The European Court of Justice will clarify whether it is contrary to EU law that Danes born with dual nationality abroad automatically lose their Danish nationality at the age of 22, unless they have previously applied to retain it or meet a number of requirements for residence or stay in Denmark.
In a case in which we assist a client who has been refused the retention of his Danish citizenship after the age of 22, the Østre Landsret, in an order dated 8 June 2021, has ruled in favour of our client that clarification of the issue requires the involvement of the European Court of Justice.
The Court has thus decided that a preliminary question must be submitted to the Court of Justice of the European Union pursuant to Article 267(2) of the Treaty on the Functioning of the European Union (TFEU) with a view to the Court of Justice of the European Union taking a position on the compatibility of Section 8(1) of the Danish Nationality Act with EU law, more specifically with Article 20 TFEU and Article 7 of the Charter of the European Union (the Charter).
It follows from the first indent of Article 8(1) of the Danish Nationality Act that a person who was born Danish abroad and who has never resided in Denmark or stayed in Denmark in circumstances indicating a connection with Denmark automatically loses his Danish nationality on reaching the age of 22, unless he thereby becomes stateless. If an application is made for retention of citizenship between the ages of 21 and 22, the Minister for Immigration and Integration may, on the basis of a specific assessment, decide that citizenship shall nevertheless be retained, cf.
In cases where the person concerned does not have the nationality of another EU country, the loss of Danish nationality implies that the person concerned also loses the status of citizen of the Union to which he or she is entitled under Article 20 TFEU.
The CJEU has previously, in judgment C-221/17, Tjebbes, EU:C:2019:189, taken a position on partly comparable Dutch rules according to which Dutch nationality is, as a rule, lost after 10 years of continuous residence outside the country. In this context, the CJEU ruled that in cases where the loss of a national citizenship also entails the loss of Union citizenship, the individual concerned is covered by EU law. While such a rule of loss, aimed at ensuring a genuine national affiliation, is not by definition contrary to EU law, it is nevertheless incumbent on the Member State to carry out a concrete proportionality assessment of the EU law consequences of the loss, including in the light of Article 7 of the Charter concerning the right to private and family life.
As a result of this decision, the Ministry of Immigration and Integration has introduced a practice whereby the applicant's links with other EU countries are assessed before a decision is taken on the loss of Danish nationality. However, this assessment is made only when an application for retention is submitted before the applicant reaches the age of 22.
Our client was born in the United States to a Danish mother, and was granted dual Danish/US citizenship from birth. As she has never lived in Denmark, she lost her Danish citizenship at the age of 22. She was subsequently refused her application to retain her nationality, as she had not applied between her 21st and 22nd years as required by the second paragraph of Article 8(1) of the Danish Nationality Act.
The Dutch rule, which was the subject of the Court's assessment in Tjebbes, differs substantially from Article 8(1) of the Nationality Act in that the former allows the date of loss to be deferred by applying for renewal of her Dutch passport at any time during the 10-year period of loss. In contrast, the Nationality Act only provides for retention on the basis of an overall assessment when the application is made before the age of 22.
Moreover, as the Tjebbes judgment leaves some doubt as to the actual content of the Dutch possibilities for retention or re-acquisition of nationality, it is not possible on the basis of the judgment to derive general criteria as to when a rule of automatic loss of nationality is contrary to EU law.
As a result, the Eastern High Court held that there remained such doubts as to the compatibility of a rule such as Article 8(1) of the Danish Nationality Act with Article 20 TFEU and Article 7 of the Charter that the conditions for referral for a preliminary ruling were met in this case, despite the objection of the Ministry of Immigration and Integration to the request for referral.
The case is of principle, as the CJEU's assessment may have future implications for Danish legislation and practice in the area of automatic loss of Danish citizenship, just as the decision could potentially have implications for persons who have previously lost their Danish citizenship pursuant to Section 8 of the Danish Citizenship Act.