Case Notes
| Published date | 01 December 2010 |
| Date | 01 December 2010 |
| DOI | http://doi.org/10.1177/1023263X1001700409 |
| Subject Matter | Case Notes |
470 17 MJ 4 (2010)
CASE NOTES
Case C-135/08 Janko Rottmann v. Freistaat Bayer n, Judgment of the Court (Grand
Chamber) of 2nd March 2010, not yet reported
Towards a direct ‘droit de regard’?
§1. INTRODUCTION
In Rottmann (C-135/08), the Court na lly conrmed that Member States’ nationality
rules are subject to t he supervision of EU law. From the preceding judgments1 as well as
the academic literature,2 a clear tendency of at least an indirect inuence of Union law on
Member States’ nationality rules has long been observed. at nationality matters do not
constitute entirely ‘reserved domains’ for the Member States was therefore foresee able.
While the previous rul ings were however concerned with the recognition of Member
State national ity, in Rottmann, for the rst time, the quest ion arose whether EU law is
also involved with rega rd to conferral and loss of nationa lity.3
e question however is how fa r thi s establis hed ‘droit de regard’4 by Union law
reaches and which situations it i ncludes in the sphere of nationality law when it comes
to prevention of statelessness. is note argues t hat Rottmann constitutes a landmark
ruling. Even if the judgment doe s not prevent statelessness from occurring, it c ertainly
sets clear lim its on Member State autonomy i n the sphere of nationality law, ma king
amendments of domestic nationality ru les particularly necessa ry.5 e judg ment is
1 Cases C-369/90 Mi cheletti and Oth ers v. Delegación del Gobierno en Cantabria [1992] ECR I-4239;
C-200/02 Zhu and Che n [2004] ECR I-9925; C-148/02 Garcia-Avello [2003] ECR I-11613.
2 See De Groot, ‘Towards a Eu ropean Nationality Law’ (updated version of 2010), in H. Schneid er,
Migration, Integra tion and Citizenship, A Ch allenge for Europe’s future (For um Maastricht, Ma astricht
2005); Hall, ‘Loss of Union citiz enship in breach of fundamenta l rights’, 21 European law review (1996),
p.129 –143.
3 Opinion of Advoc ate Genera l Poiare s Maduro in Case 315/08 Janko Rottmann v. Freis taat Baye rn,
Judgment of the Court (Grand Chamber) of 2nd March 2010, not yet re ported, para. 1. See also
Chamber) of 2 March 2010, not yet repor ted’, 47 CMLR 6 (2010), p. 1831–1846. Emphasis added.
4 See Mouton, ‘Ree xions sur la nat ure de l’Union Européenne à par tir de l’arrê t Rottmann’, 114 Revue
Générale de droit i nternationale publi c 2 (2010), p. 279. Emphasis added.
5 For an overv iew of the spec ic consequences for Dutch nationalit y law, see De Groot a nd Seling, ‘ e
consequences of t he Rottmann judgment on Me mber State autonomy – e European C ourt of Justice
avant-gardism in nationa lity matter s’, European Co nstitutional Law Review (2010), forthcoming. See
Case Notes
17 MJ 4 (2010) 471
interesting in ma ny ways as it triggers new questions with regard to the relationship
between European citizensh ip and Member State nationality and the scope the ruling
entails fu ndamental rights protection withi n the EU as well a s its impact on the
nationality ru les of the Member States.
§2. THE FACTS OF THE CASE
Dr. Janko Rottmann held Austria n nationality acquired by birth in 1956. In 1995, he
moved to Munich and took up residence t here. He acquired German nationality via
naturaliz ation in 1999. e eect of this was that he lost Austrian nationality in accordance
with Austrian law.6 During the natu ralization procedure, however, Rottmann concealed
the fact that crimina l proceedings were pending against him in Austria . Being suspected
of serious fraud in the exercise of his profession he was accused by the Landesger icht für
Strafsachen i n Graz and a national a rrest warrant was i ssued against him. Hav ing been
informed by the municipal authorities of Gra z and the public prosecutor’s oce of these
proceedings, t he Freistaat Bayern decided to w ithdraw the naturali zation and therefore
deprive the applicant of his prev iously acquired German nationality on the grounds of
the fraud committed during the natura lization procedure.7 Rottmann brought an action
of annulment agai nst this decision but, in 20 05, the administrative cou rt of the Land of
Bavaria r uled that t he withdrawal of naturalizat ion on the basis of Article 48(1) of the
Code of the administrative procedure of the Land of Bavaria was i n accordance with
German law even if that me ant rendering the per son stateless. In li ght of this deci sion,
Dr. Rottmann appealed again, this time at the Bundesverwaltungsgericht. Being in doubts
with regard to the compatibility of Europea n law, the Bundesverwaltungsgericht referred
to the Court of Justice aski ng whether Union law precludes an individual from losing
Union citizenship resulting from a lawful withdrawal of nationality acquired by fraud and
being unable to recover the former original (Austrian) nationality. Secondly, if answered
in the armat ive, the German Court asked whether Germa ny has an obligation, having
due regard to Community law, to refrai n altogether or temporarily f rom withdrawing
naturaliz ation obtained by deception if the withdrawal has the consequence of losing
citizenship of t he Union. On the other hand, the quest ion was posed whether Austria is
obliged to interpret a nd apply, or even adjust, its nationa l law to avoid the loss of Union
citizenship. On 11 November 2010, the Bundesverwaltungsgericht ru led that it is in line
also De Groot, ‘Over wegingen over de Janko Rott mann – beslissing va n het Europese Hof van Justitie’,
A&MR 5 and 6 (2010), p. 293–300.
6 See Article 27(1) of the Austrian Federa l Law on nationalit y. Yet, as De Groot note s, A rticle 1 of
the St rasbourg t reaty on reduction of cases of multiple nationalit y, which w as stil l in forc e between
Germany and Au stria in 1999 when Rot tmann becam e naturalize d as a German citi zen might be seen
as a better le gal basis. De Groot , lecture on Europe and t he National ity Laws of the Member States ,
8 March 2010.
7 is decision wa s based on Article 48(1) of the Bavar ian administ rative law.
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