C-369/90
ECLI:EU:C:1992:47
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MICHELETTI A N D OTHERS
OPINION OF ADVOCATE GENERAL TESAURO delivered on 30 January 1992 *
Mr President, Mr Micheletti, who has born in Argentina of Members of the Court, Italian parents, has since birth possessed both Argentine nationality (by virtue of the ins soli) and Italian nationality (by virtue of the ius sanguinis). 2 Upon his arrival in Spain, he applied to the competent authorities on 1. In this reference for a preliminary ruling 3 March 1989 for a temporary Community the Tribunal Superior de Justicia de Cant- residence card, which was issued to him on abria seeks a ruling from the Court of Justice production of an Italian passport for a on the interpretation of Articles 3(c), 7, 52, period of six months. 53 and 56 of the EEC Treaty, and of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for Before his residence card expired, Mr nationals of Member States with regard to Micheletti applied for permission to establish establishment and the provision of services. * himself definitively in Spain as a dentist; the relevant qualification, acquired in Argentina, was recognized by the Spanish authorities on 13 January 1989 on the basis of an agreement between Spain and Argentina on the mutual In particular, the national court asks whether recognition of qualifications. 3 the aforesaid provisions permit a Member State to deny the holder of dual nationality, where one nationality has been conferred by a Member State and the other by a non- However, he was denied the right of estab- member country, the right to exercise free- lishment by the competent Spanish authori- dom of establishment merely because the ties. The reason for that refusal, as is clear non-member country was the place of his from the order for reference, is that on the habitual residence, his last residence or his basis of Article 9(10) in conjunction with the actual residence. final part of Article 9(9) of the Spanish Civil Code, where a person has dual nationality, that corresponding to his last residence or to
2. I shall briefly summarize the facts of the 2 — Italian nationality is based on Law N o . 555 of 13 June .1912 (Official Gazette of the Italian Republic of 30 June case; for the details I would refer the Court 1912) and, more specifically, on Article 1, as amended by to the Report for the Hearing. Article 5 of Law N o 123 of 21 April 1983 (Official Gazette of the Italian Republic of 26 April 1983), according to which 'the child of an Italian father or mother is himself an Italian citizen'. 3 — In that regard, it must be pointed out that the equivalence of a qualification recognized not by reason of nationality but * Original language: Italian. because the qualification in question has been acquired in 1 — OJ 1973 L 172, p. 14. one of the Contracting Sutes.
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his actual residence prevails. According to That reference to national law is also the Spanish authorities, although Mr expressly set out in the Treaty on European Micheletti submitted documents attesting to Union, brought into being by the recent his residence in Italy (at Ponti sul Mincio), it agreements arrived at in Maastricht; after is undisputed that before his arrival in Spain stating in Article 8 that 'Citizenship of the he was residing in Argentina and, conse- Union is hereby established', the Treaty quently, in the light of the aforesaid provi- immediately goes on to state that 'Every per- sions of the Spanish Civil Code, he must be son holding the nationality of a Member regarded as an Argentine national. State shall be a citizen of the Union', 4 with- out laying down any other condition.
In conclusion, it is clear that possession of the nationality of a Member State is the only 3. Against that background, the national prerequisite which an individual must satisfy court raises in substance the question of the in order to be able to exercise the right of compatibility with Community law of the establishment, a prerequisite which is gov- legislation on which the refusal of the Span- erned by the national law of the State con- ish authorities to issue a permanent residence cerned. Furthermore, Directive 73/148 has card was based. simplified the problems which may arise in that regard, making the applicability of that right conditional on mere possession of the identity card or passport which Member States are required to issue to their own nationals (Articles 3 and 6). Bearing in mind that acquisition and loss of nationality is — and that is not contested here — exclusively a matter for each State, I would point out first of all that Article 52 of It follows that the issue of the permanent the Treaty, the provision which is most rele- residence card may not be made conditional vant in this case, provides for freedom of on fulfilment of a further requirement such establishment for 'nationals of a Member as actual residence (or a similar criterion); State in the territory of another Member instead, it is sufficient for the applicant to be State'. In order to be able to exercise the a national of a Member State in the aforesaid right of establishment, therefore, the only sense, in other words that he should be rec- preliminary condition laid down is posses- ognized as such by the national law of the sion of the status of 'national' of one of the Member State concerned. Member States, which status is to be deter- mined by the Member State concerned. As yet there is no Community definition of 4 — That statement is also accompanied by a Declaration on the nationality; the provisions of Community citizenship of a Member State, which is annexed to the Final Act and on the basis of which the Conference states that law which require an individual to possess wherever the Treaty establishing the European Community the 'nationality' of a Member State as a pre- refers to nationals of the Member States, the question whether a person has the nationality of one Member State or requisite for their application must be under- another is to be determined exclusively by reference to the national law of the State concerned. The Member States stood as referring to the national law of the may specify by way of information which persons are to be State whose nationality serves as the basis of regarded as their nationals for Community purposes by lodging a statement to that effect with the Presidency; they the right relied upon. may, if necessary, modify that statement.
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4. That conclusion, in my view, is such as to 5. In fact the terms of the problem can be rule out the possibility of denying the right simplified in relation to the terms in which it of establishment to a national of a Member was presented in the course of the proceed- State on the sole ground that he also holds ings. the nationality of a non-member country and was last resident in that country. Once it has been established that the person in ques- tion is a national of a Member State, there is To begin with, this case involves two nation- no other factor or criterion which must or alities which are not exactly in conflict, but may be taken into consideration. which are held concurrently, neither of which is being called in question. Moreover, both are based on criteria which are univer- sally applied and recognized, namely the ins soli and the ins sanguinis respectively.
That conclusion is confirmed, albeit indi- rectly, by the Court's judgment in Auer 5 in which the Court stated that 'there is no pro- The Spanish Government itself, far from vision of the Treaty which, within the field of challenging the legality of Mr Micheletti's application of the Treaty, makes it possible to status as an Italian national, highlights the treat nationals of a Member State differently lesser ... 'effectiveness' of that nationality in according to the time at which or the manner relation to Argentine nationality, inasmuch in which they acquired the nationality of as the latter coincides with Mr Micheletti's that State, as long as, at the time at which previous habitual residence. 7 And it is pre- they rely on the benefit of the provisions of cisely in that connection that the Spanish Community law, they possess the nationality Government refers to the criterion of effec- of one of the Member States and that, in tive nationality, which has gained recognition addition, the other conditions for the appli- as a general principle of international law. cation of the rule on which they rely are ful- filled'. *
I do not believe that the case before the Court constitutes an appropriate setting in which to raise the problems relating to effec- tive nationality, whose origin lies in a The aforesaid ruling of the Court is equally 'romantic period' of international relations applicable, in my view, in the case of dual and, in particular, in the concept of diplo- nationality: the nationality of one Member State is sufficient, irrespective of the time at which or the manner in which it was acquired and irrespective of the fact that the 7 — Amongst other things, still in accordance with its view of Italian nationality as only 'latent' and 'in suspense', the person who relies on it is at the same time Spanish Government refers to the Agreement on dual nationality of 29 October 1979 concluded between Italy and the holder of another nationality, to bring Argentina (Official Gazette of the Italian Republic N o . the provision relied upon into operation 152 of 14 June 1973) in support of that contention. In that regard, it may be pointed out that the agreement applies under the Community legal system. exclusively to Italian and Argentine nationals w h o only sub- sequendv acquire the nationality of the other country. It is classified as an agreement derogating from Article 8(1) of Law N o . 555 of 1912 on nationality, according to which the voluntary acquisition by an Italian national of another nationality automatically entails the loss of Italian national- 5 — Judgment in Case 136/78, Ministère Public v Auer [1979] ity. The agreement in question is therefore inapplicable to ECR 437, paragraph 28. Mr Micheľerá since he has simultaneously held Doth Italian 6 — Emphasis added. and Argentine nationality since birth.
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matic protection; still less, in my view, is the rely on both nationalities in order to take well known (and, it is worth remembering, advantage of the facilities offered by Com- controversial) Nottebhom judgment of the munity law. The fact that in that case two International Court of Justice 8 of any rele- 'Community' nationalities were involved is vance. Nor, above all, is it necessary, in my not in my view such as to detract from the opinion, to view the problem in terms of a principle laid down there. choice of the applicable law from the stand- point of private international law.
Furthermore, if the argument were to prevail The fact is that Article 52 of the Treaty, that only one nationality must always and which is the relevant provision in this case, invariably prevail, even for the purposes of far from demanding that a choice be made Community law, it would follow-in the between the two nationalities, merely absence of unambiguous and uniform criteria requires that at least one of those nationali- common to all the Member States — that ties, possession of which is not open to ques- each case of dual nationality would be tion, should be that of a Member State. It is resolved differently in each Member State. therefore incorrect to view the problem in The inevitable consequence of that situation terms of one nationality prevailing over the would be that, on the basis of criteria which other on grounds of residence. For the pur- are in themselves lawful, there would be dis- poses of the application of Article 52, it is crimination between different categories of unnecessary for either to prevail, nor can res- nationals. Their eligibility or otherwise to idence be construed as an additional con- share in the benefits conferred by Commu- necting factor for those purposes. The only nity law would depend on the internal pro- limits which a Member State may rely upon, visions and/or criteria applied, for the pur- on the basis of the Treaty (Article 56) and pose of resolving conflicts of nationality, by Directive 73/148 (Article 8), are those con- the State in which they intend to establish cerning public policy and public security. themselves, to the detriment of a fundamen- tal freedom guaranteed by the Treaty in the same manner to all the nationals of the Member States.
6. Those considerations also find support in the case-law of the Court which, in a case involving the problem of dual nationality, namely Gullung,9 implicitly acknowledged 7. Finally, I would remind the Court of the that the person in question was entitled to Declarations made by the German Govern- ment and the United Kingdom, which are annexed to the Treaty and relate to the defi- 8 — Judgment of 6 April 1955, 1955 Series, p. 4. As is well nition of persons who are to be regarded as known, in that judgment the International Court of Justice applied the concept of effective nationality in establishing their nationals for Community purposes, whether the only State of which Nottebohm was a national that is to say persons who are subject to had a right to exercise diplomatic protection, stating that in the circumstances of the case there was no genuine connex- Community law inasmuch as they are ion with the State (Liechtenstein) which had conferred that nationality upon him. regarded by those two Governments as Ger- 9 — Judgment in Case 292/86, Gullung v Conseils de l'Ordre des man and British nationals respectively. Apart Avocats du Barreau de Colmar et de Saveme [1988] ECR 111, paragraph 12. from any legal effects which may arise from
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those declarations, they show that those two Those considerations lend support to the States have construed the expression 'nation- view that a Member State cannot make the al of a Member State', for the purposes of the application to all the nationals of the Mem- relevant Community legislation, as being ber States of a fundamental right guaranteed very wide in scope, certainly far wider than by the Treaty, such as the right of establish- the circumstances of the present case; for ment, conditional on requirements not laid instance, even individuals who do not have down by the relevant legislation, in particu- any personal or territorial link with the lar the criterion of residence or the like, even existing Republic of Germany 10 and do not where the person who relies upon that right in any event meet the requirements of effec- is at the same time a national of a non- tive nationality laid down in the Canevaro member country. judgment, n still less those laid down in the Nottebohm judgment, 1 2 are regarded as Ger- man nationals.
8. In the light of those considerations, therefore, I p r o p o s e that the C o u r t answer the question submitted b y the Tribunal Superior de Justicia de Cantabria as follows:
' T h e relevant C o m m u n i t y legislation, in particular Article 52 of the E E C Treaty, m u s t b e i n t e r p r e t e d as p r e c l u d i n g a M e m b e r State from d e n y i n g a national of a n o t h e r M e m b e r State the right t o exercise freedom of m o v e m e n t o n t h e g r o u n d t h a t h e s i m u l t a n e o u s l y possesses the nationality of a n o n - m e m b e r c o u n t r y in w h i c h h e h a d his habitual residence, his actual residence or his last residence'.
10 — In its Declaration the German Government sutes that 'All Germans as defined in the Basic Law for the Federal Republic of Germany shall be considered nationals ...'. According to Article 116(1) of the Basic Law, not only per- sons holding German 'nationality' but also those who nad that status on 31 December 1937 are to be considered 'Ger- mans'. 11 — Judgment of 2 May of the Permanent Court of Arbitration 12 — Judgment of 6 April 1955 of the International Court of Jus- in Revue de Droit International Privé et de Droit Pénal tice. International, 1912, p. 331.
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