Rottmann, not Rothwell- brain not yet engaged.
I will make it easy for you:
http://eudo-citizenship.eu/docs/Rottmann_Judgment.pdf
The relevant provisions of international law
The Universal Declaration of Human Rights
14 Article 15 of the Universal Declaration of Human Rights, adopted by the General Assembly of the United
Nations on 10 December 1948, provides that:
‘1. Everyone has the right to a nationality.
2. [COLOR=“Red”]No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.’
The Convention on the Reduction of Statelessness
15 Article 7 of the Convention on the Reduction of Statelessness, done at New York on 30 August 1961, which
entered into force on 13 December 1975, provides as follows:
‘1.(a) If the law of a Contracting State permits renunciation of nationality, such renunciation shall not result in loss of nationality unless the person concerned possesses or acquires another nationality;
…
2. A national of a Contracting State who seeks naturalisation in a foreign country shall not lose his
nationality unless he acquires or has been accorded assurance of acquiring the nationality of that foreign
country.
3. Subject to the provisions of paragraphs 4 and 5 of this article, a national of a Contracting State shall not
lose his nationality, so as to become stateless, on the ground of departure, residence abroad, failure to register
or on any similar ground.
4. A naturalised person may lose his nationality on account of residence abroad for a period, not less than
seven consecutive years, specified by the law of the Contracting State concerned if he fails to declare to the
appropriate authority his intention to retain his nationality.
…
6. Except in the circumstances mentioned in this article, a person shall not lose the nationality of a
Contracting State, if such loss would render him stateless, notwithstanding that such loss is not expressly
prohibited by any other provision of this Convention.’
16 Article 8 of that convention provides:
‘1. A Contracting State shall not deprive a person of its nationality if such deprivation would render him
stateless.
2. Notwithstanding the provisions of paragraph 1 of this article, a person may be deprived of the nationality
of a Contracting State:
(a) in the circumstances in which, under paragraphs 4 and 5 of article 7, it is permissible that a person
should lose his nationality;
(b) where the nationality has been obtained by misrepresentation or fraud.
…
4. A Contracting State shall not exercise a power of deprivation permitted by paragraphs 2 or 3 of this
article except in accordance with law, which shall provide for the person concerned the right to a fair hearing
by a court or other independent body.’
17 Article 9 of that convention provides that a Contracting State may not deprive any person or group of persons
of their nationality on racial, ethnic, religious or political grounds.
The European Convention on Nationality
18 The European Convention on nationality of 6 November 1997 was adopted under the aegis of the Council of
Europe and entered into force on 1 March 2000. It has been applicable in Austria since that date and was
ratified by the Federal Republic of Germany on 11 May 2005. Article 3 of that convention provides:
‘1. Each State shall determine under its own law who are its nationals.
2. This law shall be accepted by other States in so far as it is consistent with applicable international
conventions, customary international law and the principles of law generally recognised with regard to
nationality.’19 In accordance with Article 4 of that convention:
‘The rules on nationality of each State Party shall be based on the following principles:
a. everyone has the right to a nationality
b. statelessness shall be avoided;
c. no one shall be arbitrarily deprived of his or her nationality;
…’.
20 Article 7 of that convention is worded as follows:
‘1. A State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative
of the State Party except in the following cases:
(a) voluntary acquisition of another nationality;
(b) acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant;
…
3. A State Party may not provide in its internal law for the loss of its nationality under paragraphs 1 and 2 of this article if the person concerned would thereby become stateless, with the exception of the cases mentioned in paragraph 1, subparagraph b, of this article.’
21 Article 9 of the European Convention on nationality provides that each State Party is to facilitate, in the cases and conditions provided for by its internal law, the recovery of its nationality by former nationals who are lawfully and habitually resident in its territory.
Whether or not the UK has joined the convention on Nationality is neither here nor ethere. The UK has agreed to be bound by the ECJ and it is now a convention of European Law that nationality cannot be removed without due cause and due process.
41 Nevertheless, the fact that a matter falls within the competence of the Member States does not alter the fact
that, in situations covered by European Union law, the national rules concerned must have due regard to the
latter (see, to that effect, Case C‑274/96 Bickel and Franz [1998] ECR I‑7637, paragraph 17 (as regards
national provisions in the sphere of criminal legislation and the rules of criminal procedure); Case C‑148/02
Garcia Avello [2003] ECR I‑11613, paragraph 25 (as regards national rules governing a person’s name); Case
C‑403/03 Schempp [2005] ECR I‑6421, paragraph 19 (as regards national rules relating to direct taxation);
Case C‑145/04 Spain v United Kingdom [2006] ECR I‑7917, paragraph 78 (as regards national rules
determining the persons entitled to vote and to stand as candidates in elections to the European Parliament)).
42 It is clear that the situation of a citizen of the Union who, like the applicant in the main proceedings, is faced
with a decision withdrawing his naturalisation, adopted by the authorities of one Member State, and placing
him, after he has lost the nationality of another Member State that he originally possessed, in a position
capable of causing him to lose the status conferred by Article 17 EC and the rights attaching thereto falls, by
reason of its nature and its consequences, within the ambit of European Union law.
43 As the Court has several times stated, citizenship of the Union is intended to be the fundamental status of
nationals of the Member States (Case C‑184/99 Grzelczyk [2001] ECR I‑6193, paragraph 31; Case C‑413/99
Baumbast and R [2002] ECR I‑7091, paragraph 82).
44 Article 17(2) EC attaches to that status the rights and duties laid down by the Treaty, including the right to
rely on Article 12 EC in all situations falling within the scope ratione materiae of Union law (see Case C‑85/96
Martínez Sala [1998] ECR I‑2691, paragraph 62, and Schempp, paragraph 17).
45 Thus, the Member States must, when exercising their powers in the sphere of nationality, have due regard to
European Union law (Micheletti and Others, paragraph 10; Mesbah, paragraph 29; Case C‑192/99 Kaur [2001]
ECR I‑1237, paragraph 19; and Zhu and Chen, paragraph 37).
46 In those circumstances, it is for the Court to rule on the questions referred by the national court which
concern the conditions in which a citizen of the Union may, because he loses his nationality, lose his status of
citizen of the Union and thereby be deprived of the rights attaching to that status.
47 In this regard, the national court essentially raises the question of the proviso formulated in the Court’s case-law cited in paragraph 45 above, to the effect that the Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law, and also the question of the consequences of that proviso in a situation such as that in the case in the main proceedings.
48 The proviso that due regard must be had to European Union law does not compromise the principle of
international law previously recognised by the Court, and mentioned in paragraph 39 above, that the Member
States have the power to lay down the conditions for the acquisition and loss of nationality, but rather
enshrines the principle that, in respect of citizens of the Union, the exercise of that power, in so far as it affects
the rights conferred and protected by the legal order of the Union, as is in particular the case of a decision
withdrawing naturalisation such as that at issue in the main proceedings, is amenable to judicial review carried
out in the light of European Union law.
49 Unlike the applicant in the case giving rise to the judgment in Kaur who, not meeting the definition of a
national of the United Kingdom of Great Britain and Northern Ireland, could not be deprived of the rights
deriving from the status of citizen of the Union, Dr Rottmann has unquestionably held Austrian and then
German nationality and has, in consequence, enjoyed that status and the rights attaching thereto.
50 Nevertheless, as several of the governments having submitted observations to the Court have argued, if a
decision withdrawing naturalisation such as that at issue in the main proceedings is based on the deception
practised by the person concerned in connection with the procedure for acquisition of the nationality in
question, such a decision could be compatible with European Union law.
51 A decision withdrawing naturalisation because of deception corresponds to a reason relating to the public interest. In this regard, it is legitimate for a Member State to wish to protect the special relationship of
solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form
the bedrock of the bond of nationality.
52 That conclusion relating to the legitimacy, in principle, of a decision withdrawing naturalisation adopted in
circumstances such as those in the main proceedings is borne out by the relevant provisions of the Convention
on the reduction of statelessness. Article 8(2) thereof provides that a person may be deprived of the
nationality of a Contracting State if he has acquired that nationality by means of misrepresentation or by any
other act of fraud. Likewise, Article 7(1) and (3) of the European Convention on nationality does not prohibit a
State Party from depriving a person of his nationality, even if he thus becomes stateless, when that nationality
was acquired by means of fraudulent conduct, false information or concealment of any relevant fact
attributable to that person.
53 That conclusion is, moreover, in keeping with the general principle of international law that no one is
arbitrarily to be deprived of his nationality, that principle being reproduced in Article 15(2) of the Universal
Declaration of Human Rights and in Article 4(c) of the European Convention on nationality. When a State
deprives a person of his nationality because of his acts of deception, legally established, that deprivation
cannot be considered to be an arbitrary act.
54 Those considerations on the legitimacy, in principle, of a decision withdrawing naturalisation on account of
deception remain, in theory, valid when the consequence of that withdrawal is that the person in question
loses, in addition to the nationality of the Member State of naturalisation, citizenship of the Union.
55 In such a case, it is, however, for the national court to ascertain whether the withdrawal decision at issue in
the main proceedings observes the principle of proportionality so far as concerns the consequences it entails
for the situation of the person concerned in the light of European Union law, in addition, where appropriate, to
examination of the proportionality of the decision in the light of national law.
56 Having regard to the importance which primary law attaches to the status of citizen of the Union, when
examining a decision withdrawing naturalisation it is necessary, therefore, to take into account the
consequences that the decision entails for the person concerned and, if relevant, for the members of his family
with regard to the loss of the rights enjoyed by every citizen of the Union. In this respect it is necessary to
establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that
person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it
is possible for that person to recover his original nationality.
57 With regard, in particular, to that last aspect, a Member State whose nationality has been acquired by
deception cannot be considered bound, pursuant to Article 17 EC, to refrain from withdrawing naturalisation
merely because the person concerned has not recovered the nationality of his Member State of origin.
58 It is, nevertheless, for the national court to determine whether, before such a decision withdrawing
naturalisation takes effect, having regard to all the relevant circumstances, observance of the principle of
proportionality requires the person concerned to be afforded a reasonable period of time in order to try to
recover the nationality of his Member State of origin.
59 Having regard to the foregoing, the answer to the first question and to the first part of the second question
must be that it is not contrary to European Union law, in particular to Article 17 EC, for a Member State to
withdraw from a citizen of the Union the nationality of that State acquired by naturalisation when that
nationality has been obtained by deception, on condition that the decision to withdraw observes the principle of
proportionality.
The second part of the second question
60 By the second part of the second question the national court asks, in essence, whether, when a citizen of the
Union in a situation such as that of the applicant in the main proceedings is faced with a decision withdrawing
naturalisation that threatens to lead to the loss of his status of citizen of the Union, European Union law, in particular Article 17 EC, must be interpreted as meaning that the Member State whose nationality he originally
possessed is obliged to interpret its domestic legislation in such a way as to avoid that loss by allowing him to
recover that nationality.
61 In this instance, it is to be noted that the withdrawal of the naturalisation acquired by the applicant in
Germany has not become definitive, and that no decision concerning his status has been taken by the Member
State whose nationality he originally possessed, namely, the Republic of Austria.
62 It is to be borne in mind, in these proceedings for a preliminary ruling, that the principles stemming from this
judgment with regard to the powers of the Member States in the sphere of nationality, and also their duty to
exercise those powers having due regard to European Union law, apply both to the Member State of
naturalisation and to the Member State of the original nationality.
63 The Court cannot, however, rule on the question whether a decision not yet adopted is contrary to European
Union law. As the Austrian Government maintained at the hearing, the Austrian authorities will possibly have to
adopt a decision on the question whether the applicant in the main proceedings is to recover his nationality of
origin and when that decision has been adopted the Austrian courts will, if necessary, have to determine
whether it is valid in the light of the principles referred to in this judgment.
64 Having regard to the foregoing there is no need in these proceedings to give a ruling on the second part of
the second question.