point of view of EU law.

Caselaw cited
  • Case C‑135/08, Rottman v Freistaat Bayern [2010]
  • Case C‑133/15, Chavez-Vilchez and Others [2017]
  •  Case C‑82/16, K.A. and Others (Family reunification in Belgium) [2018]