By Oliver Said, CEO | Endevio
October 4, 2024
Today, October 4, 2024, the Advocate General delivered a significant opinion in support of Malta’s Citizenship by Investment (CBI) programme. This marks a major step forward for Malta and other European Union (EU) member states that operate or wish to implement similar programmes, reinforcing Malta’s sovereign right to grant citizenship without the need to demonstrate a “genuine link” between applicants and the state.
Today, the Advocate General ruled that the European Commission had failed to prove that EU law (Article 20 TFEU) requires such a link. Essentially, this opinion strongly reaffirms Malta’s long-standing position that it is within its national discretion to determine citizenship criteria. Notably, while the Advocate General’s opinion is non-binding, it often holds considerable weight in the final rulings of the European Court of Justice (ECJ). The ECJ will now deliberate, with a final decision expected towards the end of 2024 or early 2025.
Summary of the Advocate General's Opinion
According to the EU Advocate General, the European Commission has “failed to prove that in order to lawfully grant citizenship, EU law requires the existence of any ‘genuine’ or ‘prior’ genuine’ link”. Notably, the Commission had primarily argued that EU citizenship should not be granted without the existence of a genuine link between a Member State and an individual.
In the Advocate General’s opinion, the requirement for a genuine link is a presumption rather than a fact. Therefore, he asserted that the Commission must prove “a Member state has not fulfilled an obligation binding upon it at EU law and it may not rely upon any presumption.”
Furthermore, the Advocate General stated that the EU cannot legislate citizenship based on a genuine link; instead, individual nations have the authority to impose such requirements at the national level. This ruling effectively preserves the sovereignty of nations to determine who may be granted citizenship and under what circumstances.
Implications of the Advocate General's Opinion
A Victory for National Sovereignty
Fundamentally, this opinion represents a victory for Malta’s sovereignty, asserting that EU law does not define or mandate specific citizenship criteria beyond what is required by domestic law. Moreover, it sets a precedent for other nations to pursue policies that align with their national interests, reaffirming that citizenship matters remain primarily within the scope of national jurisdiction.
For Malta, this ruling brings stability to its Citizenship by Investment programme. Therefore, existing investors who have already obtained citizenship can rest assured that their rights remain intact, and pending applications will continue to be processed without disruption.
Encouragement for EU Member States
The Advocate General’s decision may pave the way for other EU countries to explore similar Citizenship by Investment (CBI) or Residency by Investment (RBI) programmes. This could lead to further diversification of investment opportunities across Europe, as nations adopt robust, economically beneficial immigration policies.
Strengthening of Due Diligence and CBI Programme Integrity
Malta has long been recognized for setting high due diligence standards in its Citizenship by Investment programme. Subsequently, this opinion could encourage other EU nations to adopt similar levels of scrutiny, ensuring that only high-quality applicants gain citizenship or residency rights. Furthermore, over time, there may be efforts to harmonize due diligence practices across the EU, fostering greater integrity in these CBI programmes.
Read the Advocate General’s specific opinion details here.
Conclusion
In conclusion, the Advocate General’s opinion is a substantial win for Malta, solidifying the country’s right to set its own immigration policies. It not only reinforces Malta’s Citizenship by Investment programme but also highlights the importance of national sovereignty within the EU framework. As the European Court of Justice moves towards its final decision, Malta’s position remains strong, benefiting both its economy and international standing.