A Successful Attempt to Hijack the Union’s Liberal Promise: Commission v Malta

Abstract

The decision in Commission v Malta is an alarm bell signalling the continued construction of an illiberal union in Europe with the growth of arbitrary power constrained neither by democracy nor legality. This case marks the conclusion of an orchestrated political campaign of questionable legality that has resulted in the drastic expansion of the Court of Justice’s (CJEU) powers in the domain of nationality law at the expense of foundational EU values and citizens’ rights. None of the European Commission’s three main arguments in its action against Malta – regarding EU competence in the field of citizenship, ‘genuine links’, and the illegality of the Maltese citizenship programme – have any foundations in EU, international, or national law. Rather, the case is an unwelcome solidification of the ‘Eurowhiteness’ ideal of belonging underpinning the Union in Europe since its inception, and which had never so openly been endorsed by the institutions. The CJEU needed no law or legal arguments to brush away many of the achievements of EU citizenship law with the U-turn in its ruling of 29 April 2025. It has abandoned legal reasoning by establishing a thick version of EU citizenship unwarranted by the Treaties, with a solitary reference to ‘solidarity’. This notion has however acquired a new meaning: the construction of a solidarity of thick nationalist identities, policed from Kirchberg at the expense of EU citizens’ status and rights – a development that contrasts with the established meaning of solidarity within the EU legal order. EU citizenship is significantly altered as a result, as the essence of citizenship is no longer a legal bond between a person and public authority, but also includes other, undisclosed, primordial extra-legal factors not enumerated in any act and thus potentially open for unconstrained deployment by the Court in future attacks against rule-based EU constitutionalism grounded in the rule of law and the respect of democratic values, as well as against the dignity of EU citizens and their legal status in the Union.