Fascinating recent lecture by Dr. Luke Dimitrios Spieker at Cambridge on the theory of democracy as interpreted by the CJEU, the Court of Justice of the European Union, where it considered Malta’s institutionalized “golden passport”/citizenship-by-investment scheme (the 2020 Citizenship by Naturalisation for Exceptional Services by Direct Investment scheme) and ruled that it violated EU law.
Abstract
The CJEU’s decision in Commission v Malta marks the summit of a long-standing, highly controversial debate in European legal scholarship. Considering the Maltese practice of “golden passports” incompatible with EU law, the Court expanded the reach of EU law and established constraints for the conferral of the Member States’ nationalities. At its heart, the decision developed a shared concept of nationality based on a “special relationship of solidarity and good faith”. To justify this bold step, the Court mobilized EU values: “Union citizenship” – we are told – “is based on the common values contained in Article 2 TEU”. In this talk, we will explore how EU values may require a shared concept of nationality and justify the genuine link-requirement established by the Court. At its centre are the notions of democracy and trust, solidarity and belonging. Ultimately, it seems that the Court embraced a communitarian understanding of citizenship – one that builds on belonging.
Biography: Dr Luke Dimitrios Spieker is a postdoctoral researcher at Humboldt University Berlin and a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law. His research explores EU law’s constitutional foundations, including its common values and structural principles as well as Union citizenship and fundamental rights. He has been awarded several prizes, such as the Heinz Meier-Leibnitz-Prize of the German Research Foundation, the UACES Best Book Prize, or the Common Market Law Review Prize for Young Academics.
In its Grand Chamber judgment of 29 April 2025 in Commission v Malta (Case C-181/23), the CJEU held that by operating a scheme that granted Maltese nationality (and thereby Union citizenship) in exchange for predetermined payments or investments—essentially commercializing nationality—Malta failed to fulfill its obligations under Article 20 TFEU (Union citizenship) and Article 4(3) TEU (sincere cooperation). The Court found that such transactional naturalization does not establish the required “special relationship of solidarity and good faith” between the state and its nationals.
Malta was ordered to end the scheme (which it subsequently repealed). The ruling did not automatically annul previously granted citizenships, but it prohibited the practice going forward.
The speaker, Dr. Luke Dimitrios Spieker, a post-doctoral researcher at Humboldt University Berlin and Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, spoke at a recent Cambridge Centre for European Legal Studies (CELS) lunchtime seminar, and analyzed the CJEU judgment and opinion.
The complicated reasoning the court (and the speaker) goes through to conclude that the golden passport scheme violates EU law is fascinating—an interesting mixture of international law, positive law/legislation, mainstream “democratic” assumptions, even bringing in sociological and philosophical considerations; the speaker manages even to cite Habermas. The court and speaker’s arguments seem to me to be convoluted even if interesting, and basically results-oriented: the court obviously wanted to prevent Malta from raising funds by letting Russians buy Maltese and thus European citizenship, and also they didn’t like the inegalitarian “look.” But to overturn the Malta golden passport scheme, it had to vaguely recognize there has to be some “connection” or “link” between citizens, some “solidarity,” something more than just paying for membership. There has be be some “special relationship of solidarity and good faith,”a genuine link, between the citizen and the state and other citizens. This ends up giving the speaker heartburn because it “others” others and doesn’t sound very liberal, very univeralist.
The speaker distinguishes:
- Solidarity with a group (more asymmetric/unilateral, potentially universal), versus
- Solidarity among a group (the relevant kind here for Union citizenship rights).
Sources of the latter include expanding circles of closeness, interdependence, shared identity, etc. Most of these theories, he notes, converge on the idea that solidarity among a group ultimately depends on some sense of belonging together. And that belonging is partitive: it necessarily involves an “us” (those who belong) and a “them” (those who are excluded from the group).
He immediately flags the discomfort: “even though it sounds hard.” This is an acknowledgment that the language of exclusion can feel harsh or illiberal—especially in an EU context often framed around universal rights, non-discrimination, and openness. He is anticipating the objection that tying rights to belonging risks an illiberal or nationalist turn.
Somewhat ironically, in opposing “ugly” economic citizenship on the basis that is is contrary to egalitarianism (because rich people can buy it but others can’t), the court has to in the end say that citizenship is based on some common values of the citizens that they do not share with outsiders—the “them” who are excluded from citizenship.
For more detail on the decision and discussion from Grok:
Spieker’s central thesis is that the judgment moves Union citizenship toward a value-based conception grounded in the principles of trust, democracy, and solidarity. He argues that the Court itself puts Article 2 TEU values on the table (notably linking Union citizenship to the common values in Article 2 and mutual trust among Member States).
Key points from the analysis:
- Context and premises: Member States have highly diverse nationality laws (ius soli, ius sanguinis, naturalization based on residence/ties, exceptional merit, and investment schemes). By contrast, the EU framework is thin—primarily Article 20 TFEU, which establishes that every national of a Member State is a Union citizen (additional to, not replacing, national citizenship). Legislation is scarce because of high hurdles under Article 25 TFEU. Prior CJEU case law addressed recognition of nationality (Micheletti, 1992) and loss of nationality (Rottmann, 2010), but not the acquisition of nationality itself.
- The case: The Commission challenged Malta’s institutionalized scheme allowing naturalization mainly in exchange for predetermined payments/investments (with limited or easily reducible residence requirements). The Court held that the scheme commercialized the grant of Member State nationality (and thus Union citizenship), violating Article 20 TFEU and the duty of sincere cooperation under Article 4(3) TEU. It required a “special relationship of solidarity and good faith” (a form of genuine link) between the state and the individual; pure transactional acquisition does not suffice.
- Two-step reconstruction of the Court’s reasoning (which Spieker finds thin and cryptic):
- Abstract step (why any EU requirements on acquisition?): Mutual trust (automatic mutual recognition of nationality cannot be blind trust—common minimum safeguards are needed) and democracy (Member State nationality determines who forms the EU electorate for both the European Parliament and the Council/European Council streams of legitimacy under Article 10 TEU). Analogy drawn to electoral law cases where national competence is subject to minimum EU standards.
- Concrete step (why a genuine-link requirement?): Democracy and solidarity. On democracy, Spieker discusses the “all-affected principle” (drawing on Robert Dahl’s formulation that those affected by decisions should participate in them). Here the speaker explicitly invokes Jürgen Habermas, noting (as a German speaker) that Habermas articulates a related idea of democratic legitimacy deficits: deficits arise whenever the set of those involved in making democratic decisions fails to coincide with the set of those affected by them. Spieker uses this to argue that a mere payment may not establish a sufficient “stake” or link to be affected by the community’s political decisions in a way that justifies membership in the electorate. He also addresses democratic equality (Article 9 TEU and non-discrimination concerns, including on grounds of social origin/wealth under the Charter).
On solidarity, the rights flowing from Union citizenship require mutual solidarity, which in turn rests on some form of belonging or connection (the “special relationship of solidarity and good faith”). Spieker discusses supporting political-theory strands and notes tensions (e.g., belonging mediated through Member States rather than directly to a European society).
- Outlook: The judgment shifts emphasis toward more republican or communitarian notions of citizenship (belonging and participation/duties first) rather than a purely liberal rights-based model. It may influence how national nationality laws develop and could elevate underexplored duties of Union citizenship. Long-term effects on the diversity of Member State nationality laws remain uncertain.
Note: The Court judgment itself does not cite Habermas; the reference is the speaker’s (in the context of reconstructing and justifying the democracy-based aspect of the genuine-link requirement). The judgment has attracted sharp criticism from some scholars, but Spieker treats the dust as having settled enough for a cooler, values-focused analysis.
Court case: full citation and links
Citation:
Judgment of the Court (Grand Chamber) of 29 April 2025, European Commission v Republic of Malta (Citizenship by investment), Case C-181/23, ECLI:EU:C:2025:283.
Operative part (in substance): Malta failed to fulfil its obligations under Article 20 TFEU and Article 4(3) TEU by establishing and operating an institutionalized citizenship-investment scheme that commercialized the grant of Member State nationality and, by extension, Union citizenship.
Primary links:
- Official full judgment (CURIA): https://curia.europa.eu/juris/document/document.jsf?docid=301555&doclang=EN
- EUR-Lex (PDF and summary): https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62023CJ0181 or https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62023CJ0181
- Summary on EUR-Lex: https://eur-lex.europa.eu/legal-content/EN/SUM/?uri=CELEX:62023CJ0181
Relevant EU Treaty provisions discussed (full citations and links)
These are the consolidated versions (OJ C 202, 7.6.2016).
- Article 2 TEU (Union values): https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12016M002
Text: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” - Article 4(3) TEU (sincere cooperation): https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12016M004
- Article 9 TEU (equality of citizens): https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12016M009
- Article 10 TEU (representative democracy): https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12016M010
- Article 20 TFEU (citizenship of the Union): https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12016E020
Key text: “1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties…” (listing free movement, voting rights, etc.).
Consolidated full treaties: TEU https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12016M/TXT; TFEU https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12016E/TXT.
Habermas reference (speaker’s invocation)
In discussing the democracy-based justification for a genuine link (via the all-affected principle), the speaker cites Jürgen Habermas’s formulation that deficits in democratic legitimacy arise whenever the set of those involved in making democratic decisions fails to coincide with the set of those affected by them. This is used to support the idea that membership in the political community (and thus the electorate relevant to Union democracy) requires a real stake or connection beyond a pure commercial transaction.
The standard citation matching this (and commonly given as Habermas 2006, p. 78) is:
Jürgen Habermas, Time of Transitions (Cambridge: Polity Press, 2006), p. 78.
(English translation of Zeit der Übergänge; the volume collects essays and interviews addressing, among other things, democratic legitimacy, Europe, and postnational constellations. Related ideas also appear in Habermas’s broader work on deliberative democracy and the all-affected principle, such as Between Facts and Norms.)
Link to the book (Polity / publisher page or purchase): https://politybooks.com/bookdetail/?isbn=9780745630106 (or equivalent via Wiley/Amazon). Academic citations of the specific sentence often point to this 2006 edition at page 78.
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Related
- Kinsella, “The “Liberty Is Your Only Value” Canard,” StephanKinsella.com (April 29, 2025)
- Jeff Deist articles listed in Njoya, “Natural Law Principles in the Conservative Tradition”:
- Jeff Deist, “For a New Libertarian,” Mises Wire, July 28, 2017 (talk delivered at Mises University 2017). Argues that liberty must comport with human nature (no “new man”) and that libertarians should embrace rather than reject civil society—family, religion, tradition, and culture—as the organic means of organizing life without the state. Notes that a freer society would likely be more culturally conservative.
- Jeff Deist, “Rothbard and the Paleo Right,” Property and Freedom Journal, September 27, 2026. Examines Rothbard’s paleo/populist turn, including his emphasis on bourgeois cultural norms, organic nationhood, cohesion, and the necessity of engaging culture wars rather than treating politics as purely abstract.
- Jeff Deist, “Appreciating Rothbard’s Political Genius,” in Rothbard at 100: A Tribute and Assessment, edited by Stephan Kinsella and Hans-Hermann Hoppe (Houston: Papinian Press and Property and Freedom Society, 2026). Highlights Rothbard’s strategy of combining anti-statist natural-law libertarianism with cultural conservatism’s focus on family, faith, law and order, and American traditions; stresses that politics is downstream from culture.
- Jeff Deist (interviewed by Matthew Geiger), “America’s Culture with Jeff Deist,” Menger Institute Podcast #12, August 1, 2026. Insists culture and economics are inseparable, that people’s political views flow from culture, and that culture wars are essential; links monetary and economic decline to cultural degradation and calls for recovering more traditional culture.
- Jeff Deist, “The 2016 Election’s Silver Lining,” Mises Wire, November 7, 2016 (excerpt from the Dallas–Ft. Worth Mises Circle, November 5, 2016). Criticizes the libertarian habit of appearing hostile to family, religion, tradition, and community, and calls for a message that is welcoming toward these institutions of civil society rather than at war with culture.
