EU Top Legal Official Says Malta Is Entitled To Its Golden Visa Regime

Tom Burroughes

7 October 2024

European policymakers have been thwarted in their attempt to close Malta’s citizenship-by-investment programme following a statement from the EU Advocate General, Anthony Collins, late last week.

Granting citizenship is a power EU member states retain, Collins is reported to have said. His comment pushes back against concerns, voiced by the European Commission, that Malta’s system threatens EU integrity.

"Member States have decided that it is for each of them alone to determine who is entitled to be one of their nationals and, as a consequence, who is an EU citizen,” a statement from the Court of Justice said.

Malta’s programme allows foreigners to buy EU citizenship in exchange for investing upwards of €690,000 ($757,458).

The island nation is among dozens that operate what are sometimes dubbed “golden visas,” offering citizenship and residence in exchange for investment of some kind. They are controversial. Countries such as Portugal, for example, have modified them to curb hot property prices. In the UK, the former Conservative government closed its Tier 1 Investor Visa scheme in 2022 after Russia’s invasion of Ukraine.

The Maltese position
The Commission – the EU’s policymaking body – sought to show that the 2020 scheme, which offers naturalisation, meant that Malta “failed to fulfil its obligations” under Article 20 of the Treaty on the Functioning of the European Union concerning concerning EU citizenship and the “principle of sincere cooperation.” The Commission argued that the regulations violated the principle of sincere cooperation and compromised EU citizenship by granting it without a “genuine link” between the applicant and the country. However, Malta has consistently argued that there is no legal requirement for such a link under EU law.

The Commission and some members of the European Parliament have for years said they worry that Malta’s programme opens the EU to illicit money and money-laundering. Malta has argued against such concerns.

Praise for the AG’s opinion
significance goes well beyond the niche of investment migration, which only accounts for 200 to 300 cases in Malta annually, compared to the 700,000 citizenships granted across the EU without investment each year,” Dr Christian H Kaelin, chairman of Henley & Partners, said. “The fundamental question centres on EU competences and the European Commission’s approach towards member states on a core sovereign matter: the right to control national citizenship.”

Dr Kaelin added that the case directly addresses the balance of power between national sovereignty and EU oversight, and the Advocate General made it clear that “the duty under EU law to recognise the nationality granted by another member state is a mutual recognition of, and respect for, the sovereignty of each state and is not a means to undermine the exclusive competences that the member states enjoy in this domain.”