By Elles Besselsen and Danielle Snaathorst
On 12 February 2020, the Council of State, the highest administrative court in the Netherlands, ruled in six cases of former Dutch nationals with dual citizenship who lost their Dutch nationality, because they had resided outside of the Netherlands and the European Union for more than 10 uninterrupted years and had not renewed their Dutch passports during that time. The Council of State determined that if the consequences of the loss of Dutch nationality are disproportionate from an EU law perspective, former Dutch citizens should be able to regain their Dutch nationality with retroactive effect. What does this mean in practice?
Dutch Citizenship Act
The Dutch Citizenship Act (Rijkswet op het Nederlanderschap (RWN)) stipulates that Dutch citizenship is automatically lost, if a person, in addition to Dutch citizenship, has another nationality and has had their main residence outside of the Netherlands and/or the European Union for an uninterrupted period of 10 years. This loss does not occur if this person has obtained a declaration of Dutch citizenship or a (renewed) Dutch travel document/identity card within that period of 10 years. A minor child may lose their Dutch citizenship together with their parent.
With these rules, the Dutch legislator aims to guarantee the effective bond between its citizens and the Netherlands. If someone stays outside of the Netherlands or Europe for a long period of time and did not need a Dutch passport at that time, the idea is that there will no longer be an effective bond with the Netherlands. In practice, however, it appears that many people are not aware of this ground for loss. They only find out when it is too late, but they still feel Dutch.
Until now, when applying for a passport or a procedure to establish Dutch citizenship in these cases, it was simply established that the person in question was no longer Dutch. In the six cases brought before the Council of State, the former Dutch citizens argued that the automatic loss of their Dutch nationality in their case was disproportionate and therefore contrary to EU law. The case prompted the Council of State to submit questions to the Court of Justice of the European Union in a preliminary ruling proceeding.
Is automatic loss of Dutch citizenship contrary to EU law?
On 12 March 2019, in the Tjebbes judgment, the Court of Justice answered that, in principle, EU law does not prohibit the automatic loss of Dutch nationality (for reasons of public interest), even if this also leads to the loss of EU citizenship and the associated rights of free movement and residence within the EU.
However, the Court also stated that the automatic loss of these EU rights may be disproportionate. The national authorities must examine the consequences of the loss of Dutch citizenship and therefore also EU citizenship for each individual concerned and their possible family members.
The ruling of the Council of State
The RWN does not provide room for such a proportionality test and the retroactive regaining of Dutch citizenship. For this reason, the Council of State considers the RWN to be contrary to EU law. An amendment of the law is therefore necessary. To bridge the time between the ruling and the amended law entering into force, the Minister of Foreign Affairs' authority to return Dutch citizenship follows directly from EU law.
The Council of State explains that in the case of a Dutch passport application, the Minister must determine whether the applicant has Dutch citizenship (similar to the civil court procedure for determining Dutch citizenship) and they must check whether the loss of Dutch citizenship does not have disproportionate consequences 'that are in the sphere of EU law'.
Which consequences of the loss of Dutch nationality are relevant?
Only the EU law consequences are relevant for this proportionality test. Like the Court of Justice, the Council of State refers to the rights guaranteed by the EU Charter, such as the right to respect for private and family life, the exercise of the right to move and reside freely within the territory of EU Member States and the possibility to pursue professional activities there, and the best interests of the child.
Moreover, the consequences of the loss must have materialized or be reasonably foreseeable. For example, the Council of State considers it reasonably foreseeable that a former Dutch citizen of almost 18 years of age would go to study in a EU Member State.
The Council of State emphasizes that the strong connection a person feels with the Netherlands, the contacts they maintain with friends in the Netherlands and the command of the Dutch language do not have to be taken into account. After all, these consequences are not related to the loss of EU rights.
At which moment must the proportionality test take place?
In the Tjebbes judgment, the Court of Justice did not explicitly determine the moment that the consequences must be reviewed. The Council of State however explained in its ruling that when reviewing a case, the Minister must determine the EU law consequences that were relevant at the time of the expiry of the ten-year period, which therefore effectively manifested themselves or could reasonably have been foreseen at that time. Consequences occurring after that time do not need to be included in the assessment.
By doing so, the Council of State wants to avoid the need to examine all of the consequences that have occurred in the life of a former Dutch national and to prevent repeated applications to have the proportionality of that moment assessed. According to the Council of State, this would be to the detriment of legal certainty.
Over the next four months, the Minister of Foreign Affairs will have to assess, on the basis of the documents and information provided, whether in the six cases in this ruling the loss of their Dutch nationality has disproportionate consequences from an EU law perspective.
If, following the Minister's assessment, it appears that the loss of EU citizenship is disproportionate, the individuals in the six cases will regain their Dutch citizenship with retroactive effect.
The legislator will also have to amend the RWN in order to provide room for the assessment of the consequences and regaining Dutch citizenship. That much is clear.
But there is also still a lot that is unclear. For example, the Council of State did not discuss the relevance of a situation where a person cannot renounce their other nationality or cannot obtain consular protection. Do these elements not play a role in the assessment?
Which consequences should be assessed if the moment of loss only becomes clear much later, for example because someone had been issued a Dutch passport for several years on the wrong grounds?
Nor is it clear how the consequences under EU law relate to the effective link with the Netherlands. Does someone who is about to start working in Germany have more right to retain Dutch citizenship than a Dutch-speaking elderly woman who wants to return to her home country to go through her final phase of life there?
And what does this ruling mean for people who have automatically lost their Dutch citizenship by acquiring another nationality?
In the coming months and years many former Dutch citizens will turn to the Minister and it will become clear how the proportionality test will work in practice.