With its judgment in Case C-181/23, the Court of Justice of the European Union (CJEU) has put an end to a long-standing debate: Malta’s citizenship-by-investment scheme is incompatible with EU law because it violates the “bond of solidarity and good faith” between the individual and the member state that Union citizenship requires. In her op-ed, Anja Bossow examines the potential implications of this new criterion—both its perils and its potential promise.
Anja Bossow is a JSD Candidate at New York University School of Law and an editor at Verfassungsblog. She researches the constitutionality of citizenship deprivation powers.
On April 29, 2025, the CJEU declared Malta’s citizenship by investment (CBI) scheme incompatible with EU law for it “amounts to the commercialization of the granting of the status of […] Union citizenship, which is incompatible with the conception of that fundamental status that stems from the Treaties (90).” While the judgment has been criticized for the questionable quality and defensibility of the Court’s legal reasoning (see here and here, but also here for an opposing view), it represents a victory for anti-corruption activists and journalists – such as Daphne Caruana Galizia, murdered after investigating corruption in Malta – who have long highlighted the dangers of “golden passport” schemes. It marks the end of a practice that has often served as a vehicle for corruption and organized crime.
Key to the decision is the Court’s embrace of Union citizenship as a status constituted by meanings and norms specific to the European Union as a normative legal project: it “is one of the principal concrete expressions of the solidarity which forms the very basis of the process of integration […] and which is an integral part of the identity of the European Union as a specific legal system [93].” What are we to make of this conception of citizenship as a relationship “of solidarity and good faith [98],” and its use by the Court to strike down citizenship for investment schemes?
A Thick(ish) Conception of Citizenship
From a liberal perspective, the thickening of the concept of citizenship that follows from the Court’s embrace of this solidaristic ideal should ring certain alarm bells, especially in the European context. This is because many member states, with Germany perhaps the most notorious example, have a long and shameful history of instrumentalizing thick, ethno-nationalist conceptions of citizenship to justify the exclusions of some of its members from the protections against abusive state power that the status offers.
This legacy, and the horrific extremes to which the logic of ethno-nationalist citizenship was taken during the Holocaust, means that we should be vigilant when the highest arbiter of Europe’s supreme legal order embraces a thick(ish) conception of citizenship, and wields it for exclusionary ends.
I say thick-ish because it is important to remember that a thickening of citizenship does not necessarily involve the adoption of, nor threaten to collapse into an embrace of an ethno-nationalist conception of citizenship. The latter casts the bond required for citizenship in a blood and soil logic. By contrast, the Court’s emphasis on a bond of solidarity and good faith is closer to an idealized republican conception of citizenship. Rather than relying on idea(l)s of ethnic or cultural purity it focuses on the quality and nature of the citizen-state relationship – its participatory and democratic aspect – characterized by the reciprocity of rights and duties [99]. Nonetheless, this idealized conception of citizenship also carries exclusionary potential and to the extent we believe this to be inherently objectionable within a liberal legal order, we should oppose its adoption.
Even if we believe that some thickening of citizenship is desirable, we may take issue with the vagueness of the idea(l) of solidarity and good faith the Court has chosen. Bonds of solidarity, just like citizenship, can be understood in thick, ethnic or identitarian terms, or in thinner, political terms, i.e. solidarity based on one’s participation in a joint political project. However, this ambiguity provides first and foremost an argument in favor of clarifying the sort of solidarity that Union citizenship requires. If you believe the EU, as a legal system, is or ought to be premised upon a liberal legal philosophy, this solidarity should be cast in political terms. The ambiguity is not per se an argument against the idea that citizenship ideally reflects some sort of bond between the state and the individual.
The Trouble with CBI Schemes
Liberal resistance to infusing the conception of citizenship with an extra-legal bond of solidarity reflects a legitimate concern over the exclusionary ends to which this bond may be put. In Commission v. Malta, the Court wielded it to outlaw the selling of citizenship. I am undeniably sympathetic to this result, despite its exclusionary effect. This is not to say that ethically desirable results justify shoddy legal reasoning, nor should we ignore the hypocrisy of the Commission’s selective outrage at the Maltese scheme, when plenty of other Member States are also busy selling off residency entitlements to the rich. But I firmly and strongly believe that governments, whether European or otherwise, should have no business selling citizenship – or in fact long-term residency entitlements – to the highest bidder, in the absence of requiring any other form of ‘link’ or ‘bond’ to the state.
Whatever supposed benefits the marketization of citizenship may offer, these are far outweighed by the contribution these policies make to the overall stratification of both global and national societies. Setting aside their implication in systems of corruption and organized crime,
CBI schemes solidify the idea that wealth makes one worthy of membership in what are effectively islands of resources and opportunity in a foundationally unjust global political order, with the flipside being that its absence renders you un- or at least less deserving of it. It does so despite the fact that the wealthy are often, in a politically solidaristic sense, terrible citizens, in that they are both prone to and masters at tax evasion and generally hostile to the implementation of progressive, redistributive tax regimes.
Yet, it is the latter that would enable states to ensure that all citizens – not just the top 1% – can thrive or at least live a minimally dignified life. More recently, we have seen that the rich do not just eschew this very basic way of showing solidarity with their co-citizens, but also possess a troubling enthusiasm for dismantling democracy and the rule of law.
More fundamentally, schemes of this sort are part and parcel of the erosion of citizenship’s core purpose in a liberal legal order. We cannot ignore that the privileging of the rich in the distribution of citizenship in highly developed states occurs alongside the restriction of access for those governing majorities deem undesirable, and who are, precisely for that reason, much more in need of citizenship and its associated rights. For the rich, citizenship simply means an additional passport that allows them to live the ultimate cosmopolitan, property-owning lifestyle. But for the politically and economically marginalized, citizenship means the right to work, to reside in security from the state’s illiberal and often life-destroying deportation power, and to possess minimal but nonetheless vital protections against domination and subordination.
Citizenship possesses, in other words, a vital protective function against the threat majoritarian-led state power poses to the realization of individual liberty, dignity and equality – a protective function that gets eroded the more authority we grant states in matters of citizenship attribution, including by treating citizenship as nothing more than a commodity state officials may sell off to the highest bidder.
The Inclusionary Potential of Citizenship Bonds
Viewing citizenship’s purpose in these protective terms within a liberal legal system might make the Court’s insistence on the presence of some form of bond less suspicious, perhaps even desirable. For while the idea of a bond may have served an exclusionary purpose in this particular decision, it can also serve an inclusionary one. Liberal citizenship scholars have long insisted that citizenship policies, specifically policies of attribution and naturalization, should reflect an individual’s bond or tie to the polity, whose presence, they generally suggest, should be inferred from the simple fact of long-term residence. Interestingly, the Court appears to acknowledge the integrative force of residence over time. It highlights the lack of a meaningful residence requirement in Malta’s naturalization scheme [106] to determine the scheme’s transactional nature and thus its incompatibility with the solidaristic ideal that is the normative core of Union citizenship. The underlying assumption appears to be that prolonged residence is necessary – though perhaps not sufficient – to generate the bonds of solidarity that Union citizenship necessitates.
If conceived in the right terms – and this is admittedly a very big if – the requirement of a ‘bond’ can ensure that citizenship and with it the rights and benefits it confers remains a status for de facto members of a polity, as opposed to those the majority of the day believes to be desirable additions.
Perhaps then at least as a matter of normative theorizing the CJEU may not have gotten it all wrong, at least for now. I say for now because the Court’s critics are right to warn that the thickness and ambiguity of the solidaristic ideal of Union citizenship has the capacity to turn into an exclusionary pandora’s box. The Court would thus do well to wave its newly minted magic wand of Union citizenship carefully and in line with an inclusionary and liberal vision of who is sufficiently bonded to the European political community. To quote wise Uncle Ben: with great power comes great responsibility.
A previous version of this article was first published on Verfassungsblog.
