Tag Archives: nationhood

Who Should Belong? The Genuine Link Doctrine and the European Citizenship

Jules Lepoutre (Research associate, Global Citizenship Governance, RSCAS, at the EUI)

6 February 2019, 17:00-19:00, Sala del Capitolo, Badia Fiesolana

According to the famous words of the International Court of Justice in the Nottebohm case in 1955, “the legal bond of nationality” shall express a “genuine connection” between a state and an individual. The Court’s judges expressed in this case that nationality is altogether “a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties”. This legal doctrine emphasises a material approach of nationality, which had long been regarded as alien to the European Union. Back in 1992, the EU advocate general Guiseppe Tesauro stated in his conclusions on the Micheletti case that Nottebohm is nothing but the expression of a “romantic period of international relations”, and that EU Member States should enjoy the highest degree of liberty to determine their own citizens, without any requirement of a genuine connection.

However, at the present stage of the European construction, would it not be worthwhile considering a “romantic” turn in the EU legal approach of nationality? The current law relating to the access and loss of European citizenship is fragmented because it consists of 28 national and sovereign legislations. Then, several Member States are able to distribute their nationality – for instances through kin-state policies, or investment/cash for passports programs – amongst individuals who fail to show a genuine connection with them. Such types of behaviour of states not only weaken European citizenship but also constitute risk factors for borders and territorial security. In this regard, the implementation of the genuine link doctrine within the EU (e.g. the obligation for the Member States to show a genuine connection between them and the individuals they intend to naturalise) could be one of the best options to address these concerns. Accordingly, the goals of this paper are [1] to establish the added-value that the genuine link doctrine could create in the relations between the Member States and in the development of the European construction, and [2] to explore ways to make the genuine link move from legal doctrine to EU positive law.