Is EU citizenship for sale – or for keeps? A critical analysis of the CJEU’s Golden Visa ruling.

Abstract

This article critically examines the recent ruling of the Court of Justice of the European Union (CJEU) on Malta’s Citizenship-by-Investment (CBI) programme and its broader implications for the legal and political understanding of EU citizenship. Drawing from theoretical debates on the instrumentalization of citizenship and the tension between thin and thick models of membership, the article argues that the Commission’s challenge and the Court’s endorsement mark a departure from the traditionally thin, status-based conception of EU citizenship towards a thicker, more identity-laden model. While this evolution may signal a growing commitment to a shared European political community, the legal reasoning underpinning the ruling—particularly its implicit revival of the discredited “genuine link” doctrine—raises concerns about consistency, legal certainty, and the scope of Member State discretion. The article concludes by calling for a more coherent and common governance framework to safeguard the integrity of Union citizenship as a collective good shared across the EU.

1. The instrumentalisation of citizenship.

The concept of citizenship is complex and ambiguous, but most definitions are rooted in politics. Its “oldest, most basic, and most prevalent meaning is a certain sort of membership in a political community” (Smith, 2001, p. 1857). Beyond this sense of belonging, citizenship is the legal status that evidences a link between a person and a nation-state, carrying with it duties and, above all, rights. 

 Not all citizenships carry the same weight internationally, leading to unequal access to rights and mobility. Thus, citizenship “is the most important factor that affects one’s life chances – more than class, gender or race” (Harpaz, 2019, p. 19). It has therefore been increasingly commodified, as it has become a valuable asset that grants access to economic stability and welfare.

According to Joppke (2010), the instrumentalization of citizenship is a process of dissociating its three main elements: (i) status, the rules for accessing citizenship; (ii) rights, which the citizen is entitled to claim from their state; and (iii) identity, the promotion of nationhood and social bonds within a state. The result of the instrumental shift is the weakening of citizenship as a promoter of nationhood and social bonds within a State (identity) while focusing on the loosening of conditions for accessing it (status) and the commodification of the rights attached to it. 

This scenario is likely to generate a defensive response from the States to protect their national identity which reflects two opposing understandings of citizenship: thin and thick (Figure 1, Author’s elaboration based on Fernández, 2019). 

	Thin citizenship	Thick citizenship
Status	Citizenship is accessed before integration in the national community.	Integration in the national community is needed before accessing citizenship.
Rights	Rights are expanded to non-citizens; they’re disconnected from status.	Rights are preserved for citizens; they’re connected to status.
Identity	There’s no official discourse on identity based on citizenship.  Nationhood is constructed outside the institutional framework of citizenship.	There’s an official discourse on identity based on citizenship. Nationhood includes every citizen.

A thick understanding of citizenship considers that membership should only be granted to those already integrated into the community—essentially, those who share a genuine link with it. However, citizenship governance has progressively leaned towards a thinner understanding, meaning that there is “a low convergence between the institutional design of citizenship and existing ideology/ies of belonging and inclusion. […] On this view, citizenship is a relatively sterile and administrative instrument of the state” (Fernández, 2019, p. 684). According to Joppke (2010), European citizenship is in fact a product of this instrumentalization and thinning.

Back in 1992, the CJEU’s ruling in the Micheletti case appeared to confirm so. In this case, the Spanish authorities refused to recognise Micheletti’s Italian citizenship, and the European rights attached to it, as they argued that he had no previous genuine link with Italy as he was, in fact, a naturalised Argentinian with no prior residence in Italy. The CJEU held that Member States cannot make the recognition of European citizenship dependent on whether the person concerned habitually resides in the territory of the State that granted them its nationality (Case C-369/90, para. 11). In this light, “EU citizenship is, since then, precisely a legal status, like any other citizenship of a modern democracy. The only link that can be required is the link of nationality established under national law” (Nesheim, 2020, para. 4).

The Maltese CBI programme may signal a shift in EU citizenship governance. The Commission’s response and the 2025 CJEU ruling reflect a thicker approach to citizenship, though its legal basis and implications remain uncertain.

2. The Maltese CBI programme and the European Commission’s response.

Perhaps the clearest example of the instrumentalisation of citizenship is found in citizenship-by-investment (CBI) programmes. Popularised after the 2008 financial crisis, by 2014 these schemes had been adopted by up to ten Member States (Carrera, 2014). Among them, Malta’s Individual Investor Programme, introduced in 2013, stood out by granting nationality in exchange for property acquisition, a €650,000 contribution to a national fund, and a further €150,000 investment (European Commission, 2019).

Unlike similar schemes elsewhere, CBI programmes in the EU confer not just national but also European citizenship. As per Article 20 of the Treaty on the Functioning of the European Union (TFEU), this includes rights to free movement, diplomatic protection, and political participation—benefits actively promoted by Maltese authorities (Government of Malta, 2014).

Since its inception, Malta’s CBI programme has encountered strong opposition from European institutions. However, it was not until late 2020 that the Commission formally initiated an infringement procedure against Malta, arguing that “the granting of EU citizenship for pre-determined payments or investments without any genuine link with the Member States concerned, undermines the essence of EU citizenship” (European Commission, 2020, p. 1). This procedure culminated in the 29^th April 2025 ruling, which found Malta’s programme to be in breach of Article 20 TFEU and Article 4(3) of the Treaty of the European Union (TEU), concerning the principle of sincere cooperation.

3. The CJEU’s ruling: a critical analysis.

In the infringement procedure, the Commission based its legal action against the Maltese CBI programme on two main arguments: (i) the need for a genuine link in order to grant a State’s nationality, and (ii) the breach of the principle of sincere cooperation.

The genuine link 

Firstly, the Commission argued that by not requiring the existence of a genuine link between Malta and the applicant, the Maltese CBI programme “compromises and undermines both the essence and the integrity of EU citizenship and the mutual trust that underpins it” (Opinion of Advocate General Mr. Anthony Collins. CJEU, para. 18). It rejected the Maltese government’s claim that the CBI programme enables prospective links, as there is no legal obligation to reside in Malta once citizenship is acquired.

The concept of the genuine link originates from the Nottebohm case before the International Court of Justice (Nottebohm, ICJ Reports 1955), in which Guatemala refused to recognise Friedrich Nottebohm’s Liechtenstein nationality due to his lack of prior residence and the transactional nature of his naturalisation. The Court ruled that Nottebohm’s ties to the country were too tenuous to justify Liechtenstein’s diplomatic protection.

As Spiro (2019) explains, the Nottebohm case has been widely misunderstood and overemphasised. It is circumscribed to the context of diplomatic protection, and even in said cases, later tribunals have explicitly rejected the genuine link as a requirement for diplomatic protection. Furthermore, the ruling was explicitly rejected by the International Law Commission in 2006 (Spiro, 2019).

Some scholars even consider the Commission’s decision to bring up the genuine link doctrine flawed from its inception, as it reflects a misunderstanding of the Court’s ruling. According to Van den Brink, “the Commission’s Legal Services seems [sic] to have overlooked that Nottebohm concerns merely the recognition of nationality, not its acquisition” (Van den Brink, 2024, para. 6).

In line with Spiro, the Opinion of Advocate General Collins on the case considered that neither international law nor EU law impose a genuine link requirement, especially considering the Micheletti case and the scarce content of Article 20 TFEU (Opinion of Advocate General Mr. Anthony Collins, CJEU, para. 57). In fact, the Declaration of Edinburgh, which provides rules for interpreting the Maastricht treaties, clearly states that “[…] the question whether an individual possesses the nationality of a Member State will be settled solely by reference to the national law of the Member State concerned” (European Council, 1992, p.53).

Therefore, the CJEU has systematically rejected the Nottebohm doctrine. Not only did it do so in the Micheletti case back in 1992, but also in Lounes (Case C-165/16, para. 55) and Garcia Avello (Case C-148/02, para. 28), which confirms the thin nature of EU citizenship.

In light of the above, the CJEU naturally has not referred to the genuine link in its ruling, despite the Commission’s fierce defence of this doctrine in its legal action. Although the Commission’s initial approach may have seemed ethically justified against CBI programmes, it risked enabling bans on other naturalisation schemes where a genuine link is hard to appreciate. This is the case of the rules applied to Sephardic Jews and their descendants by Spain, to Ukrainians and Romanians by Hungary, or to Argentinians by Italy (Nesheim, 2020).

Therefore, in order to provide a legal basis for the CBI ban, the CJEU has made use of the Commission’s second argument: the principle of sincere cooperation. However, in doing so, the Court may have in fact relied on the genuine link’s logic, just under a different name.

The principle of sincere cooperation

The CJEU, likely aware that the genuine link doctrine has long been debunked by its own case law, has turned to the principle of sincere cooperation to find the CBI programme in breach of EU law.

As Fripp (2025) explains, the judgment followed a three-step reasoning. First, the CJEU identifies European citizenship as the principal concrete expression of the process of integration and an integral part of the Union’s constitutional framework. Second, it recalls that the principle of sincere cooperation requires Member States to refrain from actions that could undermine the Union’s objectives. Third, as a consequence of applying this principle, Member States are not free to regulate naturalisation schemes “in a way that is manifestly incompatible with the very nature of Union citizenship” (Case C-181/23, para. 95).

Following this line of thought, the CJEU determined that:

“Transactional naturalisation, […], is not only contrary to the principle of sincere cooperation, but is also liable, by its nature, to call into question the mutual trust which underlies that requirement of recognition, since that trust relates to the premiss that the grant of the nationality of a Member State must be based on a special relationship of solidarity and good faith […]” (Case C-181/23, para. 101 [emphasis added]).

In doing so, “the Grand Chamber has effectively created, at the level of EU law, a form of ‘genuine link’ requirement, expressed as the need for a special relationship of solidarity and good faith justifying the grant of rights resulting […] from Union citizenship” (Fripp, 2025, para. 11). This becomes even more apparent when considering the core of the Court’s reasoning, namely, that the CBI programme cannot be considered to rely on a “special relationship of solidarity and good faith” (Case C‑181/23, para. 96) because it requires only a minimal physical presence in Maltese territory.

This reasoning has been widely criticised by legal scholars and practitioners. First, because the sovereignty of Member States to regulate naturalisation is clearly affirmed in Article 20 TFEU and the Declaration of Edinburgh. While this tension may well open a broader debate on whether the governance of European citizenship should continue to depend on 27 distinct legal frameworks, that is a separate issue.

Second, because the principle of sincere cooperation appears to be misapplied in this case. As Van den Brink (2025, para. 12) observes, “search for the word objective in the judgment—you will find that the Court finds a violation of sincere cooperation without ever clarifying which objective has been jeopardised [by the CBI programme]”. Yet, the principle of sincere cooperation presupposes the existence of a concrete Union objective that Member States must refrain from obstructing—an objective which, in this instance, remains unspecified.

Third, is the concern that the Court has simply reintroduced the old genuine link doctrine under a different name. The Court seems to imply that this “relationship of solidarity and good faith” (Case C-181/23, para. 96) can only be established through prior residence and integration—precisely the kind of requirement associated with the genuine link. Although there might be nothing intrinsically wrong with it, the problem is that its reasoning affects many more nationality schemes and the Court has not provided any clear criteria or limiting principles to determine when a Member State’s naturalisation policy crosses the line into incompatibility with EU law.

4. Conclusion.

The debate over Malta’s CBI programme and the recent CJEU ruling sits at the intersection of two competing visions of citizenship: one that sees it as  thin, functional legal status primarily tied to national discretion, and another that seeks to reframe it as  thicker, identity-based institution with normative content at the Union level. As argued in the first section, European citizenship has historically exemplified the thinnest form of membership, detached from national belonging and accessible solely through the conferral of a Member State’s nationality. However, the Commission’s framing of the Maltese case,and the Court’s eventual endorsement of that reasoning, signals a shift. By invoking the principle of sincere cooperation and introducing a vaguely defined “special relationship of solidarity and good faith” (Case C-181/23, para. 96), the CJEU may have laid the groundwork for a thicker, more substantive understanding of EU citizenship.

Yet this evolution is not without risks. The Court’s reasoning raises more questions than it answers, particularly in its implicit reintroduction of the discredited genuine link doctrine under a new guise. Without a clear framework to define which national naturalisation practices are compatible with EU law and which are not, the ruling opens the door to uncertainty and selective enforcement. If the Union wishes to move towards a thicker conception of European citizenship,as the Commission’s actions and the Court’s language suggest, it may be time to seriously consider a common governance framework for this shared legal and political status. After all, if Union citizenship is to be more than the sum of its national parts, it must be underpinned by more than scattered national discretion.

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