The reference for a preliminary ruling by the Bundesverwaltungsgericht was made in proceedings between Dr Rottmann and the Freistaat Bayern, concerning the withdrawal of the naturalisation of the applicant in the main proceedings (Rottmann case – Case C‑135/08).
The applicant, national of the Republic of Austria, transferred his residence to Munich in 1995. In 1997 the Landesgericht für Strafsachen Graz (Austria) issued a national warrant for the arrest of the applicant. Dr Rottmann applied for German nationality in 1998 and during the naturalisation procedure he failed to mention the proceedings against him in Austria. He was granted German nationality in 1999 and subsequently lost Austrian nationality in accordance with Austrian law. In 2000 Freistaat Bayern withdrew the naturalisation with retroactive effect because Dr Rottmann had not disclosed the fact that he was the subject of judicial investigation in Austria and that he had, in consequence, obtained German nationality by deception.
Therefore the Bundesverwaltungsgericht (court of appeal) stayed the national proceeding and asked the CJEU whether it is “contrary to Community law for Union citizenship (and the rights and fundamental freedoms attaching thereto) to be lost as the legal consequence of the fact that the withdrawal in one Member State (the Federal Republic of Germany), lawful as such under national (German) law, of a naturalisation acquired by intentional deception, has the effect of causing the person concerned to become stateless because, as in the case of the applicant [in the main proceedings], he does not recover the nationality of another Member State (the Republic of Austria) which he originally possessed.”
Thus, national court seeks to ascertain whether it is contrary to European Union law, for a Member State to withdraw from a citizen of the Union the nationality of that State acquired by naturalisation and obtained by deception. All the governments and the Commission argued that the rules on the acquisition and loss of nationality fall within the competence of the Member States. Moreover, Germany and Austria, supported by the Commission, contended that this purely internal situation is not in any way concerning European Union law.
Regards the referred question, the CJEU pointed out several issues:
- it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality;
- 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;
- 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 and that
- the Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law.
The CJEU held “that it is not contrary to European Union law, in particular to Article 17 EC (18 TFEU), 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.” Such a withdrawal corresponds to a reason relating to the public interest and the national court must assess whether such a decision meets the principle of proportionality.
To sum up, withdrawal of the naturalisation while not recovering the nationality of another Member State falls within the ambit of European Union law.