In the judgment of Tuesday, 12 March, in Case C-221/17, the judges of the Court of Justice of the European Union (CJEU) held that, to a certain extent, EU law does not preclude national legislation from providing for the loss of nationality from a Member State and, thus, the loss of Union citizenship if the effective link between a person and that Member State is permanently broken.
Dutch citizens who are also nationals of a non-member country have lodged an appeal with the Dutch courts following a refusal to examine their applications to renew their national passports.
This refusal was based on Dutch law under which an adult loses his or her nationality if he or she also has a foreign nationality and if, in the course of his or her adulthood, his or her main residence has been outside the EU for an uninterrupted period of ten years. In the event the person’s main residence is in the EU for at least one year or the person has applied for an identity document, this period is interrupted. Furthermore, under Dutch law, a minor loses his or her Dutch nationality if one of his or her parents loses his or her nationality.
When these disputes were brought before the Dutch courts, the Dutch Council of State referred the matter to the CJEU for a preliminary ruling in order to examine whether such provisions were compatible with EU law.
In their judgment, the judges first reiterate that a situation such as the one in question falls under EU law.
They add that the provisions concerned may be considered lawful, since they actually reflect a lack of an effective link with the Member State because a safeguard provides that the risk of statelessness be eliminated and that a declaration of nationality or an identity document making it possible to maintain this effective link be issued.
Nevertheless, the judges consider that such rules would be incompatible with EU law if the situation of the persons concerned could not be examined individually. Thus, national courts and authorities must be able to carry out such an examination while specifically ensuring that the decision is compatible with the Charter of Fundamental Rights of the European Union, in particular with the right to respect for family life and taking into account the best interests of the child. Such an exercise must be able to lead to the retroactive recovery of the person’s nationality. The judges also list several circumstances that must be taken into account during this examination. (Original version in French by Lucas Tripoteau)