Working Paper

It’s All about Blood, Baby! The European Commission’s Ongoing Attack against Investment Migration in the Context of EU Law and International Law

Published 17 November 2022 / By Dimitry V. Kochenov & Elena Basheska

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Introduction

This work provides a brief critical assessment of the European Commission’s ongoing attack against investment migration in Europe and elsewhere in the world. We first briskly walk through the key elements in this attack, which will be familiar to the majority of readers, in order to focus on the core deficiencies of the Commission’s actions. The ongoing attack on investment migration clearly reveals that the mere political suspicion of a particular type of naturalisation is enough for the European Commission to set aside European and international law and proactively misinform the public, underlining once again the problematic tension between the increasingly political nature of this institution and its key task as guardian of the Treaties. Given the amount of in-house legal expertise the Commission benefits from, the deficient legal quality of its output on this issue points to a failure of the structures responsible for protecting EU law from political abuse: the law is being set aside by the guardian of the Treaties, as the Commission fails on the job. Ripe with nationalist assumptions not rooted in the Treaties or the secondary law of the Union, and displaying a convoluted and inconsistent analysis of the issues it purports to address, the Commission’s conduct arouses concerns that a purely nationalist, ‘genuine links’-based interpretation of the citizenship of the European Union is taking hold, a concept originally introduced precisely to tame poisonous nationalisms and to prevent thick identity claims being deployed as vehicles of discrimination. As the most ‘genuine link’ emerging from the Commission’s analysis, the one which is never questioned, is that of a blood connection, the EU citizenship emerging from the whole sorry story is one of a nationalist ethnocentricism, which sits uneasily with all the legal provisions in force as well as the raison d’être of the Union, which is rooted in the principle of non-discrimination on the basis of nationality. The paper concludes that there is a burning need for the Commission to take a more careful, coherent and informed approach to its actions, and crucially to introduce structures which safeguard independence and accountability, thereby making the abusive misuse of EU law at Berlaymont at least difficult, if not impossible – an approach indispensable for the preservation of the rule of law in the Union.

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