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25 Opinion maltatoday, SUNDAY, 10 NOVEMBER 2013 Natasha Buontempo Legal reflections on citizen acquisition and withdrawal T he Maltese Citizenship Act already envisages instances in which citizenship granted to aliens by naturalisation may be withdrawn. I will not go into these grounds. Suffice it to say that the grounds are exceptional, ranging from criminal acts to acts which threaten public security. In this short article my reflections are twofold: (i) the general spirit of the law and the principle of non-retroactivity attached to the principle of legitimate expectations, and (ii) the possible legal implications of repeal, in the context of the Individual Investor Programme. From their very first year of reading law, students are taught the significance of the principle of non-retroactivity. This principle enshrines a protection: the protection of the individual to have legal security and legal certainty with regard to his current and future state of affairs. In the criminal field, for example, the principle of non-retroactivity requires that no harsher punishment is meted out to the offender which was not envisaged by the law at the time that the offence took place (but which was subsequently incorporated into law at a later stage). In civil law, this principle is also observed and in the words of the Court, 'Biex il-ligi jkollha effetti retroattivi, jehtieg li dan l-effett jirrizulta b'mod l-aktar car u zgur; u ghaldaqstant, fid-dubju ghandu jkun eskluz' (Caruana Curran noe v. Camilleri noe, 29/10/1959, Prim'Awla). The spirit of the law clearly results from this court dictum – the principle of retroactivity is an exception to the rule and if it is the intention of the legislator that a legislative act is to have retroactive effects, then it has to be stated clearly and unambiguously in the text of the law. It is usually accepted that legal retroactive effects are to be applied only if the individual's position will be improved. An act of parliament may always be repealed by parliament itself. However, a distinction must be drawn between repealing an act of parliament and repealing it with retroactive effects. In the present case, it is always possible to repeal the Act of Parliament embodying the Individual Investor Programme. The effects of such repeal would be that from the date of the repeal, or any other date specified by parliament, the scheme will be abolished. The implications of such a repeal would be that Maltese citizenship will no longer be available under the scheme and those who previously acquired their Maltese citizenship will not be affected in any way and will retain all their ancillary rights. If, on the other hand, the repeal is made with retroactive effects, with the clear and unambiguous intention to abolish citizenship obtained under the Individual Investor Scheme, therefore requiring a status quo ante effect, there will be colossal legal, social, economical and political effects, most of which will have to be contended with not only by the affected parties but also by the government and by the tax payers. The legal implications of the repeal with retroactive effects of the Act of Parliament regulating the Individual Investor Scheme are very broad, ranging from administrative rights of challenge to rights to challenge the decision which reclaims Maltese citizenship on the basis of discrimination, both under the Constitution and under the European Convention on Human Rights and Fundamental Freedoms. Interestingly, in such a case, I am of the opinion that even EU law will have a role to play here. A person who under the Individual Investor Scheme obtains Maltese citizenship will undoubtedly do so in order to obtain EU citizenship. This right is envisaged by the EU Treaties and their subsidiary legislation and is an automatic right on attainment of citizenship of one of the member states. In turn, EU citizenship will grant access to the four freedoms under EU law namely, the freedom of movement of persons, goods, services and capital. Therefore once the new Maltese citizen exercises one of his four freedoms, then he will also have the protection of EU law, including the protection of the general principles of law which envisage the principles of non-retroactivity, legitimate expectations and legal certainty where these risk being violated by subsequent national laws abolishing previously acquired rights under EU law (see by approximate analogy, for example the preliminary ruling given by the Court of Justice of the European Union in the UK Case R v. Kirk). These principles may come into play because of the very fact the citizen will have acquired EU citizenship and will have exercised his EU freedoms. In my opinion, the principles of non-retroactivity and legitimate expectations may also be forwarded in this case on the basis that if EU citizenship is retrieved with retroactive effect by an act of parliament, this will have serious implications on the individual and his family and the rights he will have acquired during the interim period. As far as the social, economic and political implications such a repeal would have, I will leave that to the experts in the respective fields. Natasha Buontempo a lecturer of EU Law at the University of Malta SENIOR MANAGER (EU FUNDS) Applications are invited for the positions of Senior Manager (EU Funds) in the Ministry for European Affairs and Implementation of the Electoral Manifesto. Applications will be received at the Office of the Permanent Secretary, Ministry for European Affairs and Implementation of the Electoral Manifesto, 31B, Tal-Pilar, Marsamxett Road, Valletta, VLT 1850 by not later than noon of Friday, 15 November 2013. Further details may be obtained from the Government Gazette of 25 October 2013. Application forms may be downloaded from: http://www.pahro.gov.mt/file.aspx?f=371 ! ! Operational Programmes for Malta This position may be considered for European Union part-financing ! ! Application forms may be downloaded from: