Advocate General’s Landmark Opinion Signals Turning Point for Malta’s Citizenship by Investment

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Today, Advocate General Anthony Michael Collins issued a landmark opinion on Malta’s Citizenship by Investment following the June 17, 2024 case between the European Commission and Malta in front of the European Court of Justice. 

AG Collins advises the Court to dismiss the European Commission’s case and orders the Commission to pay its costs and those of the Republic of Malta. 

AG Collins therefore finds that while a Member State, under its nationality laws, may require proof of a genuine link, EU law does not define, much less require, the existence of such a link in order to acquire or to retain that nationality.

Why?

Every person who holds the nationality of an EU Member State is also an EU citizen, granting them the right to free movement and the ability to live and work within the EU.

The European Commission argued that the Maltese government grants EU citizenship in return for pre-determined payments or investments, without “genuine links” to the country. They contend that this transactional relationship is incompatible with the principle of sincere cooperation outlined in Article 4(3) of the Treaty of the European Union (TEU).

The Government of Malta responded by asserting its sovereign right to define its citizenship policies within the European Union. They argue that:

• Sovereign Rights: The granting of citizenship is supported by international law and the TEU, allowing each member state to define its criteria for nationality.
• Lack of EU Mandate: A requirement for “genuine links” is neither defined nor mandated by EU law.
• Historical Precedent: Citizenship by Investment is not a new concept and has historical precedents.
• Stringent Process: The process is not merely transactional; it is comprehensive and stringent, requiring both legal residence and rigorous due diligence.

Timeline

• 2021: Malta launches the new ‘Maltese Citizenship by Naturalisation for Exceptional Services by Direct Investment’..
• 2021: The European Commission sends formal notices to Malta to terminate the scheme’s activities.
• 2022: The Commission refers Malta to the Court of Justice of the EU, citing breaches of Article 258(2) of the Treaty on the Functioning of the European Union.
• June 2024: The case between the European Commission and Malta is heard before the European Court of Justice (ECJ).
• Today: The Advocate General issued a landmark opinion to the ECJ 

What’s Next

Now, the Court of Justice will deliberate and issue a final verdict in this case. The ECJ is not bound by the opinions of the Advocates General; however, they are considered very influential. 

The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.

Given the Advocate General’s favorable opinion, this is an opportune moment for those considering Malta’s Citizenship by Investment. Even with a positive decision, the Maltese government may introduce future changes to make the process more onerous, costly and exclusive.

Take advantage of the current conditions and initiate your application now to secure your Malta citizenship before any modifications may be implemented.