This is not a partisan argument. It does not take sides in Malta’s polarised political debate. It is not a defence of the citizenship-by-investment scheme or of those who supported it, and it is not an attack on those who opposed it. The sale of citizenship raises serious and complex issues, and reasonable people can disagree on whether such a scheme is appropriate. But when one side is labelled as traitors and the other as corrupt or prostituted, public discussion breaks down. The legal questions are lost beneath political noise. What follows is not a political statement about national loyalty or economic direction. It is a legal analysis of the reasoning adopted by the European Court of Justice, and the implications of that reasoning for Malta and the Union as a whole.
The Court’s ruling against Malta’s citizenship scheme marks a clear shift in how EU law approaches questions of nationality. When compared with the earlier case of Rottmann (C-135/08), it becomes apparent that the Court has changed not only its conclusions but also its method of legal reasoning. In the past, it applied a proportionality test based on the facts of each case. In the Malta judgment, the Court relied instead on more abstract structural standards. This change in approach is not clearly explained in the decision, but it carries significant consequences for all Member States.
In Rottmann, the Court examined whether Germany could withdraw citizenship from a naturalised individual who had failed to disclose ongoing criminal proceedings in Austria. While affirming that nationality falls within the competence of Member States, the Court held that any decision which affects Union citizenship must be subject to the principle of proportionality. German authorities were required to consider the seriousness of the deception and weigh it against the impact on the individual—especially the possibility of statelessness. The focus was on factual consequences and individual rights.
By contrast, in the 2024 judgment on Malta’s investment-based naturalisation scheme, the Court took a markedly different approach. It ruled that granting nationality “in return for a pre-determined payment, without any genuine link with the Member State concerned” is contrary to EU law (Judgment, para. 74). The scheme, according to the Court, “undermines the very nature of the status of citizen of the Union” (para. 76) and “seriously undermines the mutual trust between Member States” (para. 85), invoking Article 20(1) TFEU and Article 4(3) TEU.
Unlike in Rottmann, the Court did not engage in any proportionality analysis. It did not examine whether Malta’s scheme might, in practice, be capable of fair application or whether it respected EU citizenship in substance. Instead, the scheme was found to be unlawful as such—on the basis of its structure alone. The test applied was categorical, not contextual.
This pivot—from factual balancing to structural abstraction—marks a significant evolution in the Court’s method, even if the judgment does not say so directly. In Rottmann, proportionality served as a tool to mediate between national autonomy and Union citizenship. In the Malta case, that tool is set aside in favour of fixed criteria—particularly the requirement of a “genuine link”—that must be met regardless of how the scheme operates in reality.
It is worth noting that Advocate General Anthony Collins had proposed a more cautious approach, (to me) consistent with the Court’s earlier jurisprudence. He suggested that EU law should intervene only where a Member State’s rules are “manifestly contrary to the fundamental principles governing the status of citizens of the Union” (AG Opinion, para. 59). While acknowledging the controversy surrounding Malta’s scheme, he did not regard it as incompatible with EU law in its current form.
The Court not only disagreed, but did so by shifting the analytical framework, without openly addressing that shift.
This creates a degree of uncertainty. If the acquisition of nationality is now governed by structural standards to be satisfied in advance, while the withdrawal of nationality remains subject to a proportionality test based on individual circumstances, Member States are left with an asymmetrical and unpredictable legal framework. This is especially problematic for smaller states like Malta, whose legal and policy options are already constrained by their size and reliance on external trust.
From an academic standpoint, the implications extend beyond Luxembourg. In Malta itself, proportionality has become a common feature of constitutional and administrative law. Courts increasingly rely on it to assess legality, weigh competing rights, and ensure fairness in state action. One might thus argue that while national courts are embracing proportionality as a core legal principle, the ECJ appears to be retreating from it, at least in so far as citizenship law is concerned.
To be clear, the concerns raised by the Court are not superficial. Citizenship-by-investment does pose serious questions about solidarity among Member States, the integrity of Union rights, and the security implications of naturalisation policies. But consistency in legal method matters just as much. Proportionality is one of the foundational threads in the legal tapestry of the European Union. If it was applied implicitly in this case, then that reasoning should have been more clearly articulated and explicitly set out in the judgment – not assumed or left to inference.
