Introduction

Welcome back to the ItalyGet blog. As many of you following our updates know, the journey towards securing Italian citizenship jure sanguinis (by right of blood) is currently navigating some complex terrain. Recent legislative discussions, often encapsulated under the “Tajani Decree” umbrella, have certainly stirred the pot, creating genuine uncertainty about processing times and the future contours of the application process, including proceedings at the Court of Rome. Adding another significant layer to this unfolding narrative, a recent, noteworthy ordinance from the Tribunale Ordinario di Roma (Ordinary Court of Rome) has raised fundamental constitutional questions about the very bedrock of jure sanguinis as applied without generational limits, placing the concept of belonging to the Italian community under intense scrutiny.

Against this already dense backdrop, a fresh ruling from the Court of Justice of the European Union (CJEU), although concerning a seemingly distant case – the condemnation of Malta for its “citizenship by investment” program – sheds significant light on the discussions underway in Italy. This is the core of the ECJ Malta Ruling. While the judgment doesn’t directly impact Italian law on jure sanguinis, it powerfully invokes a core principle that resonates deeply within the Italian context: the concept of a “genuine link” (or legame effettivo) between an individual and the State whose citizenship they hold.

This post aims to dissect the CJEU’s ruling against Malta (the ECJ Malta Ruling), delve into the meaning and evolution of the “genuine link” principle in international and EU law, survey its varied interpretations across different Member States, and finally, connect these threads to the crucial ongoing debate surrounding Italy’s jure sanguinis pathway. Our goal is to illuminate why, even though the CJEU’s decision targeted the “sale” of citizenship, its underlying principles – the necessity of a real connection and the sovereignty of states in defining it (albeit within EU law constraints) – are acutely relevant for understanding the potential future of Italian citizenship by descent. We will underscore how the ruling reaffirms that national legal systems are the ultimate architects of this “link,” a link that, being under the control of Member States, is not immutable but can indeed shift over time through legislative action.

1. The ECJ Ruling Against Malta: European Citizenship Is Not for Sale

Earlier this year, the Court of Justice of the EU delivered a landmark ruling in the case brought by the European Commission against Malta concerning its controversial “citizenship by investment” scheme (often dubbed “golden passports”). The Grand Chamber sided with the Commission, declaring that Malta had failed to fulfill its obligations under EU law, specifically citing Article 4(3) of the Treaty on European Union (TEU) regarding the principle of sincere cooperation, and Article 20 of the Treaty on the Functioning of the European Union (TFEU), which establishes Union citizenship. This judgment is widely referred to as the ECJ Malta Ruling.

Malta’s program, formally known as the Exceptional Investor Naturalisation (MEIN) policy, allowed affluent individuals to acquire Maltese citizenship – and consequently, EU citizenship with its attendant rights (free movement, internal market access, voting rights in European elections) – in exchange for predetermined investments, crucially without the need to establish any substantial, prior connection to the country.

The Court unequivocally condemned this practice, labeling it a “transactional naturalisation procedure” that effectively amounted to the “commercialisation of the grant of the nationality of a member state, and by extension that of Union citizenship.” The European Commission had argued, and the Court concurred, that granting EU citizenship solely based on pre-determined payments or investments, devoid of any “genuine link” to the Member State in question, is incompatible with the principle of sincere cooperation and fundamentally undermines the very essence of Union citizenship. The ECJ Malta Ruling emphasized this point.

Malta mounted a defense rooted in national sovereignty, contending that granting citizenship falls within the exclusive competence of Member States, a principle supported by international law and the EU Treaties themselves. However, the Court pushed back against this argument, clarifying a vital point: while Member States indeed retain the authority to lay down the conditions for acquiring and losing their nationality, they must exercise this competence in compliance with Union law. Because the nationality of a Member State serves as the gateway to EU citizenship and its associated rights, the methods by which it is granted cannot be entirely detached from the foundational principles of the Union.

The ruling consequently compelled Malta to terminate its program, effectively signaling the end for direct citizenship-by-investment schemes within the EU, following the earlier suspension or abolition of similar programs in Cyprus and Bulgaria. This decision places limits on Member States’ discretion in nationality matters when their actions impact the collective value and integrity of European citizenship, reiterating that it demands more than a simple financial transaction, a core message from the ECJ Malta Ruling.

2. The “Genuine Link” Concept: Origins and Resonance in International and EU Law

At the heart of the ECJ Malta Ruling, and increasingly central to citizenship debates across Europe, lies the concept of the “genuine link” or “effective connection.” But what does this entail, and where did it originate?

International Law Roots: The Nottebohm Case

The classic starting point is the famous 1955 judgment of the International Court of Justice (ICJ) in the Nottebohm case (Liechtenstein v. Guatemala). Here, the ICJ stated that nationality, to be effective internationally (in that specific context, for diplomatic protection), should be based on “a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.” Nationality, the ICJ argued, is the legal expression of the fact that an individual is more closely connected with the population of one State than with that of any other. While the precise scope of the Nottebohm principle remains debated, often seen as primarily relevant to diplomatic protection and dual nationality scenarios, it crucially introduced the fundamental idea that citizenship shouldn’t be a mere formality but should reflect a substantial bond.

Echoes in International Conventions

The notion of an effective link is implicitly or explicitly present in several international nationality conventions:

• The 1930 Hague Convention, while affirming state competence, subjects it to generally recognized principles. Its Article 7 also contemplates loss of nationality for long-term residents abroad, hinting at the need for an ongoing connection.
• The 1961 New York Convention on the Reduction of Statelessness permits deprivation of citizenship (if statelessness doesn’t result) in cases like prolonged foreign residence without contact, implicitly acknowledging that a lack of connection can justify revocation.
• The 1997 Council of Europe’s European Convention on Nationality is more direct: Article 7(1)(e) explicitly allows a State Party to provide in its internal law for the loss of its nationality due to a “lack of a genuine link” between the State and a national habitually residing abroad.

The “Genuine Link” in EU Law

Within the EU framework, Union citizenship derives from Member State nationality (Art. 20 TFEU). Determining who holds national citizenship remains a Member State competence, but, as CJEU case law clarifies, this power must be wielded in accordance with EU law.

The Rottmann judgment (C-135/08, 2010) was pivotal. The Court ruled that a national decision to revoke citizenship, which consequently strips an individual of their EU citizenship and associated rights, must adhere to the principle of proportionality. This requires the revocation to be justified by a legitimate public interest (e.g., acquisition by fraud) and to consider the consequences for the individual under EU law. While not explicitly invoking the “genuine link” terminology in that instance, Rottmann established that EU citizenship falls within the scope of EU law, making national decisions impacting it subject to European oversight based on proportionality.

More recently, in Tjebbes and others (C-221/17, 2019), the Court directly engaged with the “genuine link” concept regarding Dutch rules on automatic loss of citizenship due to extended residence abroad. The CJEU recognized it as “legitimate” for a Member State to view nationality as “an expression of a genuine link” between itself and its nationals and, consequently, to legislate for the loss of nationality where such a link is absent (e.g., after 10 years abroad without actions demonstrating connection, like passport renewal). Even here, however, the Court stressed the need for an individual assessment of the proportionality of losing EU citizenship rights.

In essence, EU law doesn’t mandate Member States to demand a “genuine link” for acquiring citizenship. However, it recognizes their right to consider it, and even to provide for the loss of citizenship due to its absence, provided this is done in compliance with overarching EU principles, notably proportionality and the protection of fundamental rights. The ECJ Malta Ruling further solidifies the idea that while competence remains national, the EU possesses a legitimate interest in ensuring that citizenship, especially given the European rights it confers, is not stripped of its inherent meaning as membership in a political and social community.

3. The “Genuine Link” in Practice: A Patchwork of National Approaches

How is the concept of a “genuine link” (or its functional equivalents) actually interpreted and applied in the national laws of EU Member States? The reality reveals a diverse landscape, reflecting distinct histories, legal traditions, and policy priorities.

• Netherlands: As illustrated by the Tjebbes case, Dutch law explicitly ties the retention of citizenship for long-term expatriates to demonstrable evidence of maintaining a connection.
• Germany: Naturalization typically requires significant legal residence (often 8 years), proficient German language skills (B1 level), and adherence to Germany’s liberal democratic values, all acting as concrete markers of socio-cultural integration and thus, a form of genuine link. Jus sanguinis, however, remains a significant pathway, often without residency demands.
• France: Aspiring citizens usually need 5 years of residence, language proficiency, and assimilation to the values of the Republic, formalized partly through an “integration contract.” Even citizenship acquisition for children born in France to foreign parents often involves residency criteria. The focus on integration serves as a proxy for a genuine connection.
• Spain: Spain combines jus sanguinis with substantial residency requirements for naturalization (typically 10 years). While recent laws easing paths for descendants of exiles exist, they often include language acquisition requirements. There’s no explicit “genuine link” test like in the Netherlands, but residency and language play key roles.
• Ireland: Once a bastion of pure jus soli (right of the soil), Ireland amended its Constitution in 2004 to restrict automatic birthright citizenship primarily to children of Irish citizens or long-term legal residents, effectively introducing a parental or residency-based link requirement.
• Belgium: While recognizing jus sanguinis, Belgium may condition access to citizenship on meeting economic and linguistic integration requirements, alongside declarations of allegiance and effective residence in certain scenarios.

This brief overview demonstrates that while the precise term “genuine link” might not be ubiquitous in legislation, many Member States de facto require tangible elements – residence, language, economic or social integration, adherence to core values – especially for naturalization or sometimes for retaining citizenship, effectively translating the concept into practical criteria.

4. Italy at a Crossroads: Jure Sanguinis Under the Constitutional Spotlight

Where does Italy stand in this picture? Governed primarily by Law No. 91/1992, the Italian system leans heavily on jus sanguinis. Article 1(1)(a) declares that a child of an Italian father or mother is a citizen by birth. Case law has interpreted this broadly, allowing citizenship transmission through paternal lineage (and maternal lineage for those born after January 1, 1948, often relevant in 1948 cases) without generational limits and, critically, without demanding any concrete connection – such as residency, language fluency, or social participation – from the applicant to Italy.

This approach, almost unparalleled in its lack of generational cut-offs or connection prerequisites, is now the focus of intense debate, fueled by two main developments:

• Legislative Proposals (e.g., “Tajani Decree“): Discussions around potential reforms aim to address the burgeoning number of applications and lengthy waiting times but also touch upon substantive issues, reflecting a political inclination to reconsider the sheer breadth of jure sanguinis.
• The Rome Court’s Ordinance: This recent judicial act directly questioned the constitutionality of Article 1 of the citizenship law, specifically its application allowing unlimited jure sanguinis transmission even when the applicant (and often intermediate generations) lacks any discernible effective link to Italy. The judge referred the matter to Italy’s Constitutional Court, asking it to assess whether this “unlimited” application aligns with the fundamental principles of the Italian Constitution.

The primary concerns articulated by the Rome Court involve potential clashes with core constitutional tenets:

• Conflict with Art. 1 (Popular Sovereignty) & Art. 3 (Reasonableness):
  • Citizenship defines “the people” who hold sovereignty.
  • The current jure sanguinis practice allows potentially millions, descended from ancestors who emigrated generations ago, to claim citizenship without ever having established tangible ties (residential, social, cultural) to Italy.
  • This, the judge argued, decouples citizenship from actual membership in an active community, risking its transformation into an abstract, almost “private” status devoid of the “effectiveness” (a real social bond) recognized internationally (citing Nottebohm) and even implicitly by Italy’s own high courts (though not previously used to curtail jure sanguinis).
  • Granting citizenship to a potentially vast number of individuals lacking any effective connection could “dilute” the very concept of the sovereign Italian people, rendering the law’s unlimited scope potentially unreasonable relative to its presumed purpose (ensuring the continuity of the community tied to Italy).
  • It challenges the reliance solely on the blood tie across countless generations without demanding any evidence of a present-day connection.
• Conflict with Art. 3 (Equality & Comparative Reasonableness):
  • The ordinance contrasts the broad jure sanguinis pathway with other means of acquiring Italian citizenship under the same law (Arts. 4, 5, 9) – for descendants of former citizens, spouses, or long-term residents.
  • All these alternative routes impose strict requirements: specific periods of legal residence, economic self-sufficiency, clean criminal records, and often Italian language proficiency (B1 level).
  • The judge questions the fairness and reasonableness of making citizenship acquisition significantly easier for someone whose only link is a distant ancestor (perhaps unknown personally) compared to individuals with arguably more recent or concrete ties (like the grandchild of a former citizen, someone born and raised in Italy by foreign parents, a spouse, or a long-integrated resident) who face much higher hurdles.
  • It highlights a potential unreasonable disparity between those inheriting a “dormant” citizenship based purely on formal ancestry detached from the living Italian community, and those who must actively demonstrate substantial, current links to Italy.

It bears repeating: the Rome Court hasn’t altered the law. It has flagged a profound constitutional query for the higher Constitutional Court to resolve. The ordinance even hints at possible legislative adjustments, perhaps drawing inspiration from other parts of the citizenship code (like Art. 4), suggesting ideas like requiring proof directly from a parent, applying residency or other connection requirements for grandparental claims, or establishing a generational cut-off (e.g., no further back than grandparents).

5. Why the Malta Ruling Resonates in Italy’s Jure Sanguinis Debate

Now we reach the crux: why does the CJEU’s ruling against Malta (the ECJ Malta Ruling), focused on a specific case of citizenship “for sale,” hold relevance for Italy’s debate on jure sanguinis by descent?

The relevance isn’t direct or legally binding. The CJEU said nothing about Italian jure sanguinis. Malta sold passports to investors with no prior ties; Italy recognizes citizenship based on blood ancestry. These are distinct scenarios. Yet, the ECJ Malta Ruling carries significance for the Italian discussion for at least three powerful, albeit indirect, reasons:

1. It Reaffirms the Importance of the “Genuine Link” Principle: The EU’s highest court forcefully stated that Member State citizenship, and by extension Union citizenship, cannot be a mere formality or a commodity but should, in principle, reflect a real connection between the individual and the State. Even if the Maltese case was an extreme example (direct payment), the underlying principle – that citizenship implies a bond extending beyond mere legal procedure or, in Italy’s case, pure ancestral biology – receives high-level European validation. This lends weight to arguments within Italy suggesting that even unlimited jure sanguinis might need re-evaluation in light of the need for some form of effective connection to the contemporary national community.
2. It Confirms National Competence in Defining the “Link”: While establishing limits based on EU law (like proportionality and sincere cooperation), the ruling implicitly acknowledges (and prior case law confirms) that it falls to each Member State to define what constitutes a sufficient link for its own citizenship. As we’ve seen, European approaches vary widely. This is crucial for the Italian debate: the ruling doesn’t impose a specific model on Italy but confirms that Italy possesses the sovereignty (within EU principles) to define – and potentially redefine – the criteria for its own nationality, including the role of an “effective link” within the jure sanguinis framework. The Italian State remains the ultimate arbiter of how this link is defined.
3. It Underscores the Potential for Legislative Evolution: By condemning an existing practice, the judgment demonstrates that citizenship rules aren’t immutable. It highlights that Member States can (and sometimes must, if they violate EU law) amend their nationality laws. This speaks directly to the Italian situation: the fact that jure sanguinis has operated in a certain manner for decades doesn’t preclude the Italian legislature from modifying it. The ECJ Malta Ruling, though contextually different, serves as a reminder that defining the link underpinning citizenship is a national political and legal choice that can evolve over time, provided changes are reasonable and respect fundamental rights and EU law principles. The “genuine link,” being under national control, is dynamic, not static.

In essence, the CJEU’s Malta judgment acts as both a cautionary tale and a reference point. It reminds us that citizenship holds intrinsic value tied to community belonging and that while States are sovereign in setting criteria, this sovereignty isn’t absolute, particularly within the EU system. For Italy, this implies that discussing the potential introduction of “effective link” requirements for jure sanguinis isn’t legal heresy but a legitimate debate about the nature of citizenship in the 21st century. It aligns with a principle recognized internationally and in Europe, leaving the concrete definition and application as a national prerogative (and responsibility).

Conclusion: Navigating Uncertainty with Awareness

The landscape of Italian citizenship jure sanguinis is potentially entering a period of significant transformation. On one side stands a long-established legal tradition prioritizing blood ties without limitation; on the other, legislative pressures and judicial inquiries are emerging, questioning this model through the lens of the “effective link” concept and principles of reasonableness and equality, concepts brought into focus by discussions surrounding rulings like the ECJ Malta Ruling.

The recent Court of Justice ruling against Malta, while not directly targeting jure sanguinis, fits into this picture by reinforcing the importance of the “genuine link” principle, while simultaneously confirming national competence to define its parameters and the possibility of legislative change over time.

For anyone embarking on or considering the path to Italian citizenship recognition via jure sanguinis, this evolving scenario demands attention and informed awareness. The current law remains in effect, but the outcome of the Constitutional Court’s review and potential future legislative reforms could alter the playing field.

At ItalyGet, we are committed to continuously monitoring these developments (see our News section) and providing our clients with the most robust legal support possible, grounded in current regulations but with a keen eye on future shifts. Our objective remains to help you navigate these complex waters and assert your rights within the evolving Italian and European legal framework.

Stay connected to our blog for further updates on this critical topic.

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FAQ (Frequently Asked Questions about the ECJ Malta Ruling and Italian Citizenship)

What did the recent EU Court of Justice ruling on Malta establish?

The Court found that Malta violated EU law by operating a program granting citizenship (and thus EU citizenship) in exchange for investments, without requiring a genuine connection to the country. It ordered Malta to terminate the program. This is a key aspect of the ECJ Malta Ruling.

Does the ECJ Malta Ruling directly affect Italian citizenship jure sanguinis applications?

No, the ECJ Malta Ruling does not directly concern or change Italian law on jure sanguinis. However, it reinforces at the EU level the principle that citizenship should reflect a “genuine link,” a concept central to the current debate in Italy about potentially reforming jure sanguinis.

What is a “genuine link” or “effective connection”?

It’s a principle in international and EU law suggesting that citizenship should be based on a real, substantial connection between the individual and the State (e.g., through residence, social/cultural ties, current family bonds), not just on formal or transactional grounds. Its specific definition varies between countries and is relevant following the ECJ Malta Ruling.

What is the current debate about jure sanguinis in Italy?

The debate focuses on potentially modifying the current rule that allows Italian citizenship transmission by descent without generational limits and without requiring the applicant to have any effective connection to Italy. The Court of Rome has raised doubts about the constitutionality of this unlimited rule, referring the question to the Constitutional Court, partly influenced by principles highlighted in discussions like the ECJ Malta Ruling context.

Has the Italian law on jure sanguinis changed?

No, Law No. 91/1992 is currently still in force as it stands. However, the constitutional question is pending, and discussions about potential legislative reforms (see current debate updates), potentially considering concepts like the ‘genuine link’ discussed in the ECJ Malta Ruling context, are ongoing.

What could change in the future for jure sanguinis applicants?

If the Constitutional Court or the Italian Parliament decides to intervene, new requirements might be introduced. These could include needing to demonstrate a certain level of connection to Italy (like language knowledge or residency periods for more distant generations), or generational limits might be imposed on citizenship transmission. The ECJ Malta Ruling underscores that citizenship criteria can evolve. These are currently only possibilities pending official decisions.