IM Yearbook 2020/21

two stages: administrative and judicial. Under
the first stage, the Commission will make
various attempts to negotiate an agreement
with the member state concerned informally
and usually by exchange of correspondence,
documents, data etc. If no agreement is
achieved in the pre-infringement stage
and the Commission decides to initiate an
infringement procedure, it will send a formal
notice to the member state. The member
state is then given the opportunity to submit
its observations. After the member state’s
submission, the Commission decides whether
to deliver a reasoned opinion explaining
why it considers that the member state has
failed to fulfil its Treaty obligations. Once the
member state has replied to the Commission’s
reasoned opinion or the lack thereof, the
Commission will refer the matter to the
ECJ and thus start the judicial procedure.
The infringement procedures
against Cyprus and Malta have now
been initiated with the formal notices
sent by the Commission. What is less
clear, however, is what arguments the
Commission would use with regard to the
obligations under the Treaties that these
two member states allegedly failed to
fulfil if this case is brought to the court.
The EC’s objections are partially based
on the concept of “genuine links”. What
can you tell us about this notion?
In its Press Release on the matter, the
European Commission stated that it
‘considers that the granting by these member
states of their nationality – and thereby
EU citizenship – in exchange for a predetermined
payment or investment and
without a genuine link with the member
states concerned, is not compatible with the
principle of sincere cooperation enshrined
in Article 4(3) of the Treaty on European
Union. This also undermines the integrity
of the status of EU citizenship provided
for in Article 20 of the Treaty on the
Functioning of the European Union’.
The Commission will most likely argue
that Cyprus and Malta failed to fulfil their
obligations under Article 4(3) TEU and
Article 20 TFEU by granting nationality
in exchange for payment or investment
and without genuine link. This argument
is, however, somewhat problematic.
First of all, the ‘genuine link’ theory
has not developed into obligatory rules
or principles of international law, let
alone in EU law which provides for
non-discrimination on the basis of
nationality. Trying to impose a ‘genuine
link’ requirement on member states with
regard to their criteria for acquisition of
citizenship would not only be incompatible
with EU law but would also almost
certainly spark ethnic nationalism and
undermine the values of the Union itself.
Secondly, it is difficult to imagine that
the principle of sincere cooperation could
be successfully invoked in the context
of these cases. Article 4(3) concerns the
achievement of EU objectives and genuine
compliance with EU law, none of which
seems to be related with the investment
programmes. A possible infringement
of that provision could be imagined in
the case of mass naturalisation, which
may have a significant negative impact
on the internal market. This is where a
member state confers its citizenship to a
large, disproportional numbers of thirdcountry
nationals. However, this doesn’t
seemed to be the case with Cyprus and
Malta because the number of citizenship
granted through their investment
programmes remained low in general
and compared to the number of other
naturalisations in the EU in particular.
Dr Elena Basheska
BIO is an independent
legal researcher
and EU/international
affairs consultant/
advisor. She holds an LLM
in European law and a
PhD in EU law from the
University of Groningen
(The Netherlands). Elena
has extensive experience
as a researcher, working
previously in various
sectors, including
academia, NGOs, law
firms and professional
organisations. Her
research interests focus
on EU enlargement,
EU external relations,
citizenship, and protection
of human rights.
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