Issue link: https://maltatoday.uberflip.com/i/1535324
10 OPINION Mark Said is a veteran lawyer maltatoday | WEDNESDAY • 14 MAY 2025 THE 'sale' of Maltese passports (Golden Passports) was big news years back but, over time, the is- sue had disappeared below the radar of public attention. Until last April, that is. The mills of justice might grind slowly, but they grind. The landmark judgment of the European Court of Justice delivered against Malta's 2020 Investor Citizenship Scheme last April has finally buffered the true and original concept of Union citizenship. It was a judgment that in no time at all hit the headlines of global me- dia houses, ranging from ABC News, Italpress, Transparen- cy International EU, Financial Times, The Washington Post, to Bloomberg. That judgment clearly laid down that the acquisition of Union citizenship cannot result from a commercial transaction. In other words, European values are not for sale! The question of granting na- tionality and long-term resi- dence involves profound social, political, economic and moral issues. Prior to all this, however, our government was resting on the opinion of Advocate Gener- al Collins of 4 October 2024, whereby he urged the rejec- tion of the European Commis- sion's challenge to Malta's 2020 Naturalisation for Investment Scheme. The Commission's challenge rested on a single, solid prem- ise that there is a requirement under EU law and, to a less- er extent, under international law, that, in order to preserve the integrity of EU citizenship, there must be a 'genuine link' between a Member State and its nationals. But Collins rejected that idea in very strong terms, consider- ing it would upset the carefully crafted balance between na- tional and EU citizenship in the treaties and constitute a whol- ly unlawful erosion of member states' competence in a highly sensitive field which they have clearly decided to retain under their exclusive control. From the outset, it was evident that Advocate General Collins failed to recognise that the true threat to institutional balance under the treaties is the sale of EU citizenship. His lopsid- ed analysis failed to recognise that it is, in fact, the sale of EU citizenship to third-country na- tionals who lack any genuine link to that state which would upset the treaties' carefully crafted balance between nation- al and EU citizenship. Those newly minted EU citi- zens would hold rights which, under EU law, override the sov- ereignty that member states are otherwise free to exercise over them. It is the consequences of selling EU citizenship, rather than Maltese citizenship, which had raised serious concern in civil society. We were selling Maltese cit- izenship by the dozens, and, automatically, these new Mal- tese citizens, ipso facto and ipso jure, became European citizens enjoying all the rights and du- ties which attach to such. This citizenship sale carried four major risks with it. Our investor citizenship and residence schemes were organ- ised in such a way that they did not take into consideration any security risks. Neither did they take into account the potential risks of money laundering linked to in- vestor citizenship and residence schemes, more so in light of the EU anti-money laundering rules. They also circumvented EU rules, notably where licensing requirements include a nation- ality requirement. Finally, there was also the is- sue of tax evasion, linking the risks from both schemes. In the aftermath of the ECJ judgment, Prime Minister Rob- ert Abela stated that he intends to update citizenship rules to abide by EU laws. To my mind, the best option would be to avail ourselves of Article 20 of the consolidated version of the Treaty on Eu- ropean Union (TFEU), which does not preclude a member state from retaining or adopt- ing a nationality scheme under which some of its nationals do not have EU citizenship. Indeed, the Declaration on nationality of a Member State annexed to the Final Act of the TEU provides that the state may declare, for information, who are to be considered its nation- als for Community purposes. This option for member states, which Advocate General Col- lins did not address, means that Malta can choose to declare that citizens under its 2022 scheme are not its nationals for Union purposes. It may thus exercise its sovereign power to operate an investor citizenship scheme under which persons with no genuine link to Malta become Maltese citizens but without thereby acquiring EU citizen- ship. While it is true that the con- cept of a "genuine link" is not defined in EU law or interna- tional conventions, Article 20, referred to above, cannot but be interpreted as precluding Malta from adopting laws which per- mit the granting of national citi- zenship in circumstances where doing so confers Union citizen- ship to third country nationals who have no genuine link with Malta. The fact that the ECJ upheld the Commission's challenge does not deprive Malta of the Union citizenship put back on track Mark Said The European Court of Justice ruled that Malta's citizenship by investment programme was in breach of the principles of "sincere cooperation" and "mutual respect" towards other member states (fFle photo).