09/12/20

CITIZENSHIP AND RESIDENCY: EU has ‘no competence’ on Malta citizenship programme, according to passport sale lobby.

As published on maltatoday.com.mt, Tuesday 8 December, 2020.

The lobby of citizenship-by-investment countries has claimed the European Union’s challenge to Malta’s sale of passports to the ultra-rich has no basis at law.

The Investment Migration Council said the advice of its EU specialists, Prof. Daniel Sarmiento and Prof. Carl Baudenbacher, remains that the EU has no competence in the area of citizenship. “The concept of ‘genuine link’ that was invoked by the EU is both vague and arbitrary. The European Court of Justice already found in earlier decisions that it is not relevant. It is therefore unlikely that the European Court of Justice would rule in favour in the matter at hand, as this could have very serious secondary consequences, and could open the way for the EU to encroach on the power of granting nationality, which is reserved, in EU Law, for Member States,” IMC spokesperson Bruno l’Ecuyer said.

Malt has been given a two-month deadline by the European Commission to reply to the letters of formal notice on its Individual Investor Programme.

“Investment migration is a vital lever for sovereign nations to raise debt-free capital, attract talented individuals, and deliver benefits to society as a whole. In Malta the IIP attracted €1.4 billion directly into the island nation’s economy following the damaging Euro crisis. This liquidity has had profoundly positive consequences. There has been significant employment creation across all levels of society, and the Maltese government has greater autonomy to invest in vital infrastructure projects, some of which involve critical care for cancer patients,” l’Ecuyer said.

The IMC insisted that there has been a significant exaggeration of the risk of the lucrative sale of passports. A geopolitical risk analysis firm, Oxford Analytica, claims that investment migration risks are “primarily theoretical in nature” and potentially nefarious activity is “a negligible percentage and compares very favourably to other legal migration pathways.”

The European Commission is taking legal action against Malta and Cyprus over their golden passports schemes, citing infringements against the treaties of the EU, and claiming the scheme is incompatible with the principle of sincere cooperation while undermining the integrity of the status of EU citizenship.

“Due to the nature of EU citizenship, such schemes have implications for the Union as a whole. When a Member State awards nationality, the person concerned automatically becomes an EU citizen and enjoys all rights linked to this status, such as the right to move, reside and work freely within the EU, or the right to vote in municipal elections as well as elections to the European Parliament. As a consequence, the effects of investor citizenship schemes are neither limited to the Member States operating them, nor are they neutral with regard to other Member States and the EU as a whole,” the Commission said.

The Commission has so far issued a letter of formal notice regarding the citizenship-by-investment scheme. Malta will have two months to reply to the letter, after which if the replies are unsatisfactory a ‘reasoned opinion’ will be issued by the Commission.

Malta’s parliamentary secretary for citizenship Alex Muscat has said a letter of formal notice announcing action on Malta’s sale of citizenship to the global elite “lacks any legal basis”.

“We have been in communication with justice commissioner Didier Reynders for months now.. we have already shown our intention to reply to the letter in the weeks to come: the technical analysis we have is that it is not based on any law. The letter the EC sent us is more political than legal – there is no legal basis for the procedure the EU has taken, because it is Malta that decides who becomes a Maltese citizen,” Muscat said.