Selling (EU) Citizenship or Exercising Sovereignty? Rethinking the EU Law Limits on National Competence in Granting Member State Nationality after Commission v Malta

Abstract

This article analyses the Court of Justice’s judgment in Commission v Malta, the first case to assess whether investor citizenship schemes comply with EU law. These schemes, which grant nationality in exchange for financial investment, have been widely criticised due to risks such as money laundering, tax evasion, and corruption. The key legal question, however, was whether granting Member State nationality – and thus Union citizenship – through such transactional mechanisms is compatible with EU law. The article supports the Court’s conclusion that Malta’s scheme is unlawful insofar as it confers Union citizenship, but questions whether granting Member State nationality alone should fall within the same prohibition. It also argues that the Court’s reasoning lacks sufficient doctrinal clarity and depth, especially given the constitutional importance of the issue. Despite these concerns, the judgment represents a significant development, confirming that Member State competence over nationality is subject to EU law constraints and challenging the traditional view that such matters lie largely beyond EU scrutiny. At the same time, important questions remain unresolved, including whether the prohibition extends to nationality itself and whether the ruling has retroactive effects on previously granted citizenships.