In a positive development for Malta, Advocate General Gerard Hogan delivered his opinion on October 4, 2024, backing Malta’s disputed citizenship-by-investment (CBI) program. This program, known as "Maltese Citizenship by Naturalisation for Exceptional Services by Direct Investment," allows foreign investors to acquire Maltese (and therefore European Union (EU) citizenship through significant financial contributions together with stringent due diligence checks of the highest of standards.
Key Highlights of the Opinion:
- Malta’s Sovereignty Upheld: Advocate General Hogan emphasised that while the European Commission had raised concerns about the program, Member States retain the right to define their own nationality laws. He acknowledged Malta’s sovereignty, asserting that the country has the legal authority to implement such schemes as long as they comply with EU law. This is a positive reflection on Malta’s rights and abilities which aim to maintain control over its citizenship policies.
- No Breach of EU Law: The Advocate General did not find any clear breach of EU law in Malta's citizenship-by-investment program. Although EU citizenship rights are granted upon gaining Maltese citizenship, Hogan pointed out that Malta has taken steps to ensure the integrity of its program. He rejected the notion that citizenship, granted in exchange for investment, inherently undermines the values of Union citizenship, provided there are appropriate safeguards.
- Genuine Link: While there had been concerns about the requirement for a genuine connection between applicants and Malta, the Advocate General recognised the efforts Malta has made to ensure that its CBI program aligns with European standards. He suggested that the nature of such programs requires flexibility and that Malta’s approach does not constitute a breach of sincere cooperation with the EU.
- Positive Implications for Malta and Other Programs: This opinion, if followed by the court in its final ruling (expected in early 2025), will have significant positive implications for Malta. It would affirm that countries can operate investment-based citizenship programs while remaining in line with EU law. Moreover, it provides a boost to similar programs in other Member States, which have also faced scrutiny.
The Advocate General’s support is a strong indication that Malta’s CBI program can continue with minimal disruption, for as long as it adheres to the guidelines ensuring transparency and the presence of a genuine connection between the applicants and the country. This opinion highlights a balance between national sovereignty and EU-wide principles, giving Malta the flexibility it needs while still respecting Union values. Having said all this, while the Advocate General’s opinion is influential, it is non-binding. The judges of the European Court of Justice (ECJ) will now consider this opinion before delivering a final judgment, which is expected in early 2025.
About the Authors
This notice has been authored by Malcolm Ferrante, Senior Manager - Immigration & Relocation and Michela Pace, Investment Migration Executive. Contact us here or on [email protected] for more information.
