Introduction
With the Treaty of Maastricht, nationality and EU citizenship were closely connected through Article 20 of the Treaty on the Functioning of the European Union (TFEU).Footnote 1 Article 20 TFEU grants Union citizenship to all nationals of the member states. Anyone holding the nationality of a member state automatically acquires EU citizenship and the rights associated with it, including the right to move and reside freely within the Union and the right to vote and stand as a candidate in municipal and European elections (Articles 21 and 22 TFEU). At the same time, nationality remained within the competence of the member states, a point explicitly expressed by the member states at the Maastricht Treaty.
Following the judgments in the cases of Rottmann Footnote 2 and Tjebbes,Footnote 3 it has become clear that the withdrawal of nationality falls within the scope of EU law. Less clear, however, was whether the acquisition of nationality granted by a member state to third-country nationals is likewise constrained by Union law. For that reason, the infringement proceedings in Commission v Malta attracted close attention among EU lawyers. On 29 April 2025, the Court of Justice of the European Union (the Court) held that Malta’s practice of granting nationality in exchange for financial investment under its citizenship scheme violated the principles of Union citizenship (Article 20 TFEU) and sincere cooperation (Article 4(3) TEU).Footnote 4 The judgment has triggered a fierce academic debate about the coherence of the Court’s reasoning, the weighting of solidarity versus mutual trust, and the broader implications of the ruling.Footnote 5
Commission v Malta introduces a new constitutional parameter for nationality acquisition under EU law. While nationality remains within member state competence, that competence may not be exercised in a manner that manifestly disregards the special relationship of solidarity and good faith between a member state and its nationals, on which Union citizenship and mutual trust are based. The Court thus does not harmonise nationality laws, but it subjects national naturalisation schemes to a system-level constitutional review aimed at preserving the integrity of Union citizenship as a fundamental status.
The article proceeds as follows. The second section sets out the factual background of the case. The third section examines the Opinion of Advocate General Collins. The fourth section analyses the Court’s reasoning with regard to nationality competence, the constitutional nature of Union citizenship, and the application of these principles to Malta’s investor citizenship scheme. The fifth section offers a critical assessment of the judgment, focusing on the scope of Article 20 TFEU, the constitutional language used, the emergence of a ‘manifest disregard’ test and the role of solidarity, mutual trust and democratic values. The article ends with a conclusion.
Factual background to the proceedings
The Maltese Citizenship Act governs the acquisition, renunciation, and loss of Maltese nationality. Article 10 of that Act outlines the general conditions for naturalisation, including a minimum residence requirement of one year immediately preceding the application, and at least four years of residence within a six-year period. Applicants must also meet other criteria, including language proficiency. In 2020 a new Maltese regulation was adopted, which contains detailed rules governing the processing of applications for naturalisation for exceptional services by merit and ‘by direct investment in the economic and social development in the Republic of Malta’. Within this ‘Citizenship Investment Scheme’ investors may obtain Maltese citizenship by making a financial contribution to the government of either €600,000 or €750,000. Eligibility also requires the purchase of real estate in Malta valued at a minimum of €700,000, or a five-year rental agreement with an annual rent of at least €16,000. Additionally, applicants must donate at least €10,000 to a registered non-governmental organisation engaged in philanthropic, cultural, scientific, animal welfare or artistic activities.
Back in 2014, an earlier version of the scheme had raised European concerns and prompted the adoption of a resolution by the European Parliament.Footnote 6 In July 2020 and March 2022, the European Parliament again expressed its concerns about the citizenship investment programmes.Footnote 7 In the State of the Union 2020 address, Commission President Ursula von der Leyen explicitly mentioned the investment schemes: ‘Breaches of the rule of law cannot be tolerated. I will continue to defend it and the integrity of our European institutions. Be it about the primacy of European law, the freedom of the press, the independence of the judiciary or the sale of golden passports. European values are not for sale’.Footnote 8 In October 2020, the Commission issued a letter of formal notice to the Republic of Malta, the opening move for an infringement procedure under Article 258 TFEU. Malta replied in April 2021, expressing its disagreement with the Commission, after which the Commission sent a reasoned opinion. In Spring 2023, the Commission brought the case before the Court.
Malta argued that nationality schemes can only be the subject of judicial review by the Court in cases of serious breaches of the values or objectives of the European Union, in a general and systematic manner. The Commission in turn argued that the Treaties and case law do not support such a view. The dispute between the Commission and Malta revolved around the importance of the principle of mutual trust and the requirement of a ‘genuine link’ within Article 20 TFEU. The European Commission argued that ‘the concept of mutual trust underpins EU citizenship’.Footnote 9 In light of that mutual trust, member states are not allowed to adopt citizenship rules that undermine ‘the essence, value and integrity of EU citizenship’.Footnote 10 The Commission repeated the formulation that EU citizenship is ‘destined to be the fundamental status’Footnote 11 of the nationals of the member states. It further contended that a ‘genuine link’ is required between the member state and the individual who acquires that member state’s nationality.Footnote 12 In this respect, the Commission relied on the Nottebohm judgment of the International Court of Justice, arguing for a genuine link requirement within Article 20 TFEU.Footnote 13 The Nottebohm case concerned a dispute between Liechtenstein and Guatemala before the International Court of Justice on the recognition of a national.Footnote 14 The Commission, moreover, referred to Micheletti to support its view that the principle of mutual trust is essential, since other member states are obliged to recognise unconditionally the nationality granted by other member states.Footnote 15
Malta rejected the existence of any requirement under EU law for a genuine link between the naturalising state and the applicant.Footnote 16 According to Malta, no such requirement exists under either EU or international law.Footnote 17 Moreover, Malta argued that imposing a genuine link requirement would be unworkable in practice.Footnote 18
In response to Malta’s claim that defining a ‘genuine link’ was practically unfeasible, the Commission argued that it was for each member state to give substance to that requirement. While it did not provide a comprehensive definition, it suggested that actual residence could be one way to demonstrate a genuine link. In this context, the Commission contended that the requirement of ‘legal residence’ under the Maltese scheme could be satisfied without any actual physical presence in Malta and thus failed to guarantee any substantive connection.Footnote 19 According to the Commission, the screening procedures cited by Malta focused not on establishing a genuine link but solely on filtering out applicants who posed security or fraud risks.Footnote 20
The Opinion of Advocate General Collins: legal autonomy in the granting of citizenship
The Advocate General began by addressing the admissibility of the Commission’s action under Article 258 TFEU.Footnote 21 He recalled that, in accordance with settled case law, the subject matter of an infringement action is defined by the Commission’s reasoned opinion, which must contain a coherent and detailed explanation of why the Commission considers that a member state has failed to fulfil its obligations under EU law.Footnote 22 The Advocate General reiterated that the burden of proof lies entirely with the Commission in infringement proceedings.Footnote 23 In the absence of a breach of Article 20 TFEU, Article 4(3) TEU cannot constitute a standalone violation.Footnote 24
Importantly, the Advocate General emphasised that EU citizenship does not exist independently of national citizenship. Nationality is thus a sine qua non for access to the rights of Union citizenship. Consequently, Article 20 TFEU cannot be interpreted in isolation from national rules on nationality.Footnote 25 The Advocate General explicitly recalled his earlier opinion in Préfet du Gers,Footnote 26 where he stated that member states could have chosen to pool their sovereignty in this domain, but deliberately opted not to do so.Footnote 27 The EU legal order operates on a system of automatic and mutual recognition: once a member state lawfully grants its nationality, all other member states and the EU institutions must accept that decision without further scrutiny. This principle was established in Micheletti Footnote 28 and reaffirmed in Zhu and Chen.Footnote 29 As a result, he argued, there is no legal basis for imposing a ‘genuine link’ requirement within Article 20 TFEU.Footnote 30 While the Court did acknowledge in Tjebbes Footnote 31 that a member state may consider a genuine link when regulating the loss of nationality, it did not suggest that such a link is required under EU law when granting nationality.Footnote 32 Thus, the Advocate General argued, a member state is free to include such a condition in its domestic law, but there is no legal obligation to do so.Footnote 33 With regard to the Nottebohm Footnote 34 case, the Advocate General rejected the analogy sought by the Commission on several grounds.Footnote 35 First, Nottebohm concerned the international recognition of nationality between sovereign states, not the internal legality of its conferral. Second, the International Court of Justice did not establish a general obligation applying a genuine link test. Most significantly, the principle of mutual recognition within the EU renders any analogy to Nottebohm inapplicable. Advocate General Collins concluded that, in the EU context, member states are bound to recognise each other’s nationality decisions, regardless of whether a genuine link is present.
The reasoning of the Court of Justice
There is a lot to say about the ruling, but for this contribution the ruling is subdivided into three main points: nationality and the scope of EU law; the constitutional nature of EU citizenship; and the examination of the Maltese investor citizenship programme.
Nationality and EU citizenship
The Court began with a general, regularly repeated, observation: although the determination of nationality falls within the exclusive competence of the member states, the exercise of that competence must nonetheless comply with EU law.Footnote 36 In support of this, the Court referred to Micheletti,Footnote 37 the landmark case in which it first articulated this principle in the context of the recognition of nationality. Moreover, the Court referred to other important cases, such as Rottmann Footnote 38 and X v Udlændinge-og Integrationsministeriet,Footnote 39 concerning the withdrawal of nationality, in which the Court held that revocation of nationality falls within the scope of EU law.
The Court continued by rejecting the argument of Malta that for the acquisition of nationality the examination of the procedure should be limited to situations in which there are significant breaches of the values or objectives of EU law, which are general and systematic in nature.Footnote 40 According to the Court there was nothing in the wording or the schemes of the Treaties that would support a specific treatment of nationality acquisition.
The Court then turned to the role of fundamental principles of EU law in shaping and constraining national discretion. In particular, the Court emphasised the centrality of mutual trust and mutual recognition – principles which, together, underpin the legal architecture of an area without internal frontiers, as foreseen in Article 3(2) TEU.Footnote 41 The Court considered that the Area of Freedom, Security and Justice cannot function without the assumption that member states will respect and uphold a common baseline of legal standards, especially where citizenship is concerned.Footnote 42
The constitutional nature of EU citizenship
The Court subsequently argued that these EU citizenship rights intersect with other fundamental freedoms guaranteed by the Treaties, including the free movement of workers (Article 45 TFEU), the freedom of establishment (Article 49 TFEU) and the freedom to provide services (Article 56 TFEU).Footnote 43 In addition, Union citizenship entails several political rights, which facilitate citizens’ participation in the democratic life of the Union. As outlined in Articles 10 and 11 TEU and detailed in Articles 20, 22 and 24 TFEU, these include the ability to submit citizens’ initiatives, to petition the European Parliament, to apply to the European Ombudsman, to communicate with the EU institutions in any official language and to vote or stand as a candidate in European and municipal elections in the member state of residence under equal conditions.Footnote 44
From this starting point, the Court proceeded to reaffirm the constitutional significance of Union citizenship. It reiterated that Union citizenship constitutes the ‘fundamental status’ of nationals of the member states.Footnote 45 According to the Court, European citizenship is one of the clearest expressions of the solidarity that binds the Union’s citizens and its member states, and it reflects the specific nature of the Union as a legal order grounded in reciprocity and shared responsibility.Footnote 46 In the Court’s words, the provisions on citizenship of the Union are among the Treaties’ ‘fundamental provisions’, designed to contribute to the Union’s overarching aim of integration. Union citizenship has a constitutional position within the Treaties.Footnote 47
According to the Court: ‘Union citizenship is thus one of the principal concrete expressions of the solidarity which forms the very basis of the process of integration’.Footnote 48 EU citizenship is closely entangled with the nationality law of a member state. The bedrock of the bond of nationality exists in the ‘particular relationship of solidarity and good faith between the state and its nationals’.Footnote 49 EU citizenship is also intertwined with solidarity and mutual trust, requiring member states to trust each other’s nationality laws respect this ‘bedrock’. Therefore, the disregard for the relationship of solidarity and good faith in the nationality law of a member state goes against the principle of sincere cooperation, as it undermines the basis for the mutual trust on which citizenship is built. The Court held that the requirement of such special relationship is manifestly disregarded when a member state grants nationality, and therefore EU citizenship, in exchange for predetermined payments or investments.Footnote 50
Compatibility of the Maltese programme
The Court turned to the Maltese scheme and identified several key features of Malta’s 2020 investor citizenship programme that were incompatible with Union law. First, the scheme made predetermined payments or investments a central condition for naturalisation.Footnote 51 This transformed the nationality acquisition process into a transactional mechanism, with the commercialisation of the granting of the nationality of a member state following a transactional procedure.Footnote 52
Second, although Malta claimed that the scheme required a period of residence, the Court found that requirement to be largely formal and devoid of substantive integration conditions.Footnote 53 According to the Maltese government’s own explanations, applicants needed only to demonstrate legal residence – without any need for physical presence or meaningful engagement with Maltese society.Footnote 54 Biometric registration and the taking of an oath were the only moments requiring the applicant’s physical presence in Malta. As a result, the Court concluded that the scheme did not involve a serious test of an individual’s integration into the Maltese state. The due diligence procedures employed under the scheme were not designed to assess whether the applicant had any genuine connection to Malta. Instead, these checks focused on financial, legal and reputational risks.Footnote 55
Third, promotional material published by agents authorised by the Maltese government presented the scheme primarily as a route to obtaining the rights attached to Union citizenship – most notably, the right of free movement across the EU – rather than as a path to becoming a member of Maltese society.Footnote 56 This confirmed the Court’s assessment that the scheme commercialised both member state nationality and Union citizenship.Footnote 57
Considering these findings, the Court held that Malta, by establishing and maintaining the 2020 investor citizenship scheme, had failed to fulfil its obligations under Article 20 TFEU and Article 4(3) TEU.Footnote 58
Comments on the case
Acquisition of nationality within the scope of Article 20 TFEU
The real novelty of the case is that the acquisition of nationality falls within the scope of Article 20 TFEU. That article reads as follows: ‘Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union.’ After the European Council in Edinburgh, the heads of government declared that ‘… the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned’.Footnote 59 In the present case, Malta argued that the conferral of nationality falls within the core of national sovereignty and is closely connected to a member state’s national identity – an identity the EU is bound to respect under Article 4(2) TEU.Footnote 60 Nationality acquisition, Malta argued, would only violate EU law if it resulted in a general and systematic breach of the Union’s fundamental values and objectives – something that, in Malta’s view, was manifestly not the case.Footnote 61 Even though the Commission acknowledged that nationality remains the competence of the member states, the Commission argued that the member states have an obligation to uphold the values of EU citizenship, while regulating nationality under domestic law.
Both the Commission and Malta invoked Micheletti to support their opposite arguments. That case concerned the recognition of the attribution of nationality between member states, rather than the means of attribution of nationality.Footnote 62 The question was whether the Italian nationality of a dual Italian-Argentinian national had to be unconditionally recognised by Spain.Footnote 63 The issue in Micheletti thus centred on a member state conditioning the recognition of another member state’s nationality. The Court held that ‘it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality. However, it is not permissible for the legislation of a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality …’.Footnote 64 The Court’s judgment in Commission v Malta referred to Declaration No. 2 and the Edinburgh Decision, both of which make clear that it is for each member state, and solely in accordance with its own national law, to determine who qualifies as its national. Nonetheless, the Court recalled that this national competence is not unbounded. While the power to lay down rules on nationality remains within the member states’ domain – albeit with due regard for international norms – it must be exercised in compliance with Union law.Footnote 65
The Court has held in Rottmann Footnote 66 and Tjebbes Footnote 67 that while nationality falls within member state competence, it must be exercised in line with EU legal principles.Footnote 68 In particular, the Court ruled in those two previous cases that when the withdrawal of nationality also entails the loss of EU citizenship, such a measure must be justified by a legitimate public interest and must comply with the principle of proportionality. That proportionality test includes personal circumstances, such as limitations to free movement, links with family members and the consequences for professional life of the individual.Footnote 69 The current case is about acquisition rather than loss of nationality and on the one hand mirrors the case of the loss of nationality but on the other is significantly different.
The novelty in Commission v Malta is that the Court now applies a system-level constitutional review to the acquisition of nationality, not to protect the individual applicant, but to preserve the structural integrity of EU citizenship itself. On this reading, the question is no longer whether the national measure is proportionate in light of an individual’s circumstances, but whether the national system as a whole contains a manifest error – for example, by creating Union citizens without any substantive connection or integration requirement. Crucially, the merit of the Court’s approach in Commission v Malta is that this approach leaves member states ample discretion in designing their naturalisation systems, intervening only where a member state’s scheme is so deficient that it undermines the mutual trust necessary for free movement and the enjoyment of political rights under Articles 20–22 TFEU. Seen in this light, Commission v Malta sits coherently alongside Tjebbes. In Rottmann, the Court required a proportionality assessment when the withdrawal of nationality jeopardised the individual’s EU citizenship status. Tjebbes extended this to a system-level review of nationality-loss rules, requiring national authorities to ensure that their system does not deprive individuals automatically of EU citizenship.
The requirement of a special relationship between a member state and a national
A close reading of Commission v Malta indicates that the Court has introduced a new requirement into the field of nationality acquisition, namely an assessment of whether the ‘special relationship’ between a member state and its nationals is ‘manifestly disregarded’.Footnote 70 The Court held that a member state breaches this requirement where it establishes and implements a naturalisation scheme under which nationality – and, consequently, Union citizenship – is effectively granted in exchange for predetermined payments or investments. In such circumstances, the Court considered that the relationship of solidarity and good faith, characterised by reciprocity of rights and duties and underpinning mutual trust between member states, was broken.
This approach is open to criticism. The Court moved beyond reviewing the consequences of nationality decisions and instead evaluated the quality of the relationship between the individual and the member state, effectively imposing a positive obligation to ensure that nationality acquisition reflects solidarity and good faith. While the notion of a ‘special relationship’ has previously been invoked by member states in the context of the revocation of nationality, its use here as a standard governing the acquisition of nationality represents a significant change in application.Footnote 71
At the same time, this development aligns nationality law more closely with the logic of mutual trust and system-level review found elsewhere in EU law. In the Area of Freedom, Security and Justice, member states may derogate from automatic mutual recognition only where another member state’s system displays ‘systemic deficiencies’Footnote 72 or a ‘real risk’ grounded in structural or generalised flaws.Footnote 73 In Commission v Malta, the Court used similar language, even though it rejected the argument of Malta that only in serious breaches of the values or objectives in a general and systematic manner should nationality schemes be reviewed. It held that member states must not exercise their nationality competences in a manner ‘manifestly incompatible with the very nature of EU citizenship’, thereby signalling that EU law intervenes only where a national scheme reveals a systemic flaw that fundamentally undermines the constitutional structure that supports EU citizenship.Footnote 74
This reading is consistent with the broader constitutional role of mutual trust in EU law. As Coutts rightly submits: ‘Mutual recognition and mutual trust are constitutional principles of the Union and concepts which increasingly run through the fabric of Union law’.Footnote 75 The reasoning has some similarities with Malta’s own argument that only a general and systematic breach of the values and objectives of the Union could call into question member state competence in matters of nationality. Although the Court formally rejected Malta’s claim that review should be confined to significant violations of Union values or objectives,Footnote 76 the Court nonetheless articulated a threshold test centred on the manifest disregard of the special relationship between the member state and its nationals.Footnote 77 This is confirmed by the Court’s finding, in paragraphs 93 and 99, that transactional naturalisation schemes amount to an exercise of nationality powers that is manifestly incompatible with the very nature of Union citizenship.
The wording of ‘manifestly disregard’ explains both the reach and the restraint of the judgment: the Court did not constitutionalise nationality acquisition wholesale, but it did assert that EU citizenship cannot be produced through a system whose core assumptions are structurally defective. This conceptual lens also clarifies why the Maltese scheme is unlawful, though we do not know what the judgment implies for other naturalisation pathways, such as for professional football players. EU law is triggered only when the integrity of EU citizenship is compromised by a scheme that, in effect, makes the conferral of Union citizenship turn on financial capacity alone. Moreover, the Court underlined not only the transactional nature, but also the commercialisation of the scheme.Footnote 78 It remains unclear what the reach of the ruling is towards other investment schemes. Since the case concerned an infringement procedure the Court did not go beyond the specific Maltese situation, but future preliminary cases could shed more light on the scope of the requirement of manifestly disregarding the special relationship between member state and national.
Constitutional narratives and legal reasoning
As noted, the Court’s judgment has attracted considerable academic criticism. Much of this criticism centres on the extension of Article 20 TFEU to the acquisition of member state nationality, but importantly also on the abstract language used by the Court in its key reasoning. While the Court sided with the Commission, the Court declined to explicitly endorse the ‘genuine link’ requirement as such. Instead, the Court offered a more diffuse rationale, emphasising the values of the Union, the principle of loyal cooperation, mutual trust between member states, solidarity between member states and their nationals, and the nature of EU citizenship itself.Footnote 79 What remains unclear is which of these considerations ultimately tipped the balance against Malta’s investor-naturalisation scheme.
The Court places EU citizenship at the heart of its’ reasoning. It is telling that the Court states that EU citizenship constitutes the fundamental status of nationals of the member states. In paragraph 92 the Court rules that it ‘has repeatedly held that Union citizenship constitutes the fundamental status of nationals of the Member States’. The Court refers to several cases, in which the phrase is differently formulated as that EU citizenship is ‘destined to be the fundamental status’.Footnote 80 It seems that the Court has started to reformulate EU citizenship only in more recent cases.Footnote 81 In the French version of the Commission v Malta judgment, this phrase now reads as: ‘le statut de citoyen de l’Union constitue le statut fondamental des ressortissants des États membres’, whereas in previous cases the French version of this key phrase said that EU citizenship ‘a vocation à être le statut fondamental’, which has a subtly different meaning.Footnote 82 Similar to Advocate General Capeta’s remarks on this reformulation in her Opinion in Safi,Footnote 83 it is this change, together with the enhanced coherence of the key phrase on EU citizenship, that shows that the Court wants to strongly affirm the importance of EU citizenship. According to the Advocate General ‘Such an evolution illustrates … that EU citizenship has attained more maturity, which allows for its further development’.Footnote 84 Such an interpretation of the change of formulation by the Court in Commission v Malta fits within the long paragraphs in which the Court explicitly frames EU citizenship as an essential constitutional concept. Moreover, it may give the Court the necessary narrative to take the case law on EU citizenship further in future cases.
On the legal reasoning one may be critical on several points. One of those points is that the Court rules that nothing in the wording or scheme of the Treaties would support the view that nationality acquisition would form an exception so that only significant and systematic breaches should be judicially reviewed. Even if it is argued that acquisition would fall under the scope of Article 20 TFEU, the Court uses a questionable judicial ‘e silentio’ reasoning – Steve Peers called it ‘judicial gaslighting’.Footnote 85 Moreover, the first part of the judgment concerning constitutional values and the rights of Union citizens lacks clear structure, making it difficult to discern how the Court constructs its legal reasoning. From the perspective of constitutional responsibility, it is regrettable that the Court delivered such a groundbreaking judgment without articulating its reasoning with greater clarity, thereby further fuelling ongoing debates about the quality of the Court’s reasoning. In particular, the Court could have been more explicit about the legal obligations at issue and their normative foundations.Footnote 86 This lack of clarity is especially problematic given the political context of the ruling and the sensitivity of the subject matter.
The role of democratic values and free movement
The emphasis on values and political participation by EU citizens in Commission v Malta ties in with the developments of democratic values in the European Union.Footnote 87 In two cases, handed down before Commission v Malta, the Court ruled in favour of democratic values in the context of infringement proceedings against Poland and the Czech Republic concerning the membership of political parties by EU citizens. Although the right to be a member of a political party is not, strictly speaking, set out in the Treaties, the Court held that it constitutes an integral component of the democratic values of the European Union.Footnote 88 It held that political parties play a fundamental role in expressing the will of EU citizens, a role recognised by the Treaties. In the Czech case, the Court explicitly referred to the connection between free movement and political rights. There, the Court recognised a link between, on the one hand, the right to freedom of movement and residence and, on the other, the right of EU citizens residing in a member state of which they are not nationals, to vote and to stand as candidates in municipal and European Parliament elections.Footnote 89 In Commission v Malta, the Court again emphasised the free movement and the political rights dimension of EU citizenship. The Court referred to consular protection and, more prominently, political rights, and stated that those rights form an integral part of the constitutional framework of the European Union.Footnote 90 Political rights and the right to free movement connect to mutual trust in the sense that EU citizens do have the right to participate not only in European but also municipal elections. This series of judgments taken together suggests a deeper transformation: EU law appears to be moving beyond its traditional internal market focus, grounding itself increasingly in a shared democratic and civic identity – what Peers has described as an ‘internal marketplace of ideas’.Footnote 91
Conclusion
Identifying the ruling’s primary driver – mutual trust or solidarity – is difficult, and the judgment appears to rest on the cumulative effect of all these elements, read in light of the division of competences and the systemic effectiveness of Union citizenship. Since Delvigne Footnote 92 and the Polish and Czech political party cases discussed above, the Court has firmly connected democratic participation to Union citizenship. In Commission v Malta, the link between free movement and the democratic functioning of local and European elections implicitly forms part of the mutual trust-analysis. This could have been made more explicit and more persuasive. The Court’s explicit reference to Article 2 TEU in Commission v Malta places the free movement and political rights of Union citizens within this values-based framework. When Union citizens settle in other member states and exercise political rights there – particularly local and European electoral rights – the system presupposes confidence that all member states confer nationality in a manner consistent with the Union’s democratic and civic values. In this sense, mutual trust acts as the operational expression of Article 2 TEU, transforming values into concrete obligations. If nationality is conferred without meaningful integration or democratic connection, the structural preconditions for mutual trust are weakened, as other member states must automatically recognise the Union citizenship that follows from that act. Seen in this light, the Court’s emphasis on Article 2 TEU does more than signal the constitutional importance of EU citizenship. Article 2 TEU thus acts as the constitutional anchor, while mutual trust functions as its practical guardian in the free movement context. Together, they shape the limits within which member states may operate when creating new Union citizens.
Although the judgment’s central rationale is not spelled out, the decisive factor appears to be the relationship between mutual trust and the free movement and political rights of Union citizens. The outcome is normatively defensible: if Union citizenship is indeed a constitutional status, then its commercialisation sits uneasily with its democratic and integrative function, particularly where that status becomes accessible primarily to wealthy third-country nationals. Still, sound legal reasoning is indispensable. Mutual trust is a convincing argument, but it would have been strengthened by grounding it explicitly in the Area of Freedom, Security and Justice framework and previous case law, in the political rights of EU citizens, and in the broader idea of integration. On this view, the Maltese scheme might have complied with EU law had it included substantive integration conditions, such as a meaningful period of residence.
A further difficulty concerns the judgment’s practical effects. What is to happen to Maltese nationals who have relied on the investment programme since its inception? The judgment is not limited in time, and thus raises questions of legal protection and legal certainty.
Despite the long-awaited nature of the judgment, significant uncertainty remains. What can be stated with clarity is that the commercialisation of nationality through a purely transactional relationship is incompatible with the concept of Union citizenship as articulated by the Court, but nothing more.
More fundamentally, it remains to be seen whether this judgment will ultimately be situated within a broader line of case law in which Article 2 TEU functions not merely as a declaratory provision but as a source of substantive legal obligations. In that regard, the Court’s explicit reliance on Article 2 TEU constitutes, at the very least, a significant constitutional signal, suggesting a potential recalibration of the role of EU values in the interpretation of Union citizenship.Footnote 93
Acknowledgements
The author would like to thank Luca Nagfzer and Isaak de Kroon for their assistance. The author is grateful for the insightful feedback by the reviewers and to Pauline Phoa and Matti Warnez.
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