Chapter 5 Free Movement of Dual EU Citizens

Abstract

In this Chapter, a couple of constellations of movement of dual EU citizens will be discussed, introduced by explaining beforehand the system of ranking, movement, and the mobility quality. Special attention will first be given to the “right to return” case-law, where the Court created a double condition, which has detrimental effects on dual EU citizens moving between the Member States of nationality. Thereafter, the Lounes constellation will be explained, where the Court ruled on the situation of a naturalised dual EU citizen and the continued application of Art. 21 TFEU. This case has to be dissected in detail, as it creates more issues than it solves. These questions relate, first of all, to whether Lounes applies only in a Member State of naturalisation and only for as long as that naturalised dual EU citizen stays there, or whether it applies anywhere in the EU. Secondly, it has to be considered to whom the case applies. This second part relates to the mode of acquisition of the additional nationality and whether a certain genuine link has to exist in order for the case to apply. The argument continues with the question whether Lounes only applies to dual EU citizens, or whether it also applies to any other “single” EU citizens who lost the original Member State nationality upon naturalisation in another Member State. If the case were to only apply to the dual EU citizens, it is then argued that Member States would have to be restricted concerning nationality laws which establish automatic loss of nationality upon acquisition of another nationality and rules on acquisition which require a renouncement of the previously held nationality. When looking at the potential consequences of this case applying to any “single” EU citizen who had the nationality of another Member State before acquiring the one of the Member State of residence, we see a legal and practical distinction between own nationals, which is prohibited. The Court would then have no choice but to change the “right to return” case-law and to revisit cases where the nationality of another Member State was lost, leading to a loss of rights. It is concluded that the Court has to make a choice: either apply Lounes only to dual EU citizens and consequently restrict severely the competences of Member State in nationality law; or apply it to any EU citizen who has made use of the free movement rights, which means that extensive case-law has to be changed.

Keywords: EU Citizenship, EU Law, nationality, non-discrimination, free movement

JEL Classification: K19, K33, K39