The Sale of EU Citizenship and the 'Law' Behind It

Abstract

Investment migration in the European Union (‘EU’) as well as outside of it has been the subject of many legal and socio-political studies, with numerous developments emerging in recent years. There is considerable disagreement on the legal position at EU level, which can be observed in the differing views of commentators on the EU’s competence on the matter. Thus, this article maps the situation concerning citizenship by investment (‘CBI’) in the EU by canvassing the policy and legal developments to date as well as the main critical perspectives from scholarly work. In doing so, this article explores the exact legal position of both EU Member States and organs in the context of the split of competence on nationality matters, as well as routes to potential intervention at EU level. The core research question in this regard is whether the matter is one of law or merely policy, and what could justify EU level intervention in an effort to approximate Member States’ laws on investment migration. Thus, the first part of this article explores relevant theoretical frameworks before moving onto a discussion of trends and tendencies among states (inside and outside the EU). A brief overview of the risks, scandals and controversies attached to CBI throughout the years will follow. Next, the internal and external dimensions of the EU’s approach to CBI will be discussed in order to lay the foundation for a more substantive analysis of the EU’s legal position on CBI, including a discussion on EU citizenship and nationality laws. Last, this article will briefly consider CBI from a public international law perspective, and conclude with a critical commentary of the issues canvassed, including on the so-called ‘soft law’ considerations of citizenship and on the European Commission’s proposals in response to investment migration in the EU.