Today, I had prepared a different article for the editor. However, I chose to postpone it to next week. Surely, the trending topic in Malta is the citizenship-by-investment programme. The citizenship programme was a deliberate and structured project, which generated over €1.4 billion in revenue. It provided a unique opportunity to create enough revenue for our economic and fiscal independence.
Let’s not forget that when the PL was elected in March 2013, the public finances were in disarray, and the European Commission placed us under the Excessive Deficit Procedure. Indeed the revenue generated by the citizenship programme, strengthened the country’s social and infrastructure development. Besides, it helped Malta weather critical exogenous shocks such as the Covid-19 pandemic, as well as the war in Ukraine, covering energy subsidies for all. At its core, it was not merely a fiscal mechanism but a legal exercise of national competence that enhanced our independence.
However, on Tuesday, the European Court of Justice (ECJ) delivered a judgment that challenges this understanding. The Court declared Malta’s citizenship-by-investment scheme incompatible with the values and obligations of European Union law. Surely, we still need to understand the principles of the “à la carte values” under EU law. What puzzled me is that there was no legal case, especially when reading the preceding opinion of the Advocate General. However, this judgment, though binding and final, raises serious philosophical and constitutional concerns. What is odd in this ruling is the way it was handled. It must be noted that the judgment stands in stark contrast to the legal reasoning of the Advocate General of the same Court. In October 2024, the Advocate General, Anthony Michael Collins, unequivocally affirmed that the competence for naturalisation lies with member states. His analysis reflected a more orthodox view of EU law, one that respects the boundaries of subsidiarity and preserves the sovereignty of nations in matters of citizenship.
That this carefully constructed legal argument was ultimately overturned by the Grand Chamber, whose composition included judges hailing from countries historically anxious with external influence and geopolitical sensitivities, such as Finland, Latvia, Lithuania, Estonia and the Czech Republic, is an interesting precedent and a philosophical development that merits further reflection. The way the ECJ decided upon the EU Commission’s reasoning inevitably gives ultra vires powers to the EU Commission in contradiction of the Judgement’s own paragraphs (14, 15 and 80) citing that Declaration 2 and the Edinburgh Decision attached to the Treaty states, that “the question whether an individual possess the nationality of a member state shall be settled ‘solely’ by reference to the national law of the member state concerned”.
One cannot ignore the current context because the European Commission’s intention was to halt all programmes due to the Russian invasion of Ukraine. Indeed, page 10 paragraph 37 of the ECJ’s judgement specifies this. Certainly a broader European geopolitical climate marked by heightened concerns over Russian and Belarusian influence, widely covered by influential publications such as the Financial Times and heavy lobbying in all the institutions’ corridors, merits additional analysis. I am informed that in the final week preceding the judgement, the European Commission exerted a lot of pressure. Today, I understand why Emily O’Reilly revealed that she never felt at ease with Ursula von der Leyen’s cabinet members, dubbing them as powerful consiglieri.
In the days leading up to the judgment, reports highlighting links between sanctioned individuals and Malta’s programme resurfaced, even though the scheme for Russian and Belarusian nationals had been suspended in 2022, as asserted in paragraph 36 of the same judgment. That such coverage coincided so precisely ahead of the Court’s deliberations, only intensifies the suspicion that legal analysis may have been partially displaced by political optics and popular sentiment, especially for those judges that hail from ex-Soviet countries or share a border with Russia. Yet the legal crux remains. There is no provision in the EU Treaties that transfers naturalisation powers to the Union. Union citizenship is an addition not a replacement. The claim that a citizenship-by-investment scheme undermines mutual trust among member states, as the Court ruled, appears less a question of law and more an assertion of a selective political vision.
It is here that the ruling takes on a more philosophical weight. When a supranational court asserts authority over the notion of which belongs to a nation, the issue is no longer technical, but it is existential. Let me make this analogy. Someone who comes to Malta in a pre-determined manner for work, has more rights than someone who wants to invest in the country in a predetermined monetary manner. Philosophically, if we want to naturalise someone on a predetermined manner because they are offering their labour services has more rights than someone who wants to invest in Malta in a pre-determined manner. They are both selling their services albeit differently. Also, if Malta wants to replace the citizenship-by-investment programme to one by profession, to open its doors to highly qualified scientists, by offering citizenship in exchange of their talents, I do not think anyone can stop us. It is not commercialised. We need such human capital. Oh well, it wouldn’t be a bad idea to open a citizenship-by-profession scheme just for Russian and Belarussian scientists, to help us advance our economy. It would hit that crook of von der Leyen and her associates under the belt and show them that we will not bow to their demands.
The nexus between naturalisation and right of citizens under EU law baffled everyone. Indeed, the judgment does not contradict the Advocate General’s opinion on naturalisation. They just found another way to circumvent the wording to make sure to end such citizenship programmes. The Court has not merely questioned the mechanisms by which Malta granted citizenship, it has signalled that the Union may define, if not directly, then indirectly, the boundaries of national belonging. This raises the spectre of a Europe where uniformity takes precedence over subsidiarity, and where the uniqueness of national identity is subordinated to centralised conformity due to the Russian war in Ukraine. The judgment also reveals a disconcerting asymmetry in the application of European scrutiny. Alas, Malta’s use of a transparent and structured legal tool within its sovereign competence provoked an unrelenting campaign of opposition, both within and outside its borders.
The political dimension of this internal opposition must be acknowledged. Former and current Members of the European Parliament representing Malta’s Nationalist Party actively lobbied against the scheme in Brussels, casting their lot with a narrative that sought to dismantle a programme that had not only complied with due diligence protocols but brought tangible national benefit. However, the Opposition may have underestimated the long-term resonance of national dignity and constitutional autonomy with the Maltese electorate. What makes this ruling all the more curious is its conclusiveness. A decision of the Grand Chamber is not appealable. That the highest court in the Union chose to skirt the Advocate General’s counsel, based on an interpretation that extends EU law into domains not explicitly ceded by Treaty, demands scrutiny. This judgment has set a serious precedent.
That the European Commission is run by a sleazy and a toxic president we all know. Even the magazine Die Weltwoche wrote about her toxicity. I think that von der Leyen’s place is not tenable anymore. Now, we also learnt that member states endorsed a high-ranking military officer, André Denk, to lead the European Defence Agency. Utter madness. A German in the military lead. I do not think member states are realising what is happening. The signs of autocracy are so visibly pushed by a toxic person in the lead including her cabinet, that it is actually chilling to have allowed it to be pushed to this level. My conclusion is that member states are either naïve, lack historical knowledge or it is suiting their military and defence agenda.
