The decision of the European Court of Justice (ECJ) on the "citizenship by investment" case instituted by the EU Commission against Malta (ref: C-181/23), earlier this week, was bound to be controversial. The commodification of citizenship by the Maltese government has been objected to on a point of principle as being ethically unacceptable since its inception. Citizenship is not up for sale.

The funds generated by the scheme were substantial, to the tune of €1.4 billion over some ten years. The availability of these funds enabled the Maltese government to take various initiatives which, otherwise, it would have been unable to initiate and finance.

The ECJ concluded that the "citizenship by investment" scheme of the Maltese government "amounts to the commercialisation of the grant of the nationality of a Member State" and as a result Malta has failed in its obligations under the EU treaties. Labour in government ended funding its activities through monies generated illegally, in breach of the EU treaties.

Continuously, during the past ten years, Labour in government has emphasised that the granting of citizenship is a matter reserved for the Member States of the Union. This was never contested by anyone. However, it was pointed out repeatedly that this was too simplistic an assessment. This approach dealt with the citizenship issue in a vacuum, ignoring the responsibilities which EU member states shoulder on joining the Union.

On accession to the EU, Malta did not only acquire benefits: it also assumed a number of responsibilities. Rights and responsibilities go hand in hand.

A basic responsibility which all member states of the EU shoulder on accession is the duty of sincere cooperation, also known as the loyalty principle. Loyalty, that is, towards all the other member states of the Union. This principle, which is enshrined in the EU treaties, does not do away with citizenship as a reserved matter for member states: however, it regulates the way in which the member states are expected to act, even on reserved matters. It signifies that the manner in which EU member states act must not be prejudicial to the rights of other member states.

This was pointed out, if I remember correctly, by , then an EU Commissioner, around ten years ago when the issue was being debated in the European Parliament.

I have already written about this over the years, both in these columns and elsewhere. In an article published three years ago (TMIS: 20 February 2022: Golden passports & the EU loyalty principle) I emphasised that "No one contests that nationality issues are a national competence. They should remain so. There is however much more than state competence at stake. Article 4.3 of the Treaty on the European Union explains this as the principle of sincere cooperation, at times referred to as the loyalty principle: loyalty, that is, towards the other European member states."

The ECJ decision points out that the agents promoting the sale of Maltese citizenship emphasised that it entitled buyers to rights in the other EU member states. In the process Malta, through its agents, was making use of EU citizenship rights and benefits for the purpose of promoting the sale of Maltese citizenship!

The national debate had already highlighted that all this was at stake, more than ten years ago, but Labour in government opted to move ahead, notwithstanding. It was at that point that the national interest should have come into play. Was it right to risk Malta's reputation and proceed notwithstanding? Labour then opted for short term gain measured in euros and ignored the consequent reputational damage. Labour in government ignored the national interest when it really mattered.

It is useless to raise the issue of the national interest at this stage. The national interest, cannot, and should not be used to justify the irresponsible behaviour of the Maltese state which knowingly acted in a manner which ignored its responsibilities when it commercialised nationality. The national debate pointed out all this but it was ignored.

The Prime Minister has stated that he will ensure that the ECJ decision is respected and that the relative legislation is brought in line. We hope so. All this could have been avoided on day one. Public opinion was clear. It was ignored and today we face the inevitable consequences.

Citizenship of the European Union is ours to use. It is not however ours to sell.

An architect and civil engineer, the author is a former Chairperson of ADPD-The Green Party in Malta.  [email protected] ,   http://carmelcacopardo.wordpress.com