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Henley & Partners is disappointed by the characterization of Malta’s citizenship program as an infringement of EU law or a “commercialization” of citizenship, as laid out in today’s highly politicalised judgment by the European Court of Justice (ECJ).
This ruling marks the conclusion of a case brought by the European Commission in March 2023.
This case alleged that Malta’s citizenship by investment program violated the principle of sincere cooperation (a vague principle in EU law) and supposedly undermined the integrity of EU citizenship.
However, the EU Commission’s, and now the ECJ’s reasoning, lacks a solid foundation in EU law, as many leading legal scholars and the Court’s own Advocate General have pointed out prior to today’s ruling.
Indeed, there is a stark contrast to the thoughtful and legally grounded opinion of the Advocate General, the ECJ’s lead judge, who concluded that the Maltese program did not infringe EU law and that the EU Commission has no case. The Court has now reversed course by a staggering 180 degrees and issued a decision that appears politically motivated, as the reasoning provided by the court is tenuous at best. This undermines judicial consistency and confirms serious concerns about the increasing politicization of the EU’s legal institutions. This undermines two of the most important values of the EU itself, democratic legitimisation and rule of law.
An encroachment on national sovereignty
Dr. Juerg Steffen, CEO of Henley & Partners, says “at the heart of this case lies the principle of sovereignty and national competence in citizenship matters. Member States have the exclusive right to determine the criteria for the acquisition of their citizenship, which is clearly laid out in the EU treaties. This principle was first acknowledged but ultimately sidestepped by the ECJ in favor of a ruling that enables EU encroachment on national competence.”
Even the EU itself, in its submission to the Court, explicitly stated that it does not seek to infringe on the sovereign discretion of Member States to confer citizenship. The EU just takes issue with the transparent and direct link of a specific amount of investment required — besides many other criteria needed to qualify — rather than the widely practiced and rather untransparent discretionary citizenship grants that happen in all EU countries, which the EU Commission acknowledged it does not want to touch.
This ruling, targeting the smallest EU Member State, sets a worrying precedent for the undemocratic extension of EU competences beyond its treaty-based limits. It would be interesting to see what the outcome would have been if the case was against France or Germany. Ironically, such judicial overreach undermines the very EU values the Court claims to uphold, notably the rule of law and respect for democratic values.
Misconceptions around “commercialization”
The portrayal of citizenship by investment as commercialization is fundamentally flawed. Investment migration is a legitimate, internationally recognized policy instrument used by sovereign states to responsibly attract global capital. Malta’s program is underpinned by the strictest due diligence, multi-tiered vetting, and stringent eligibility criteria. While the United States, Canada, UAE, Singapore and other successful countries are leading the way in attracting investors and talent with investment migration programs, the European Union prefers to go backwards.
Investor programs that allow the acquisition of citizenship are not casual transactions — they are structured and transparent legal pathways that demand lawful conduct, economic contribution, and commitment from applicants. Describing them otherwise diminishes the integrity and purpose of such programs. Countries can derive significant economic and social benefits from such well-structured programs, including Malta and by extension the European Union. It is a great pity that the ECJ has found that the European Union does not want its member states to attract talent and investors through such means.
Malta’s program in perspective
The current scrutiny of Malta’s program and the decision of the ECJ must also be viewed in the greater context. In 2023 alone, EU Member States collectively granted over 1.1 million citizenships — and often based on tenuous links to the granting country, such as a remote ancestry connection, without any current connection to the country granting citizenship and no other formal requirements, whether investments or residence time or other requirements. Moreover, among the largest recipients of EU citizenship are nationals from high-risk jurisdictions such as Morocco and Syria, with over 100,000 citizenships granted to individuals from each of these countries.
Against this backdrop, the few hundred citizenships granted annually by Malta, under the most stringent security and background checks, hardly justify the non-factual, alarmist narrative promoted by the Commission and echoed in the ECJ’s ruling.
As the Court itself admitted, it is approaching the issue from a broad and abstract perspective — in effect, ruling essentially on a (current) political dislike in parts of the EU for the transactional nature of citizenship by investment. While we acknowledge and respect this institutional preference, the decision is nevertheless a blow to foundational European principles, with decisions, such as today’s EU Commission vs. Malta ruling by the ECJ representing a further encroachment on the core sovereign rights of member states, which will, unfortunately, have far-reaching consequences for the EU.
A call for rational dialogue
Henley & Partners remains steadfast in its commitment to supporting investment migration programs that are governed by rigorous compliance, transparent processes, and social responsibility. Working on a global scale, we also see that these programs will continue to expand worldwide. Investment migration programs, when well-structured and properly run, serve as a bridge between global capital and talent, and national development goals.
Dr. Christian H. Kälin, Chairman of Henley & Partners emphasizes that “the idea that investment migration undermines solidarity within the EU is not only unfounded but reflects a troubling misunderstanding of the socio-economic role these programs play. Malta’s framework exemplifies responsible nation-building — not opportunism. There are countless and major historic examples in Europe and elsewhere in the world. Rather than rejecting investment migration, the EU should focus on enhancing due diligence and harmonizing regulatory oversight, to attract the right people to the Union who contribute significantly and bring private investment, talent and entrepreneurship, which is urgently needed in Europe.”
This judgment should not close the door to a more rational, fact-based conversation about the role of investment migration within the European project. Respecting national competences and fostering economic resilience — especially in smaller Member States — should be seen as part of a unified but diverse Europe. It remains to be seen how citizenship acquisition could be structured in the future so it is in compliance with the ECJ’s ruling.
Continued high demand for investment migration solutions
As for Henley & Partners, the ECJ’s ruling does, in fact, provide the firm with significant advantage, since the termination of Malta’s citizenship program will only increase the demand for specialized advisors. More and more wealthy families from North America — the largest single client nationality advised by the firm — along with those in the Middle East and Asia are seeking alternative citizenship and residency solutions and diversification options.
The EU will continue to be an attractive place of residence and citizenship. However, even more specialized legal advice will be needed if open and well-structured citizenship programs such as the one in Malta are no longer available in the EU. For example, the combination of residence rights in the EU and citizenship in third countries is likely to be increasingly sought out as a solution by wealthy families advised by Henley & Partners.
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