European Citizenship After Commission v Malta

No serious assessment of Commission v Malta can stop at the demise of Malta’s investor naturalisation route. The real question is broader and more difficult: what legal logic did the Court of Justice adopt, and how far can that logic travel across the remaining routes by which Member States confer nationality and, with it, Union citizenship? That question matters not only for investment-based models, but also for citizenship by descent, marriage, registration, merit, and other discretionary modes of acquisition across the European Union.

The Court itself framed the case in constitutional terms, treating Malta’s 2020 route as an institutionalised and transactional naturalisation procedure amounting to the commercialisation of Member State nationality and, by extension, Union citizenship. That much alone makes the case more than a Maltese story. It is a European citizenship case in the fullest sense, because it concerns the point at which national competence in nationality law meets the shared legal consequences of Union citizenship.

This is also why the judgment should not be reduced to a morality play about so-called golden passports. It is, more fundamentally, a case about the limits of Member State autonomy in nationality law once nationality operates as the gateway to a supranational status recognised across the Union. That much is undeniable. What is far less clear is whether the Court reached that destination through a sufficiently disciplined legal method. On that point, the judgment has attracted unusually serious criticism from commentators who are not defending citizenship for sale, but questioning whether the legal foundations of the ruling are stable enough to carry the constitutional weight now placed upon them.

From my own perspective, that is precisely the right place to begin. I have advised directly on Maltese citizenship structures in their original investor-naturalisation form, through later iterations, and into the current merit-based developments. For that reason, I do not approach this case as a detached academic problem. I approach it as a European citizenship lawyer concerned with what the judgment condemns, what it leaves unsaid, and what it may yet destabilise across the wider field of lawful citizenship planning in Europe.

My own starting point is straightforward. Citizenship is not for sale. It should not be promoted as a product, marketed as a mobility asset, or presented as an automatic outcome for people who simply have capital and pass background checks. In that sense, the vice the Court identified was real. Malta’s old investor route, particularly as framed and marketed by too many intermediaries outside the legal profession, encouraged precisely the wrong public understanding of nationality: not as admission into a constitutional community, but as a purchasable status with European consequences.

That understanding had already sat uneasily with Malta’s own regulatory position long before the judgment was handed down. Official Maltese agency rules had already prohibited passport imagery, EU symbols, fast-track claims, representations that no residence was required, marketing that portrayed Maltese citizenship as a route to European citizenship, and language presenting citizenship as a tax-planning device. In other words, the legal and ethical objection to commodification was not invented by the Court. It already existed in Maltese regulatory thinking, even if the market too often ignored it.

So I do not argue for a return to citizenship by investment as it was marketed in its crudest form. I argue something more demanding and, in my view, more honest. Citizenship should require genuine integration. But for globally mobile families, integration should not be confused with sedentary settlement. A founder, a philanthropist, a scientist, a retiree, a family office principal, and an internationally active professional do not build ties in the same way. The test should therefore be whether the person has established a proportionate, credible, and personal nexus to the state through some combination of residence, family life, commercial activity, investment, public-interest contribution, philanthropy, or sustained civic connection.

That is the core of what I describe as the Doctrine of Contributive Belonging. It accepts that citizenship must not be bought. But it also rejects the idea that genuine integration can only be measured by a narrow, old-fashioned, settlement-based template. In a world of globally mobile individuals and families, belonging must still be real, but it may be expressed through different patterns of lawful presence, contribution, and attachment.

The Court was right about one central point. A Member State cannot reduce access to its nationality to a formula in which predetermined payments or investments occupy the decisive place and nationality follows through a structured transactional process. A framework of that kind changes the meaning of citizenship itself. It ceases to look like admission into a political and constitutional community and begins to resemble the acquisition of a premium legal status by reference to price and compliance.

On that proposition, I agree with the Court in principle. Union citizenship cannot be treated as a retail product. Nor can Member State nationality be commercialised in a way that empties it of constitutional seriousness while preserving all its European legal consequences. In this sense, the Court was correct to insist that nationality cannot lawfully be reduced to transaction.

The Court was also right to recognise that Member State nationality has cross-border constitutional effects. Once a person becomes the national of one Member State, the others must recognise the consequences of that status for EU law purposes. It is therefore not fanciful to say that a purely market-facing nationality model can affect more than the state that confers it. The Court’s concern with mutual trust was not invented from thin air. It was responding to the simple reality that national citizenship decisions circulate inside a shared European legal order.

That part of the judgment should be acknowledged clearly. Too much commentary either romanticises the old investment route or dismisses all criticism of the judgment as political grandstanding. That is unhelpful. The Court identified a real constitutional problem. The difficulty lies elsewhere: not in the vice it condemned, but in the legal route by which it chose to condemn it.

That said, I do not think the Court’s legal reasoning is nearly as secure as its rhetoric. The decisive problem is not whether the Court reached an appealing policy outcome. It is whether it articulated a sufficiently coherent legal principle that can explain the result without creating wider instability across the law of nationality and Union citizenship.

Advocate General Collins’ Objections

Advocate General Collins, in my view, identified the strongest doctrinal objections. He emphasised that Declaration No. 2 annexed to Maastricht makes clear that the question whether a person possesses the nationality of a Member State is to be settled solely by reference to the national law of the Member State concerned. He also took the orthodox position that EU law does not itself require a genuine link as a condition for the acquisition of nationality, and that one cannot simply transpose the case law on deprivation of citizenship into the very different context of acquisition.

That is not a marginal objection. It goes to competence, legal method, and limiting principle. The Court repeated the conventional formula that it is for each Member State to lay down the conditions for the grant and loss of nationality, subject to due regard for EU law. But it then used that formula to build something much more intrusive than earlier case law had suggested. It introduced a new constitutional test centred on a special relationship of solidarity and good faith, even though the textual foundations for such a requirement are, at best, indirect.

This is precisely where the judgment becomes vulnerable. If the Court wished to say that Union citizenship imposes substantive limits on the way Member States confer nationality, it needed to identify those limits with more precision than it did. Instead, it moved quickly from broad constitutional language to a far-reaching outcome without fully explaining the legal architecture in between.

Academic Critiques of the Judgment

This is why the critical commentaries remain so important. Martijn van den Brink’s critique is especially powerful because it focuses not on the desirability of the result, but on the weakness of the reasoning. He argues, in essence, that the Court resolved what should have been a hard legal question through rhetoric and outcome-driven logic rather than disciplined doctrinal analysis.

Ruairi O’Neill’s analysis is useful in a different way. He recognises that the judgment’s most significant innovation lies in linking Union citizenship explicitly to mutual trust. That is an important insight because it helps explain what the Court was really doing. It was not merely condemning Malta’s old route as politically unattractive. It was recasting the constitutional meaning of nationality conferral inside the Union legal order.

Stephen Coutts is more measured, but his analysis also underscores the seriousness of the problem. Even when read sympathetically, the judgment raises genuine questions of legitimacy and doctrinal significance. It is one thing to say that nationality has European consequences. It is another to derive from that observation a new and only partly defined constitutional constraint on the national law of acquisition.

Dimitry Kochenov’s criticism takes the argument further still. His point is not merely that the judgment is thinly reasoned, but that it signals a deeper shift in the idea of citizenship itself. In his reading, the Court moves beyond a purely legal understanding of citizenship toward a thicker and more value-laden conception of belonging. That critique should not be dismissed as provocation. It goes to the heart of the case. Once the Court moves beyond legal status into denser ideas of solidarity and belonging, it must also answer the next question with far greater precision: what sort of belonging, and how much of it, does EU law now require?

That question remains unresolved. It is the judgment’s central weakness, and it is also the reason the case matters far beyond the narrow category of investor naturalisation.

One of the more awkward features of the judgment is that the Court did not openly rely on Nottebohm, yet it did not fully escape the gravitational pull of genuine-link thinking either. Collins was right to point out that Nottebohm concerns recognition by other states, not a rule requiring the conferring state to insist upon a prior genuine link before naturalising someone. He also made the stronger point that there is no logical basis for saying that because Member States must recognise one another’s nationality decisions, their nationality laws must therefore contain a particular substantive rule about connection.

The Court sidestepped that trap by speaking instead of solidarity, reciprocity of rights and duties, sincere cooperation, and mutual trust. Yet functionally, it arrived close to a new genuine-link test without spelling out the criteria of that test. That is precisely why the case matters beyond investor citizenship. If the real vice is not only price, but insufficient constitutional connection, then lawyers advising on descent, family-based registration, exceptional naturalisation, and merit routes must now ask whether the Court has created a doctrine it has not fully articulated.

This is where the judgment becomes difficult to cabin. If it is truly confined to the commercialisation of citizenship, then its reach can remain relatively narrow. But if it is taken to imply that Union citizenship requires some substantive threshold of connection, attachment, or belonging beyond national law alone, then its implications become much wider. That is why the unresolved relationship between Nottebohm, mutual trust, and modern EU citizenship law matters so much.

In practice, I do not believe the Court has created a full genuine-link doctrine in the classic international-law sense. But I do believe it has moved close enough to that territory to generate real legal uncertainty. And uncertainty in citizenship law rarely stays neatly within the boundaries first imagined by the court that created it.

In my view, Commission v Malta should not be read as invalidating all routes that do not look like classic long-term naturalisation. It is best understood as targeting the commercialisation of nationality as a gateway to Union citizenship. But that is not the same as saying its logic is confined forever to investor routes. Its consequences depend on whether a surviving route replicates the same constitutional defect.

Citizenship by Descent

Citizenship by descent remains conceptually distinct. It is not, in ordinary form, a transaction. It is rooted in family lineage, legal continuity, and the historic transmission of national membership across generations. Malta’s own framework continues to distinguish clearly between automatic acquisition, such as birth or descent, and application-based routes involving registration or naturalisation.

Yet even here the post-judgment atmosphere matters. The Maltese Citizenship (Amendment) Act, 2025 was expressly presented as addressing Commission v Malta while also amending provisions on citizenship by descent and merit. That does not mean descent was condemned. It does mean that once the constitutional temperature rises, even non-commercial routes come under renewed scrutiny. In the wider European context, that matters especially for very remote descent claims that may involve only attenuated connection to the Member State.

I do not suggest that descent as a category is now subject to higher standard of connection, even though countries like Italy and Greece have tightened their integration requirements even for their citizenship by descent rules. But I do suggest that the judgment encourages closer attention to whether specific descent rules remain consistent with a more demanding constitutional understanding of Union citizenship. That debate is only beginning.

Citizenship by Marriage

Marriage and family-based registration are also different in kind from investor naturalisation. Their logic lies in personal and family integration rather than market exchange. But they too cannot be treated as empty formalities. If the direction of travel in European citizenship law is toward closer examination of the reality of ties, then routes grounded in marriage or family connection will continue to depend on authenticity, continuity of relationship, and legal credibility rather than abstract entitlement alone.

That is not a departure from first principles. It is an expression of them. Marriage-based citizenship has never been defensible where the family nexus is only nominal. What Commission v Malta may do, however, is sharpen the broader constitutional language through which such routes are assessed. It places more weight on substance and less tolerance on routes that appear to preserve legal form while lacking real relational foundation.

Citizenship by Merit

Merit is where the most interesting work now lies. If merit is genuine, it survives. If merit is only investment by another name, it does not. Malta’s 2025 reforms are important precisely because they attempt to reposition the law on the right side of that line. Parliament presented the reform as responding to Commission v Malta while amending merit and descent. Post-2025 Maltese legal commentary has also correctly framed the shift as one from transactional models to a contribution-based framework, with ministerial discretion, public interest, and exceptional contribution at the centre.

That, in my view, is broadly the right direction. A merit-based citizenship framework can be entirely defensible if it is genuinely discretionary, non-transactional, rooted in lawful ties, and grounded in contribution that is individually assessed rather than financially pre-priced. But it must be merit in substance, not merit in branding alone.

This is where legal drafting, administrative practice, and advisory language all matter. If a merit framework is marketed like an investment route, narrated like an investment route, or reduced in practice to a disguised capital threshold, it will remain constitutionally vulnerable. If, however, it is genuinely tied to contribution, lawful residence, public interest, and a case-by-case evaluation of belonging, it can occupy a very different legal category.

The Court’s flaw was not that it rejected citizenship as commodity. Its flaw was that it did not provide a sufficiently clear positive standard to replace the discarded model. That is where I place the Doctrine of Contributive Belonging.

The basic proposition is simple. Citizenship in the twenty-first century should still be anchored in genuine integration, but integration must be interpreted in a way that is proportionate to the life actually lived by the person concerned. The globally mobile individual is not a legal anomaly. He or she is a normal figure of modern private client, investment, entrepreneurial, academic, and professional life. For that person, integration may be real without meaning permanent settlement in the nineteenth-century sense.

A family may establish a genuine relationship with a state through lawful residence, school choices, philanthropy, business operations, strategic investment, scientific collaboration, cultural contribution, or sustained civic presence. What matters is not theatrical residence, but credible attachment. Not a price list, but a pattern of lawful and meaningful ties. Not automaticity, but constitutional seriousness.

This is also a more principled answer than either extreme now on offer. On one side lies the discredited notion that nationality may simply be packaged and sold. On the other lies the risk that European law slides into an under-defined moralism of belonging, where legal status becomes vulnerable to vague intuitions about who is sufficiently real as a citizen. Contributive Belonging rejects both. It asks for measurable connection, but it allows that connection to take different forms depending on the individual’s age, profile, means, mobility, and genuine mode of life.

In practical terms, that means a merit-based citizenship framework can be defensible under European law if it is genuinely discretionary, non-transactional, and rooted in demonstrated contribution and lawful ties. It cannot be a price list. It cannot promise certainty for capital. It cannot reduce residence to a prop. But neither must it demand that every globally active applicant pretend to live as a purely local subject. The law should ask whether the state is admitting someone into a real constitutional relationship, not whether that person has performed a sentimental script of static belonging.

The enduring importance of Commission v Malta lies in the fact that it closed one era without fully defining the next. The age of overtly commercialised investor citizenship in the European Union is, in substance, over. That is not a loss. It is a necessary correction. But it should not be followed by an equally crude counter-model in which citizenship becomes hostage to unstructured moral intuition, or to an imported and overextended genuine-link doctrine that neither EU law nor international law clearly requires.

"Contributive Belonging offers a more modern answer to European citizenship law – one that rejects commodification while recognising that real integration may be expressed differently across different lives, professions, and family circumstances.” Dr J.P. Chetcuti on the Doctrine of Contributive Belonging.

The better path is to distinguish clearly between routes that commodify nationality and routes that evidence real, if modern and internationally mobile, forms of belonging. Descent should remain distinct from commerce. Marriage and family-based routes should remain tied to authentic family life. Merit should survive only where it truly reflects contribution, service, and public interest rather than capital in ceremonial dress.

If European citizenship law is moving toward a higher standard of constitutional seriousness, then that standard should be stated honestly: not citizenship for sale, but citizenship through credible, proportionate, and personal integration, belonging, and contribution. That is the standard I would defend, and it is the standard by which the next generation of European citizenship frameworks should be judged. Maltese pathways to citizenship are at the forefront of this important development in European citizenship law.

Our European citizenship lawyers advise internationally mobile individuals, families, family offices, and their advisors on lawful pathways to citizenship across Europe, including citizenship by descent, registration, marriage, and merit. We help clients assess whether a proposed route reflects genuine legal substance, credible personal and economic ties, and long-term strategic fit. We also advise on how post-Commission v Malta European citizenship planning should now be approached – not as a transactional exercise, but as part of a broader legal, tax, family governance, and mobility strategy.

About the Author

Dr. Jean-Philippe Chetcuti is a Maltese advocate and internationally recognised citizenship and immigration lawyer with over 25 years of specialised experience in European and global nationality, residency, and tax law across jurisdictions.

“For globally mobile individuals and families, genuine belonging does not always mean permanent settlement. It means demonstrable ties, lawful presence, and contribution assessed in a way that is proportionate to modern life.” Dr J.P. Chetcuti on the Doctrine of Contributive Belonging.

Member of the IBA, the American Bar Association, the European Immigration Lawyers Network and the American Immigration Lawyers Association. Recognised by Lexology Who’s Who Legal, Legal500, Mondaq, Chambers & Partners, UGlobal and International Tax Review World Tax. Authored the Dual Citizenship Report and the CCLEX Mobility Assets Spectrum furthering the framing of residency and citizenship as legacy assets. Contributed to policy development in citizenship law and sustainable mobility frameworks, including advancing the doctrine of contributive belonging within European nationality law discourse.

Dr. Chetcuti holds a Doctor of Laws degree and a Master of Laws in international economic law from the University of Warwick, and regularly speaks at international legal and academic fora on citizenship, residency and cross-border legal issues.

Official Sources

• ‍European Commission v Republic of Malta, Case C-181/23, Judgment of 29 April 2025
• ‍Opinion of Advocate General Collins, Case C-181/23, 4 October 2024
• ‍Maltese Citizenship Act, , Laws of Malta, Cap. 188
• ‍Maltese Citizenship (Amendment) Act, 2025, Act XXI of 2025
• ‍Community Malta Agency Code of Conduct and Ethics for Agents, AKM Marketing and conduct restrictions‍