Janko Rottmann v. Freistaat Bayern

Parties (including notable third parties)

Dr. Janko Rottmann (The Applicant); State of Bavaria (Freistaat Bayern) (The Respondent); The German Government; the Belgian Government; the Czech Government; the Estonian Government; the Greek Government; the Latvian Government; the Austrian Government; the Polish Government; the Commission of the European Communities (Third Parties)

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Summary of Facts

The Applicant, an Austrian national by birth, transferred his residence in 1995 to Germany after criminal proceedings were opened against him in Austria concerning suspected occupational fraud. In 1997, a criminal court in Austria issued a national warrant for the Applicant's arrest.

The Applicant applied for German nationality by naturalisation in 1998, which was granted in 1999. During the naturalisation process, the Applicant failed to mention the criminal proceedings against him in Austria. According to Austrian law, the Applicant’s naturalisation in Germany had the effect of causing him to lose Austrian nationality.

In 1999, Austrian municipal authorities and the Austrian public prosecutor’s office informed the city of Munich, where the Applicant resided, of the investigation concerning the Applicant and the warrant for his arrest. In 2000, after consulting with the Applicant, the State of Bavaria (Freistaat Bayern) withdrew the Applicant’s naturalisation with retroactive effect on the basis that his German nationality had been obtained by deception, as he had not informed the authorities of the investigation. The Applicant subsequently appealed the decision, meaning that the withdrawal of his nationality did not yet take full effect.

In 2005, the Administrative Court of the Land of Bavaria determined that the withdrawal of the Applicant’s German nationality was compatible with national law, even though the measure would render him stateless. The Applicant appealed to the Federal Administrative Court, which acknowledged that revoking naturalisation would render the Applicant stateless since he does not meet the conditions to immediately regain Austrian nationality, and would also strip him of EU citizenship and its associated rights. The Court also noted that the Applicant’s naturalisation was unlawful from the outset because it was obtained by deception, and German authorities therefore had discretion to withdraw it. However, it stressed that the scope of Member States’ obligations under EU law in such circumstances remains unclear, particularly whether EU law, most specifically Article 17 of the EC Treaty, requires Member States to prevent statelessness or safeguard EU citizenship in cases where nationality is withdrawn on the basis of fraud.

The Court further raised the question of Austria’s role, suggesting that Austria, as the Applicant’s original country of nationality, might have a duty to interpret or adapt its nationality law to prevent the Applicant from becoming stateless. This argument was based on the principle of sincere cooperation under EU law and international obligations, including the 1961 Convention on the Reduction of Statelessness and Article 7(1)(b) of the European Convention on Nationality.

The Federal Administrative Court stayed proceedings and referred two questions to the CJEU:

1. Whether EU law precludes the loss of EU citizenship resulting from the lawful withdrawal of nationality obtained by deception, where that withdrawal renders the person stateless because they cannot recover their original nationality; and
2. If so, whether the naturalising State must refrain from withdrawing nationality, or whether the State of origin must interpret or adjust its law to prevent statelessness.

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Legal Arguments

Legal arguments by the Applicant

The Applicant's arguments, that withdrawing his naturalisation would render him stateless contrary to public international law and cause loss of EU citizenship, are detailed only in the Advocate General's opinion, not in the judgment or application.

Legal arguments by the Respondent

The State of Bavaria argued that the rules on the acquisition and loss of nationality fall within the competence of Member States.

Third Party Intervention

All the governments that submitted observations to the Court, as well as the Commission of the European Communities, also argued that the rules on the acquisition and loss of nationality fall within the competence of the Member States. Some governments argued that withdrawing naturalisation in circumstances of fraud does not engage EU law at all.

The German and Austrian Governments also contended that the withdrawal of nationality was an administrative act by a German authority, and therefore a purely internal situation not governed by EU law. These Governments further argued that EU law does not apply simply because a Member State acts in relation to one of its nationals. Moreover, the fact that the Applicant had previously exercised free movement rights before naturalisation was argued to be irrelevant.

Outcome

The Court began by clarifying the scope of its review over national measures that affect a person’s possession of EU citizenship. It acknowledged Declaration No 2 and the Edinburgh Decision, which state that nationality is determined solely by national law, however, it held that this did not remove the situation from the scope of EU law.

The Court held that while Member States have competence to set conditions for acquiring and losing nationality, that power must be exercised ‘having due regard to Community law’ (paragraphs 39–41). Where a situation falls within the ambit of EU law, national rules must comply with it. The Court then stressed that EU citizenship, introduced by Article 17 EC, is intended to be a fundamental status for nationals of Member States. Therefore, a situation where an individual risks losing that status, and its associated rights, falls within the ambit of EU law. This includes situations, such as the Applicant’s, in which the withdrawal of naturalisation would strip a person of EU citizenship. For that reason, decisions to withdraw nationality in such circumstances are ‘amenable to judicial review carried out in the light of European Union law’ (paragraph 48).

Turning to the substance of the first question referred, the Court acknowledged that withdrawal of nationality obtained by deception is, in principle, compatible with EU law and may align with the public interest, as it protects the ‘bedrock of the bond of nationality’ (paragraph 51). The Court added that this conclusion is in keeping with relevant provisions of the 1961 Convention on the Reduction of Statelessness and Articles 7(1) and (3) of the European Convention on Nationality, even where such a measure results in statelessness. The Court further noted that a withdrawal of nationality based on deception, as established by law, cannot be considered arbitrary, and that such measures are thus in line with general principles of international law, including Article 15(2) of the Universal Declaration of Human Rights and Article 4(c) of the European Convention on Nationality. Accordingly, the Court held that these principles also apply to measures that result in the withdrawal of EU citizenship.

However, the Court later qualified its findings, outlining that Member States must ‘observe the principle of proportionality so far as concerns the consequences’ of the decision in light of both EU and national law (paragraph 55). The Court added that such proportionality analysis must consider the consequences the decision will have on the person concerned and any relevant family members, in particular, ‘whether that loss [of EU citizenship] is justified in relation to the gravity of the offence committed […], 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’(paragraph 56).

As such, the Court added that while Member States are not obliged to refrain from withdrawal of nationality merely because that person has not yet recovered their prior nationality, proportionality may nevertheless require granting a reasonable period for the individual to attempt to require that nationality.

Accordingly, in answering the first question referred, the Court concluded that it is not contrary to EU law, particularly Article 17 EC, for a Member State to withdraw nationality acquired by deception, even if this leads to loss of EU citizenship, provided the decision complies with proportionality.

The Court declined to rule on the second part of the second question (concerning Austria). The withdrawal of German nationality was not yet definitive, and Austria had taken no decision on restoring nationality. However, the principles set out in the judgment (including the duty to have due regard to EU law) apply to both the naturalising State and the State of origin. As no decision had yet been adopted by Austria, the Court could not assess it. Any future Austrian decision must be reviewed by national courts in light of these principles.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Universal Declaration of Human Rights 1948	Article 15(2)
Regional	European Convention on Nationality	Articles 3, 4(c), 7(1) and (3)
International	Convention on the Reduction of Statelessness 1961	Article 7, 8, 9
Regional	EC Treaty (Treaty establishing the European Economic Community) 1957	Article 17
Domestic	German Basic Law	Paragraph 16(1)
Domestic	German Law on Nationality	Paragraph 8
Domestic	Code of Administrative Procedure of the Land of Bavaria	Article 48(1) and (2)
Domestic	Austrian Law on Nationality	Paragraphs 10, 27(1)
Regional	Declaration No 2 on nationality of a Member State, annexed by the Member States to the final act of the Treaty on European Union

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Kai P. Purnhagen and Dennis-Jonathan Mann, ‘The Nature of Union Citizenship Between Autonomy and Dependency on (Member) State Citizenship - A Comparative Analysis of the Rottmann Ruling, or: How to Avoid a European Dred Scott Decision?’ (2012) 29 Wisconsin International Law Journal 484.

• The authors suggest that the CJEU’s cautious stance in Rottmann exposes a structural tension: that EU citizenship depends on Member State nationality yet exists within an autonomous EU legal order. By leaving the appropriateness of withdrawal decisions largely to national courts, the CJEU avoided an overly assertive approach, which critics see as timid but which the authors argue was prudent to prevent destabilising the multi-level citizenship framework.
• The authors compare the case with the US Supreme Court Dred Scott decision, suggesting that the CJEU’s ‘middle-of-the-road’ approach in Rottmann concerning citizenship of multi-level systems was strategically sound, as it avoided the ‘all-or-nothing’ excesses that undermined the US case.
• The authors notes that while the CJEU recognised the need for proportionality, its procedural framework is weak, offering Member States a de facto carte blanche to disregard EU law’s autonomous dimension. The authors propose a refined test requiring Member States to justify nationality withdrawal under European law principles, filling the gap left by the absence of primary and secondary legislation and the CJEU’s missed opportunity to set coherent minimum standards.

Adrian Berry, ‘Deprivation of Nationality and Citizenship — The Role of EU Law’ (2014) 28(4) Journal of Immigration, Asylum and Nationality Law 355.

• The author argues that the Rottmann judgment marked a significant development by showing that EU citizenship can directly affect national nationality laws, despite its limited formal basis under EU law, particularly the EC Treaty. The author further suggests that the facts revealed a critical vulnerability in that the withdrawal of Member State nationality can lead to the automatic loss of EU citizenship, exposing individuals to statelessness and raising complex questions about the relationship between EU law and international norms on nationality and statelessness.
• The author contends that the Rottmann judgment illuminates the structural dependency of EU citizenship on Member State nationality and the absence of clear safeguards against disproportionate consequences, such as statelessness. This dependency underscored, according to the author, the need for a coherent legal framework defining how EU citizenship interacts with national decisions, as the current system leaves individual’s EU status precariously tied to domestic nationality rules without robust EU-level standards.

Gerard René de Groot and Anja Seling, ‘The Consequences of the Rottmann Judgment on Member State Autonomy – The European Court of Justice’s Avant-Gardism in Nationality Matters’ (2011) 7(1) European Constitutional Law Review 150

• The authors note that Rottmann raised a fundamental question: while EU citizenship is established by EU Treaties and depends on Member State nationality, can Member States still exercise full discretion over acquisition and loss of nationality without any EU law oversight? In answering the question, the authors suggest that Rottmann signals that Member States’ nationality rules are not immune from EU law constraints. Principles such as proportionality, equal treatment, and protection of legitimate expectations must be respected, and failure to do so will not be tolerated by the CJEU. This introduces a supervisory role for EU law over national decisions that affect EU citizenship.
• The authors further suggest that although the ruling is seen as judicial activism with potentially far-reaching consequences for national nationality laws and the link between Union and Member State citizenship, it was foreseeable in light of preceding case law from the CJEU which made clear that the Court is willing to intervene when national rules clearly breach EU law.
• Despite its impact, the authors remind readers that the Rottmann decision does not imply that EU citizenship overrides national citizenship, as more recent EU law has confirmed that EU citizenship is additional, not a replacement, and there is no prospect of decoupling the two. The authors suggest that future cases will determine whether the balance between EU and national competences shifts further, but that Rottmann maintained that EU citizenship remains dependent on Member State nationality.

Hanneke van Eijken, 'European Citizenship and the Competence of Member States to Grant and to Withdraw the Nationality of Their Nationals' (2011) 27(72) Merkourios: Utrecht Journal of International and European Law 65

• The author observes that the most significant aspect of the Rottmann judgment is that ‘for the first time the ECJ ruled very clearly that the exercise of the Member State competence to regulate the conditions of their nationality falls within the scope of Union law,’ which carries consequences for the judicial review of nationality regulations (page 68).
• Regarding the proportionality test, the author notes that while the CJEU left the final decision to the national court, it made ‘very strong suggestions for weighing the circumstances,’ meaning ‘not much room is left for the national court to decide on proportionality’ (page 69).
• The author identifies a tension between respecting Member State discretion and ensuring legal certainty, observing that ‘where more discretion is left to national courts to decide on proportionality, legal certainty of Union citizens is reduced at the same time, since in some individual cases the outcome may not be predictable’ (page 69).
• Given the CJEU’s repeated formulation that Union citizenship is ‘the destined fundamental status of nationals of the Member States,’ the Rottmann decision ‘seems the right step forward,’ as such a fundamental status would be ‘hard to imagine if this status is dependent on the Member States alone’ (page 69).