Elena Prats

The Value of Values

A Critical Assessment of Citizenship by Investment Programs

in the European Union
Dissertation presented at Uppsala University to be publicly examined in Sal VIII (Main
University Building), Biskopsgatan 3 753 10, Uppsala, Friday, 1 December 2023 at 10:00 for
the degree of Doctor of Philosophy. The examination will be conducted in English. Faculty
examiner: Associate Professor Enrica Rigo (Università Roma).

Abstract
Prats, E. 2023. The Value of Values. A Critical Assessment of Citizenship by Investment
Programs in the European Union. 215 pp. Uppsala: Department of Philosophy.
ISBN 978-91-506-3024-4.

The primary objective of this doctoral dissertation is to thoroughly examine the phenomenon
of citizenship by investment programs (CIPs) by analyzing the existing programs within the
European Union (EU) as of 2018. Additionally, I aim to provide a critical legal assessment
of these programs, which can be instrumental in evaluating potential future initiatives. To
accomplish this, I will present an overview of the phenomenon (Chapter Two), explore the
current state of the art (Chapter Three), and establish a comprehensive analytical framework
(Chapter Four). The analytical framework consists of two key components. The first is an
exploration of the legal notion of arbitrariness and its detrimental impact on the Rule of Law,
a fundamental value of the EU. I will argue that justification is the pivotal element required to
prevent discretionary legal decisions or laws from becoming arbitrary. The second component is
an examination of the legal notion of citizenship qua personal legal status, highlighting the prima
facie impossibility of justifying the attribution of such a status on merely economic grounds.
If this characterization of status civitatis is correct, then no substantive arguments can be put
forth to justify its attribution for money, rendering these programs arbitrary. However, if the
arguments supporting this characterization prove to be unsound and citizenship can indeed be
conferred based on economic grounds, then it remains imperative to supply a justification within
the realm of political discourse. An analysis of the political debates surrounding these programs
(Chapter Five) will confirm the absence of robust arguments, thereby rendering the programs
legally unjustified, i.e., suffering from problems of arbitrariness. Consequently, the arbitrary
nature of these programs and the resultant erosion of the Rule of Law represent substantial legal
grounds for EU intervention.

Keywords: Citizenship; Citizenship by Investment Programs; Rule of Law; Discretion and

Arbitrariness; Legal Status.

Elena Prats, Department of Philosophy, Ethics and Social Philosophy, Box 627, Uppsala
University, SE-75126 Uppsala, Sweden.

© Elena Prats 2023

ISBN 978-91-506-3024-4
URN urn:nbn:se:uu:diva-513318 (http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-513318)
Dissertation presented at Uppsala University to be publicly examined in Sal VIII (Main
University Building), Biskopsgatan 3 753 10, Uppsala, Friday, 1 December 2023 at 10:00 for
the degree of Doctor of Philosophy. The examination will be conducted in English. Faculty
examiner: Associate Professor Enrica Rigo (Università Roma).

Abstract in Swedish
Prats, E. 2023. The Value of Values. A Critical Assessment of Citizenship by Investment
Programs in the European Union. 215 pp. Uppsala: Department of Philosophy.

I den här avhandlingen ämnar jag att undersöka medborgarskap genom investeringsprogram
(CIP), genom att analysera de dåvarande programmen under 2018 inom Europeiska unionen
(EU) samt tillhandahålla ett rättsligt förhållningssätt till dessa som åsyftar att möjliggöra
bedömning av potentiella framtida program. För detta ändamål kommer jag att presentera
fenomenet (kapitel två), ge en litteraturöversikt (kapitel tre), samt utveckla ett ramverk för
analysen (kapitel fyra). Analysens ramverk består av två verktyg. Först utforskas den juridiska
uppfattningen om godtycke och dess skadliga effekter på rättsstatsprincipen, ett grundläggande
värde för EU. Jag hävdarr att motivering är nyckelkomponenten för att undvika godtyckte i
rättsliga beslut och lagar. För det andra, analyseras det juridiska begreppet medborgarskap
såsom en personlig rättslig status. Syftet är att bevisa omöjligheten att vid första anblick
grunda naturalisation enbart på pengar. Om denna karaktärisering av status civitatis stämmer
kan inga argument ges för att motivera att medborgarskap tillskrivs på rent ekonomiska
grunder. Det i sin tur orättfärdigar programmen: de framstår som godtyckliga. Om mina
argument rörande denna karaktärisering inte skulle godtas, så att man skulle medge att
tillskriva medborgarskap enbart på ekonomiska grunder, borde ändå skäl ha angetts i den
parlamentariska debatten för föranledde lagstiftandet av reglerna i fråga. Analysen av de
politiska debatterna som föranledde programmen (kapitel fem) bekräftar att starka argument
inte gavs. Det innebär att programmen inte var rättsligt motiverade. De var med andra ord
godtyckliga. Detta utgör ett starkt rättsligt argument för EU:s agerande baserat på
programmens godtyckliga karaktär och den resulterande skadan på rättsstaten.

Keywords: Medborgarskap; Medborgarskap genom Investeringsprogram; Rättsstatsprincipen;

Gottfinnande och Godtycklighet; Juridisk Status.

Elena Prats, Department of Philosophy, Ethics and Social Philosophy, Box 627, Uppsala
University, SE-75126 Uppsala, Sweden.

© Elena Prats 2023

ISBN 978-91-506-3024-4
URN urn:nbn:se:uu:diva-513318 (http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-513318)
Dissertation presented at Uppsala University to be publicly examined in Sal VIII (Main
University Building), Biskopsgatan 3 753 10, Uppsala, Friday, 1 December 2023 at 10:00 for
the degree of Doctor of Philosophy. The examination will be conducted in English. Faculty
examiner: Associate Professor Enrica Rigo (Università Roma).

Abstract in Spanish
Prats, E. 2023. The Value of Values. A Critical Assessment of Citizenship by Investment
Programs in the European Union. 215 pp. Uppsala: Department of Philosophy.

En esta tesis, me propongo investigar el fenómeno de los programas de ciudadanía por

inversión (CIPs, por sus siglas en inglés) analizando los programas existentes en la Union
Europea (UE) en 2018, así como presentando una crítica jurídica que sea útil para evaluar no
solo dichos programas, sino también futuros programas potenciales. Para ello, presentaré el
fenómeno (capítulo dos), el estado del arte (capítulo tres) y un marco para el análisis (capítulo
cuatro) que estará compuesto de dos herramientas. En primer lugar, se llevará a cabo una
exploración de la noción jurídica de arbitrariedad y de sus efectos perjudiciales para la Rule of
Law, un valor fundamental de la UE. Se argumentará que la justificación es un aspecto clave
para evitar que decisiones y leyes fruto de la discrecionalidad de los agentes jurídicos se
conviertan en arbitrarias. En segundo lugar, se realizará un análisis de la noción legal de
ciudadanía qua estatus legal personal que probará la imposibilidad, prima facie, de justificar su
concesión únicamente a cambio de transacciones económicas. Si esta caracterización de status
civitatis es correcta, entonces no es posible presentar argumentos sólidos que puedan justificar
su concesión a cambio de dinero, lo que haría los programas arbitrarios.
En el caso de que los argumentos defendiendo dicha caracterización no fueran sólidos y se
pueda defender que la ciudadanía sí puede intercambiarse por dinero, aún quedaría por
determinar si se ha dado una justificación adecuada a través de la presentación de razones en el
debate político constitutivo de los programas. El análisis de dichos debates (capítulo cinco)
confirmará la falta de argumentos robustos, lo que implica que los programas no han sido
justificados legalmente y, por lo tanto, sufren de problemas de arbitrariedad. Así, la naturaleza
arbitraria de los programas y el daño que esta acarrea a la Rule of Law constituirán argumentos
sólidos para respaldar las acciones de la UE.

Keywords: Ciudadanía; Programas de ciudadanía por inversión; Rule of Law; Discreción y

arbitrariedad; Estatus jurídico.

Elena Prats, Department of Philosophy, Ethics and Social Philosophy, Box 627, Uppsala
University, SE-75126 Uppsala, Sweden.

© Elena Prats 2023

ISBN 978-91-506-3016-9
URN urn:nbn:se:uu:diva-513318 (http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-513318)
Dissertation presented at Uppsala University to be publicly examined in Sal VIII (Main
University Building), Biskopsgatan 3 753 10, Uppsala, Friday, 1 December 2023 at 10:00 for
the degree of Doctor of Philosophy. The examination will be conducted in English. Faculty
examiner: Associate Professor Enrica Rigo (Università Roma).

Abstract in Catalan
Prats, E. 2023. The Value of Values. A Critical Assessment of Citizenship by Investment
Programs in the European Union. 215 pp. Uppsala: Department of Philosophy.

En aquesta tesi, em proposo investigar el fenomen dels programes de ciutadania per inversió
(CIPs, per les sigles en anglès) mitjançant l’anàlisi dels programes existents a la Unió Europea
(UE) l’any 2018, així com presentant una crítica jurídica que sigui útil per avaluar no només
aquests programes sinó també d’altres futurs. Per aquest propòsit, presentaré el fenomen
(capítol dos), l'estat de l'art (capítol tres) i un marc per a l'anàlisi (capítol quatre), que constarà
de dues eines. En primer lloc, realitzaré una exploració de la noció jurídica d'arbitrarietat i dels
seus efectes perjudicials per a la Rule of Law, que és un valor fonamental de la UE.
Argumentaré que la justificació és un aspecte clau per evitar que decisions i lleis derivades de
la discrecionalitat dels agents jurídics es converteixin en arbitràries. En segon lloc, duré a
terme una anàlisi de la noció legal de ciutadania qua estatus personal legal, que provarà la
impossibilitat, prima facie, de justificar-ne l'atorgament només a canvi d'un intercanvi
econòmic. Si aquesta caracterització del status civitatis és correcta, aleshores no serà possible
presentar arguments que puguin justificar el seu atorgament a canvi de diners, fet que faria que
els programes fossin arbitraris. En cas que els arguments defensant aquesta caracterització no
fossin sòlids, és a dir, que es pogués caracteritzar la ciutadania com a susceptible de ser
intercanviada per diners, llavors encara caldria determinar si s'ha donat una justificació
adequada a través de la presentació de raons en el debat polític constitutiu dels programes.
L'anàlisi d'aquests debats (capítol cinc) confirmarà que no s'han presentat arguments
suficients, de manera que els programes no han estat legalment justificats i, per tant, pateixen
problemes d'arbitrarietat. Així doncs, la naturalesa arbitrària dels programes i l’afectació que
això comporta al valor fonamental que és la Rule of Law serviria com un poderós argument per
donar suport a les accions de la UE.

Keywords: Ciutadania; Programes de Ciutadania per Inversió; Rule of Law; Discrecionalitat i

Arbitrarietat; Estatus Jurídic.

Elena Prats, Department of Philosophy, Ethics and Social Philosophy, Box 627, Uppsala
University, SE-75126 Uppsala, Sweden.

© Elena Prats 2023

ISBN 978-91-506-3024-4
URN urn:nbn:se:uu:diva-513318 (http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-513318)
“Always observe how ephemeral and worthless human
things are, and what was yesterday a speck of semen
tomorrow will be a mummy or ashes”
Marcus Aurelius, Meditations

秋へ
Acknowledgements

Over the course of my doctoral studies, I have been blessed to encounter

multiple virtuous people from whom I have learned everything I know about
academia and legal philosophy. I would like to begin this doctoral dissertation
by expressing my deepest gratitude to them, to the people who supported me
over these very intense years, and to other important people in my life.
I begin by thanking my father, from whom I learned to love philosophy and
thinking from an early age, and my mother, who shared her study of Law with
me when I was a child, planting a seed of respect and love for the Law. I will
always be indebted to my uncle Francisco Prats and my aunt Maria Luísa
Galino for being the first people to believe in me and for giving me the
opportunity to develop my capacities.
I want to thank my family, especially my brother Sergio, my ex-husband
Jose Jaime Baena, and my friends for being there during these hard years when
I have combined going through doctoral studies in a (not longer) foreign
country with pursuing a Bachelor’s degree and several Master’s degrees,
experiencing multiple health conditions, living through the Covid pandemic
and a war in Europe, and giving birth to two children (expecting a third one
as I write these line). Certainly, these have been tumultuous years. The last
person to thank outside of academia is my best friend, partner in crime, and
husband, Mikael Muszynski. Thank you for the intellectual challenges, fun
times, and all the light you brought to my winters.
My doctoral journey has been far removed from that of the typical library-
bound student. I have had constant opportunities to meet brilliant and
fascinating senior and junior scholars, both at Uppsala University and Pompeu
Fabra University, as well as all over the world.
Due to the multiple positions of trust I have occupied during these years, I
have met several inspirational junior scholars, all of them driven and
committed to working for the sake of the University, at the DN and HDR of
Uppsala University. Unfortunately, here I cannot name all the brilliant fellows
I have met during this journey. The position of trust I have occupied for a few
years at Uppsala Forum for democracy, peace and justice has opened doors
for me to organize events and collaborate with excellent scholars from other
disciplines and faculties, for which I am very thankful.
I was also fortunate to participate at Mentor4Research at UU Innovation
where I was given the opportunity to be mentored by Dr. Thomas Bull, judge
of the Swedish Supreme Administrative Court. I express my deepest gratitude
to him for our exchange of ideas and our valuable conversations about my
work.
Multiple funders have allowed me to participate in dozens of international
and national conferences, events, and visits abroad during these years. I
express my gratitude to the Wallenberg Foundation for its generous funding,
as well as to the decision boards of the Rektorsbidrag, and the nations’ grants
of Gian Carlo and Birgit Busoli, Sederholm for travel abroad, and to Nordic
travel, Ekman, Andrén, Selggren, the Thun travel scholarship, the Student
Union Nordic travel scholarship, Anna Maria Lundin, and the Max Planck
Institute for believing in me and generously funding my research activities.
I also thank the fellows I have met in the multiple institutions where I
developed my research over the past years. I am grateful to the members of
the Civis Sum project at Uppsala University, Dr. Sebastián Reyes, Dr.
Guilherme Marques Pedro, and Tommaso Braida, for constantly challenging
me from the beginning of my doctoral studies. Many thanks to my co-fellows
at the Contributivism project at Uppsala University, professor Dr. Anna-Sara
Lind, Dr. Anthoula Malkopolou, Dr. Jonas Hultin Rosenberg, and Dr. Johan
Wejryd. I also thank professor Dr. Elisabeth Schellekens Dammann for her
support and kindness, and the administrative staff of the Department of
Philosophy at Uppsala University for their constant help during my years at
the institution. Moreover, I extend my appreciation to the fellows at Pompeu
Fabra University, especially to the board members for my dissertation’s
project defense in 2019, professor Dr. Anna Quiñones, Dr. Albert Font, and
Dr. Anca Gheaus, for their valuable comments.
Beyond my home institutions, I was fortunate to spend a month at the
Tarello Institute for Legal Philosophy at the University of Genoa, where I met
some of the greatest European legal philosophers in the field, including
professors Dr. Robert Alexy, Dr. Riccardo Guastini, and Dr. Juan Ruíz
Manero, to whom I express my gratitude for their instructive lessons.
Likewise, I thank my Tarello Institute fellows for our multiple and insightful
conversations. Furthermore, I express my deepest gratitude to professor Dr.
Ayelet Shachar, the former Director of the Department of Ethics, Law and
Politics at the Max Planck Institute for the Study of Religious and Ethnic
Diversity, for inviting me to research at the Institution and for her valuable
comments on my work, as well as to the Institute’s fellows during my stay in
the summer of 2019.
I am, unfortunately, unable to name every person who provided valuable
insights into my work at the dozens of conferences, workshops, and other
events where I have presented my thoughts over the last few years. I
specifically want to thank the participants at the multiple Higher Seminars in
Philosophy of Law at the Uppsala University where I presented my work on
several occasions between 2017-2023, the participants at the Higher Seminar
in Practical Philosophy, where I presented in April 2021, and, especially, my
opponents at the middle and final seminars at the Uppsala University,
professors Dr. Gerard-René de Groot and Dr. Mauro Zamboni, as well as the
internal readers of my dissertation, professor Dr. Folke Tersman, and Dr. Olle
Risberg. Many thanks, also, to professor Dr. Torben Spaak, who has
commented on my work and provided me with valuable insights on several
occasions during the past years.
The scholarly abilities that one expects to develop during the doctoral
journey consist not only in certain formal writing skills but also in
understanding what academic life entails, being part of it, and learning
socially from others. In multiple networks and associations, I have been
fortunate to meet excellent scholars from whom I have learned enormously.
Among these, I want to mention the IVR (the Swedish section as well as the
Japanese and the Worldwide ones, where I was fortunate to present my work
on several occasions), The International Society of Public Law ICON•S, The
Gothenburg/Lund/Uppsala Migration Law Network (GL/UMIN), the U4
university network, and the ENLIGHT network. Thanks to these and other
networks, I met excellent scholars from whom I have learned a great deal. It
is impossible to mention everyone, but among others I am thankful to
professors Dr. Brian Leiter, Dr. Andrei Marmor, Dr. David Dyzenhaus, Dr.
Hirohide Takikawa, Dr. Rebecca Thorburn Stern, Dr. Tesseltje de Lange, Dr.
Tomasz Pietrzykowski, Dr. Birgitta Wahlberg, Dr. Visa Kurki, Dr. Dawid
Bunikowski, Dr. Yana Litins’ka, Dr. Jasmina Nedevska, Dr. Lutz Gschwind,
and Dr. Daniel Hedlund.
Last but not least, I express my deepest gratitude to my two magnificent
and highly committed supervisors, professor Dr. Patricia Mindus and
professor Dr. Josep Joan Moreso. It is not empty flattery to say that I doubt
that I could have had better supervisors. They have always been available for
me; they have constantly challenged my ideas in a range of ways, and they
have supported me in different ways. I extend my most sincere unfathomable
gratitude to both of them, and reserve a special and wholehearted appreciation
for Professor Dr. Moreso. His unwavering kindness and enduring
encouragement were pillars of strength during some of the most challenging
periods of the past years. Thank you for perfectly exemplifying the multitude
of dimensions in which one can embody greatness as a scholar
Table of Contents

Chapter One: Introduction............................................................................. 15

1.1. Mapping the Route ............................................................................ 15
1.2. The Object of Study: Citizenship by Investment Programs and
Their Circumstances ................................................................................. 17
1.3. Purpose and Research Questions ....................................................... 20
1.4. Thesis and Hypotheses ...................................................................... 21
1.5. Methodology and Practical Difficulties ............................................. 23
1.6. Discussion on the Phenomenon ......................................................... 26
1.7. Research Outline................................................................................ 26
Chapter Two: Citizenship By Investment Programs ..................................... 29
2.1. A Definition of Citizenship by Investment Programs ....................... 30
2.2. Brief History of Citizenship by Investment Programs ...................... 33
2.3. Motivations ........................................................................................ 36
2.3.1. Lawmakers’ Motivations ........................................................... 36
2.3.2. Applicants’ Motivations............................................................. 38
2.4. Citizenship by Investment Programs in the European Union............ 41
2.4.1. Particularities of Citizenship by Investment Programs in the
European Union: Some Context .......................................................... 42
2.4.2. Programs in the European Union ............................................... 45
2.4.3. The View of European Union Institutions ................................. 65
Chapter Three: The Debate on Citizenship by Investment Programs ........... 77
3.1. The Descriptive Domain .................................................................... 77
3.2. The Normative Domain ..................................................................... 82
3.2.1. The Normative Debate Among Scholars ................................... 82
3.3. The Missing Debate ......................................................................... 120
Chapter Four: The Analytical Framework for the Assessment ................... 122
4.1. The Notion of the Rule of Law: A Theoretical Overview ............... 125
4.2. Distinguishing Discretion from Arbitrariness ................................. 131
4.2.1. Elements for the Distinction: Motivation and Justification ..... 142
4.2.2. Substantial and Procedural Arbitrariness ................................. 148
4.3. Citizenship qua Personal Legal Status ............................................ 151
4.3.1. Theoretical Views on Legal Statuses ....................................... 154
4.3.2. Ought Money in the form of an Investment to Count as a
Personal Attribute or Characteristic? ................................................. 169
Chapter Five: Were the CIPs in the EU Established in a Procedurally
Arbitrary Way?............................................................................................ 177
5.1. The Establishment of the Bulgarian Program.................................. 178
5.2. The Establishment of the Cypriot Program ..................................... 184
5.3. The Establishment of the Maltese Program ..................................... 188
5.4. Conclusions of the Chapter.............................................................. 196
Chapter Six: Conclusions ............................................................................ 198
Bibliography ................................................................................................ 202
Case Law ................................................................................................ 213
European Court of Human Rights...................................................... 213
Court of Justice of the European Union ............................................. 213
Inter-American Court of Human Rights ............................................ 214
International Court of Justice ............................................................. 214
Permanent Court of International Justice (PCIJ) ............................... 214
Spanish Constitutional Court ............................................................. 214
Spanish Supreme Court...................................................................... 214
Legal Documents .................................................................................... 215
Conventions, Covenants, and Declarations ....................................... 215
Treaties ............................................................................................... 215
Chapter One: Introduction

1.1. Mapping the Route

Although this fact is still widely unknown, the last few decades have
witnessed a worldwide growth in the establishment of programs granting
access, in a legally systemized way, to citizenship, i.e., status civitatis, in
exchange for economic transactions, usually waiving most or all the
requirements imposed on other naturalization applicants. Programs “granting
citizenship for money” have been given various names, such as “investor-
programs,” “donation programs,” “golden passports,” etc. In this dissertation,
these will be referred to as "citizenship-by-investment programs" (CIPs) since
I believe that this label describes the phenomenon in a more accurate and
distinguishable manner.1
Even the European Union (EU) has not been exempt from this trend, as
some of its Member States have established their own CIPs. These cases differ
from CIPs elsewhere in several relevant respects, lending more nuance and
complexity to the discussion regarding their adequacy. Firstly, in granting
national citizenship, Member States also confer European citizenship, which
holds political significance as the core status of the Union. Moreover, this
action imposes obligations on other Member States which do not benefit from
these programs and were not consulted regarding their establishment.
Secondly, since the act of conferring citizenship falls within the reserved
competence of the Member States, making it a domaine réservé,2 the EU is
often considered to have limited legal authority in this matter. Despite this
legal reality, EU institutions have, time and again, expressed political
opposition to these programs, relying on a set of legal arguments that have
been deemed flawed by certain legal scholars, and which thus fail to support
their stance adequately.
Against this backdrop, the purpose of this dissertation is to elucidate several
key questions. Firstly, it explores the nature of CIPs and seeks to understand
the respects in which they are distinguishable from other migration for
investment programs. Additionally, it aims to identify the EU countries that

1
I adopt the term “Citizenship by Investment Program” from Laura M. Johnston’s (2013, p. 6).
2
This notion underscores a sovereign state's exclusive authority and jurisdiction over its internal
affairs without external interference. It recognizes a state's right to manage domestic matters,
make decisions on internal policies, and regulate various aspects within its borders without
intervention from other states or international organizations.

15
have implemented these programs. Although considerable literature has
emerged on this topic between the commencement of this dissertation in 2017
and its completion in 2023, these questions remain only partially elucidated.
This study will focus specifically on CIPs in the EU in the beginning of 2018
to address these questions. Secondly, a key objective of this research is to
ascertain whether there are robust legal arguments available to the EU to
justify its opposition to the CIPs that were in place within the EU in the
beginning of 2018. My investigation shows that despite the facts that
citizenship is a domaine réservé of Member States and that most arguments
used are partially flawed, the EU has legal grounds for its opposition to these
programs. This is primarily due to their arbitrary nature and the detrimental
impact that arbitrariness has on the Rule of Law, which is a fundamental value
of the EU.3 It is worth noting that the focus of this argument is based on the
analysis of specific cases, namely the CIPs that were operational within the
EU in 2018, even though they have since been terminated. The discontinuation
of these programs does not diminish the validity of the arguments presented
in this dissertation, as they can also be applied in the evaluation of future
programs.
The waters of CIPs are not easy to navigate. This complexity arises, on one
hand, from the multitude of interests at stake and the diverse array of
participants involved in the debate, including private industry, national and
supranational political actors and institutions, and scholars from various
academic disciplines. On the other hand, from the nature of the object at stake,
namely citizenship, which is highly contested and leads to participants in the
debate talking past each other.4 In essence, comprehending the phenomenon
of CIPs and assessing whether they should exist necessitates a meticulous
process of disentanglement, given the current diversity of interests,
approaches, and the multifaceted nature of citizenship and its various
dimensions.5

3
According to Article 2 TEU. The main title of this dissertation, “The Value of Values” is
grounded precisely on the relevance of the Rule of Law as a fundamental value of the EU and
its consideration as key for assessing the legitimacy of the CIPs, and for providing the EU with
an argument to reject them.
4
In their introduction to The Oxford Handbook of Citizenship, the editors Shachar, Bauböck,
and Vink claimed that “articulating a single definition of ‘citizenship’ would be either a
hopeless task or a sectarian project given the proliferation of meanings and uses of the term”
(Shachar, et al. 2017, p 5). Some scholars point out the problems of the plural dimensions of
citizenship (Mindus, 2019; Shachar et al., 2017), while others talk about “levels” (Bauböck,
2015). Others, like the expert on citizenship issues, Gerard-René de Groot, describe citizenship
as “nothing else than an empty shell” (de Groot, 1989, pp. 13–7). “‘Citizenship’ has been
stretched to mean or refer to various and diverse things, such as a legal status and political
membership; identity and belonging; rights and obligations; civic virtues and practices of
engagement; a discourse of political and social equality or responsibility for a common good,
etc” (Shachar, et al. 2017, p. 5).
5
Despite the several disagreements and multiple ways to characterize citizenship, there is one
claim that seems to find all scholars in agreement, that is, that “citizenship is a key mechanism
for inclusion and exclusion, distinguishing insiders from outsiders” (Balibar, 2012; Margiotta,

16
 This inaugural chapter delineates the underlying rationale and approach to
this dissertation, focusing on the phenomenon of CIPs from a legal theoretical
perspective. This lays a foundation for the subsequent examination, outlining
the following themes: the chapter first provides a concise depiction of the CIP
phenomenon, before elucidating the rationale for concentrating on programs
established within the EU, highlighting the unique considerations and
complexities associated with these programs. I then introduce the research
questions and hypothesis, which provide a framework guiding for the
subsequent analysis. Furthermore, I outline the methodology of this research,
along with an acknowledgment of practical challenges faced during the
dissertation's execution. Following this, I provide a brief summary of key
arguments and perspectives in the academic debate surrounding CIPs, offering
a glimpse into the existing scholarly discourse on the topic. Finally, I lay out
the structure and content of the subsequent chapters.

1.2. The Object of Study: Citizenship by Investment

Programs and Their Circumstances
CIPs are a type of legally systematized fast-track to citizenship on the grounds
of economic transactions. The rationales for such programs are as numerous
as the existing programs worldwide. Chapter Two provides a comprehensive
definition of CIPs, distinguishing them from other types of migration
programs granting residence and migration permits on the basis of economic
transactions. Here, it suffices to say that CIPs are a mechanism of inclusion,
determining who are the insiders, i.e., the citizenry, without regard for the
personal characteristics of the applicant or her characteristics relating to the
state, but, in most cases, regarding primarily the investment of a fungible asset,
i.e., money. Thus, the focus lies primarily in the economic transaction rather
than the individual's characteristics or relationship to the state.
The growth of CIPs has been a global phenomenon without a specific
regional focus.6 However, certain characteristics of CIPs established in the EU
make them particularly relevant for study. There are several reasons for this
geographic delimitation. Firstly, unlike the initial programs established by
financially distressed states seeking economic recovery, EU Member States
maintain strong economic positions. EU economies have remained robust

2020; Mindus, 2019; Shachar, 2009, among others). In this dissertation, I shall devote myself
to the inclusive dimension of citizenship.
6
In most cases, the establishment of the programs was the consequence of either financial state
failure, as in the case of Saint Kitts and Nevis, or a desire for fast revenues. However, in other
cases, there were other reasons for establishing the CIP. In Chapter Two, I address the history
of these programs and the reasons that typically push the states to establish CIPs and applicants
to apply through them.

17
globally, even in the face of significant crises such as the 2008 financial crisis
and the Covid pandemic.7
Secondly, various forms of migration have become increasingly prevalent
in the EU. While the media focus and scholarly attention has often been on
the migration of economically disadvantaged individuals to Europe, CIPs and
other programs granting residence and citizenship based on economic
transactions have received relatively little attention. As a result, the general
public and fellow citizens have limited knowledge of these programs. For
most citizens, CIPs are often shrouded in opacity and unfamiliarity.8
Interestingly, in cases where public awareness and rejection of the programs
have been expressed, such as in Malta, the programs have not been canceled
or modified as a result.9
A third compelling aspect specific to CIPs in the EU is that acquiring
citizenship of an EU Member State grants an additional layer of entitlement:
EU citizenship.10 This unique feature means that the establishment of a
national CIP within the EU automatically confers supra- and transnational
rights beyond the national realm. Additionally, it imposes obligations on other
EU Member States. This distinctive characteristic makes the study of these
programs highly interesting and relevant.

7
One of this dissertation’s findings is that at the time in question (2018), there were CIPs in
three EU Member States: Bulgaria, Cyprus, and Malta. According to data released by the World
Bank, although these countries, particularly Cyprus, were sevely affected by the 2008 economic
crisis, the GDP per capita of Malta and Cyprus is still much higher than the global upper-middle
income, while the GDP of Bulgaria is close to it. More information is available at
https://data.worldbank.org/indicator/NY.GDP.PCAP.CD?locations=MT-CY-BG (last
accessed 1/11/2022).
8
CIPs are opaque in several ways: from the entangled laws establishing the programs to the
absence of data on people naturalizing this way, data which is usually lacking, both in relation
to the EU CIPs and worldwide, with a few exceptions.
9
I develop this point in detail in Chapter Two.
10
“EU citizenship” or “European citizenship” as it will be referred in this dissertation, also
known as “Union citizenship” or “Citizenship of the Union,” was created by the Maastricht
Treaty in 1992 (entered into force in 1993), and it is currently regulated in Articles 18–25 of
the Treaty on the Functioning of the European Union (TFEU). Anyone who is a national of an
EU Member State becomes automatically a citizen of the Union, entitling them to a range of
additional rights, detailed in the TFEU together with the Charter of Fundamental Rights
(Chapter V). Among these rights, the most relevant include non-discrimination on the grounds
of nationality; the freedom to travel and reside anywhere within the European Union; the right
to vote and stand as a candidate in European and local elections in their country of residence;
access to diplomatic protection and consular support worldwide from any other EU country if
their own country is not represented; the ability to petition the European Parliament on any
matter within the EU’s purview; the authority to report perceived cases of maladministration
by any EU institution with the European Ombudsman; the privilege to write to any EU
institution in one of the EU’s official languages and receive a reply in the same language; the
ability to access Parliament, Council of the European Union and European Commission
documents under certain conditions; and the opportunity to participate in public exams to enter
the EU civil service. Furthermore, the Lisbon Treaty introduced an additional form of public
participation: the citizens’ initiative.

18
 Finally, related to the previous point, there is an additional relevant aspect
of CIPs in the EU. Despite the fact that the attribution of citizenship provides
supranational rights to the new citizen and creates inter-states duties, fellow
Member States and EU institutions apparently have limited ability to intervene
in the Member States’ decisions because citizenship is a domaine réservé of
each state. This has been of great concern to EU institutions that have
attempted to exert political pressure on Member States to close down or
modify their CIPs. However, as I show in this dissertation, the EU institutions
have unfortunately based their claims on legally weak and flawed arguments.
The implications of the “exchange of citizenship for money” present a
multi-faceted picture for various reasons. Some of these relate to the contested
nature of citizenship and the multiple dimensions from which one may address
it.
From a legal perspective, CIPs provide access to numerous rights and social
benefits with minimal burdens.11 Contributions required for citizenship
through CIPs often take the form of a single payment or investment, frequently
in passive segments of the economy, and in many cases, are even recoverable.
As Shachar has pointed out (Shachar et al., 2017, pp. 789–816), the economic
benefits of these programs to the country are uncertain. Moreover, citizenship
grants diplomatic protection and visa-free travel to certain countries,12 which
is, in most cases, one of the strongest motivations for applicants to apply.13
From a political perspective, CIPs usually grant the right to vote in the
country establishing the program. Awarding the rights to vote on primarily
economic grounds is a major concern, especially in cases of the CIPs in the
EU, whose Member States are consolidated democracies. Additionally, an
argument made against the establishment of CIPs in the EU concerns the fact
that all EU citizens who have reached the age of majority and do not fall under
other disenfranchisement rules are entitled to vote in the European Parliament,
regardless of how they obtained their citizenship.14
From a sociological perspective, CIPs are criticized for eroding the link to
society, viewed as essential, by divorcing legal membership (status civitatis)
from communal life, intergenerational solidarities, values, social practices,
and language. Chapter Three explores the arguments for and against CIPs

11
The rights and social benefits related to citizenship are mostly established domestically by
Member States, and may differ widely from one state to another. Rights and benefits conferred
to citizens typically do not vary according to the mode of acquisition of national citizenship.
12
Every year, Henley and Partners, the leading global consultancy on CIPs and Residence
programs, releases an index ranking all world’s passports according to the number of
destinations their holders can access without applying for a visa. See
https://www.henleypassportindex.com/passport-index (last accessed 1/11/2022). Johnston
(2013, p. 16) also claimed that “those nationalities with the least visa-free travel correlate with
the strongest sources of demand for citizenship by investment.”
13
I shall present in detail this and other applicants’ motivations in Chapter Two.
14
A thorough exploration of EU institutions’ reactions to the CIPs in the EU shall be presented
in Chapter Two.

19
from various conceptions of citizenship, namely the legal, political, and social
conceptions.
On the whole, the phenomenon of CIPs and their circumstances appears to
be intricate and insufficiently examined.15 The diversity of notions of
citizenship, the inclusive dimension of the object granted and its associated
rights, the lack of definitions and clarity concerning what accounts as a CIP,
and the obscurity surrounding the phenomenon—about everything from the
laws establishing the programs to the number and profile of naturalized
citizens who have followed this fast-tracked economic path—all call for an in-
depth investigation.

1.3. Purpose and Research Questions

The primary purpose of this dissertation is twofold. The first goal is a
methodologically necessary step for the second goal. Firstly, I aim to provide
an accurate understanding of the nature of the CIPs under investigation, i.e.,
the CIPs in the EU in place in the beginning of 2018. Secondly, I assess
whether there are robust legal arguments against the programs that the EU can
utilize to oppose these CIPs. In contrast to most scholars opposing CIPs in this
debate, who have offered extra-legal political and sociological arguments, I
adopt a legal theoretical perspective. My findings provide the EU with a strong
legal basis for its actions against the programs.
To effectively address the main research questions, and due to the lack of
clarity in the current debate, it is essential to begin by clarifying what CIPs
are. This enables the identification of programs that fall within the scope of
CIPs for the purposes of this study. Thus, in order to reach the first objective,
I provide a definition of CIP. On this basis, I can determine how many such
programs were in place in 2018 and which countries in the EU had CIPs. To
do this, I rely on an in-depth analysis of the citizenship acts of the EU Member
States and other legal measures. In the next chapter, I will also examine in-
depth the multiple conditions under which the countries grant national
citizenship on the grounds of economic transactions. The aim here is to clarify
our understanding of the phenomenon by distinguishing CIPs from other
grounds for naturalization, which may also entail measures of an economic
nature. Thus, the first task of this dissertation is to answer the following
research questions:

(1) What are CIPs?

(2) Which CIPs were in place in the EU in the beginning of 2018?

15
The available scholarly literature on CIPs mainly consists of work done by economists,
sociologists, and political scientists. As far as I know, few philosophers and legal scholars have
written on the topic.

20
 (3) Which provisions did these CIPs in the EU include?

Addressing (1), (2), and (3) will allow us to begin the second task, which is to
assess whether, from a legal standpoint, we ought to have CIPs in the EU, and
whether the EU has strong legal arguments to reject the programs. The main
research questions that this dissertation aims to answer are then:

(A) Ought we to have CIPs within the EU?

(B) Does the EU possess strong legal arguments to reject CIPs in the EU?

The steps followed to address these questions are described in the

methodology and research outline sections.

1.4. Thesis and Hypotheses

The fundamental thesis of this dissertation is that CIPs in the EU are arbitrary
and, as a result, ought not be enacted. If this thesis is substantiated, it provides
a strong argument for the EU to reject these programs. The defense of this
thesis mostly takes place in Chapters Four and Five. It is based on the
following hypotheses.
Firstly, CIPs consist in an outright bestowment of citizenship in exchange
for money through economic transactions. That is to say, the programs allow
the acquisition of citizenship—i.e., status civitatis, a personal legal status—
on grounds that involve the exchange or transaction of a fungible asset,
namely money, in a way that does not focus primarily on the applicant’s
personal characteristics. This mode of acquiring citizenship, also referred to
as ius pecuniae,16 deviates from the traditional understanding of citizenship
grounded in an intuitu personae character.17 That is to say, CIPs grant a

16
As mentioned, citizenship has both an inclusive and an exclusive dimension. The term ius
pecuniae was first used by J. Stern (2011) and later by J. Džankić (2012). However, they used
the term to refer to different dimensions of citizenship. Although both authors used it to refer
to a mode of acquiring citizenship (naturalization), Stern used it to point out a situation where
money represented an element of exclusion (the situation experienced by those potential
applicants who meet all the requirements for being granted citizenship but are excluded because
of the unaffordably high fees required) while Džankić used it to refer to the situation where
money worked as an element of inclusion (the situation created by some laws waiving one or
more naturalization requirements to those applicants who can afford to pay sky-high sums of
money). In this dissertation, the term ius pecuniae is used to refer to the inclusive dimension.
17
The Latin phrase intuitu personae is typically used in the context of labor law and personal
services contracts, where the person of one of the contracting parties is an essential element of
the contract due to her particular characteristics. That is to say, the contract takes place “because
of the person,” so the specificity of that particular person with certain personal characteristics
or attributes makes her the proper part of that specific contract. In other words, this person with
these particular characteristics is the raison d’être of the contract. As I shall argue in Chapter
Four, citizenship qua legal status has an intuitu personae character, so it ought to be granted

21
personal legal status without focusing primarily on the personal characteristics
of the naturalizer, which, I argue, contradicts the legal understanding of
citizenship as a personal legal status.
Consequently, the first working hypothesis in this dissertation is that
citizenship is indeed a personal legal status. Under this hypothesis, citizenship,
in so far as it is a personal legal status, must be ascribed with due consideration
of the personal characteristics or qualities of the individual to whom the status
is conferred. This first hypothesis lays the foundation for arguing against the
justifiability of basing naturalization focusing primarily on economic
contributions. My argument for this claim can be summarized as follows:

Citizenship is a personal legal status, the justified acquisition of which depends

on the status-holder’s personal characteristics.

Money cannot be considered a personal characteristic of the applicant due to

its fungible nature.18

Therefore, money cannot constitute a ground for the justified acquisition of

citizenship.

On the basis of this argument, I determine that it is legally problematic to

bestow citizenship for an investment, and that the programs are hard to justify
from a legal standpoint. Both the hypothesis and the argument are deployed
in the second section of Chapter Four.
In the first section of Chapter Four, I present a set of working hypotheses
which focus on the distinction between the legal notions of discretion and
arbitrariness. These are further divided into substantial and procedural forms
of arbitrariness.
The aim is to argue that CIPs are not the result of discretionary actions by
national legal actors exercising their competence in matters of citizenship, but
rather that they are instead arbitrary in nature. The lack of justification for the
actions of lawmakers renders their actions arbitrary. Specifically, I argue that
if citizenship, as a personal legal status, is not justifiably ascribed primarily
on the basis of economic transactions, then the attribution of citizenship in
these terms cannot be legally justified. Consequently, the programs are
deemed arbitrary. This argument highlights the importance of citizenship as a

primarily based on the particular characteristics of the person to whom the status is going to be
ascribed. Indeed, modes of granting citizenship by states establishing CIPs typically follow this
logic, granting citizenship based on the particular characteristics, attributes, or in relation to the
state of the person bestowed citizenship, except for some versions of CIPs. In Chapter Four, I
shall provide reasons against this practice grounded on the notion of legal status. I thank Dr.
Julián Daniel González Escallón for introducing me to the notion of intuitu personae and
making the connection to CIPs during his stay at Uppsala University.
18
Neither in itself nor as a proxy.

22
personal legal status and challenges the notion that it can be obtained primarily
through financial means.
If the argument presented above is flawed, and citizenship can indeed be
conferred for money, it remains crucial to assess whether lawmakers have
provided justifications for the creation of these programs. Chapter Five will
undertake this assessment by analyzing the political discussions and forums
surrounding the establishment of the programs.
Thus, the hypotheses presented here in support of the thesis show that legal
arguments against the legitimacy of the programs are available. This approach
differs from the typical political and sociological arguments that have hitherto
dominated the debate both among scholars and in EU institutions.19

1.5. Methodology and Practical Difficulties

The methodology employed combines a number of different methods, in
particular, the descriptive method, the empirical research method, the textual
and critical analysis methods, the semantic analysis method, methods of legal
science stricto sensu, and of legal dogmatics. This is necessary due to the
broader approach of this dissertation, which starts from an existing
phenomenon and builds a theory to understand and evaluate it, instead of
proceeding from theory to particular cases, as is often the case with doctoral
dissertations.
The methods are applied as follows. Chapter Two employs two main
methods. The descriptive method is used in sections focused on describing the
phenomenon of CIPs, providing a comprehensive overview. Empirical
research will be used in subsequent sections, where I supply the empirical
basis of this research by collecting and analyzing the citizenship acts and other
relevant legal measures of the Member States of the EU noted by the Globacit
Database on Modes of acquisition of citizenship (Global Database on Modes
of Acquisition of Citizenship—Globalcit).20
The use of empirical research in this chapter is justified by its potential to
generate new insights and enhance our understanding of the subject matter
(Cane and Kritzer, 2012). The aim of Chapter Two is to clear up our
understanding of the phenomenon. Combining these two methods helps us to

19
These arguments shall be presented in Chapters Two and Three. The purpose of this
dissertation is neither to argue against other normative approaches to the phenomenon, nor to
assert that the phenomenon should be primarily evaluated from a legal perspective. The aim is
to provide a view that has not yet been considered, that is, the view according to which, besides
the fascinating debate on the moral, political, and economic grounds for the programs, there is
room for another sort of analysis of the programs grounded on legal theoretical arguments. The
virtue of this analysis is that it does not depend on the particular moral or ideological positions
of the participants in the debate but on the normative obligations provided by law.
20
The particular mode of the database used is the one referring to the “bestowing of citizenship
on the grounds of financial assets.”

23
accurately disentangle misunderstandings about CIPs in the academic debate,
and in particular to distinguish the phenomenon from other similar migration
programs and policies.
Chapter Three outlines the present state of the art by introducing the main
claims and arguments that have been offered in the academic debate for and
against CIPs. The chapter also articulates some possible interpretations and
counterarguments. Therefore, the method utilized in this chapter is textual and
critical analysis.
Semantic analysis is employed in certain sections of Chapter Four,
particularly in disentangling the notions of discretion and arbitrariness, as well
as in analyzing the concept of citizenship as a personal legal status.
Additionally, both legal science stricto sensu and legal dogmatics are methods
that are utilized in Chapters Four and Five.21
The difficulties and limitations encountered during this research have
prominently involved practical challenges. Firstly, the empirical data which
grounds the dissertation consists of the legislation and legal measures of
several countries. This poses two challenges: the first is that gaining full
oversight of the changes to citizenship laws in the many EU Member States is
a complicated task; the second is that these measures can change during the
development of the research. I deal with this situation by limiting the study of
the legislation (citizenship acts, laws, and related legal documents) of EU
Member States to a specific moment in time, namely the beginning of 2018.
That is, a CIP that was valid law in the beginning of 2018 will therefore be
included, while one that was turned into law after that will not.
This first complication indeed arose while writing this dissertation. As I
explain in detail in Chapter Two, the three programs in place in 2018, which
are the object of my analysis here, terminated before this dissertation was
concluded. However, this is not a major problem for the dissertation since its
objective is to provide a method of assessment for programs existing in the
EU. The dissertation thus remains valid in that it offers an assessment method
for any future program. Despite the specified timeframe for the selection of
the relevant legal material, references to further developments of the programs

21
Here, I am following Álvaro Núñez Vaquero’s definition, which reads as follows “Together
with the definition of ‘legal science ampio sensu’, and in order to introduce a criterion by which
we will classify the different doctrines (the conceptions of legal science ampio sensu) about
what legal scholars should do, I introduce two other definitions: ‘legal science stricto sensu’
and ‘legal dogmatics’. By ‘legal science stricto sensu’ I understand the method recommended
by those who believe that legal scholars should devote themselves solely to describing the
content of positive law; by ‘legal dogmatics’ I understand the method proposed by those who
believe that legal scholars should not be limited to describing—or should not at all engage in
describing—the content of law, but must propose solutions to the judges for resolving hard
cases” (Núñez Vaquero, 2013, p. 60). For those who deem this distinction unnecessary,
considering that jurisprudence already includes both describing what law requires according to
legislation, and finding out how judges should adjudicate law, then the applied method would
be jurisprudence.

24
during the years of writing this dissertation have been made where
appropriate.
A second difficulty consists of the need to study a large volume of legal
data in order to clarify the phenomenon and understand which CIPs were in
force in 2018 in the EU. The Globacit Database on Modes of acquisition of
citizenship provides some help.22 The Globalcit database includes information
on the different ways in which citizenship can be acquired across the world.
Since the database is organized around a comprehensive typology of modes
of acquisition of citizenship and separated by country, it is possible to isolate
the state and the mode of acquisition one is interested in. The mode of
acquisition A26 focuses on financial assets as a criterion for granting
citizenship, and this mode was selected to extract the data. By using a reliable
tool like the Globalcit Database, I have overcome this practical problem.
A third problem, this one affecting the understanding of the phenomenon,
is the scarcity of available data concerning individuals who have naturalized
ex iure pecuniae in EU countries. The Eurostat database publishes the
naturalization data provided by European national statistical agencies in a
cross-nationally way.23 However, neither the Eurostat database nor the
national agencies differentiate the data by modes of acquisition, which makes
it extremely difficult to know how many of the newly naturalized citizens were
granted citizenship on the basis of an economic transaction.24 While this lack
of information regarding the number of people naturalized on economic
grounds does not directly impede addressing the main research questions, it
limits our understanding of the impact and repercussions of the programs.

22
The database was first organized around a comprehensive typology of modes of acquisition
of citizenship, which outlined, on a systematic basis, twenty-seven ways in which citizenship
can be acquired (according to http://globalcit.eu/acquisition-citizenship/). For more
information, check https://globalcit.eu/modes-acquisition-citizenship/ (last accessed
11/11/2022).
23
Eurostat is the statistical office of the European Union and one of the most reliable statistical
sources available. See https://ec.europa.eu/eurostat/data/database?node_code=migr_immi (last
accessed 05/07/2023).
24
Scholars and reports have provided some numbers. However, due to the lack of statistics and
absence of a common definition for distinguishing among programs, these are generally
unreliable and greatly differ from each other. For example, a report from Transparency
International mentioned that in the last ten years, more than 6,000 naturalizers had acquired
citizenship through golden visas schemes (Brillaud and Martini, 2018, pp. 3 and 12), but it relies
on a newspaper article that does not disclose sources. One of the most versed and reliable
scholars in the field, Kristin Surak, provided different data in different pieces of her work. Her
estimations hence oscillated from around 10,000 globally (Fassin, 2020, pp. 29–30) to 14,000
(Surak, 2021). This shows the difficulties in ascertaining the number of CIP naturalizers.
However, there is an exception to this general lack of global, systematically reliable data about
the number of naturalized through CIPs. The Office of the Regulator of the Individual Investor
program of Malta publishes a yearly report extensively detailing information on the applicants
who apply to its particular CIP.

25
1.6. Discussion on the Phenomenon
The debate on CIPs in the EU has taken place mainly in three forums: legal-
political institutions, such as national Parliaments and the European
Parliament; the private industry; and within academia.
Chapters Two and Five refer to the debate in relevant political institutions.
Although this dissertation does not focus on the debate in private industry, it
will be mentioned briefly in Chapter Three, in the overview of the state of the
art. The academic debate is one of the main forums that I have explored in this
dissertation because the scientific debate is where the most articulated
arguments for and against the practice can be found. In Chapter Three, I look
into the academic debate to outline in detail the most relevant arguments for
and against CIPs.
Here one feature of the academic debate needs emphasis. The pool of
participants is diverse, consisting mainly of economists, political scientists,
sociologists, and a few legal scholars approaching the phenomenon primarily
from a prescriptive perspective. This has some important consequences.
Firstly, the diversity of disciplines and the different technical vocabularies
involved increases the potential for misunderstanding among participants,
who risk talking past each other. Secondly, despite the fact that CIPs are cast
as a legal phenomenon, surprisingly few participants are legal scholars or legal
theorists. Thus, this dissertation serves as a foray into legal theory to
understand the growing legal phenomenon of CIPs, providing a theoretical
legal perspective on the phenomenon and offering a method to assess it.
Finally, it is important to stress that this dissertation approaches the CIPs
from an intra-systemic legal perspective, rather than a moral one. The
normativity referenced within this work pertains to legal considerations,
aiming to exclude undesirable legal situations rather than moral ones.25 So
references to normativity should be understood in the sense of excluding a
situation that is legally—not morally—undesirable.

1.7. Research Outline

The outline of the dissertation is as follows.

Chapter Two: The Phenomenon of CIPs

25
For philosophers reading this dissertation, it is pertinent and important to clarify that the
phrase "normative character of the arguments" registers a tension within the law. The mention
of normativity, therefore, signifies that the arguments provided highlight the undesirability of
this tension, rather than invoking fundamental normative principles governing interpersonal
treatment. I express my gratitude to Professor Dr. Folke Tersman for suggesting the inclusion
of this distinction.

26
Chapter Two provides a comprehensive analysis of the phenomenon of CIPs.
The chapter begins by offering a definition of CIPs. There are two purposes
for this. On the one hand, the definition allows us to define the object of study
by accurately differentiating among CIPs from other types of programs
granting residence and migration permits in exchange for economic
contributions. On the other hand, the definition brings greater clarity to the
academic and political debate on CIPs. Also in this chapter, I present the
history of CIPs, and the motivations of both lawmakers and applicants in
establishing and applying to the programs. The chapter continues with an in-
depth examination of the legal state of CIPs in the EU in 2018. To this end, I
present the specific features of the existing EU programs in place in 2018 in
their legal context, referring to their individual policies on citizenship. The
chapter ends with a detailed description of EU institutions’ reactions to these
programs.

Chapter Three: The State of the Art

Chapter Three presents the state of the art, primarily focusing on the academic
debate surrounding CIPs. I outline and discuss what scholars have said about
CIPs, as well as their claims and arguments, most of which are against the
establishment of CIPs. As I explain, one of my findings is that the legal
theoretical attention paid to this eminently legal phenomenon has been
perplexingly scarce. The chapter also points out the missing debate and argues
in favor of developing a legal theoretical approach to the question of whether
we ought to have such programs.

Chapter Four: The Analytical Framework for the Assessment

Chapter Four presents the conceptual framework that underpins my analysis.
It consists of two tools. Firstly, I explore the distinction between the legal
notions of discretion and arbitrariness, drawing upon insights from legal
theory, legal dogmatics, and case law. Through this, I identify the requirement
of justification as a fundamental condition inherent in these perspectives. I
then distinguish between the notions of procedual and substantial
arbitrariness. Moreover, I also delve into the concept of the Rule of Law and
its relation to arbitrariness. Building upon my earlier hypothesis that
citizenship is a personal legal status with an intuitu personae character, I
present arguments against CIPs, asserting that ascribing citizenship based
primarily on economic transactions is unjustifiable and leads to substantial
arbitrariness.
Chapter Five: Analysis of Political Debates
Chapter Five explores the national political debates leading to the
establishment of the programs. I critically examine the arguments employed
in these debates, assessing their quality. I highlight instances where the
justifications for the programs were weak or absent. Importantly, I
demonstrate the lack of substantive discussion of the appropriateness of

27
granting citizenship based on economic criteria. This leads me to argue that
the 2018 programs suffered from procedural arbitrariness.

Chapter Six
In the final chapter, I summarize my findings and present the overarching
thesis of this dissertation: the arbitrary nature of CIPs in the EU and the
consequent reasons to reject them. I argue that the arbitrary nature of these
programs not only provides a strong legal basis to oppose them, but also
threatens the Rule of Law, both within national territories and in the EU as a
whole. Despite citizenship being under the domain of Member States, I
contend that the EU has a legitimate claim to take action against CIPs due to
their adverse impact on this fundamental value of the Union.

28
Chapter Two: Citizenship By Investment
Programs

This chapter presents the phenomenon of CIPs in detail, focusing on several

key aspects that contribute to a comprehensive understanding of the programs.
It is crucial first to establish a clear definition of CIPs that distinguishes them
from other types of programs. This definition will lay a foundation for
subsequent discussions and analyses. Next, I delve into the historical context
surrounding the emergence of CIPs and explore the motivations of both states
and applicants. Understanding the historical development of these programs
provides insights into the factors that have shaped their implementation and
popularity. After that, I present the interests of the states for implementing the
programs as well as the motivations of individuals seeking citizenship through
these programs.
To provide a comprehensive view of the phenomenon, the chapter
examines the specific laws that establish CIPs in each country. This analysis
involves a detailed scrutiny of the legislative frameworks governing these
programs. By closely examining the laws instituting CIPs, we can identify the
legal requirements, criteria, and conditions imposed on applicants. At the
same time, a comparative analysis of the prevailing citizenship laws in each
country helps to contextualize the CIPs within the broader framework of
national citizenship policies.
Finally, the chapter addresses EU institutions’ perspectives on CIPs. Given
that nationality policy is within the exclusive domain of Member States, EU
institutions have limited authority over these programs. However, their
concerns and reactions to CIPs provide valuable insights into the discussions
surrounding these programs at the European level. It is important to note that
while EU institutions may express political opposition to CIPs, their legal
arguments may not be sufficiently persuasive.

29
2.1. A Definition of Citizenship by Investment
Programs
CIPs fall under the banner of Immigrant Investor Programs and Policies
(IIPPs)26 which are characterized by the mode of acquisition labeled ius
pecuniae.27 These programs have the common aim of offering residence or
citizenship rights to applicants. The number of IIPPs and CIPs around the
world is vast,28 and their changing nature and diversity of forms of IIPPs and
CIPs make it challenging to determine the exact number of existing programs.
One of the main challenges in discussing these programs is the absence of
a universally accepted definition of IIPPs and CIPs. This lack of consensus
often leads to confusion in the debate, as participants may not be referring to
the same types of programs. While CIPs are commonly understood to be
programs granting citizenship in exchange for substantial financial
investments, there have been few rigorous attempts to establish a clear
understanding of the distinctive nature of CIPs. Such an understanding would
help to determine the genus proximum and the differentia specifica of these
programs.
Scholars and experts have categorized these programs differently, further
contributing to the lack of clarity. Two examples illustrate this. Firstly, authors
writing on IIPPs and CIPs categorize the programs differently: while Gamlen
et al. (2017) and Sumption and Hooper (2014) include CIPs as a particular
kind of IIPP, Kristin Surak (Surak, 2016) distinguishes CIPs, from Immigrant
Investor Visas (achieved by IIPPs), and Discretionary Economic Citizenship
as different ways to naturalize through the criterion of acquisition known as
ius pecuniae.
Secondly, for several years, there was no consensus on the number of
existing CIPs in the EU: while the scholar Triantafyllos Gouvas identified nine

26
I include as IIPP diverse sorts of programs ranging from the EB-5 Investor program granting
permanent residence to those investing in a new commercial enterprise in the US or creating or
preserving ten permanent full-time jobs for qualified US workers, to the Maltese Individual
Investor Program granting residence rights and allowing the acquisition of citizenship after one
year of residence to those investing in the country.
A preliminary analysis carried out by the Organisation for Economic Co-operation and
Development (OECD) showed, as early as 2011, that more than 100 jurisdictions offered some
sort of IIPs (OECD, 2011; OECD Global Anticorruption and Integrity Forum, 2019, p. 4).
27
Thus, the term ius pecuniae would refer to the mode of acquiring residence or citizenship in
exchange for economic contributions. Others prefer to use the term ius doni instead of ius
pecuniae. See, for instance, the work of Kälin (2016, 2019). This latter term, however, is
controversial. An argument against its use is that the common understanding of “donation”
entails giving something without obtaining anything in exchange. As for CIPs, citizenship is
acquired in exchange for the investment, thus not qualifying as a donation in the ordinary sense.
28
For a good insight into the existing programs, see Adim (2021). For an insight into the
increasing relevance of money on matters relating to migration, see de Lange et al. (2021).

30
CIPs in the EU,29 the scholar Luuk van der Baaren identified five,30 and the
scholar Jelena Džankić four.31 Private industry also differed from these
numbers regarding the existing CIPs in the EU. Henley & Partners, the largest
residence and citizenship advisory firm in the world, mentioned only three
programs on its website in 2017,32 which, in turn, differ from the three that I
have identified.33 As I shall show in this chapter, a report released in January
2019 by the European Commission shared my conclusions.34
To clarify the discussion, I propose the following definition that establishes
the essential characteristics of CIPs and sets the genus proximum and the
differentia specifica of the programs.

CIPs are laws that in a systematic way grant or create the authority to grant
citizenship in exchange for economic transactions, that waive or significantly
reduce the requirements that other naturalization applicants need to fulfill,
such as residence, language or civic tests, among others.

This definition allows us to distinguishing between the genus proximum from

the differentia specifica. The genus proximum definition of CIPs is as laws
concerning the acquisition of nationality through naturalization, for which
economic transactions are one of the criteria of acquisition, but not necessarily
the sole criterion. The differentia specifica is then given by the particular
program’s supplementary criteria for acquisition of citizenship.
Moreover, this definition allows us to pinpoint some common features of
the programs. Firstly, CIPs use citizenship as a tool to attract foreign
investment. Secondly, these programs are elaborated systematically, that is to

29
In his talk Citizenship Upon Stilts: The Case of Citizenship-by-Investment Programs in the
EU, on the 18th of May 2017 at the Higher Seminar of Philosophy of Law (Philosophy
Department, Uppsala University, Sweden).
30
In his talk Investment Migration in EU Countries on the 5th of June 2017 at the Investment
Migration Forum (Geneva, Switzerland). During the Q&A of his talk, when asked about the
definition of CIP under which he asserted that there were five CIPs in the EU, he replied that
he did not follow any particular definition.
31
In her article, Immigrant Investor Programs in the European Union (EU) (Džankić, 2018).
Yet, in her later book (2019), Džankić modified her claim and referred to only three programs,
i.e., the CIPs in Bulgaria, Cyprus, and Malta, in line with what seems to have become the
dominant conclusion.
32
https://www.henleyglobal.com/citizenship-programs/ (first accessed 07/12/2017).
33
These are, Bulgaria, Cyprus, and Malta. As far as I know, the first scholar to argue that there
were CIPs in these countries was Sergio Carrera in 2014. I argued independently for the same
conclusion in my paper Citizenship by Investment Programmes: Express Naturalisation for
Bulky Wallets. An Arbitrary de jure Stratification? (Prats, 2019) presented at the 19th Nordic
Migration Conference, the 15th–17th of August 2018.
34
The Report from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions Investor Citizenship and
Residence Schemes in the European Union, released on the 23rd of January 2019. Available at
https://ec.europa.eu/info/files/report-commission-european-parliament-council-european-
economic-and-social-committee-and-committee-regions-investor-citizenship-and-residence-
schemes-european-union_en (last accessed 05/07/2023).

31
say, the attribution of citizenship is done according to some pre-established
procedure following certain formal requirements. Thirdly, the programs move
the naturalization process onto a fast track by waiving or significantly
reducing requirements that other naturalization applicants must fulfill.35
Although, in some cases, the programs cut any other requirements, they
sometimes retain the mandatory requirement for a reduced period of residence
in the country in an attempt to maintain a “genuine link” between the applicant
and the state of naturalization.36
Lastly, by applying this definition, it becomes clear that the distinction
between IIPPs and CIPs lies in the fact that IIPPs grant visas or residence
permits with the potential for eventual naturalization, whereas CIPs focus
primarily on directly granting citizenship by bypassing or reducing standard
naturalization requirements (like a period of residence, civic and language
tests, etc.). That is to say, while IIPPs open a route to acquiring citizenship,
the particular programs called CIPs bring the route to an endpoint by granting
status civitatis.
Applying this definition, it is still unclear how many CIPs are in force in
the world. It is also challenging to scrutinize due to the vast number of legal
measures involved. Reducing the geographical scope of inquiry to the
European Union results in a more feasible and interesting task. This is because
EU Member State programs bestow European citizenship along with national

35
Some examples of waiving or reducing requirements in similar policies can be found in the
Maltese Citizenship Act. While Article 10(1)(b) establishes that “during the six years
immediately preceding the said period of twelve months the applicant has resided in Malta for
periods amounting in the aggregate to not less than four years,” the Individual Investor program
cuts the residence requirement to 12 months, a period that can be accomplished not by the date
of the application, but by the date of the issuing of the certificate of naturalization (Maltese
Citizenship Act, cap.188, Individual Investor Program, Article 7(12)).
36
Since the Nottebohm case (Liechtenstein v. Guatemala) Judgment of the International Court
of Justice of the 6th of April 1955, I.C.J. Reports 1955, some legal scholars have argued that in
international law, the bestowing of nationality is entitled to recognition by other states if it
represents a genuine connection or “genuine link” between the individual and the state granting
its nationality. This case has been interpreted by some legal scholars and practitioners as the
existence of a requirement for a genuine link between the naturalized person and the state when
granting citizenship. I shall investigate the so called “genuine link principle” and explain the
details of the Nottebohm case in Chapter Three. An overview of the case is available at at
https://www.icj-cij.org/en/case/18 (last accessed 06/07/2023). Regarding the CIPs, as I explain
in detail later, the case of Malta was paradigmatic in its attempt to fulfill the “genuine link”
requirement through the imposition of a residence period. When the program was designed back
in 2013, there was no residence requirement. It was only after a debate in the European
Parliament (on the 15th of January 2014), where several concerns related to the lack of a
“genuine link” were expressed, that Malta amended its regulations under the Maltese
Citizenship Act (L.N. 47 of 4th of February 2014), ensuring that residence of at least 12 months
was a pre-condition of naturalization. It is necessary to say that the criterion of residence to
prove a “genuine link” is not uncontroversial itself since residence is not well defined, requiring
further and extensive attention by academia (I thank Professor René de Groot for bringing my
attention to this point). Moreover, as I explain in Chapter Three, the existence of a “genuine
link” requirement in international law has been highly questioned by some scholars.

32
citizenship,37 entailing access to supranational and transnational rights, and
imposing some duties on the other EU Member States. Applying my definition
to EU Member States’ policies allowed me to identify the existing CIPs,
concluding that in the beginning of 2018, there were clearly CIPs in Bulgaria,
Cyprus, and Malta.38 Other policies for acquiring citizenship by investment
such as those existing in Austria, Romania, Slovakia, and Slovenia would not
be considered CIPs within my definition.39

2.2. Brief History of Citizenship by Investment

Programs
The recent history of CIPs can be traced back to the 1980s.40 According to
Džankić:

St. Kitts and Nevis, a federation of two islands in the West Indies, runs the
oldest program for granting citizenship on the grounds of investment. The
program was established by the adoption of the Constitution and Citizenship

37
On European citizenship, see footnote 10. Shaw (2020, p. 234) has defined European
citizenship as paradoxical in nature for being formally constitutionalized in the treaties of the
Union but dependent upon national citizenship. Shaw sees the faith of the core status of
Europeans as tied to the trajectory of EU integration and to the changing of perspectives about
the character of citizenship as a membership status.
38
To reach this conclusion, I based my investigation on the Global Database on Modes of
Acquisition of Citizenship, which includes information on the different ways citizenship can be
acquired across the world. By using this database, one concludes that there are seven countries
in Europe granting citizenship on the grounds of financial assets: Austria, Bulgaria, Cyprus,
Malta, Romania, Slovakia, and Slovenia. An analysis of the legislation of these countries proves
that by applying the above-mentioned definition, in 2018, three countries were granting
citizenship on the grounds of financial assets in a systematic way (not just by individual
discretional decisions), those were, Bulgaria, Malta, and Cyprus. This result was reached by
using the following legislation: Austria (Articles 10 and 11 of the Federal Law concerning the
Austrian Nationality, Nationality Act 1985); Bulgaria (Articles 12, 14 of the Law for Bulgaria
Citizenship; Article 25 of the Foreigners in The Republic of Bulgaria Act); Cyprus (Article 111
of The Civil Registry Law of 2002; the decisions of the Council of Ministers 24/5/2013 and
19/3/2014); Malta (Article 10 of The Maltese Citizenship Act (CAP.188); L.N 47 of 2014);
Romania (Article 8 of The Act on Romanian citizenship); Slovakia (Article 7 of the Act on
Nationality of the Slovak Republic; Act n.404/2011 on Residence of Aliens and Amendment
and Supplementation of Certain acts); and Slovenia (Articles 10 and 13 of The Citizenship of
The Republic of Slovenia Act).
39
I exclude these because either they do not significantly reduce the requirements for other
naturalization applicants—as with Romania—or the systematization that the definition of a
program requires does not appear in their legislation.
40
For a view of cases of exchange of citizenship for money in the ancient world, see Džankić
(2019, pp. 25–6). However, it is necessary to mention that such cases differ greatly from the
current programs in many respects. The most important of these is that those cases precede the
existence of constitutionalized states. A second relevant difference is the lack of legal
systematization in their establishment at that time, unlike with CIPs.

33
 Act in 1984,41 one year after the islands were granted independence from the
United Kingdom (Džankić, 2012, p. 9).

Saint Kitts was pushed to establish the program granting citizenship on the
grounds of investment by the islands’ economic downfall at the time of
independence, followed by the lack of competitiveness in the global
agricultural market and the falling prices of sugar, the island’s main industry
(Džankić, 2012, p. 9).
The Saint Kitts and Nevis program offered two pathways. The first
involved making a 400,000 USD investment in a pre-approved real estate
project, with the restriction that the property could not be resold for the next
five years. The second pathway required a lump sum donation of 250,000
USD to the Sugar Industry Diversification Foundation (SIDF) for a single
applicant.42
It is worth noting that the St. Kitts and Nevis program had a particular
feature not shared with all other CIPs. Initially, it did not grant voting rights
directly to the newly naturalized citizens: “The 2007 amendments to the
National Assembly Election Act stipulate that suffrage is granted to those
citizens of St. Kitts and Nevis who have been ordinarily resident in one of the
islands for a ‘continuous period of at least twelve months immediately before
the registration date’ (Art. 42)” (Džankić, 2012, p. 10).
According to the Global Investor Immigration Council (GIIC),43 the
demand for CIPs continued during the 1980s and 1990s—the Saint Kitts and
Nevis CIP was followed by programs in Dominica in 1990 and Grenada in
1996. However, in the late 1990s to mid-2000s, there was a lull in the
popularity of CIPs, largely due to the negative image created by poorly
planned and mismanaged programs that ultimately failed. During this time,
other IIPs granting residence gained popularity, particularly in the United
States and the United Kingdom.
In the last decade, there has been a resurgence of interest in IIPPs,44 driven
mainly by the involvement of private actors.45 Among the six new programs
to emerge during this period (St. Kitts and Nevis, Dominica, Grenada, Antigua

41
This is controversial; while Džankić asserts that the first program was the one of Saint Kitts
and Nevis, created in 1984 by adopting the Constitution and Citizenship Act, Kristin Surak
maintains that what was established in 1984 was a discretionary economic citizenship channel.
Surak claims that the official CIP was not established until 2006. Again, the problem is a lack
of definitions of CIPs, as well as no explanation of what makes the difference between the CIP
in question and the “discretionary economic citizenship channel.”
42
http://www.ciu.gov.kn/investment-options/ (first accessed 05/12/2017).
43
https://www.giic.uk/investor-immigration/history/ (last accessed 05/07/2023).
44
According to Nesheim (2019), the industry has expanded extremely rapidly: as of February
2019, it was estimated to be at US$ 21,4 billion, i.e., it tripled since 2011.
45
To which must be added the high demand among the ultra-rich. The KnightFrank report
(2018) analyzing the interests and trends among the wealthy showed that “34% of individuals
with at least $30 million in assets hold more than one citizenship, and a further 29% are thinking
of acquiring an additional one” (quoted in Surak, 2021, p. 7).

34
and Barbuda, Cyprus and Malta), Henley & Partners, a consultancy firm, has
designed three: Antigua and Barbuda, St. Kitts and Nevis, and Malta.46
Henley & Partners claims to have created the concept of “residence and
citizenship planning” in the 1990s. The company also prides itself for being
the only firm to have advised many different governments on projects ranging
from strategic consulting to the design, implementation, and operation of
investment-related residence and citizenship programs, as well as on
citizenship law, immigration law, and visa policy.
It is important to note that Henley & Partners is not the only player in the
field, as other global financial advisory firms,47 lobbies,48 and private actors49
are involved in CIPs, exerting influence on public opinion and the academic
debate.50
Private actors have significant influence in elaborating and establishing
CIPs, and their power and impact on policy outcomes are often unknown to
the general public. Kalm (2022, p. 74) describes the increased role of private
companies when it comes to facilitating and implementing instrumental
citizenship through intermediary roles as one of the relevant novelties of the
current scenario of CIPs. In Kalm’s brilliant work describing the positions and
roles of these firms, she identifies that they play a double role as intermediary:

46
https://www.henleyglobal.com/ (last accessed 05/07/2023).
47
These include: Arton Capital http://www.artoncapital.com/arton-capital/; Bayat legal
services http://www.bayatgroup.com/; Confederation Partners
http://confederationpartners.com/; and CS global partners https://csglobalpartners.com/. The
captivating book The Cosmopolites: The Coming of the Global Citizen (Abrahamian, 2015)
provides a good journalistic insight into these firms. A good review of the book is provided by
Surak (2016).
48
Like the GIIC http://www.giic.uk/ or the Investment Migration Council
http://investmentmigration.org/, which defines itself as an association. The Investment
Migration Insider (IMI) provides a different sort of association, defining itself as “the
investment migration industry's newspaper of reference and its leading professional platform.”
IMI helps professionals in investment migration to stay informed, connect with each other and,
in their words, make more money. See https://www.imidaily.com/ (last accessed 07/09/2022).
49
It is worth mentioning Roger Ver, the entrepreneur who launched Passports for Bitcoin. Ver’s
service helps clients to use bitcoin to buy St. Kitts and Nevis citizenship. Most of his customers
are techie-libertarians who, like himself, seek somewhere to escape the US tax code. Ver
believes in changing citizenships at will, due to his view of governments as oppressive and
borders as meaningless: “his personal plan is to undermine governments who try to control
people and their lives” (Abrahamian, 2014, pp. 15–16). See also (Abrahamian, 2015).
50
As an example, the Investment Migration Council funds the publication of papers and
academic workshops where the industry openly gathers with academic researchers. An example
of one of these workshops was the Investment Migration Forum, which took place on the 5th
June 2017 in Geneva.

35
as regulatory intermediaries51 and as brokers,52 which allows them to amass a
“considerable power vis-à-vis state actors.” (ibid, b. 68)53
While governments have the capacity to terminate contracts with these
firms, doing so may result in compensation payments. For example, paragraph
14.7.2 of Malta’s ten-year concession contract states that in the case of early
termination, “the Government shall be liable for and shall pay to the
Concessionaire the aggregate of all losses that have been or will be […] a
direct result of the termination of this Contract” (Government of Malta 2013;
Farrugia, 2020; Kalm, 2022, p. 80). Knowing the specifics of the contract and
the penalties for early termination casts in a different light the limited attention
paid by the government to the negative view of the program expressed by both
the Maltese public opinion and the EU.

2.3. Motivations
It is crucial, for the purpose of this dissertation of comprehending the
phenomenon of CIPs, to understand the aims and motivations of both
lawmakers and applicants in the context of CIPs. Moreover, examining these
motivations and aligning them with empirical findings will allow me to
scrutinize the claims and arguments put forth by scholars in the current debate
on CIPs. The diversity of motivations can potentially weaken or contradict
certain assertions made in the existing discourse.

2.3.1. Lawmakers’ Motivations

Despite the diversity among criteria for acquisition of citizenship and its
associated rights and obligations, most states (lawmakers) implementing CIPs
would have similar aims in introducing the programs. The most obvious and
common reason for establishing CIPs is to attract wealth. In Chapter Five, I
will scrutinize in detail the political debates and the reasons provided for
establishing the existing programs in 2018 in the EU, and this will confirm
that attracting wealth is the main—in some cases the only—motivation of

51
In this role, the firms advise governments and/or assist them in implementing the programs
(Kalm, 2022, p. 77).
52
Kalm thinks these companies act as brokers, as they establish “connections between
individuals and governments and then withdraw.” In her view, in this role, they exercise
different forms of power (Kalm, 2022, p. 86).
53
As an example of this power, Kalm mentions the occasion when Prime Minister Joseph
Muscat missed out on a discussion in the European Parliament about the Rule of Law in Malta
because he was attending a Henley & Partners event in Hong Kong (Bagnoli, 2018; Kalm, 2022,
p. 81). Kalm explains that this was the consequence of the contract between Henley & Partners
and Malta which specifies that the Government must send high-ranking representatives to speak
at industry events and conferences “whenever requested by the Concessionaire” (Government
of Malta 2013, para. 7.4).

36
lawmakers for establishing the programs. This finding aligns with the view of
most scholars, who identify wealth attraction as the main state interest in
establishing the programs.54
The public justification for CIPs often revolves around the notion that the
wealth they generate will have a positive impact on the socioeconomic
development of the state. However, as they stand, the ability of the programs
to achieve this goal remains uncertain. This is especially the case because, as
the report by Transparency International shows, “none of the Member States
analyzed in the report have performed an impact assessment of the schemes,
whose economic benefits remain largely undetermined in any official
capacity” (Brillaud and Martini, 2018, p. 16).
Moreover, there is a general mistrust regarding the programs’ abilities to
achieve their stated economic objectives due to the manner in which they are
built.55 Brillaud and Martini express skepticism about the investment decisions
made through these programs, particularly noting that the money is often
invested in passive sectors of the economy, such as real estate, which may
generate limited benefits in terms of employment, innovation, and industrial
development (Brillaud and Martini, 2018, p. 16).56 Additionally, the lack of
publicly available information about investment decision-making raises
concerns about transparency and accountability (ibid, p. 34).
Furthermore, the nature of the investments required in CIPs introduces a
risk of volatility in the inflows of capital. This exposes countries relying on
these programs for their economic well-being to sudden-stop risks (OECD
Global Anticorruption and Integrity Forum, 2019, p. 6). Small economies, in
particular, can be highly vulnerable to such risks, as highlighted by an IMF
report (Xu et al., 2015).
Despite wealth generation being states’ main motivation for establishing
CIPs, the aforementioned factors combine to raise doubts about the ability of
CIPs to fulfill their stated economic objectives effectively. The lack of impact
assessments, concerns about investment allocation and transparency, and the
risk of volatile inflows all contribute to the skepticism surrounding the
economic benefits and long-term sustainability of CIPs as a wealth attraction
strategy.

54
Some authors regard cultivating engagement as a secondary motivation (Gamlen et al., 2017,
p. 7).
55
For a deep understanding of this problematic, see for instance, Shachar’s contribution to her
edited volume (Shachar et al., 2017).
56
Not only can the investment be made in real estate, but it can sometimes be the mere renting
of a property. According to Transparency International-Rusia, of the 143 investors who had
received Maltese passports under the investment scheme of Malta as of April 2016, as many as
116 signed a five-year lease contract. Only 27 purchased properties (Dobrovolskaya et al.,
2017).

37
2.3.2. Applicants’ Motivations
This subsection explores the motivations of applicants to naturalize through
CIPs. It is important to start with a caveat: the amount of research on the
motivations of applicants is rather limited.57 Moreover, the diversity of both
applicants and programs means that the motivations may differ greatly
between applicants. Furthermore, these reasons may differ slightly according
to the type of CIP concerned, either in a developed country or in a peripheral
one. Yet, despite the remarkably diverse pool of applicants who choose to
naturalize through economic transactions, it is possible to isolate some
frequently shared motivations. To complete this subsection, I also first briefly
introduce the profile of the typical CIP applicant.
According to Surak’s highly informative research, the majority of CIP
applicants are wealthy or ultra-wealthy individuals from countries such as
China, the Middle East, and Russia (Surak, 2021a, 2021b).58 The St. Kitts
program, which granted visa-free access to the EU, was mostly used by
“Russian oligarchs, Egyptian businessmen and Chinese nouveaux riches”
(Abrahamian, 2015. See also Surak, 2016).
Surak’s research shows that the nationalities of origin feature when it
comes to CIPs in the EU, but the proportions vary: Russians account for over
60% of applicants to the Cypriot CIP and for around half of those to the
Maltese program. In both cases, the Middle East takes the second place
(Surak, 2021, p. 10). Yet, it is important to highlight that the participants are
a relatively small proportion of the overall number of naturalizations each year
(Surak, 2021).59
57
The sociologist Kristin Surak is probably the scholar who has researched this most
extensively, mostly by interviewing people from the industry as well as applicants: over three
years, she spoke with more than 350 people involved on the selling of CIPs (Surak, 2021, p.
15).
58
See also (Xu et al., 2015).
59
According to Surak, worldwide, the number of investor citizens is rather small; around 10,000
individuals naturalize through CIPs each year (Fassin, 2020, pp. 29–30). These numbers may
quickly change in the near future. According to the Attitude Surveys of Knight Frank, globally,
nearly a quarter of ultra-high-net-worth-individuals (UHNWIs) are planning to apply for a
second passport, which represents a remarkable 50% growth in a year (Knight Frank, 2021, pp.
5 and 18). The total numbers will most likely increase due to two factors. The first is the increase
of the global population of UHNWIs and high-net-worth-individuals, which is predicted to
grow by 27% and 41%, respectively. A large proportion of them come from Asia and
particularly from countries with limited access passports (Knight Frank, 2021, p. 16). Secondly,
the post-covid change in working habits, such as flexibility and mobility in working patterns,
will most likely increase the demand (Knight Frank, 2021, p. 18). Scholars have also speculated
about the effect of the Covid pandemic on the programs. While Spiro agrees with the
aforementioned report, viewing the Covid pandemic as a push to increase the acceptance of the
programs and the demand for them (Spiro, 2020), Surak at first took a more skeptical approach,
arguing that probably the number of residence by investment programs (especially in developed
countries) would likely grow at the expense of CIPs (mainly in the periphery) (Surak, 2020). In
later works, however, she seemed to be in agreement with Spiro and the report, pointing out the
global service providers’ role in spreading CIPs to new states (Surak, 2021, p. 29). Lastly,
according to Surak, there may be a growth not only in the demand, but also in the number of

38
 Besides sharing an opulent status, often being among the elites in their
home country, most of the applicants are motivated to apply to CIPs for some
of the following reasons.
A typical motivation is the desire to compensate for some deficits of the
original citizenship (Harpaz and Mateos, 2019). These deficits can take
various forms, for instance, limited visa-free access to other countries, which
not only complicates leisure travel but also impairs business opportunities that
require frequent border crossings. Naturalization may also compensate for
reduced educational opportunities for the applicants’ children in their
countries of nationality at birth. Likewise, a second citizenship can help to
compensate for other social deficiencies of origin, such as deficiencies in
terms of security, health care, etc.
A second type of typical sort of motivation to apply for CIPs is to have the
ability to maneuver within “a world of state competition and unpredictable
rulers” (Surak, 2021). Applicants moved by this kind of motivation are not
trying to compensate for the failures of the citizenship they were born with but
trying to get the best of a system allowing multiple citizenships. In Surak’s
words, for this sort of applicants, “it’s options, not migration. They want a
real, unlimited option” (Surak, 2021, p. 12) that allows them to thrive in the
current world.
CIPs can be used in this regard in several ways. A typical tactic is to use
the CIP to naturalize for purposes of allowing tax and fiscal benefits
(Abrahamian, 2015, p. 73), either in the country granting citizenship or in third
countries.60 Moreover, CIPs entail an additional, faster and secure way to
reduce risk and increase international flexibility for globally mobile
entrepreneurs and investors seeking to reduce their personal exposure and
investment portfolio.
CIPs can also facilitate access to more interesting job markets.61 In the case
of CIPs in the EU, or within the Schengen area, the benefits acquired either to
compensate or to maneuver are obviously more extensive, due to the
automatic acquisition of EU citizenship and the concomitant ability to reside
and work in other member states on the same conditions and benefits as
nationals of these states.62

passports held by the same ultra-rich person. The “multi-mobiles” or “serial investor migrants”
are ultra-rich people who “acquire both CIPs and RIPs options for their mobility portfolio”
(Surak, 2022, p. 14). She estimates that there are probably around 100 of these serial investor
migrants.
60
According to Surak, this is a relevant reason, particularly for those applying to peripheral
countries (Surak, 2021).
61
Surak’s empirical research identifies mobility as the first motivation for applying to CIPs,
followed by business advantages and tax benefits (Surak, 2021).
62
Article 18 of the TFEU (ex Article 12 of the Treaty Establishing the European Community,
TEC) establishes the prohibition of discriminating on grounds of citizenship by indicating
“Within the scope of application of the Treaties, and without prejudice to any special provisions
contained therein, any discrimination on grounds of nationality shall be prohibited.”

39
 CIPs can also be seen as an insurance policy (Kälin, 2016) against political,
economic, and climate change-related risks.63 This typically motivates citizens
of countries with an uncertain future, who wish to ensure the option of
relocating if necessary because of political turmoil, economic crisis, or even
climate-related reasons (Gamlen et al., 2017, pp. 11–12).64 Moreover, CIPs are
useful for those who desire the opportunity to retire in a safe state at any time
in the future.
In addition, CIPs can serve as insurance against imprisonment in cases
where the naturalizer faces criminal charges. This was the case for Thailand’s
former prime minister, Thaksin Shinawatra, who acquired Nicaraguan and
Montenegrin passports as an insurance policy against imprisonment
(Abrahamian, 2015; Surak, 2016, p. 4).
CIPs can even act as a form of life insurance for individuals facing civilian
war mobilization—as with Russia following the invasion of Ukraine—65or
those targeted by a regime for political reasons, such as Pavel Durov, the
creator of Telegram, a Russian citizen who fled Russia through the Saint Kitts
and Nevis CIP.66
Status is another important motivation, especially among the ultra-rich.
Acquiring citizenship in a developed and stable country is seen as a sign of
success, increasing the holder's status similarly to acquiring luxury items.
Lastly, CIPs provide a way to escape from pollution. This is a reason which
often motivates Chinese businessmen to invest in CIPs in order to secure a
healthy future for their families (Frank, 2011).
The motivations presented above are the most frequent among CIP
applicants. Some rarer motivations are also worth mentioning. Firstly, CIPs
may prove useful for those who wish to be able to renounce their current
citizenship without risking statelessness. Secondly, and relatedly, CIPs allow
one to acquire citizenship by naturalization in one’s country of residence when
being rendered stateless by birth or through accidents of history.67

63
According to Surak’s empirical research, “distrust of the government frequently emerged as
a motive for future planning, with autocratic leaders a great source of uncertainty and anxiety”
(Surak, 2021, p. 13).
64
The industry openly recognizes this as a main motivation for applying to CIPs: “instability
attracts people to our business, it is a driver for it” (originally in Wilcox, 2017; quoted in Kalm,
2020).
65
Referring to the partial mobilization of the population announced by Vladimir Putin on the
21st of September 2022. See https://www.aljazeera.com/news/2022/9/21/russians-react-to-
putins-partial-mobilisation-plan (last accessed 05/07/2023).
66
See https://www.equaltimes.org/commodification-of-eu-
citizenship?lang=en#.Yyx9ZxNBxQI and
https://www.forbes.com/sites/chasewithorn/2022/04/15/these-billionaires-with-ties-to-russia-
need-you-to-know-they-are-not-russian/?sh=2d9c5d8845ab (last accessed 05/07/2023).
67
One example of an “accident of history” that turned thousands of people stateless pertains the
so-called “erased” or izbrisani in Slovenia. Patricia Mindus provides a good insight into the
case of the “erased,” explaining that “as Slovenia gained independence, those who were not
‘ethnic Slovenians’ and had not managed to request Slovenian citizenship within six months,
ended up on a ‘blacklist’; or better, they were not listed in the official records of residents of

40
 Along the same lines, Surak points out that “in some cases, the additional
passport meant the possibility to stay, rather than move” (Surak, 2021). This
applies to cases in which local consulates are not renewing passports, like
Venezuela and Syria. In these cases, an additional document “provides an
alternative house for the permits required to legally reside abroad” (Surak,
2021, p. 16).
Moreover, another less common motivation is to fast-track the immigration
process in the applicant’s country of residence (Gamlen et al., 2017, pp. 11–
12). Experts share the view that this is not a major motivation in comparison
to the prevailing motivations mentioned above since, typically, CIPs
applicants do not live in the country in which they are applying for citizenship.
Sentimental reasons can also be a relatively uncommon motivation for
pursuing a particular citizenship through a CIP. That could apply to a
descendent of a family with a certain origin who lost the opportunity to acquire
citizenship through family connection but who nonetheless aspires to be
recognized again as a member of the nation of their ancestors.
I must highlight that despite the diversity of reasons and motivations for
applying through a CIP, most of them reflect a strategic or instrumentalist
approach to citizenship. Here, the interest in acquiring a particular citizenship
is driven by concrete benefits or interests rather than by a sense of
commonality or belonging.
These motivations, whether combined or individual, drive wealthy
individuals to invest in CIPs. As shown below, most of the arguments that
have been made to reject the establishment of CIPs tend to avoid
distinguishing between the programs, or between lawmakers’ and applicants’
motivations. Thus, as I will highlight, it is common to find arguments
opposing CIPs because they represent a form of “corruption of democracy”
(Bauböck, 2014, pp. 19–21) and/or a way for the rich to reduce taxes. These
arguments are generalizing, sweeping, and indiscriminate, and have restricted
applicability considering the particular conditions of the programs and
motivations of the applicants.

2.4. Citizenship by Investment Programs in the

European Union
The purpose of this section is to provide an in-depth understanding of the
phenomenon of the CIPs in the EU, as they stood in 2018. As already

The Republic of Slovenia. As some 171 thousand people born in other parts of ex-Yugoslavia
applied for citizenship, on the 26th of February 1992, tens of thousands were deleted from those
official records. Having not renewed their permanent or temporary resident status, many were
also unable to apply for naturalization in due time because of socially and/or economically
difficult positions” (Mindus, 2009, p. 30; 2017: pp. 68–69). For more on this topic, see also
Žgur (2017).

41
mentioned, by applying my definition, there were programs in Bulgaria,
Cyprus, and Malta, in 2018.
A comprehensive understanding of the object at hand requires us to
navigate in different waters. The analysis begins with an examination of the
socio-political context in which these CIPs were established within the EU.
After that, I examine the legal notion of citizenship adopted by each of the
countries offering CIPs. This involves studying the legal regulations
governing the acquisition of citizenship in each country. Additionally, I
explore the specific requirements of each CIP, highlighting their unique
features.
The aim is to gain a comprehensive understanding of the legal concept of
citizenship in each country and assess whether the introduction of CIPs aligns
with or disrupts the country's legal understanding of citizenship, potentially
creating inconsistencies within the respective legal systems.

2.4.1. Particularities of Citizenship by Investment Programs in

the European Union: Some Context
In order to fully grasp the implications of EU Member States choosing to grant
national and EU citizenship through CIPs, it is important to consider the
entitlements associated with EU citizenship, the socio-political realities of EU
Member States, and the external benefits of holding EU citizenship.
Firstly, it should be noted that acquiring Bulgarian, Cypriot, or Maltese
nationality automatically confers EU citizenship, which grants access to social
and political benefits provided by all EU Member States without any
discriminatory treatment based on citizenship or the mode of acquisition.68
Therefore, when a Member State introduces a new ground for naturalization
based on economic investment, this potentially imposes obligations on other
Member States. This puts into question the appropriateness of keeping
citizenship a domaine réservé at the national level.69
Another issue concerning the establishment of CIPs in the EU context is
that, based on the implementation of the programs that existed in 2018, only
the state introducing the CIP directly benefits from it. This is because most
CIPs require contributions or investments in national bonds, real estate, or

68
According to Article 18 TFEU (ex Article 12 TEC). See footnote 62.
69
On citizenship as a domaine réservé, Smits (2014) locates its historical origins in the decision
on the nationality decrees in Tunis and Morocco by the Permanent Court of International Justice
in 1923. The Court concluded that questions of nationality “belong according to the current
status of international law” to the "domaine réservé" of national states. Regarding its
understanding in the EU, the principle of autonomy in matters of nationality is repeated in
Article 3 of the European Convention on nationality (1997) and is also recognized by the Court
of Justice of the EU (CJEU) in the decision Micheletti (case C-369/90 Micheletti, ECLI:
EU:C:1992:295). An insight into citizenship as a domaine réservé of the EU Member States
can be found in (among others) Goldoni and Mindus (2012), Faist (2016), Mindus (2017, pp.
77–101) and Sarmiento (2020).

42
companies within the country. As a result, other Member States receive no
direct benefits from these programs but may bear potential burdens.
Furthermore, despite the EU Member States generally being among the
most generous in terms of social benefits, there are significant internal
differences among them. This means that investors can strategically choose
the most cost-effective CIP within the EU while enjoying the high social
benefits provided by other Member States. Consequently, the other Member
States do not benefit from the investment made through the CIP, yet they are
obligated to grant the same conditions and benefits to all EU citizens
regardless how their citizenship was obtained.
Secondly, CIPs in the EU are importantly distinctive due to the privileged
socio-political and economic conditions in the states to which the programs
are opening the doors. The welfare benefits and social protection offered by
EU Member States count among the highest in the world. According to the
statistics on social protection of the International Labor Organization
(ILOSTAT)70 on a global comparison, EU Member States are among the
countries providing the widest social protection.
Likewise, EU Member States occupy most of the highest positions in social
spending according to OECD data.71 Those benefits often come in the form of
completely free or at a low-cost educational and health systems, among other
social benefits, which are usually linked either to citizenship or residence,
easily attainable for most EU citizens.
Concerning politics, EU Member States also rank highly in terms of
political rights and civil liberties, democracy, and transparency. The statistics
and annual global report on political rights and civil liberties of the Freedom
House categorize almost all EU Member States—including Bulgaria, Cyprus,
and Malta—as free, and as respectful of political rights and civil liberties.72
The EIU Democracy Index 2019,73 provides a snapshot of the state of world
democracy in 165 independent states and two territories, using a scale of zero
to ten based on sixty indicators. All EU Member States were scored seven or
higher for democracy.
Furthermore, the Index of Transparency International,74 which ranks 180
countries and territories by their perceived levels of public sector corruption,
placed Western Europe and the European Union as the least corrupted region
in the world since 2017.

70
Available at https://ilostat.ilo.org/topics/social-protection/ (first accessed 15/04/2020).
71
Available at https://data.oecd.org/socialexp/social-spending.htm (first accessed 15/04/2020).
72
Available at https://freedomhouse.org/explore-the-map?type=fiw&year=2020. For more on
the methodology used, see
https://freedomhouse.org/reports/freedom-world/freedom-world-research-methodology
(last accessed 14/11/2022).
73
Available at https://infographics.economist.com/2018/DemocracyIndex/ (last accessed
14/11/2022).
74
Available at https://www.transparency.org/news/feature/cpi_2018_global_analysis (last
accessed 14/11/2022).

43
 Regarding economics, EU Member States have strong economies and also
appear at the top of most economic indicators. An example is The Global
Competitiveness Report for 2019,75 by the World Economic Forum, scoring
Europe as the top region in its evaluation of business dynamism, innovation
capability, macroeconomic stability, and skills.76
Further, concerning the environment in the EU,77 the Air Pollution: Real-
time Air Quality Index (AQI) rates the air of most European cities as good or
moderately good, while the cities in Russia and China, two of the countries
with the greatest number of EU CIP investors, have air quality frequently rated
as unhealthy or very unhealthy.78
The Climate Change Performance Index,79 an independent monitoring tool
to assess the countries’ performance of the climate protection regarding the
Paris Agreement’s implementation phase, also provides telling data. EU
countries occupy the highest positions according to most indicators, as well as
in the overall results of CCPI 2021.80
Another view, provided by the State of Global Air 2019 Report, which
evaluates air quality worldwide,81 locates most EU countries among those with
the world’s lowest death rate attributable to air pollution in the world for the
year 2017.82
Thirdly, EU Member States’ passports allow visa-free travel to many
countries across the world. As we have seen, this is commonly one of the main

75
Available at
http://www3.weforum.org/docs/WEF_TheGlobalCompetitivenessReport2019.pdf (last
accessed 05/07/2023).
76
Ibid, page 4.
77
Remember that one of the motivations for some applicants to apply to CIPs is to allow them
to escape pollution, an appealing reason particularly for Chinese businessmen, according to
Frank (2011) (see section 2.3.2. Applicants’ Motivations). This reason combined with China’s
large population maybe explains why Chinese people are the largest group of demand for
residence by investment programs in the EU. According to Surak, “of the total applications
approved in the EU, China accounts for the greatest demand, with nearly 50%” (Surak, 2022,
p. 12).
78
Find the Index at https://aqicn.org/map/world/ (last accessed 05/07/2023).
79
The CCPI Index evaluates and compares, on the basis of standardized criteria, the climate
protection performance of 57 countries and of the European Union (EU), which are together
responsible for more than 90% of global greenhouse gas (GHG) emissions. The report of the
Index is available at https://ccpi.org/ (first accessed 21/02/2021).
80
The indicators are GHG Emissions, Renewable Energy, Energy Use, and Climate Policy. The
report is available at https://ccpi.org/download/the-climate-change-performance-index-2021/
(last accessed 05/07/2023).
81
The report focuses on particles capable of penetrating deep into the respiratory tract and
causing severe health damage. According to the report, air pollution was the 5th highest
mortality risk factor in 2017 globally. The report is available at
https://www.stateofglobalair.org/sites/default/files/soga_2019_report.pdf (last accessed
05/07/2023).
82
See page 12. The World Health Organization provides further interesting data along the
lines of the data already mentioned, available at
https://www.who.int/data/gho/data/themes/topics/topic-details/GHO/ambient-air-pollution
(last accessed 05/07/2023).

44
reasons to invest in CIPs, since, very often, applicants are businesspeople who
see their business options as limited by their passport of origin. What has been
called the “external” dimension of citizenship83 is of great significance for
potential investor citizens.
EU passports that are accessible by investment (Bulgarian, Cypriot, and
Maltese passports) grant visa-free travel to 173, 176, and 185 countries,
respectively.84 In contrast, Chinese passports—the original passports of one of
the most frequent applicants for CIPs in the EU—allow visa-free travel to just
80 countries.85
In summary, the CIPs in the EU do not only bestow national citizenship but
also European citizenship, granting access to supranational rights in some of
the most generous countries in the world. These countries offer social benefits,
political stability, economic strength, and a clean environment. Furthermore,
the passports from EU Member States having CIPs in 2018 enable visa-free
travel to a wide range of countries globally, enhancing the external dimension
of citizenship for potential investor citizens.

2.4.2. Programs in the European Union

In order to gain a comprehensive understanding of the CIPs in the EU within
the national legal systems, it is necessary to examine the specific
characteristics of the legal model of citizenship in Bulgaria, Cyprus, and
Malta. This involves outlining the legal foundations for acquiring citizenship
in each country and closely examining the requirements imposed on CIP
applicants, comparing them to requirements for other naturalization processes
in the same countries.
The legal foundations for acquiring citizenship in each country are based
on reports from the EUDO Citizenship Observatory, as well as the citizenship
acts and laws of the respective countries. Outlining these legal frameworks
makes it evident that the three countries generally focus primarily on the
personal characteristics and personal particularities of the individual seeking
naturalization, with the exception of CIPs. This suggests that these countries
adopt a notion of citizenship that can be described as having an intuitu
personae character, meaning that the acquisition of citizenship is based on
personal characteristics.86 However, their CIPs deviate from this notion of
citizenship.

83
On the external dimension of citizenship, see, among others, Harpaz and Mateos (2018) and
Džankić (2019).
84
According to the Henley Passport Index, available at
https://en.wikipedia.org/wiki/Henley_Passport_Index (first accessed 21/4/2022). There are,
however, other indexes, such as the https://www.passportindex.org/ and
https://visaindex.com/ (last accessed 11/11/2022).
85
Ibid.
86
On what I mean by having an intuitu personae character, see footnote 17.

45
2.4.2.1. Bulgaria
2.4.2.1.1 Legal Notion of Citizenship and General Regulations
According to the EUDO report on Bulgaria by Daniel Smilov and Elena
Jileva, “the current Bulgarian legal regulations regarding citizenship are based
on the provisions of the 1991 Constitution” (Smilov and Jileva, 2013, p. 9)
and by the Law for the Bulgarian Citizenship of 1998.87
Regarding the constitutional regulations concerning citizenship, the report
points out two facts. Firstly, citizenship is regulated by Article 25 of the
Constitution. The first section of this article establishes the mode of
acquisition by birth and by naturalization. For acquiring citizenship by birth,
both ius sanguinis and ius solis are established: “A Bulgarian citizen shall be
anyone born of at least one parent holding Bulgarian citizenship, or born on
the territory of The Republic of Bulgaria, should he not be entitled to any other
citizenship by virtue of origin. Bulgarian citizenship shall further be
acquirable through naturalization.”
Secondly, according to the report, the Constitution not only establishes the
two modes of acquisition already mentioned but also indicates that “the
Constitution practically guarantees the full scope of rights to all Bulgarian
citizens without differentiating between citizens by birth or by naturalization”
(ibid). Thus, naturalization is also constitutionally granted.88
The 1998 Law for the Bulgarian Citizenship (Bulgarian Citizenship Act)
develops the modes of acquiring citizenship by birth in detail in Chapter II,
sections I and II, Articles 8 and 10. Article 8 reads, “Bulgarian citizen by
origin is everybody of whom at least one of the parents is a Bulgarian
citizen.”89 While Article 10 reads, “Bulgarian citizen by a place of birth is
every person born on the territory of The Republic of Bulgaria if he does not
acquire another citizenship by origin.”90
As mentioned, the second mode of citizenship acquisition is naturalization,
developed by the Bulgarian Citizenship Act, particularly in Chapter Three,
Section III, Articles 12–19. Smilov and Jileva describes this mode of
acquisition as having “two speeds,” since “there are two methods for the
acquisition of Bulgarian citizenship by naturalization: a general regime and a
preferential regime for certain categories of persons, including ethnic
Bulgarians” (Smilov and Jileva, 2013, p. 12). Importantly, the authors depict
the general regime as “quite restrictive” due to its strict requirements,
87
Available at https://www.refworld.org/pdfid/49622ef32.pdf (last accessed 05/07/2023).
88
Shaw (2020) shows that only a minority of countries explicitly regulate one or more modes
of acquisition or loss of citizenship in their constitutions. In this regard, Bulgaria is fairly
exceptional. Interestingly, both Shaw 2020) and Džankić (2019) indicate that CIPs are not
explicitly regulated in the respective national constitutions of any country.
89
Article 9 complements Article 8 by indicating that a “Bulgarian citizen by origin is also every
person who is fathered by a Bulgarian citizen or whose origin from a Bulgarian citizen is
established by a court decision.”
90
Article 11 complements Article 10 by indicating, “Considered born on the territory of The
Republic of Bulgaria is a child found on this territory, whose parents are unknown.”

46
indicating that “‘ordinary’ applicants are normally required to have legally
resided in the country for ten years (five years to obtain a permit, and another
five to be eligible for citizenship)” (Smilov and Jileva, 2013, p. 12). Besides
this long residence period, there are other highly demanding requirements
such as language knowledge (Article 12.5) and renouncing present citizenship
(Article 12.6). It is important to note that the waiting period for the permanent
residence permit (which usually takes five years of residence) can be waived
for those who have invested more than US$500,000 in the Bulgarian economy
(Smilov and Jileva, 2013, p. 12).
The reduced residence period permitted through economic investment in
the country gives access not just to a permanent residence permit, but also to
citizenship. Following a 2013 amendment, Bulgarian citizenship was, in the
choice words of scholars in the debate, for sale.91 As I shall show below, in
this case, most of the highly demanding requirements imposed on applicants
in the general regime are waived, and citizenship is granted with no
requirement for physical presence in Bulgaria. While it is true that a
preferential regime applies not only to investors in Bulgaria but also to other
categories, all of these follow an intuitu personae character. These categories
include spouses of Bulgarian citizens, people born in Bulgaria, individuals of
Bulgarian origin, individuals adopted by Bulgarian citizens, refugees, and
people with protected or humanitarian status. As I shall argue in Chapter Four,
this cannot be said for applicants accessing through investments.
Lastly, Article 16 of the Bulgarian Citizenship Act retains the possibility
of naturalization without requiring applicants to meet the conditions stated in
Article 12 (general regime) if the Republic of Bulgaria has an interest in the
naturalization or if the person has contributed to the Republic of Bulgaria in
some special way in the public and economic sphere, in the sphere of science,
technology, culture, and sport. The proposal for conferring Bulgarian
citizenship through Article 16 needs to be made by the minister in charge of
the respective policy area in which the Republic of Bulgaria has an interest in
the naturalization of the person, or in which she has made special contributions
(these are understood according to Article 30).

2.4.2.1.2. Particularities of the Bulgarian Program

As I will explain in detail later in this chapter, at the time of publishing this
dissertation, the Bulgarian CIP had already been closed down.92

91
I have expressed my discomfort with this characterization in several presentations. In my
view, it has been insufficiently proven. However, if what indeed happens is the selling of
citizenship, then there are several methods to assess the legitimacy of the programs. I suggest
some of these in my contribution (Prats, 2021c) to the book Money Matters in Migration:
Policy, Participation, and Citizenship (de Lange et al., 2021).
92
Parts of this section have been published in the article Citizenship by Investment
Programmes: Express Naturalisation for Bulky Wallets. An Arbitrary de jure Stratification?
(Prats, 2019).

47
 Although the Bulgarian CIP was already established in 2013, until recently,
it has been much neglected in the academic and political debate. In the national
and European discussions, it was probably ignored due to the limited available
information about the number of successful applicants following the CIP path
in Bulgaria.
The significantly reduced requirements established for CIP applicants
contrast with the very demanding requirements established for regular
naturalizers. The path for regular naturalizers is established in Article 12 of
the Bulgarian Citizenship Act and establishes a residence period of at least
five years with a long-term stay permit (typically acquired after five years of
stay in Bulgaria), command of the Bulgarian language, and the renunciation
of the former citizenship.93 These requirements contrast significantly with the
established at the Bulgarian CIP.
The Bulgarian CIP was established in February 2013 by the SG amendment
of Bulgaria’s Citizenship Law, which introduced two new Articles, 12a and
14a. Regarding Article 12a, the only requirements established were having
reached the age of majority; 5-years residence permit for long-term (which did
not require effective residence); a clean criminal record, and income or
occupation. Thus, it has to be emphasized that this new article, Article 12a,
opened a special door for those who apply for citizenship and who obtained
their permanent residence permit based on the investment grounds established
at the Article 25, para1. items 694 and 895, item 1396—in conjunction with
Article 25c, para 2 and 3; Article 25, para1, item 1697 of the Foreigners in The

93
The exact requirements introduced by this article are: that the person who is not a Bulgarian
citizen by the date of filing the application for naturalization: (1) has reached the age of
majority; (2) has been given a permit for long-term stay in The Republic of Bulgaria no less
than 5 years ago; (3) has not been convicted for a premeditated crime of general nature by a
Bulgarian court and criminal prosecution has not been instituted for such crime against her,
unless rehabilitated; (4) has an income or occupation which enables his support in the Republic;
(5) has command of the Bulgarian language which shall be ascertained according to an
Ordinance by the Minister of Education, Youth and Science, and; (6) renounces his current
citizenship or will renounce it by the moment of acquiring Bulgarian citizenship.
94
This item required an investment of 1,000,000 BGN (around €500.000) or increasing their
investment up to that amount through the acquisition of certain items. For more detail, check
the Article 25, para1, items 6 of The Foreigners in The Republic of Bulgaria Act.
95
This item required an investment of an amount not less than 6,000,000 BGN (around €3
million) in the capital of a Bulgarian commercial company, whose shares are not traded on a
regulated market.
96
This item required carrying out activities that are certified under the Investment Promotion
Act, which shall be certified by the Ministry of Economy, Energy and Tourism in accordance
with Article 25c. This article, in turn, established that (1) a long-term residence permit by virtue
of Article 25, Par. 1, item 13 may be granted to a foreign citizen who performs an activity for
implementing and/or maintaining an investment, which has received certain certifications.
97
This item required the applicant to have made an investment in the country by contributing
to the capital of a Bulgarian trade company of not less than 500,000 BGN (around €250.000),
where the foreign citizen is an associate or shareholder with registered shares and owns not less
than 50 percent of the company’s capital, and as a result of the investment new long-term
tangible and intangible assets have been acquired to the amount of not less than 500,000 BGN,

48
Republic of Bulgaria Act (FABA), which—for applicants who obtained
permanent residence permits through investments—waives the requirements
imposed on other naturalization applicants, such as the command of the
Bulgarian language and the renunciation of the current citizenship. Moreover,
the Act did not stipulate any obligation following this route to reside in the
country.
In summary, this new route to citizenship through investment established
by Article 12a, offered a highly privileged path in exchange for investment,
exempting the applicant from the strict residence and language requirements
that applied to other naturalization processes. Furthermore, it enabled
individuals to acquire Bulgarian (and EU) citizenship without requiring them
to renounce their citizenship, and it did not specifically mandate residing in
the country.
Regarding the second CIP route created by Article 14a, it established the
following requirements: having reached the age of majority; 1 year for long-
term permit (which did not require effective residency); a clean criminal
record, and an investment. This article established a quick route to citizenship
for those who (1) were granted a permanent residence permit in The Republic
of Bulgaria at least a year ago on the investment grounds established by the
Article 25, Para 1, item 698 or 899 of the FABA, and invested not less than BGN
1 million into the equity of a Bulgarian trade company; or (2) were granted
permanent residence in The Republic of Bulgaria at least one year ago on the
investment grounds established by the Article 25, Para 1, item 13100 in relation
with Article 25c, item 1 of the FABA.101 Since acquiring a permanent
residence permit through these routes opened by the FABA (i.e., through
investments) did not require physical presence in the country, the residency
requirement was clearly, at least, significantly reduced.102 Moreover, it is
necessary to stress that, once again, in this route opened by Article 14a, other
highly demanding conditions, such as knowledge of the Bulgarian language
or renouncing former citizenship, were completely waived for CIPs
applicants.
The analysis of Articles 12, 12a, and 14a reveals significant variations in
the requirements imposed on regular naturalization applicants compared to
those who opt for the investment route. These facilitated paths removed many

and at least ten jobs for Bulgarian citizens have been created and maintained during the
residence period which fact shall be certified by the Ministry of Economy, Energy and Tourism.
98
This item required an investment of 1,000,000 BGN.
99
This item required an investment of an amount not less than 6,000,000 BGN.
100
This item required an investment of 1,000,000 BGN or increasing the investment up to that
amount through the acquisition of certain items. For more detail, check Article 25, para1, item
6 of The Foreigners in The Republic of Bulgaria Act.
101
This article required that the applicant meets the requirements 1 (having reached the age of
majority) and 3 (clean criminal record).
102
According to Džankić (2018), the requirement was six months and one day of physical
presence in Bulgaria.

49
of the stringent requirements that regular applicants must meet. As mentioned
earlier, providing a facilitated path is not exclusive to applicants following the
investment route, as there are other groups eligible for facilitated citizenship
pathways under Bulgarian Law, primarily governed by Articles 13, 13a,103 and
14.104 However, these alternative facilitated pathways exhibit two key
distinctions. First, the reductions in requirements are not as categorical as
those found in Articles 12a and 14a. Second, the groups eligible for these
reductions are characterized by an intuitu personae character, meaning that
they are defined by specific properties or qualities of the person This contrasts
with the applicants benefiting from Articles 12a and 14a, who acquired their
prerrogatives merely through their investments.

2.4.2.1.3. Conclusions on the Bulgarian Regulations

In a nutshell, from a legal perspective, the Bulgarian Citizenship Act presented
what can be considered a schizophrenic or highly incoherent understanding of
citizenship. On one hand, it grants citizenship by birth, focusing primarily on
the particular birth conditions of the person granted citizenship by considering
her relations to the state, either by family or by place of birth. On the other
hand, it provided various routes to naturalization, each with different
requirements.
The general route to citizenship through naturalization imposes very strict
requirements meant to ascertain the applicant’s deep involvement in the
community—including a lengthy period of residence and linguistic
competence—and their strong commitment to Bulgaria in the form of
renouncing other citizenships. In contrast, other routes are considerably more
lenient, reducing or waiving certain requirements. Among these, the most
distinct pathway was the one available to investors, as it exempted them from
most of the stringent requirements established for regular naturalizers, solely
in exchange for economic investments.
This disparity in the speed and ease of acquiring citizenship has led to the
Bulgarian Citizenship Act being characterized as constitutively incoherent.
Smilov and Jileva claimed that “the normative frame of Bulgarian citizenship
discussed in this report is characterized by a degree of substantial
103
Articles 13 and 13a reduce the required residence period for a long-term permit from five to
three years for applicants who obtained the permit for a permanent or long-term stay either by
marriage (Article 13.1), by being born in Bulgaria (Article 13.3), for those whose permanent
permit or long-term stay permit was given before reaching the age of majority (Article 13.4,
only establishing a reduction in the residence period from 5 to 3 years, but keeping the rest of
the requirements), for those who obtained a refugee or protected status no later than three years
after the submission of the application for naturalization (Article 131.1), or for those granted
humanitarian status before at least five years prior to the submission of the application for
naturalization (Article 13a.2).
104
Moreover, Article 14 establishes a shorter route to acquire Bulgarian citizenship for stateless
people if they meet the requirements concerning (1) age of majority, (3) clean criminal record,
(4) income, and (5) language, and have a permit for permanent stay no later than three years
from the date the application for naturalization was submitted.

50
incoherence105 (...) This constitutive incoherence has resulted in a complex
web of general equality norms, with some privileges and exceptions” (Smilov
and Jileva, 2013, p. 24).106

2.4.2.2. Cyprus
2.4.2.2.1. Legal Notion of Citizenship and General Regulations
According to the EUDO Report by Nicos Trimikliniotis, after Cyprus obtained
independence from the United Kingdom, the initial determination of the
citizenry and the granting of citizenship were regulated by Article 198 of the
Constitution of The Republic of Cyprus, and Annex D of the Treaty of
Establishment, which was annexed to the Constitution (Trimikliniotis, 2015,
p. 11). A new main law on citizenship was enacted in 1967.107
In 2002, the Law on the Population Data Archives No. 141(I)/2002 unified
all provisions regarding the archiving of births and deaths, registration of
residents, registration of constituent voters, and the registration of citizens
and—together with the Annex D—is the law that currently regulates the
acquisition and loss of Cypriot citizenship (ibid).
There are several modes of acquisition of Cypriot citizenship, such as by
birth, by registration, and by naturalization. Regarding acquisition by birth,
according to Tornaritis (1982, pp. 38–9), Cypriot legislators have followed a
“mixed” principle combining ius soli and ius sanguinis, where ius sanguinis
is predominant and of higher importance. A person born in Cyprus or abroad
on or after the 16th of August 1960 automatically acquires Cypriot citizenship
provided that, at the time of birth, either of the parents was a citizen of Cyprus
or, in the case that the parent(s) were deceased at the time of her birth, either
of them would have been entitled to acquire citizenship had they not been
deceased. Moreover, this provision does not apply to permanent residents

105
Italics are mine.
106
Much has been written in legal philosophy on coherence and its relevance for Law and legal
systems. For a good insight into the topic, I strongly recommend the works of the brilliant
scholar Amalia Amaya, among them particularly: The Tapestry of Reason (2015), La
Coherencia en el Derecho (2012), Legal Justification by Optimal Coherence (2011), and
Coherencia y Verdad en el Derecho (Súcar and Cerdio Herrán, 2017). Also indispensable are
the following classic works: Ronald Dworkin’s Law’s Empire (1995), particularly Chapters Six
and Seven; Norberto Bobbio’s Le bon Législateur (1971); Neil MacCormick’s Coherence in
Legal Justification (1984); Barbara Levenbook’s The Role of Coherence in Legal Reasoning
(1984); Robert Alexy and Alexander Peczenik’s The Concept of Coherence and its Significance
for Discursive Rationality (1990); and John Bender’s book The Current State of the Coherence
Theory (1989). More recently, essential works on the topic include Stefano Bertea’s Does
Arguing from Coherence Make Sense? and Looking for Coherence within the European
Community (2005a, 2005b); Jaap Hage’s Three Kinds of Coherentism (2013); and Emily
Dickson’s Interpretation and Coherence in Legal Reasoning (2016). On the relevance of
coherence for legal systems, it is necessary to mention the excellent book by Juan Manuel Pérez
Bermejo Coherencia y Sistema Jurídico (2006).
107
Law No. 43/67, as amended by Laws No. 1/72, 74/83, 19(I)/96, 58(I)/96, 70(I)/96, 50(I)/97,
102(I)/98, 105(I)/98, 65(I)/99, 128(I)/99, 168(I)/2001.

51
abroad unless the child’s birth is registered in the prescribed manner
(Trimikliniotis, 2015, p. 12).
The second mode of acquisition of Cypriot citizenship is by registration.
The aforementioned law establishes that people meeting certain requirements
are entitled to be registered as Cypriot citizens upon application to the relevant
Minister.108 A person who has renounced her Cypriot citizenship or has been
deprived of it may not be registered as a citizen according to Section 110, but
she may still be registered with the approval of the Minister (according to sub-
section 110(4)). As Trimikliniotis correctly claims, this provision places
Cypriot descent at the core of the right to acquire citizenship (Trimikliniotis,
2015, p. 13).
The third mode of acquiring citizenship is by naturalization
(πολιτογράφηση; politográphese). This mode of acquisition enables non-
Cypriots residing in Cyprus to become citizens provided that they fulfill the
following conditions, formulated in Table 3 annexed to the law (Section
111).109 Moreover, it is also possible for visitors, students, athletes, and
coaches, self-employed people, nurses, domestic workers, and employees
residing in Cyprus to naturalize for work, and this is extended to their spouses
and dependent persons meeting the condition of having resided in Cyprus for
at least seven years, and “continuously” for one of these years in the period
immediately prior to the application.110
Last but not least, the law grants persons who have offered highly esteemed
services to the country, irrespective of the years of residence, the opportunity

108
Specifically, these persons are the following: “(a) citizens of the United Kingdom and
Colonies, or a country of the Commonwealth, who are of Cypriot descent, provided that they:
ordinarily reside in Cyprus and/or resided for a continuous period of twelve months in Cyprus
or a shorter period that the Minister may accept under exceptional circumstances of any specific
case, immediately before the date of the submission of their application; or serve in the civil or
public service; are of good character; intend to remain in Cyprus, or depending on the
circumstances, continue serving in the civil or public service (sub-s. 110(1) Law on the
Population Data Archives No. 141(I)/2002 ); and, sign an official confirmation of loyalty to the
country; (b) spouses or widow(er)s of persons who were citizens of Cyprus, or spouses of
persons who, had they not been deceased, would have become or would have had the right to
become citizens of Cyprus, provided that they: ordinarily reside with their spouse in the country
for a total period of no less than three years; are of good character; intend to remain in Cyprus,
or depending on the circumstances, continue serving in the civil or public service of Cyprus or
the educational service or the Police force of Cyprus even after registration as citizens (Sub-
section 110(2)); and sign an official confirmation of loyalty to The Republic; (c) underage
children of any citizen. In this case, the application for citizenship has to be submitted by the
parent or the guardian of the child.”
109
These conditions are: “(a) residence in The Republic of Cyprus for the entire duration of
twelve months immediately preceding the date of application; (b) over and above the twelve
months referred to above, during an additional period of seven years in the period immediately
prior to this, the applicant must have ordinarily resided in Cyprus, or have been serving in its
civil or public service, or a combination of both options, for periods amounting in total to no
less than four years; (c) being of good character; (d) intending to reside in Cyprus.”
110
This item was introduced by amendment 58(1)/1996.

52
to apply for Cypriot citizenship.111 This last path is based in the discretionary
power of the authorities and, specifically, on the discretion of the Council of
Ministers and the Minister of the Interior. In relation to this latest path,
Trimikliniotis notes that “whilst Section 111 does not refer to lawful
residence, lawful residence is somehow implied as a prerequisite, a condition
the Supreme Court seems to have accepted” (Trimikliniotis, 2015, p. 14).
However, due to the lack of information regarding successful and
unsuccessful applicants, it is impossible to know if, de facto, authorities follow
the stricter Court criterion or the looser one established in the law.
In summary, there are two relevant aspects regarding Cyprus’ general view
of acquisition of status civitatis. Firstly, in the modes of acquisition by birth
and registration, there is a clear predominance of privileging those of Cypriot
descendant, which shows an understanding of the “notion of citizenship” as
having an intuitu personae character.
Secondly, in the mode of acquisition of naturalization, the Minister and the
Council have a great discretionary power, ratified by the Courts. It is
important, however, to distinguish the notions of discretion and arbitrariness
in order to understand the limits of discretionary powers, since discretionary
power is not simply unlimited power.112

2.4.2.2.2. Particularities of the Cypriot Program

It is essential to start this section113 by noting that the Cypriot CIP was
terminated in autumn 2020 following the release of a documentary made by
the news channel Al Jazeera, which brought to light a vast scandal regarding
the program.114 The documentary revealed how several key persons involved
in the Cypriot CIP were shown to facilitate the acquisition of Cypriot, and
hence European, citizenships for persons with dirty criminal records who
openly and explicitly gave information about their criminal past. The scandal
involved some politicians, civil servants, and parliamentarians. They include
Christakis Giovani, also the founder of the Giovani Group, a construction and
real estate business that benefited directly from the CIP, and Demetris
Syllouris,115 the speaker (president) of the house of representatives and a
member of the parliament for 28 years.116
111
This item was introduced by amendment 70(1)/1996.
112
Arguments supporting this claim are provided in Chapter Four.
113
Parts of this section are published in the article Citizenship by Investment Programmes:
Express Naturalisation for Bulky Wallets. An Arbitrary de jure Stratification? (Prats, 2019).
114
Available at
https://www.youtube.com/watch?v=Oj18cya_gvw&feature=emb_logo&ab_channel=AlJazeer
aEnglish&fbclid=IwAR1QmlCfNf-uEdIpuneCYB6jPioQOQlZkHJWGoeKDfLXpJ-
skrI43HLR07w (last accessed 06/07/2023).
115
Syllouris announced his resignation from the position on the 15th of October 2020 after the
scandal.
116
Such as Kyprios Kyprianou, former general director of the Ministry of the Interior, a
personal friend of Christakis Giovani according to Al Jazeera, and the civil servant to
administrate the program; and Constantinos Petrides, the Minister of the Interior who, according

53
 The institution of the Cypriot CIP was enabled by an amendment which
came into force on the 30th of April 2013 establishing certain provisions
granting discretion to the Council of Ministers (Trimikliniotis 2015, p. 14),
and the result of several decisions of the Council of Ministers dated the 24th
of May 2013,117 the 19th of March 2014, and the 13th of September 2016. The
scheme for the naturalization of investors in Cyprus (or Cypriot CIP)
facilitated a very rapid acquisition of Cypriot citizenship for individuals who
made a particular type of investment.
The decision of the Council of Ministers from 2013 that initiated the
Cypriot CIP, required first either (i) (A.1) mixed investments with a value of
at least €2.5 million; (ii) (A.2) direct investment of at least €5 million;118 (iii)
(A.3) deposits in banks of at least €5 million; (iv) (A.4) a combination of
mixed investments and a donation to a state fund of at least €5 million; (v)
(A.5) business activities for over three years as amounting to at least €500,000
per annum. Interestingly, (vi) (A.6) also granted Cypriot citizenship to persons
whose deposits with the Bank of Cyprus or Popular Bank have been impaired
due to the measures implemented in both banks after the 15th of March 2013,
where the deposits totaled at least €3 million.
After establishing the pecuniary conditions, the 2013 decision set further
requirements: the applicant had to (i) have a clean criminal record;119 (ii) be
the owner of a privately-owned residence in Cyprus the market value of which
should be at least €500,000, plus V.A.T.120
In the decision of the Council of Ministers released in 2014, the
modifications introduced were the following: (i) it required that the applicant
should have concluded the necessary investments during the three years
preceding the date of the application and retain these for a period of at least
three years after the date of the naturalization; (ii) changed the investment

to the program, was the person in charge of approving the applications granting citizenship
through the CIP.
117
Which was enabled by the exception from subsection (2) of section 111A of the Civil
Registry laws of 2002-2013.
118
The Direct Investments alternatively involved the following; (a) purchasing properties; (b)
business or companies based and active in the Republic of Cyprus; (c) companies registered in
the Republic of Cyprus; (d) financial assets; and, (e) participation in a company/consortium of
companies that have undertaken to carry out a public project. Regarding the purchase of
properties, Kudryashova (2018) notices that when this is a permanent residential property, the
program requires that it is worth at least 500,000€ (plus VAT) and that must be retained in the
Republic permanently (see pages 3–4 of the Cyprus Investment Program). According to the
author, this condition amounts to a “de facto barrier to the right of free movement of capital in
the form of real estate investments” (Kudryashova, 2018, p. 1274).
119
As the Al Jazeera’s investigation showed, in practice, criminal precedents were overlooked
in exchange for higher sums of investments.
120
The Al Jazeera documentary shows that Christakis Giovani, parliamentarian and creator of
the powerful construction and real estate business Giovani Group, was one of the greatest
benefitted by the Cypriot CIP, particularly because of the requirement of investing in high-
value residences in Cyprus.

54
paths and the amounts, making it necessary to invest at least €5 million.121 Yet,
this amount was subject to some exceptions in items A.7 and A.8. A.7 limited
the amount to €3 million for the people whose deposits with the Bank of
Cyprus or Popular Bank had been impaired due to the measures implemented
in both banks after the 15th of March 2013; A.8 gave the right to the Council
of Ministers to cut the required amount for A1-4 on special occasions up to €2
million.122
It is worth noting that the 2014 decision did not add new requirements.
Besides the investment, it only required a clean criminal record as well as a
privately-owned residence in the country.123
The 2016 decision, which was the one in force in the beginning of 2018,124
introduced new changes, the most significant of which was the reduction of
the investment from €5 to €2 million and the types of investments accepted.125
Interestingly, this decision admited that the Cypriot citizenship policy was
used to achieve economic aims by indicating that “one of the main objectives
of the economic policy of The Republic of Cyprus is to further encourage
Foreign Direct Investment and to attract high net individuals to settle and do
business in Cyprus.”126 Physical presence in the country was not a
requirement, nor were civic or language tests needed. A scrutiny of the
decisions proves that what occurred was the outright exchange of Cypriot (and
European) citizenship for money.

121
Either in (A.1) government bonds, (A.2) financial assets of Cypriot companies or Cypriot
organizations, (A.3) real estate, (A.4) purchasing or creating or participating in Cypriot business
or companies, (A.5) deposits in Cypriot banks, (A.6) a combination of the aforementioned
criteria.
122
(I) to €2,5 million for investors, who demonstrably participate in a special collective
investment scheme, provided that the total value of the investment is at least €12,5 million; (II)
to €2 million for investors who demonstrably participate in a special collective investment
scheme, provided that the total value of the investment is more than €12,5 million.
123
Although the 2014 decision allowed members of the same family applying separately to
acquire a residence collectively, whose value has to be €500,000 per applicant.
124
According to Kudryashova (2018, p. 1269), in May 2018, the program was again amended,
as happened on several occasions afterward. As mentioned in Chapter One, the CIP versions
that this dissertation follows are those in place at the beginning of 2018; therefore, further
versions produced by later amendments are not considered here.
125
The criteria in this decision were: (A.1) investment in real estate, land development and
infrastructure projects of at least €2 million, (A.2) purchase or establishment or participation in
Cypriot companies or business of at least €2 million, (A.3) investment in alternative investment
funds or financial assets of Cypriot companies or Cypriot organizations that are licensed by
CySec of at least €2 million, (A.4) a combination of the aforementioned investments of at least
2 million, within which criterion the applicant may purchase special government bonds of The
Republic of Cyprus up to €500,000. It is notable that the 2016 decision no longer included the
path opened in the decisions of 2013 and 2014 for people whose deposits with the Bank of
Cyprus or Popular Bank were impaired due to the measures implemented after the 15th of March
2013. The 2012–13 financial crisis was one of the reasons why the CIP was established under
the rationale of recompensing foreign investors by granting them Cypriot (and European)
citizenship. With the 2016 decision, the CIP continued, but those who lost their deposits with
the Bank of Cyprus or Popular Bank no longer had a privileged path to citizenship.
126
I detail the reasons, which are merely of an economic nature, in Chapter Five.

55
 As mentioned above, regarding the path to naturalization for non-CIPs
applicants, Article 111 of the Civil Registry Law of 2002 establishes a way to
obtain citizenship pursuant to naturalization. This article refers to Schedule
Three which lists the requirements for naturalization that needed to be fulfilled
by the applicant in order for the Minister to grant a certificate of naturalization:
(a) Residence in the country for the whole duration of the immediately
preceding 12 months from the date of application; (b) during the period of
seven years, which immediately precedes the above-mentioned twelve-month
period, either resided in the country, or served in its public service, or did
partly the former and partly the latter, for periods whose aggregate sum is no
less than four years; (c) to be of good character; (d) has the intention, provided
she is granted a certificate― (i) to remain in the country, (ii) to serve in a
public service of the country.
Unlike in Bulgaria, the non-CIP naturalizers in Cyprus are not required to
prove specific national language knowledge. The required residence period
for those applicants is of at least four years in a time period of seven years.
In summary, the requirements demanded for both types of naturalizers were
significantly different in nature. While naturalizers following the path
established by the CIP were only required to invest €2 million, naturalizers
following the general path must reside for the entire 12-month period
preceding the application; reside or serve in Cyprus for a cumulative total of
no less than four years in the seven years before applying; possess good
character; and commit to remaining in Cyprus or serving in a public service
role if granted a certificate.

2.4.2.2.3. Conclusions on Cypriot Regulations

The analysis of the naturalization conditions established in Cyprus
demonstrates that these are generally lenient for all naturalization applicants.
However, this leniency became particularly pronounced in the regulations
granting citizenship in exchange for investments. Similar to some provisions
of the Bulgarian CIP, the Cypriot CIP did not stipulate a specific period of
territorial presence, meaning that applicants were not required to reside in
Cyprus for a specified duration before acquiring citizenship. Additionally, the
high investment threshold ensured that only affluent individuals could
participate in the program. As we have observed, while naturalization
requirements are not very stringent in Cyprus, the CIP pathway granted
citizenship solely based on investment, without considering the personal
characteristics of the individual becoming a citizen or scrutinizing whether the
source of the funds used for acquiring citizenship was the result of the merits
of the applicant.
Moreover, regarding the number of people naturalized following this path,
as with Bulgaria, Cyprus did not release information. Therefore, it is difficult

56
to assess the program's impact and the profile of its applicants.127 This was
(partially) not the case with the last CIP, the Maltese CIP.

2.4.2.3. Malta
2.4.2.3.1. Legal Notion of Citizenship and General Regulations
According to the Maltese Citizenship Act, Articles 3–5, 17, the main modes
of acquisition of citizenship are by ius soli and ius sanguinis. Buttigieg and
DeBono, in the country report of Malta from the EUDO Citizenship
Observatory, indicate that:

Every person born in Malta before the date of independence (the 21st of
September 1964), who until then was a citizen of the United Kingdom and
Colonies and either of whose parents was born in Malta, automatically
acquired Maltese citizenship on the date of independence. Moreover, even a
person born outside Malta before the date of independence automatically
acquired Maltese citizenship on the date of independence if he or she was a
citizen of the United Kingdom and Colonies until the date of independence and
his or her father and a paternal grandparent were both born in Malta. On the
other hand, for those who were born in Malta on or after the date of
independence but before the 1st of August 1989, the mere fact of being born in
Malta was enough to entitle that person to automatically acquire Maltese
citizenship at birth....
Those born outside Malta during this period acquired citizenship at birth
only if at the time of birth the father was a citizen of Malta whether by birth in
Malta, by registration or by naturalization. However, following the 1989
amendments, for persons born on or after the 1st of August 1989, birth in Malta
no longer sufficed to entitle the person to acquire Maltese citizenship at birth:
one of the parents must also have been a citizen of Malta at the time of his or
her birth. For those born outside Malta on or after the 1st of August 1989
citizenship is also acquired automatically at birth if, at the date of birth, one of
the parents was a citizen of Malta whether by birth in Malta, by registration or
by naturalization (Buttigieg and DeBono, 2015, p. 12).

The EUDO report just quoted point out to a couple of relevant issues. Firstly,
the political shifts brought about by Maltese independence have affected the
Maltese notion of citizenship. Secondly, the notion of citizenship has changed
from an essentially ius soli notion to one with more of a ius sanguinis basis,
since the main requirement for acquisition of citizenship is now concerned
with filiation instead of birth on Maltese territory.
This emphasis on filiation was also reflected in the changes of the 1st of
August 1989, when it was established that “Maltese citizenship may also be

127
However, both Malta and Cyprus (following the Council of Ministers’ Decision 906/2018)
imposed a cap on the number of foreign investors who can apply for citizenship through the
CIP, while Bulgaria did not have such a limit, according to the Report from the Commission to
the European Parliament, the Council, the European Economic and Social Committee and the
Committee of the Regions Investor Citizenship and Residence Schemes in the European Union
2019. (COM/2019/12 final).

57
acquired automatically by adoption128 when a person is lawfully adopted
(under Maltese law) on or after this date with one of the adopting parents being
a citizen of Malta at the time of adoption, provided that the person adopted is
under ten years of age on the date of adoption” (Buttigieg and DeBono, 2015,
p. 13).
Several other paths are available to acquire Maltese citizenship after birth.
Registration is possible in four different scenarios. Firstly, a spouse of a
Maltese citizen may acquire Maltese citizenship after five years of marriage
by applying to be registered as a citizen of Malta,129 provided the couple are
still married and living together at the time of application for citizenship.
Secondly, former citizens who lost their citizenship before the year 2000 for
possessing or acquiring another citizenship when the Maltese law did not
allow it may acquire citizenship.130 Thirdly, emigrants who were formerly
Maltese citizens by birth or descent but who lost citizenship after emigrating
may also recover citizenship by registration if returning to Malta as permanent
residents. Fourthly, people born outside Malta before the 1st of August 1989
and descended from a a Maltese mother131 may also obtain Maltese citizenship
by registration.
Regarding naturalization, Article 10 of the Maltese Citizenship Act
establishes the conditions for acquiring citizenship by naturalization, opening
this path to any person, including stateless people,132 under the condition of
having resided in Malta during the year immediately preceding the date of
application and for a further aggregate period of at least four of the seven years
immediately preceding the date of application. Further requirements include
knowledge of the Maltese or English languages, being of good character, and
being deemed a suitable citizen of Malta. Here, once again, if citizenship is
granted by naturalization, it will take effect from the date upon which the
applicant was naturalized (Article 12 Maltese Citizenship Act).
Other relevant information is that although the Minister (in charge of
citizenship) decides the outcome of the application and there is no right to

128
Article 17 Maltese Citizenship Act.
129
Articles 4 and 6 Maltese Citizenship Act.
130
Article 8, Maltese Citizenship Act.
131
At that time, the form of ius sanguinis followed in Malta applied only to the paternal line.
132
Special rules apply for those who were born in Malta and who have always been stateless
and were born of parents who are not citizens of Malta. In these cases, naturalization requires
that the stateless person has resided in Malta for a period of five years prior to the date of her
application and has not been convicted of an offense against the security of the state or
sentenced to a punishment depriving the person of personal liberty for a term of not less than
five years. For stateless people born outside of Malta with either her parents being a citizen of
Malta at the date of her birth, she is entitled to naturalization as a citizen of Malta only if she
has been ordinarily resident in Malta for a period of three years prior to the date of her
application and has not been convicted of an offense against the security of the state. As the
Report correctly points out, once again, where Maltese descent can be shown, the conditions
for naturalization are less stringent than where only the connection by birth on Maltese territory
can be proved (Buttigieg and DeBono, 2015, p. 16).

58
appeal against the decision, and the decision cannot be subject to review in
court (Article 19), the Cabinet Citizenship Guidelines from 1987 establishes
a series of scenarios in which applications should be considered favorable,133
as well as cases in which there are humanitarian grounds to support the
application. Here, the particular personal situation of the specific applicant,
either in terms of connection to the territory or through family, as well as
humanitarian reasons, are deemed particularly relevant to assure the effective
granting of citizenship, thus limiting the discretion of the authority in charge
of deciding.
Lastly, it is interesting to note that although the report presents the Maltese
CIP in a separate section from the one on naturalization, it does not provide
reasons to regard it as of a different kind. In my view, since the CIP was
established by an amendment to the Maltese Citizenship Act134 and it appears
in Article 10 on naturalization, it seems clear that the CIP initiated a fast-track
path to naturalization.

2.4.2.3.2. Particularities of the Maltese Program

It is important to note that, as it is the case with the Bulgarian and the Cypriot
CIPs, the Maltese program was also terminated at the time of publishing this
dissertation.135
Discussion surrounding the creation of the Maltese CIP initiated on the 30th
of September 2013136 and the program was established in November 2013,
facing great controversy not only in Malta137 but also in the European
Parliament.138

133
Those include former citizens of Malta; children born abroad of returned migrants; foreign
citizens born in Malta to a parent who is a citizen of Malta; children born to parents who were
non-Maltese but who later acquired Maltese citizenship; and those born abroad but of Maltese
descent.
134
Specifically, the Maltese CIP was introduced by the LN 47 2014. The main Act of Parliament
which provides for the scheme was Act XV of 2013—the Maltese Citizenship (Amendment)
Act.
135
Parts of this section are published in the article Citizenship by Investment Programmes:
Express Naturalisation for Bulky Wallets. An Arbitrary de jure Stratification? (Prats, 2019).
136
On that day, the Minister for Home Affairs and National Security of Malta, Emanuel Mallia,
presented Motion 70 on Maltese Citizenship, which was debated in a plenary session (sitting
n.55). More details are presented in Chapter Five.
137
The Maltese program was controversial from the very beginning to the extent that “the
implementation of the law was postponed due to strong domestic and International critiques”
(Bauböck, 2014). The newspaper Malta Today published a survey asking the question: “Do you
agree with the scheme through which Maltese citizenship will be granted to foreigners who pay
€650,000?,” to which some 53% of the respondents were against it. The opposition party also
opposed what was called “the prostitution of Malta” (Times of Malta, the 9th of October 2013):
https://www.maltatoday.com.mt/news/national/31325/opposition-proposes-change-of-name-
to-individual-donor-programme-20131109#.W2STSdgzYuc
https://www.maltatoday.com.mt/news/data_and_surveys/31360/maltatoday-survey-budget-
citizenship-20131111#.W2STTtgzYuc (both last accessed 06/07/2023).
138
On the 15th of January 2014, the EU Parliament debated what was described as “the selling
of citizenship” by Malta, which also included “the selling of EU citizenship.” As an effect of

59
 The program opened a route for rich people to gain Maltese and European
citizenship after a short residence period of 12 months.139 Moreover, the
Maltese program established a cap for the number of successful main
applicants.140 A difference from Cyprus and Bulgaria is that, unlike these
countries, Malta is not only a member of the EU, but also a member of the
Schengen Area.
Regarding the regulation instituting the Maltese CIP, Article 10, point (9)
of the Maltese Citizenship Act (cap.118) established several fast-tracked paths
for desired elite applicants. While points (9.a)141 and (9.c)142 granted
citizenship ex iure honorium to people rendering exceptional services to Malta
and to their spouse, point (9.b) granted citizenship to any person who is an
applicant or is a spouse or an eligible dependent of such applicant, under the
individual investor program of The Republic of Malta, and who satisfied the
requirements as prescribed under the Act. The requirements for such

the debate in the EU Parliament and the subsequent participation of the Commission, the
Maltese Government amended its regulations under the Maltese Citizenship Act (L.N. 47 of 4th
of February 2014) ensuring that a residence of at least 12 months will be a pre-condition for
naturalization. A deep insight into the debate will be presented in section 2.4.3.1 The Debate in
the EU Parliament.
139
Minimum physical presence was not regulated, according to Džankić (2018).
140
According to Article 12 of the Maltese Citizenship Act (CAP.188) (L.N. 47 of 4th of
February 2014) this shall not exceed one thousand and eight hundred for the whole duration of
the program (excluding dependents). According to the report from the Commission to the
European Parliament, the Council, the European Economic and Social Committee and the
Committee of the Regions Investor Citizenship and Residence Schemes in the European Union
2019, the possibility of increasing the cap by another thousand and eight hundred was discussed.
The program actually reached its limit, and thus terminated. More details are provided below.
141
Article 10.9 (a) grants citizenship “to the spouse of any citizen of Malta when either the
spouse or the said citizen has rendered exceptional services to the Republic of Malta or to
humanity.”
142
Article 10.9 (c) grants citizenship “to an alien who has rendered exceptional services to the
Republic of Malta or to humanity, or whose naturalization is of exceptional interest to the
Republic of Malta, and who satisfies the requirements prescribed under this Act. For the
purposes of this paragraph, "exceptional" means unusually excellent or manifestly superior at
a local level and refers primarily to contributions by scientists, researchers, athletes,
sportspeople, artists, and cultural performers.

60
applicants were found in L.N 47 of 2014’s “Individual Investor Program of
The Republic of Malta Regulations, 2014,” Articles 4143 and 5.144
Upon close examination of the requirements outlined in Articles 4 and 5,
two significant aspects become evident. First, these articles placed great
emphasis on the economic contribution, which served as the primary criterion
for attribution, specifying the amounts and types of contributions required.
Second, there were additional checks imposed on CIP applicants that were not
applicable to general naturalization applicants. However, it is important to
note that these additional checks were designed to safeguard the legal
reputation of the applicants. In other words, they were implemented to address
one of the main concerns raised against the Maltese CIP—the potential for it
to be exploited by individuals with criminal backgrounds or those seeking to
use the program for money laundering purposes—something that has
happened in the past with other IIPPs and CIPs.145

143
Article 4 established the following requirements: “(1) (a) at least eighteen years of age; (b)
proposes to make a contribution as determined in the Schedule; (c) meets the application
requirements; (d) commits herself to provide proof of residence in Malta, and to provide
proof of title to residential property in Malta in accordance with these regulations; (e)
commits herself to invest, amongst others, in stocks, bonds, debentures, special
purpose vehicles or to make other investments as provided from time to time by Identity
Malta by means of a notice in the Gazette.” The contributions required at the Schedule were:
(1) (a) a minimum of €650,000 for the main applicant; (b) €25,000 for a spouse; (c) €25,000
for each and every child under 18 years of age; (d) €50,000 for each and every unmarried child
between 18 years of age and 26 years of age; (e) €50,000 for each and every dependent parent
over 55 years of age. The regulations on the proof of residence and of title to residential property
appear in Article 7.5, which required that, once the application was approved of a written,
undertaking is made to either (i) acquire and hold a residential immovable property in Malta
having a minimum value of €350,0000,or (ii) take on lease a residential immovable property in
Malta for a minimum annual rent of €16,000. Last but not least, Article 7.6 required the
applicant to invest €150,000 in bonds, stocks, debentures, special purpose vehicles, or other
investment vehicles, which shall be retained for at least a five-year period. Thus, the minimum
total investment amount in Malta was around €1.15 million.
144
Article 5 established the following eligibility criteria for the applicant and his dependents;
(a) proper background verification; (b) a police certificate issued by the Malta police as well as
a police certificate issued by the competent authorities in the country of origin and in the country
or countries of residence where the applicant has resided for a period of more than six months
during the last ten years; (c) are not individuals indicted before an International Criminal Court
or who appeared at any time before an International Criminal Court, whether such persons have
been found guilty or otherwise by such Court; (d) shall not be persons listed with INTERPOL
at the time of application; (e) are not, or may not be a potential threat to national security, public
policy or public health; (f) shall not have pending charges related to crimes of terrorism, money
laundering, funding of terrorism, crimes against humanity, war crimes, or crimes that infringe
upon such Protection of Human Rights and Fundamental Freedoms as established by the
European Convention on Human Rights, or who has been found guilty of any such crimes;
(g) shall not be found guilty, or have charges brought against them regarding any of the
criminal offenses that disturb the good order of the family; (h) shall not have been found guilty,
or, at the time of the application, are being interrogated and suspected, or have criminal charges
brought against them for any criminal offense, other than an involuntary offense, punishable
with more than one year imprisonment.
145
There are multiple real examples of such situations. An example worth mentioning is the
case of Francesco Corallo, an Italian businessman wanted by INTERPOL for crimes related to

61
 In contrast, applicants willing to obtain Maltese citizenship by
naturalization have to follow the paths established by Articles 6 and 10.
Article 6 develops the conditions to acquire citizenship for spouses of Maltese
citizens. Interestingly, the article separates these prospective applicants from
other naturalization applicants, granting citizenship directly after 5 years of
marriage (6.2.b) and after taking an oath of allegiance, without requiring a
period of residence in the country.146 Article 10 establishes the conditions for
the naturalization of general applicants. This article requires in its point (1)
that the prospective citizen must (a) have resided in Malta throughout twelve
months immediately preceding the date of application; (b) have resided in
Malta for periods amounting in the aggregate to not less than four years during
the six years immediately preceding the said period of twelve months; (c) have
adequate knowledge of the Maltese or the English language; (d) be of good
character; (e) be a suitable citizen of Malta.147 The same article (Article 10.1)
indicates that the residence period may be shortened if the Minister holds that
it would fit in the special circumstances of any particular case, opening a path
to discretion.148

money laundering, tax fraud, bribery, and membership of a criminal organization. Corallo paid
for a passport with diplomatic status, specifically to be appointed as Dominica’s ambassador to
the Food and Agriculture Organization (FAO) and tried to claim diplomatic immunity in order
to escape from INTERPOL. For more information about this case, see, among others, SvD
Näringsliv, page 10, 31/03/2018, and https://thedominican.net/2017/08/dominica-ambassador-
corallo-extradited-to-italy.html (last accessed 11/07/2023).
146
Article 6 indicates that; “(1) any person who on or after the appointed day marries a person
who is or becomes a citizen of Malta shall be entitled, upon making application in such manner
as may be prescribed and upon taking the oath of allegiance, to be registered as a citizen of
Malta; (2) no person shall be entitled to be registered as a citizen of Malta in virtue of this
article unless; (a) the Minister is satisfied that the grant of citizenship to such person is not
contrary to the public interest; and (b) on the date of the application such person was still
married to a citizen of Malta or is the widow or widower of a person who was a citizen of Malta
at the time of his or her death: provided that no person shall be entitled to be so registered unless
such person, on the date of the application, is still married to that citizen of Malta and had been
so married for at least five years and on that date had been living with that citizen or, if on that
date had been de jure or de facto separated, had lived with such citizen of Malta for at least five
years after the celebration of the marriage, or is the widow or widower of such citizen and at
the time of his or her death had been married to that person for at least five years and was still
living with him or her or who would, but for the death of that person, have been so married on
the date of the application or, if on the date of death of such citizen had been de jure or de facto
separated from such citizen, had lived with such citizen of Malta for at least five years after the
celebration of the marriage.”
147
No further indications are provided concerning the characteristics of a “suitable citizen of
Malta”.
148
Points 2 to 6 mention certain situations that receive privileged treatment due to the
circumstances relating the applicant to Malta. These are as follows. Point 2 allows to people
born outside Malta to naturalize if the parents became or qualified to become a citizen but died
before, without expressing the need to meet the requirements mentioned in point 1. Point 3 also
grants naturalization to those full of age and capacity Maltese citizens (a) by virtue of Article
3(1) or Article 5(1) who emigrated from Malta and ceased of being citizens and to those who
(b) emigrates from Malta before 21/9/1964 but for his having ceased to be a citizen of the United
Kingdom and Colonies before that day, would have become a citizen of Malta by virtue of

62
 In summary, the requirements for individuals seeking citizenship through
the general path outlined in Article 10 are quite demanding, encompassing
extended periods of residence and the demonstration of proficiency in either
of the two official languages. These requirements, however, were waived for
applicants choosing the investment pathway in exchange for substantial
investments and after passing certain checks aimed at confirming the
applicant's clean criminal and legal record. As with other countries, the
exemption of requirements for specific groups is not limited to applicants
investing in the country. Nonetheless, as was also the case with other
countries, other privileged routes are established based on the particular
personal characteristics of the individual benefiting from them, rather than on
fungible assets like money, which remains silent about the person who owns
it.
While one can perceive the inclusion of additional checks for CIP
applicants as an effort to mitigate this issue, it is only partially successful when
the primary purpose of these checks is to evaluate the legal reputation of the
applicant. In other words, these checks eliminate a potential reason for
rejecting the applicant but do not provide sufficient grounds for granting
citizenship. As the program was designed, the primary criterion for citizenship
was the investment itself, which, as I will argue in Chapter Four, is inherently
insufficient.

2.4.2.3.3. Conclusions on the Maltese Regulations

In conclusion, although Malta opens different paths to citizenship, there are
some shared features, mainly, that all of them show an intuitu personae
character by attributing importance to the relationship of the particular
individual receiving citizenship of Malta. This relationship can be expressed
through territorial ties, such as being born or residing in Malta, or through
family ties, such as being born to Maltese ancestors or being married to a

Article 3(1). Point 4 indicates that may naturalize people of full age and capacity who proves
descent from a person born in Malta and who is a citizen of a country other than the country in
which she resides, and whose access to the country of which she is a citizen is restricted. Point
5 requires an oath of allegiance to those naturalizing following the former points (2–4). Last
but not least, point 6 grants citizenship to those people who have always been stateless and (a)
were born in Malta or (b) whose father who was a citizen of Malta at the date of his birth by
virtue of the provisions of Article 3(2) or Article 5(2), or whose mother was at that date a citizen
of Malta. In the first case (a), according to Article 10.7, the applicant must prove that (a) she
has not been ordinarily resident in Malta throughout the period of five years ending with the
date of the application; or (b) that she has neither been convicted in any country of an offense
against the security of the State nor has been sentenced in any country to a punishment
restrictive of personal liberty for a term of not less than five years. In the second case (b),
according to Article 10.7, they will need to prove that (a) they have not been ordinarily resident
in Malta throughout the period of five years ending with the date of the application; or (b) that
they have either been convicted in any country of an offense against the security of the State or
has been sentenced in any country to a punishment restrictive of personal liberty for a term of
not less than five years.

63
Maltese citizen. In all cases, the personal participation and characteristics of
the applicant are crucial in assessing the application and granting citizenship.
Moreover, a direct relationship with the country is required. Although the
relationship may potentially be expressed in different ways, in all cases the
personal participation of the agent applying for citizenship is required. The
consideration of the identity and personal characteristics of the applicants is
key in the assessment of the application and bestowing of citizenship.
The specificity and relevance of the personal relation of the agent to the
state becomes a mark of character of the individual in its univocal expression:
an individual can be born only in one territory,149 only to one set of parents,
can reside only in one place at a time,150 and be married to only one (or one set
of) person (s) at a time.151 The univocity of these relations represent a mark
of character of the applicant, and suffice for being considered an expression
of the person who is applying to citizenship and her relationship to the country.
From this, it now seems clear that, for Malta, the legal status of status
civitatis has an underlying intuitu personae nature, that is to say, that the status
is granted on a personal basis, on the basis of the particularities of the person
(and her relation to the country) who is receiving the citizenship. The
introduction of the CIP, however, operated in a way that contradicted this
understanding.

2.4.2.4. Conclusions of the Section

In this section, I presented the CIPs established by EU Member States as they
stood in 2018 in the context of the citizenship regulations of the countries
instituting them. These programs shared the feature of enabling the applicant
to acquire the nationality of an EU member state, along with European
citizenship, through facilitated naturalization based on investment grounds.
This implies the creation of a privileged type of naturalized citizen. However,
the specific requirements imposed on CIP applicants varied across the
programs.
In the case of Bulgaria, the requirements for investor applicants were
significantly reduced compared to other applicants. Language tests,
renouncement of current citizenship, and the prior residence requirement were
waived for privileged investor applicants who only needed to make a legally
specified investment in Bulgaria.

149
Unless the territory is under dispute, which is a political anomaly and international law
provides mechanisms to manage it.
150
The existence of international mechanisms pushing towards a common understanding of
residence, as well as the existence of mechanisms avoiding double imposition in taxation,
supports this claim.
151
In societies where polygamous marriage is allowed, the number of members of the group is
extended, but the group formed is still a closed and differentiated group where the particular
members have a legal link.

64
 Cyprus was particular in that the requirements imposed on non-CIP
applicants are not as strict as they are in other countries (for instance, no
language tests or renouncement of current citizenship are required). Yet,
Cyprus stood out as an extreme case of naturalization based on investment, as
no further requirements were imposed besides the investment itself.
The provision in the Cypriot law for ministers to deny the bestowing of
citizenship through discretion was deceptive, making it look like part of their
discretional prerogative. In practice, since no data was released either on the
identity (and therefore on the personal characteristics of naturalized investor-
citizens), or on the rejected investor applicants, it was very difficult to know
who has become a new citizen and who has been rejected and on what
grounds.
The Maltese program was the best configured and most detailed program,
probably due to private industry being in charge of its design. This program
even established a cap on the number of naturalized investors. Although the
Maltese program instituted naturalization exclusively on grounds of economic
investment, it imposed additional requirements on the applicants, in order to
ensure that the applicant is a legally “clean” person.152 Yet, these additional
requirements only proved the legal clearness of the applicants but did not
disqualify two of the important arguments against CIPs. On one hand, these
were not personal characteristics of the applicant justifying the bestowing of
status civitatis, a personal legal status. On the other hand, they did not prove
any genuine link with the state (or the EU).153 The introduction of a 12-month
residency period did not satisfy this requirement, particularly if, as Džankić
(2018) asserted, the minimum physical presence of the investor applicant was
not regulated by law.154

2.4.3. The View of European Union Institutions

In this section, I summarize EU institutions’ perspectives on CIPs, focusing
primarily on the European Parliament and the European Commission. These
views will be drawn from the 2014 debate in the European Parliament
concerning the Maltese CIP and the 2019 report by the EU Commission
152
From a managerial perspective, the Maltese CIP was probably the best articulated, organized
and transparent of all the three CIPs in the EU. The great care put in the Maltese case for
accepting only clean (legal) applicants was probably a positive consequence of the effort and
interest of the industry to avoid scandals in order to secure the perpetuation of the program and
the business.
153
Despite the Maltese CIP’s attempt to meet the requirement of a genuine link to settle the
controversy. On the origins of the genuine link principle, see footnote 36 and Chapter Three.
154
That said, one could wonder why there should be a problem omitting the requirement of
residence for investor applicants if Malta does not require it for spouses of Maltese citizens. A
reply could be that, in the case of spouses, the link to the country will develop through the
relationship with the national, as it is supposed to be the case for citizens of second-generation
migration obtaining citizenship through ius sanguinis being born in another country. Yet, this
is not an uncontroversial issue.

65
regarding CIPs. To conclude, I outline the further actions taken by the
Parliament, the Commission, and the Council.

2.4.3.1. The Debate in the EU Parliament

On the 15th of January 2014, the European Parliament155 debated the investors’
scheme providing for naturalization in return for investment alone in the
particular case of Malta.156 The European Parliament adopted (by 560 votes to
22 with 44 abstentions) a resolution on EU citizenship for sale,157 in which
Malta was called upon to bring its current citizenship scheme into line with
the EU’s values.158 During the debate in the European Parliament, several
general concerns and legal aspects were pointed out. The most often repeated
general concerns were as follows.
Firstly, it was argued that obtaining EU citizenship through an investment
undermines the very concept of European citizenship.159 Secondly, there was
a concern that granting citizenship in exchange for investments may entail
discrimination, as only the richest individuals can obtain citizenship by these
means.160 Lastly, it was said that such outright sale of EU citizenship
undermines the mutual trust upon which the Union is built.161
Regarding the legal aspects pointed out by the European Parliament, the
most relevant are that, firstly, matters of residency and citizenship fall within
the scope of competence of the Member States.162 With this claim, the
European Parliament explicitly recognizes that citizenship is a domaine
réservé of the member states. However, the second aspect indicated signals
that despite it being a matter of exclusive competence, Member States may
not do whatsoever they choose in this field; that is to say that EU Member
States are committed, and bound to one another, by the principle of sincere

155
The procedure file is available at
http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=2013/2995
%28RSP%29#tab-0 (last accessed 06/07/2023).
156
The debate lasted for 1 hour 27 minutes. The video of the speeches can be watched at
http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20140115&secondRef
=ITEM-017&language=EN&ring=B7-2014-0015 (last accessed 07/07/2023).
157
The resolution was tabled by the EPP, S&D, ALDE, and Greens/EFA groups.
http://www.europarl.europa.eu/oeil/popups/summary.do?id=1332945&t=e&l=en (last
accessed 07/07/2023).
158
EU values are established mainly in the Treaty of Lisbon and the Charter of Fundamental
Rights of the EU. In Article 2 of the Treaty of Lisbon, it is stated that “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 State in a society in which pluralism, non-discrimination, tolerance,
justice, solidarity and equality between women and men prevail” (Italics are mine).
159
Claimed in the motions for a resolution of ALDE Group, PPE Group, S&D Group, and
Verts/ALE Group.
160
Claimed in the motions for a resolution of PPE Group, S&D Group, and, Verts/ALE Group.
161
Claimed in the motions for a resolution of PPE Group, S&D Group, and, Verts/ALE Group.
162
Claimed in the motions for a resolution of S&D Group, PPE Group, ALDE Group, and ECR
Group.

66
cooperation.163 A last relevant legal aspect was that a genuine link with the
country/Union should be required when granting citizenship.164
Both the general concerns and the legal aspects pointed out have been
developed at length by scholars. As I show in Chapter Three, despite how
resonant and alarming these claims seem, and how much they echoed in the
political discussion in the European institutions, they are flawed in several
respects.
The debate had several outcomes. Firstly, some members of the European
Parliament (MEPs) called for a broader debate on shared principles that ought
to guide Member States’ policies in matters of nationality.165 This call could
be understood as a way of prompting countries that have not signed or ratified
the European Convention on Nationality to do so and to show their
commitment towards an agreement on issues related to citizenship.166
Two articles from this Convention could be interesting for the case of the
Maltese program. Article 7.1.(e) established that, although a State Party may
not provide in its internal law for the loss of nationality ex lege or at the
initiative of the State party, one exception would be for the cases in which
there is no genuine link between the State Party and the national (because they
are habitually resident abroad). That is to say, Article 7 of the Convention
recognized that living abroad can be proof of the lack of a genuine link.
Furthermore, Article 13 establishes that “each state shall ensure that the fees
for the acquisition, retention, loss, recovery or certification of its nationality
be reasonable.” This article specifically separates the economic capacity of
the applicant from her right to naturalize. As Malta has not ratified the
Convention, it is not enforceable in this case.
However, it can be argued that the Convention entails a common
understanding among European States on how to approach matters of
citizenship, providing some guidelines. Some may consider it as showing that
granting citizenship both regardless of a genuine link and on the grounds of
the applicant’s economic capacity are not in line with how EU states
commonly understand citizenship.
Secondly, the Commission reacted to the resolution of the European
Parliament. The resolution underlined that European citizenship implies the
holding of a stake in the Union and depends on a person’s ties with the EU
and that states have to act according to the principle of “sincere cooperation.”

163
Claimed in the motions for a resolution of ALDE Group, PPE Group, S&D Group, and
Verts/ALE Group. The “principle of sincere cooperation”was laid down by Article 4(3) TEU.
For more information on this principle, see Chapter Three.
164
Claimed in the motion for a resolution of Verts/ALE Group (B7-0015/2014).
165
Jean Lambert, Judith Sargentini, Raül Romeva, Ulrike Lunacek on behalf of the Verts/ALE
Group (motion of resolution (B7-0015/2014).
166
In 2018, of the 53 countries appearing in the chart of signatures and ratifications of Treaty
166, only 29 signed it, while only 21 ratified it. Malta signed the Convention but did not ratify
it. For a treaty to be legally binding to a state, it needs to be both signed and ratified by the state.

67
In response to the requests, the Commission167 insisted on the relevance of
genuine links between the applicant and the country of nationality, grounded
on the fact that naturalization decisions taken by one Member State are not
neutral with regard to the other Member States and to the EU as a whole.
Lastly, in response to the European Parliament debate and the
Commission’s reaction, the Maltese Government amended its regulations
under the Maltese Citizenship Act (L.N. 47 of the 4th of February 2014),
imposing a minimum residence requirement of 12 months.168

2.4.3.2. The 2019 Commission Report

Already in the 2017 Citizenship Report,169 the European Commission
announced its intention to prepare a report focusing specifically on national
schemes granting Union citizenship to investors, i.e., IIPPs (including CIPs,
which the report calls “Investor citizenship”).
The subsequent report, released in January 2019,170 had two main
objectives: to highlight the legal problems associated with the existence of
these programs, and to identify the “keys areas of concern and risks associated
with granting citizenship of the Union or residence rights on the basis of an
investment only.” (Report, 2019, p. 2)171
The report noted two aspects which are legally relevant regarding the
programs. The first was the necessity of a “genuine link” as a legal
requirement for granting citizenship. The second the obligation for Member
States to respect the EU “principle of sincere cooperation”. Furthermore, the

167
See
https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=201
3/2995%28RSP%29#keyEvents (last accessed 07/07/2023).
168
The position of the European institutions regarding CIPs has not changed significantly after
the 2014 debate. In its resolution of the 10th of July 2020 on a Comprehensive Union policy on
preventing money laundering and terrorist financing, the Commission’s Action Plan and other
recent developments (2020/2686(RSP)), in point 31, reiterated its call for Member States to
phase out all existing CIPs as soon as possible, although the reasons provided were related to
the political, economic, and security risks as well as money laundering and undermining of
mutual trust and the integrity of the Schengen area. A few months later, in the speech of the
State of the Union at the European Parliament Plenary on the 16th of September 2020, President
von der Leyen reiterated again that “European values are not for sale” after referring to issues
challenging the rule of law in migration, such as golden passports.
169
Report from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions on Strengthening Citizens’
Rights in a Union of Democratic Change: EU Citizenship Report 2017 (COM/2017/030 final).
170
Referring to the report from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions Investor
Citizenship and Residence Schemes in the European Union 2019. (COM/2019/12 final). From
now on, it will be referred to as (Report, 2019).
171
The view and arguments of the Commission have not significantly changed over the years.
In a press release of the 20th of October 2020, entitled Investor citizenship schemes: European
Commission opens infringements against Cyprus and Malta for “selling” EU citizenship, the
Commission repeated the same legal arguments as in the 2019 Report (see below) and informed
that it had been closely monitoring CIPs in the EU.

68
report noted the role of EU citizenship as the fundamental status of nationals
of Member States, and the rights associated with this status.172
On the first point, regarding the necessity of a genuine link as a legal
requirement for granting citizenship, the report follows the case law of the
International Court of Justice (ICJ) to indicate that “nationality173 is a bond
between a citizen and the State,” and observes that “it is ‘the special
relationship of solidarity and good faith between [a Member State] and its
nationals and also the reciprocity of rights and duties, which form the bedrock
of the bond of nationality’” (Report, 2019, p. 2).174
The report considers that this bond is difficult to demonstrate in the case of
CIPs, since not only are previous relations with the country not required, but
also “applicants can acquire citizenship of Bulgaria, Cyprus or Malta—and
hence Union citizenship—without ever having resided in practice in the
Member State” (Report, 2019, p. 4).
The requirement of a “genuine link” with the country granting citizenship,
expressed at least through residing in the country, is argued to be consistent
with the ICJ Nottebohm case law previously mentioned, which is also
discussed in the report.175 The report also argues that the requirement is
consistent with the typical behavior of Member States, which “generally
regard the establishment of a genuine link as a necessary condition for
accepting third-country nationals into their societies as citizens” (Report,
2019, p. 5).176
Secondly, the report relates the first point, (the necessity of a “genuine link”
between the citizen and the country) to the principle of sincere cooperation by
indicating that “each Member State needs to ensure that nationality is not
awarded absent any genuine link to the country of its citizens” in order to
respect the principle of sincere cooperation (Report, 2019, p. 6). Thus, in the
eyes of the report, bestowing of citizenship regardless of any genuine link
would violate the principle of sincere cooperation, a relevant principle in EU

172
The report refers to the treaties (Article (9) TEU and Article 20(1) TFEU) and to the case
law (Case C-184/99, Grzelczyk, ECLI:EU:C:2001:458, paragraph 31) to assert that citizenship
of the Union is destined to be the fundamental status of nationals of the Member States, and
that it is acquired through Member State’s citizenships. Thus, a decision by one Member State
to grant citizenship for investment automatically confers rights (According to Article 20(2)
TFEU) in relation to other Member States, in particular free movement rights, the right to vote
and stand as a candidate in local and EU elections, the right to consular protection if
unrepresented outside the EU, and rights of access to the internal market to exercise economic
activities (Report, 2019, p. 5).
173
In the report, the terms “citizenship” and “nationality” are used interchangeably.
174
The judgment of the 2nd of March 2010, Rottmann, C-135/08, EU:C:2010:104.
175
See footnote 36 and Chapter Three.
176
This claim is not demonstrated by the report. It is also unclear whether what the report
observes is the attribution of citizenship by requiring a genuine link or the intuitu personae
character of status civitatis, i.e., that, as a personal legal status, its attribution is grounded in
some personal characteristics or particularities of the person to which the legal status is granted.

69
law that obliges Member States to refrain from measures that could jeopardize
the attainment of the Union’s objectives.177
The long list of risks highlighted by the report shows how this principle
would be violated due to the jeopardizing of some of the Union’s objectives.
The main risks concern security (Report, 2019, pp. 10–14), money laundering
(Report, 2019, pp. 14–16), the circumvention of EU laws (Report, 2019, p.
16), tax evasion (Report, 2019, pp. 16–19), transparency, and governance
(Report, 2019, p. 19). It is argued that “the abovementioned risks are further
accentuated by shortcomings in the transparency and governance of such
schemes” (Report, 2019, p. 2).
The report was generally welcomed in academia, particularly by those
scholars taking a normative stand against the programs, but it was also
severely criticized by others. The most prominent critic is probably Dimitry
Kochenov, who expressed the following criticisms.
Firstly, Kochenov makes a general criticism of the opposition to CIPs by
any actor by arguing that the randomness of citizenship distribution renders
opposition to any particular route to naturalization purely hypocritical
(Kochenov, 2020, p. 8).178
Secondly, Kochenov criticizes the intrusion of EU institutions into a
“crystal clear” division of competences regarding citizenship (Kochenov,
2020a, p. 10; 2020b, p. 7). He argues that, on an international level, the Article
1 of the 1930 Hague Convention already established that it is for each State to
determine under its own law who are its nationals.179 On a European
jurisprudential level, he refers to Micheletti,180 Zhu and Chen,181 and Tjebbes182
to argue that from a legal perspective, the EU indisputably regards citizenship

177
In the footnote (31), the report notes that “The principle of sincere cooperation with other
Member States and the Union laid down by Article 4(3) TEU, obliges Member States to refrain
from measures that could jeopardize the attainment of the Union’s objectives” (Report, 2019,
p. 6). Here, the report follows the path opened by the European Parliament and explored by
Carrera (Carrera Nuñez, 2014, Carrera Nuñez and de Groot, 2015) whose brilliant work points
out the fact that investor citizens may lack a genuine link and that CIPs may conflict with the
principle of sincere cooperation. I shall develop his arguments in detail in the next chapter.
178
I consider this a rather weak argument due to the following reasons. Firstly, it relies on rather
obscure and unexplicit normative considerations on what ought to be valid reasons for
conferring citizenship. Secondly, from the possibly valid but unsupported assessment that there
are currently several incorrect ways of granting citizenship, it concludes that limiting any of
these would be hypocritical, thus seeming to conclude that all should be valid. This conclusion
is disputable and probably undesirable.
179
Referring to the Convention on Certain Questions Relating to the Conflict of Nationality
Law, which entered into force on the 1st of July 1937. Article 1 states: “It is for each State to
determine under its own law who are its nationals. This law shall be recognised by other States
in so far as it is consistent with international conventions, international custom, and the
principles of law generally recognised with regard to nationality.”
180
Case C-369/90 Micheletti, ECLI: EU:C:1992:295.
181
Case C-200/01 Zhu and Chen, ECLI:EU:C:2004:639.
182
Case C-221/17, Tjebbes, ECLI:EU:C:2018:572.

70
as a domaine réservé of the states, a fact, as we have seen, that is even
recognized by the European Parliament.
Thirdly, Kochenov points out what he considers to be a number of flaws in
the report, some of which I will outline. Firstly, he considers it a flaw that the
report frames investment migration exclusively as a risk, rather than an
opportunity. A second flaw is the problematic reasoning rooted in the obsolete
authority of “genuine links” which in Kochenov’s eyes shapes the report. In
his view, existing law does not coherently support the Commission’s position,
because it is at odds with the EU’s liberal values, with upholding non-
discrimination on the grounds of nationality, and with human dignity and
equality.
He also views the Commission’s approach of using tropes such “links” and
“cultures” as unambiguously nationalist and incompatible with the current
pluralistic world. Indeed, Kochenov goes further and accuses the Commission
of attempting “knowingly to mislead the European Parliament, the Council,
the European Economic and Social Committee and the Committee of Regions,
to whom the report is addressed, for political reasons” (Kochenov, 2020a, p.
23). Moreover, Kochenov considers that the report makes unsupported
assumptions about the connection between residence, citizenship, and
security.
Lastly, he claims that the Commission “seems to hint at discrimination on
the basis of how citizenship was acquired,” which he argues would be
prohibited by EU law since the Boukhalfa case (Kochenov, 2020a; 2020b).183
Although unlike Kochenov, Sarmiento's notable work (Sarmiento, 2019)
does not explicitly target the report, it can still be used effectively for that
purpose because Sarmiento offers substantial criticism of EU intrusions into
the field of citizenship policy as far as CIPs in Member States are concerned.
Taking a strict EU law view, Sarmiento argues that the Treaties are silent
on the EU’s competence to condition, or determine, the terms of the attribution
of nationality of a Member State (ibid, p. 11). He also presents arguments
against EU intrusion in Member States’ decisions regarding citizenship,
except for situations falling under the umbrella of Article 352 TFEU (ibid, pp.
2–3).184
183
Case C-214/94 Boukhalfa ECLI:EU:C:1996:174.
184
This article introduces a provision allowing the EU to adopt an act necessary to attain goals
laid down by the treaties for the cases where the necessary powers of action are not established
in the treaties. The article reads as follows: “1. If action by the Union should prove necessary,
within the framework of the policies defined in the Treaties, to attain one of the objectives set
out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting
unanimously on a proposal from the Commission and after obtaining the consent of the
European Parliament, shall adopt the appropriate measures. Where the measures in question
are adopted by the Council in accordance with a special legislative procedure, it shall also act
unanimously on a proposal from the Commission and after obtaining the consent of the
European Parliament. 2. Using the procedure for monitoring the subsidiarity principle referred
to in Article 5(3) of the Treaty on European Union, the Commission shall draw national
Parliaments' attention to proposals based on this Article. 3. Measures based on this Article shall

71
 According to Sarmiento, the CJEU’s case law follows the same line,185
allowing Member States to retain the core of their competence in the field of
nationality when it comes to attribution, “in contrast with decisions on loss of
nationality, which are subject to the scrutiny of the Court of Justice” (ibid, p.
16). In Sarmiento’s view, case law clearly “preserves the sphere of autonomy
of Member States as a question of competence” recognizing specific inroads
into the field of nationality when this is done to ensure “effective and uniform
protection of rights of EU citizens.”
Sarmiento’s interpretation of EU law distinctly indicates that cases like
CIPs in which the measures do not restrict the rights of EU citizens remain an
exclusive competence of Member States and that “EU intervention in such
areas will require an exercise of EU competence at the legislative level or
Treaty reform” (ibid, p. 21).
Thus, Sarmiento argues that as things stand, only if the EU could determine
that a Member State’s citizenship policy undermines the goals of its policies
“would the need to introduce common EU standards surface” (ibid, p. 30).
Applied to CIPs, this entails that if the waiving of requirements, such as
physical presence—highly criticized by EU institutions—is done in
accordance with the internal constitutional arrangements and national law,
“these practices cannot be considered as entailing a fraud or an abuse of EU
law” (ibid, p. 25).
Sarmiento’s analysis provides a partial, yet correct, EU legal overview of
why, as a domaine réservé, citizenship policy lies in the hands of Member
States, limiting the powers of EU institutions to interfere. Interestingly, his
analysis also highlights a course of action in cases in which the national
policies meet the conditions of Article 352 TFEU. In such cases, the Council,
by voting unanimously and with the prior consent of the European Parliament,
could introduce common standards on the acquisition of nationality through
the article (ibid, p. 28) but this need to introduce common EU standards would
happen, in Sarmiento’s words, “only if the EU were to determine that
nationality policy in the Member States undermined the objectives of its
policies” (ibid, p. 30).

not entail harmonisation of Member States' laws or regulations in cases where the Treaties
exclude such harmonisation. 4. This Article cannot serve as a basis for attaining objectives
pertaining to the common foreign and security policy and any acts adopted pursuant to this
Article shall respect the limits set out in Article 40, second paragraph, of the Treaty on European
Union” (Italics are mine).
185
Referring here to the cases Micheletti, Rottman and Ruiz Zambrano (Sarmiento, 2019, p.
17).

72
2.4.3.3. EU Actions
In the subsections above, I have outlined the positions of the European
Parliament and the European Commission, which are both against the
establishment of the programs for similar reasons.
Since the report’s 2019 release, EU institutions have taken some actions
regarding CIPs, which will be detailed below.186 It is important to highlight
that during these years, two important and well-known events have captured
the attention of EU institutions and occupied their time: the Covid pandemic
and the Russian invasion of Ukraine. The second event has a special relevance
for the object of inquiry in this dissertation because, as mentioned above,
wealthy Russians form one of the biggest groups of applicants to CIPs in the
EU. Some of them are close to Vladimir Putin, while others are escaping from
his regime.
The first relevant action taken by an EU institution was in April 2020, when
the Commission wrote to Member States with CIPs in place, restating the
concerns expressed in the 2019 report and soliciting additional information
regarding the programs. Secondly, in a resolution adopted on the 10th of July
2020,187 the European Parliament emphasized its wish for CIPs to be
discontinued as soon as possible. Thirdly, in September 2020, the president of
the European Commission, Ursula von der Leyen, reaffirmed the
Commission’s position against golden passports in the EU in her speech
addressing the European Parliament during the State of the Union.188 In her
brief reference to the programs, she rejected them, by claiming that “European
values are not for sale.”
Next, in October 2020, following the release of the Al Jazeera documentary
about the Cypriot CIP and the subsequent suspension of the program, the
European Commission decided to open infringement procedures against
Malta and Cyprus over their CIPs.189 The argument was again the problem of
bestowing citizenship without requiring a genuine link with the Member State,
arguing that such actions were not compatible with the principle of sincere
cooperation enshrined in Article 4(3) of the Treaty on European Union, and

186
For an institutional insight into these actions, see
https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1925 (last accessed 14/11/2022).
187
Available at https://www.europarl.europa.eu/doceo/document/TA-9-2020-0204_EN.html
(last accessed 07/07/2023).
188
Available at https://ec.europa.eu/commission/presscorner/detail/ov/SPEECH_20_1655 (last
accessed 07/07/2023).
189
Infringement procedures are the legal actions established by the EU treaties that the
Commission can take against a EU Member State that fails to implement EU law. The
Commission can refer the issue to the CJEU. Financial penalties are some of the consequences
that a country may face. For further information, see
https://commission.europa.eu/law/application-eu-law/implementing-eu-law/infringement-
procedure_en (last accessed 07/07/2023). The recommendation of undertaking infringement
procedures if it is considered that CIPs undermine the principle of sincere cooperation and
jeopardize EU values and objectives was already suggested by a report by Transparency
International already back in 2018 (Brillaud and Martini, 2018, p. 48).

73
that CIPs also undermine the integrity of the status of European citizenship as
mentioned in Article 20 of the TFEU. Moreover, the Commission
reemphasized that the programs’ effects were “neither limited to the Member
States operating them, nor are they neutral with regard to other Member States
and the EU as a whole.” Overall, the Commission considered that the
programs undermine the essence of EU citizenship.
The opening of infringement procedures gave the Maltese and Cypriot
governments two months to reply to the letters of formal notice before
receiving a reasoned opinion. The further actions regarding Malta and Cyprus
differed. Malta received a second formal notice in June 2021.190 By then, the
former Maltese CIP had already reached its cap and was discontinued, but a
new scheme was in place. Malta replied to this formal notice in August 2021.
Unsatisfied with the reply, in April 2022, the Commission decided to send a
reasoned opinion threatening to bring the issue before the CJEU.191 Malta’s
reply in favor of keeping the program was grounded on the fact that
naturalization is a domaine réservé of Member States, and not within the
competence of the Union.192 The Commission’s next move was to refer Malta
to the Court of Justice on the 29th of September 2022.193
Regarding the Cypriot program, although it was discontinued in November
2020, pending applications were still being processed, and so the Commission
sent a reasoned opinion in June 2021,194 based on the fact that Cyprus did not
provide a satisfactory reply regarding the concerns set out in the letter of
formal notice. In the event of an unsatisfactory reply, the next step would have

190
Available at https://ec.europa.eu/commission/presscorner/detail/en/inf_21_2743 (last
accessed 07/07/2023).
191
Available at https://ec.europa.eu/atwork/applying-eu-law/infringements-
proceedings/infringement_decisions/index.cfm?lang_code=EN&typeOfSearch=false&active_
only=0&noncom=0&r_dossier=INFR%282020%292301&decision_date_from=&decision_da
te_to=&title=&submit=Search. See also
https://ec.europa.eu/commission/presscorner/detail/en/ip_22_2068 (both last accessed
07/07/2023).
192
More information at https://www.imidaily.com/europe/eu-commission-sends-reasoned-
opinion-on-mein-policy-malta-undeterred-ready-to-let-the-court-decide/) and
https://ec.europa.eu/commission/presscorner/detail/en/ip_22_2068 (both last accessed
07/07/2023).
193
See https://ec.europa.eu/commission/presscorner/detail/en/IP_22_5422 (last accessed
07/07/2023). The private sector, particularly the Investment Migration council (IMC), reacted
against this move from the Commission’s lack of competence, the illegality of the “genuine
link” requirement, and the invalidity of the sincere cooperation violation argument. Some
scholars, like Kochenov, side with the private sector and believe that if the case were to reach
the CJEU, the outcome would be in favor of Malta, given that citizenship falls within Member
States’ domaine réservé. See https://www.equaltimes.org/commodification-of-eu-
citizenship?lang=en#.Y1J8IuxBxQJ Find the IMC statement at
https://investmentmigration.org/wp-content/uploads/2022/11/IMC-Statement-ref-the-
European-Commissions-legal-case-against-Malta-09-11-2022.pdf (both last accessed
07/07/2023).
194
See https://ec.europa.eu/commission/presscorner/detail/en/inf_21_2743 (last accessed
07/07/2023).

74
been to bring the case before the CJEU. However, Cyprus decided to stop
processing applications. Moreover, on the 15th of October 2021, Cyprus
revoked the citizenship of 39 investors and 6 dependents.195
Regarding Bulgarian’s program, in June 2021, the Commission
communicated with Bulgaria to express its concerns regarding its CIP and to
request further details, giving Bulgaria one month to reply.196 On the 24th of
March 2022, the Bulgarian Parliament approved an amendment to the CIP
aiming to end the investor citizenship scheme.197
Apart from that, in November 2021, a draft report from the European
Parliament's Committee on Civil Liberties, Justice, and Home Affairs issued
a draft report addressed to the Commission. It contained proposals regarding
investment programs.198 Some of these included the EU taking 50% of the
proceeds of the programs (proposal 3), and banning lobbying and marketing
(proposal 2.c). The proposal was discussed in March 2022 during the first of
three Plenary Session days in the European Parliament. These proposals were
not welcome by Justice Commissioner Didier Reynders, who saw the proposal
as a way of legitimizing the programs. He argued in favor of closing them
down once and for all, strengthening the Commission’s position of complete
opposition to the programs.199
Regarding how Russian’s invasion of Ukraine has affected the programs,
as early as the 28th of March 2022,200 the Commission issued the
recommendation201 of limiting citizenship and residence access to the EU
through investor programs for individuals connected to the Russian and
Belarusian’s governments. The Commission also recommended assessing
whether citizenship should be withdrawn where it was granted through CIPs
to Russian and Belarusian nationals on an EU sanctions list in connection to
the war in Ukraine or significantly supporting the war. Moreover, the
Commission recommended the immediate termination of the CIPs in the EU.

195
See https://www.reuters.com/world/europe/cyprus-cabinet-revoke-45-passports-cash-for-
citizenship-scheme-2021-10-15/ (last accessed 07/07/2023).
196
For further details, see https://www.euronews.com/2022/01/12/bulgaria-moves-to-end-
practice-of-golden-passports (last accessed 07/07/2023).
197
According to the Prime Minister Kiril Petkov’s cabinet the termination would have its reason
in “the absence of real investments in the economy, likely to lead to job creation” of the CIP.
See https://www.euronews.com/2022/01/12/bulgaria-moves-to-end-practice-of-golden-
passports and
https://ec.europa.eu/commission/presscorner/detail/en/ip_22_2068 (both last accessed
07/07/2023).
198
Available at https://www.imidaily.com/wp-content/uploads/2022/01/LIBE-Resolution-Oct-
2021.pdf (last accessed 07/07/2023).
199
For further information, see https://www.imidaily.com/europe/ep-report-proposes-radical-
new-rcbi-rules-eu-to-take-50-of-program-proceeds-ban-lobbying-marketing/ (last accessed
07/07/2023).
200
See https://ec.europa.eu/commission/presscorner/detail/en/ip_22_1731 (last accessed
07/07/2023).
201
Available at https://home-affairs.ec.europa.eu/recommendation-limit-access-individuals-
connected-russian-belarusian-government-citizenship_en (last accessed 07/07/2023).

75
The same month, Portugal and Greece barred Russians from participating in
their residence investment programs, followed by Malta’s suspension of
Russian applicants from its investment migrations programs, which thereby
also removed this escape route for Russian’s opposed to the war and at risk
of being mobilized to the front.202
Lastly, it is worth mentioning that the Commission’s crusade against CIPs
and their repercussions in the EU has not been limited to the CIPs existing in
EU territory. In January 2022,203 the Commission proposed204 a partial
suspension of the application of the agreement205 with the Republic of Vanuatu
allowing its citizens to travel to the EU without a visa for stays of up to 90
days in a period of 180 days.206 The suspension would apply to all holders of
ordinary passports issued as of the 25th of May 2015, when Vanuatu started
issuing a substantial number of passports on investment grounds. The
intention was to address security risks posed to the EU by the CIP in Vanuatu.
The proposal was confirmed as decision by the Council in February 2022.207
The Commission’s reaction to Vanuatu’s program seems a coherent move,
considering the strong opposition towards the programs within its purview. It
also serves as a reply to Surak’s (2021, p. 25) apt criticism regarding the fact
that the Union did not revoke visa-free access to the Caribbean countries
offering CIPs, a move that, in her eyes, “would greatly cut demand for their
offerings” and be coherent with the general stance of the EU.
In this chapter, I have presented the view and actions of EU institutions
regarding CIPs. As shown, although the EU’s political approach is very clear,
the legal strength of the EU position has been rightly questioned by some
scholars. In the next chapter, I will present in detail the scholarly debate on
CIPs, and explore in-depth the legal criticisms mentioned above.

202
See https://www.imidaily.com/europe/malta-u-turns-suspends-russians-belarusians-from-
cbi-and-rbi-after-all-citing-inability-to-conduct-due-diligence/ and
https://www.gov.mt/en/Government/DOI/Press%20Releases/Pages/2022/03/02/pr220287.asp
x (both last accessed 07/07/2023).
203
See https://ec.europa.eu/commission/presscorner/detail/es/ip_22_264 (last accessed
07/07/2023).
204
Available at https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A52022PC0006&qid=1642166830495 (last accessed
07/07/2023).
205
Available at https://eur-lex.europa.eu/legal-
content/EN/ALL/?uri=CELEX%3A22015A0703%2806%29 (accessed 14/11/2022).
206
The Vanuatu CIP granted citizenship in exchange for a minimum investment of 130,000
USD, thus granting also visa-free access to the EU.
207
Decision available at https://data.consilium.europa.eu/doc/document/ST-6190-2022-COR-
1/en/pdf ,see also https://www.consilium.europa.eu/en/press/press-
releases/2022/03/03/vanuatu-council-partially-suspends-visa-waiver-agreement-due-to-risks-
posed-by-golden-passport-schemes/ (both accessed 21/09/2022).

76
Chapter Three: The Debate on Citizenship by
Investment Programs

In this chapter, I provide an overview of the current understanding of CIPs,

focusing mainly on the scholarly debate. To clarify this complex debate, I
categorize the discussions into descriptive and normative perspectives. I call
these perspectives ‘domains’. Instead of following a chronological order, I
adopt a systematic approach to aid clarity.

3.1. The Descriptive Domain

In this section, I identify the main categories of descriptive views on the nature
of CIPs. This section is divided into two subsections. The first sub-section
presents the empirical data provided by the private industry. The second sub-
section addresses the descriptive claims made by scholars.
Private industry provides empirical data and information relating to the
benefits of CIPs in terms of their associated rights. These benefits can be
categorized into two main groups: external benefits and internal benefits of
citizenship.
External benefits refer to the value of passports in terms of visa-free access
to other countries. Various indexes have been created to rank the value of
passports based on different criteria.208 This information is particularly
relevant for individuals seeking to expand their business activities globally or
overcome limitations imposed by their original passports.
The internal benefits of citizenship are calculated in terms of the social,
political, and economic stability offered by a particular country’s citizenship.
Private industry often releases handbooks and reports providing updates on
countries offering CIPs. An example of data falling into this category is the
Global Residence and Citizenship Handbook (Kälin et al., 2014). The
handbook, published annually by Henley & Partners since 2014, offers

208
Some examples of mechanisms to calculate the value of citizenships are the Passport Index
(available at https://www.passportindex.org/ last accessed 07/07/2023) and the Quality of
Nationality Index (available at https://www.nationalityindex.com/ last accessed 07/07/2023).

77
relevant updates on all featured countries where CIPs have been
implemented.209
Turning to the descriptive claims made by scholars, it is important to note
a couple of caveats. Firstly, the descriptive scholarly domain in this area is
significantly more superficial and less comprehensive than the normative
debate. Secondly, this subsection presents the views on CIPs which have been
stated most frequently and emphatically, each of which I place in one of the
following three categories: description of the phenomenon, profitability, and
dangers and negative consequences of the programs.
One commonly repeated view is that CIPs involve the “commodification”
or “sale” of citizenship. This description—first used casually in the
industry—has been widely adopted, but few scholars have provided
arguments supporting this claim. Kristin Surak (2016) is an exception, arguing
that the very existence of a market for citizenship, and some people’s
treatment of it as an economic good, turns it into a commodity with particular
characteristics, including the state’s dual role as a key regulator and sole
producer, and the possibility to differentiate between products since “not all
versions of citizenship are equal” (Surak, 2016, pp. 8–9).
Mavelli (2018, 2022) has provided what is perhaps the dominant challenge
to the view of CIPs as a commodification of citizenship, arguing that CIPs
“exceed mere processes of commodification” and are “part of a neoliberal
political economy of belonging.” According to the author, the process of
neoliberal economization “undermines political notions of citizenship
grounded in reciprocity, equality, and solidarity, not by replacing these
principles with economic ones but by rewriting these principles in economic
terms” (Mavelli, 2018, 2022). Therefore, in Mavelli’s view, CIPs “should not
be primarily understood as a product of the retreat of the state and domination
of the market, which turns citizenship into a saleable commodity” (Mavelli,
2018, p. 485).
Thus, unlike most scholars describing the phenomenon, Mavelli does not
regard CIPs as entailing a commodification of citizenship, but rather a
reconfiguration of the notion in a neoliberal dimension à la Foucault.
Following this view, the diagnosis of what defines neoliberalism is not the
commodification of the life spheres but their entrepreneurial quality, or the
assessment of everything included in these spheres from the logic of
competition. In this context, citizenship is not being commodified. Instead, it
is reconfigured in a system—the neoliberal one—that devours other views and
imposes its worldview from the logic of enterprises and competition (Mavelli,
2022, pp. 54–81).

209
The book is actually considered the “encyclopedia of residence and citizenship by
investment programs,” providing information that goes beyond description of the internal
benefits and encompassing all sorts of questions that may come up when planning residence or
citizenship for both applicants and private industry.

78
 Mavelli presents a deep and well-constituted understanding of the
phenomenon of CIPs that challenges the terminology generally uncritically
adopted by most scholars from the industry. Unfortunately, those describing
CIPs as a “sale” or “commodification” often avoid defining what they mean
by this and, worse, their claims lack sustained reflection on the feasibility or
legality of what they assume is happening, i.e., the sale or commodification of
a legal status, status civitatis. More importantly, they seem to ignore the need
to assess the internal legal plausibility of what they suggest is happening.
Some questions that may arise here are as follows: is it even legally possible
in the particular legal system to establish a CIP to sell citizenship? If yes,
which law should regulate the practice? Should it be contract law if we
assume that the state is acting as a private actor; or should it be administrative
law if we assume it is acting as a public actor? Although these relevant
questions have not yet been addressed in academia, several authors are
repeating the private sector claims, assuming that the programs would be a
kind of “sale of citizenship.” This creates the danger of inaccurate or
unsubstantiated descriptions generating mischaracterizations of the
phenomenon and, eventually, inconsistent normative claims. If this is the case,
it is imperative that such characterizations of the phenomenon be supported
by facts.
Among scholars arguing that what is going on is that CIPs “commodify”
and “sell” citizenship, some go one step further and claim that not only is
citizenship being sold through CIPs, but that the “sale” of status civitatis in
society is actually nothing new. A good example is Magni Berton, who
claimed in his contribution to the working paper Should citizenship be for
sale? (Shachar and Bauböck, 2014) that “roughly two thousand years ago,
Roman citizenship began to be sold to rich foreigners. As a consequence,
rather than a way to share equal duties and rights, citizenship by the third
century C.E. had become an aristocratic title. It divided people instead of
rallying them. It increased inequalities” (Shachar and Bauböck, 2014, p. 11).
Likewise, Gamlen et al., (2017), Tanasoca (2016), and extensively,
Džankić (2019) also followed this idea that selling a status or membership of
a community would be nothing new, by comparing CIPs to the sale of noble
titles from the 16th century and other historical moments when money was a
relevant criterion for becoming a member of a community.210 A few things
need to be stressed here.
Firstly, again, these claims of a parallel between CIPs and historical
precedents in which money was a criterion to facilitate the acquisition of
citizenship often dependent on an uncritical assumption that CIPs are
equivalent to the “sale” and/or “commodification” of citizenship. Secondly,
as Džankić (Džankić, 2019, pp. 25–56) shows, in the past money was in some
cases a criterion for exclusion, and, in other cases, a criterion for shortening

210
For an in-depth view of this historical claim on the phenomenon, see Džankić (2019, ch. 2).

79
the route to citizenship; yet, it was not the main criterion for granting
citizenship, as it is with CIPs.
Moreover, and more importantly, all these instances of some sort of
“selling of membership/citizenship” predated the establishment of
constitutionalized states with legal systems ruled by the Rule of Law.211
Presenting them without further scrutiny entails two dangers. Firstly, these
cases seem to be presented as if the legal context in which they occurred would
not establish significant differences among them. Secondly, some may be
tempted to look to historical antecedents to provide a normative justification
for the present practice.212
A second category of descriptive views focuses on the profitability of CIPs.
There are multiple descriptions of how and to what type of countries the
programs are profitable. Some of the most frequently quoted pieces of work
are the ones by Sumption and Hooper (2014) and Surak (2016). Most authors
focusing on the profitability of the programs present evidence highlighting
that the benefit of instituting CIPs is insignificant to large economies but can
be substantial for small countries (Surak, 2016, p. 19; Sumption and Hooper,
2014, p. 1). Surak provides a telling example in the case of Saint Kitts, whose
Prime Minister declared that the receipts from its CIP accounted for 37% of
its GDP in 2015 (Surak, 2016, p. 19).
According to these scholars, the empirical data shows that, especially in
developing countries with small populations, the granting of investor
citizenship is a powerful tool for offsetting the practical inability to raise taxes
or take on bank debt. Although most EU Member States have considerably
strong economies, it is interesting that this trend applies to the EU context
since some of the countries that have established CIPs are not among the most
economically most well-off countries in the region, and nor are they the most
populous. In some cases (e.g., Cyprus), the adoption of legal measures
granting citizenship on economic grounds was prompted by a financial crisis,
as I have shown in the previous chapter. This can be understood as supporting
these authors’ claims.
Lastly, some descriptive views highlight the potential dangers and negative
consequences for countries instituting CIPs. Owen Parker offers an interesting
example, arguing that the implementation of IIPs entails a “commercialization
of sovereignty” (Parker, 2017, p. 333)213 and that this commercialization

211
For a deeper insight into this point, as well as a definition of the Rule of Law, please, see
Chapter Four.
212
Without further explanation, this perspective would raise severe concerns. It is not evident
why the mere fact of having done something in the past should automatically provide a valid
rationale for its continuation.
213
Parker follows Palan (Palan, 2002) in assuming that there can be such a thing as the
“commercialization of sovereignty,” which he considers to be a consequence of IIPPs.
According to the author, the IIPPs allow a situation in which “’juridically dispersed’ subjects
(Palan, 2002, p. 172) became ‘shoppers’ for low regulation and taxation, which pushes many
sovereign entities to make themselves attractive to such shoppers. Thus, governments

80
would impact what he calls “internal citizenship.”214 On this reading, this
practice has eroded “the capacity to support nationally based welfare,
employment, and industrial policies, or at least it has been used as a pretext
for such an erosion” (Parker, 2017, p. 337).
According to Parker, the establishment of IIPPs (including CIPs) has three
consequences: firstly, an obvious modification of the citizenship (policies) of
the state implementing the program; secondly, that sovereignty is put on sale;
and thirdly, the erosion—or possible erosion—of welfare.
I consider this claim, according to which sovereignty is put on sale, to be
ill-founded, both from a legal theoretical and an empirical perspective. Firstly,
it treats all programs as equal in their requirements and conditions, assuming
that the fact of establishing a CIP would entail that the country does not
establish a limit on the number of applicants who may obtain citizenship
(which is often empirically false and theoretically unnecessary). Secondly, it
ignores the empirical fact that the number of people obtaining citizenship
through CIPs per year is, actually, usually pretty low. Thirdly, the claim
ignores the temporal dimension of the programs and the capacity of a state to
modify its own law over the course of the CIP in cases where this law supposes
some risks to its sovereignty. Thus, in arguing that the implementation of CIPs
may put the sovereignty of a state on sale, Parker treats states as if they already
lack the sovereign capacity to modifying the programs in the event that they
see a risk to their sovereignty.
Regarding the last claim, in order to understand what Parker means by
“erosion of welfare,” it is necessary to know that he is following Jayasuriya
(Jayasuriya, 2005), who asserts that the 20th Century’s notion of welfare exists
in the context of a shift from what he calls “social constitutionalism” to a form
of “economic constitutionalism.” According to him, “social policy still plays
a crucial role in these new forms of economic constitutionalism, but it is
designed and shaped so as to enhance inclusion within the market rather than
being preoccupied with the earlier emphasis on notions such as the
redistribution of income” (Jayasuriya, 2005, p. 2). Parker’s text reads,

Indeed, it has eroded the capacity to support nationally based welfare,

employment, and industrial policies or at least been used as a pretext for such
an erosion. We have consequently witnessed moves to forms of social policy

effectively created the conditions for a ‘race to the bottom’, undermining the ability of other
sovereigns to regulate and tax, at least with respect to wealthy corporate or individual entities
able to take advantage of the possibility of this juridical dispersion” (Parker, 2017, p. 336).
Parker sees the consequence as the “commercialization of sovereignty.”
214
Parker does not define what he means by “internal citizenship.” One possible reading is that
it is synonymous with community life. Yet, it is unclear how establishing a CIP might affect
community life. Where future CIP citizens are going to reside in the country, how can the fact
that they paid to have access to citizenship affect community life? Where they are not willing
to reside in the country, how could their residence abroad affect the community life of the
country whose passport they hold? These are relevant yet unclarified matters.

81
 that shift the management of risk onto individuals and reinforce a ‘market
citizenship’ that differs from that reflected in the political grammar of post-war
social democracy (Parker, 2017, p. 337; Jayasuriya, 2005, p. 2).

Parker's argument fails to address why, despite what according to the vast
literature on the topic is a long-standing crisis of the welfare state, CIPs have
only emerged recently. Additionally, I find it problematic that Parker relies on
this literature to suggest that the establishment of citizenship programs based
on economic transactions can have macroeconomic effects comparable to
those attributed to globalization and neoliberalism. This claim lacks sufficient
evidence and appears to overlook the proportional impact of CIPs worldwide,
as they alone cannot be responsible for the significant disruption of the
existing world order. It is possible that there is confusion between cause and
effect in this line of reasoning.215

3.2. The Normative Domain

I now move from the descriptive to the normative domain. This includes
claims by scholars and by political actors at the national and supranational
levels. I have dealt with those from political actors in Chapter Two by
presenting the reaction of political actors on the supranational level
concerning the CIP of Malta, as well as the limited success of their opposition.
In Chapter Five, I present the political debate in the national spheres of EU
Member States establishing CIPs. Here, I focus on the arguments provided by
scholars.
My contribution to the normative discussion is twofold. Firstly, I enrich,
disambiguate, and provide conceptual tools for orientation in this debate based
on what other scholars have claimed and argued. Secondly, I conclude this
chapter by observing that a useful range of normative arguments against CIPs
may be derived from a legal theoretical perspective. This set of arguments has
hitherto been overlooked in the debate yet warrants consideration. I call this
set of arguments “the Missing Debate.” The framework for developing these
arguments is presented in Chapter Four.

3.2.1. The Normative Debate Among Scholars

Here, I will consider academic work evaluating programs’ permissibility. This
needs to start with a caveat: authors often rely on implicit or unarticulated
conceptions of “citizenship”. These conceptions may not only differ from one

215
This is Peter Spiro’s view, who argues that IIPPs are not the cause but the consequence of
the greatest changes resulting from globalization (Shachar and Bauböck, 2014, p. 10).

82
author to another, but may be mutually incompatible. This confuses the
debate. Indeed, the fact that authors rely on, or refer to, competing models or
conceptions of citizenship can be observed generally and, in some cases, such
different conceptions may even appear within the work of a single author, who
inadvertently glides from one conception to another, overlooking the many
implications of this.
In her 2019 book,216 Mindus brought some conceptual clarity to the debate
on citizenship by distinguishing three different conceptions of citizenship.217
According to Mindus, it is not fruitful to look for the lowest common
denominator to the multiple and often contradictory definitions of citizenship;
instead, she suggests approaching the notion by offering negative definitions
of citizenship appropriate to the context in which the notion appears. By
subjecting ambiguous terms to semantic analysis with the aim of clarifying
what meanings are conveyed by the term “citizenship” in different contexts,
Mindus reaches the conclusion that the term “citizenship” is used within three
semantic areas, each determined by a specific way of qualifying the opposite
of the citizen, i.e., the non-citizen.
Indeed, the non-citizen can be conceived as the subject (subditus), the
foreigner (non-national), and the marginalized (excluded person) (Mindus,
2019, pp. 242–313).218 These three ideas of non-citizens correspond to the
opposite of “citizen” in accordance with three different conceptions of
citizenship: the political, the legal, and the sociological conceptions.
In each semantic area, distinct sets of usage rules are valid. In the semantic
area in which the citizen is cast as the opposite of the disenfranchised subject,
the political conception of citizenship prevails; in the semantic area where the
citizen is cast as the opposite of the non-national, the legal conception of
citizenship prevails; lastly, in the semantic area where the citizen is cast as the
opposite of the marginalized, the sociological conception of citizenship
prevails. These conceptions correspond to three semantic fields, which should
be distinguished because they refer to three different problems: under the
political conception, citizenship is supposed to offer a solution to the question
of how to guarantee democratic legitimacy; under the legal conception,
citizenship is supposed to offer a solution to the challenge of guaranteeing
legal certainty; under the sociological conception citizenship is supposed to
offer a solution to the task of assuring social cohesion.219
Following Mindus, the resulting three meanings of the term citizenship
(political, legal, and sociological) are thus not interchangeable. However, as I
show in the coming pages, some of the authors participating in the normative

216
The 2019 book, Hacia una teoría funcionalista de la ciudadanía, is the Spanish translation
of Cittadini e no: Forme e funzioni dell’inclusione e dell’ esclusione (2014).
217
For a good overview in English of Mindus’ book, see Žgur’s (2015) review. A review in
Spanish is available in Prats (2021a).
218
My translation.
219
Mindus (2019, pp. 21–43).

83
debate do use the three conceptions of citizenship as if they could be
interchanged without loss of meaning. Also, some authors seem unaware that
they start by employing a term of art developed to address one problem (e.g.
democratic legitimacy) and move on to using another term of art referring to
quite another type of issue (e.g., safeguarding social cohesion).
This problem is exacerbated by the multidisciplinary nature of the debate
already noted. Approaching the phenomenon from different disciplines makes
it easier to maintain certain assumptions when defending a particular
conception of citizenship, assumptions which may be neither obvious nor
understandable to scholars approaching the same topic from a different
discipline.
As part of the objective of making the phenomenon more understandable,
I aim to lend more order to this debate. With this purpose in mind, in the
coming pages, part of the academic debate will be presented and analyzed on
the basis of a distinction between conceptions of citizenship.220
A second issue with the normative literature is that the majority of authors
present claims rather than arguments. Furthermore, these assertions are often
generalizations and may not be applicable to all CIPs due to the specific
characteristics of each program. To ensure clarity, I try to bridge the gaps in
the logical structure of these claims by reconstructing them as coherent
arguments.

3.2.1.1 Arguments in Favor of Citizenship by Investment Programs

The majority of scholars making normative claims about CIPs reject the
programs. Of the few voices in favor of the programs, many support the
practice for economic reasons, stressing the economic benefits for states
establishing CIPs. Ayelet Shachar (Shachar et al., 2017, pp. 789–816) and
Jelena Džankić (Džankić, 2019, pp. 57–90) have brilliantly summarized the
main arguments in favor of CIPs that have been proposed by others in
academia.
According to Shachar, three arguments have been made in favor of CIPs. I
refer to these as the economic reward argument, the adequacy of the market
as a selection argument, and the economic approach to human behavior
argument. In turn, Džankić identifies two arguments in favor of CIPs, both of
them, according to her, inspired by the liberal theory of citizenship.221 These

220
Particularly the section presenting the arguments against the programs.
221
According to Džankić, “the liberal citizenship tradition is based on the idea that political
communities are voluntary associations, in which principal agency is vested in individuals who
are the primary right bearers (...) The core of the relationship between the state and the
individual was contained in the notion of individual rights” (Džankić, 2019, p. 61). Moreover,
this tradition “does not view active participation or submission to authority as constitutive of
the communal bond” and, it “would support the idea of admission of new members who would
offer some form of a major contribution to the community’s well-being” (Džankić, 2019, p.
62). It is relevant to mention the incoherence that follows from the fact that some states, such
as Bulgaria, apply the liberal view of citizenship when establishing CIPs while also following

84
are the optimization of community’s performance argument (which is a more
sophisticated version of the economic reward argument), and the readjustment
of the birthright citizenship arbitrariness argument.

3.2.1.1.1. The Optimization of Community’s Performance Argument or The

Economic Reward Argument
The first argument is the optimization of community’s performance argument
or the economic reward argument. The simplified form of the argument is as
follows:

Premise 1. If CIPs enhance the economic resources of the club (society), then
they ought to be allowed.

Premise 2. CIPs enhance the economic resources of the club (society).

Conclusion: CIPs ought to be allowed.

This argument supports CIPs222 on the basis of the fact that the “combined
state revenue from the fee paid by the investor and the investment itself
enhances the economic resources of the club” (Džankić, 2019, pp. 67–68).
Džankić correctly suggests that this argument is based on “the economic club
good theory of citizenship” (Buchanan, 1965; Frey and Eichenberger, 1999)
which follows an economic rationale in treating membership of a political
community as analogous to membership of a club, i.e., private association,223
and arguing that the former should also use a cost-benefit analysis when
deciding on whether or not to bestow membership. The gist of the argument
is given by Buchanan: “the bringing of additional members into the club also
serves to reduce the cost that the single person will face” (Buchanan, 1965, p.
8).
Buchanan’s view is shared by other authors, like Reich (1991), who argue
that belonging to a community as a citizen entails the imposition of shared
responsibility for the economic well-being of the community of which one is
part. Thus, this view supports the establishment of CIPs by implicitly

the communitarian or republican views in regulating other ways of acquiring citizenship. For
more details on the differences between these notions, see Džankić (2019) and the excellent
work of Honohan (in Shachar et al., 2017).
222
The soft version of the argument refers to permission, while the strong version refers to
obligation. According to the latter, states should have an obligation to naturalize "only those
people whose contribution can help to decrease the shared costs of membership should be
naturalized" (Džankić, 2019, p. 67). Reich's assumption that "the citizens of a nation share
responsibility for their economic well-being” (Reich, 1991, p. 18) would support this view.
Although the strong version may be very appealing to economists, several objections can be
made against it on political, ethical, legal, and sociological grounds.
223
Probably, the most famous work comparing membership in a political community to
membership in a club is Michael Walzer’s 1983 book Spheres of Justice (1983). For the
comparison and some criticisms, see its second chapter.

85
maintaining a liberal (contractarian)224 political view of citizenship that
reduces its content to the minimal notion of a shared space, the maintenance
costs of which are to be shared by its members. Under this very reduced and
thin view of citizenship, accepting wealthy members willing to contribute
extensively in economic terms would be desirable because it would reduce the
economic burdens per capita.225
At least two objections can be presented against this argument, one
empirical and the other conceptual. Firstly, as Shachar has proved, it is far
from obvious that the way most CIPs are created means that the economic
contribution of the new citizens will increase the community's well-being
(Shachar et al., 2017, pp. 801–804). There are several reasons for this. Firstly,
in some cases, what is required is an investment in real estate, which may be
sold after a period, and in some cases the new citizen can even speculate on
the housing (and thus also negatively affecting the lives of people living in the
community). Secondly, issues concerning the distribution of the investment
also determine if the contribution made by the new citizens constitutes a de
facto improvement to community well-being, something that has failed to
happen in certain cases. Shachar gives an example when discussing the
Canadian investor-visa program or the Saint Kitts CIP. Regarding this last
program, Shachar stressed that “it was further revealed that the country's
public fund established to manage the proceeds has pumped millions of dollars
into the hands of private developers and real estate moguls, whereas ordinary
citizens saw little of these returns” (Shachar et al., 2017, p. 802).
Another factor that stands empirically against the argument is that, as
Shachar observes, “selling countries typically offer partial or full tax wavier
for those who chase membership” (Shachar et al., 2017, p. 803). Thus,
counter-intuitively, even the purported economic benefit of such programs is

224
According to Cudd and Eftekhari (2018), the difference between both types of liberals,
contractarians and contractualists, is the following: while “contractarianism, which stems from
the Hobbesian line of social contract thought, holds that persons are primarily self-interested,
and that a rational assessment of the best strategy for attaining the maximization of their self-
interest will lead them to act morally (where the moral norms are determined by the
maximization of joint interest) and to consent to governmental authority, arguing that we each
are motivated to accept morality ‘first because we are vulnerable to the depredations of others,
and second because we can all benefit from cooperation with others’ (Narveson, 1988, p. 148)”
on the other side, “contractualism, which stems from the Kantian line of social contract thought,
holds that rationality requires that we respect persons, which in turn requires that moral
principles be such that they can be justified to each person. Thus, individuals are not taken to
be motivated by self-interest but rather by a commitment to publicly justify the standards of
morality to which each will be held”. Cudd and Eftekhari specifically identify James Buchanan
as the paradigmatic Hobbesian contractarian. (Italics added).
225
It seems that the implicit standard of judgment used here is that, in this view, a community
of rich members is to be preferred over a community of poor members. This seems to imply
that the normative criterion for establishing which state or political organization we are to prefer
is individual well-being or perhaps collective well-being. However, it is by no means obvious
that this view is left unchallenged. Indeed, the history of political thought abounds with
examples of alternative and competing ideals of bonum commune.

86
not as obvious as it may appear. She points out that some studies have shown
that “policy-makers have often found the results disappointing” and therefore,
“we should be highly skeptical of the economic reward argument” (Shachar
et al., 2017, p. 801).
The second objection to this argument is conceptual in nature. As Džankić
correctly points out, this first argument is founded on a liberal political
conception of citizenship, which hollows out the notion to the point where it
is synonymous with belonging to a club, where sharing responsibility for the
economic well-being of the community is the primary obligation and the main
expectation of citizens. However, this reduced understanding of citizenship is
at odds with the conceptions of citizenship embedded in most states. An
interesting example is the case of Bulgaria, where prospective naturalizers are
required to prove their mastery of the Bulgarian language, live in the country
for at least ten years, and renounce their former citizenship. These hard-to-
achieve requirements imposed on naturalizers prove that the conceptual view
of citizenship embedded in Bulgarian law is not akin to the liberal political
view defended by the Optimization of Community’s Performance Argument,
making the argument unconvincing, at least, in the case of the Bulgarian CIP.
Denying this would amount to accepting that the Bulgarian legal system fails
to meet the requirement of coherence in its citizenship policies.

3.2.1.1.2. The Adequacy of Market as a Selection Argument

The second argument is the adequacy of market as a selection argument. The
simplified form of the argument is as follows:

Premise 1. If CIPs grant citizenship to those valuing it most, then they ought
to be allowed.

Premise 2. CIPs grant citizenship to those valuing it most.

Conclusion: CIPs ought to be allowed.

The argument supports CIPs maintaining that “turning citizenship into a

commodity would offer a better sort of mechanism to help identify, through a
market transaction, which agents value citizenship most—by paying more for
it” (Shachar et al., 2017, p. 797). In this argument, the underlying assumption
is that paying more for a good signifies a greater expression of value by the
person. Although Shachar indicates that “there is very little literature focusing
on the idea of a market for citizenship,” she considers that “these positions can
be extrapolated from general pro-market liberalization arguments” (Shachar
et al., 2017, footnote 32). Shachar believes that the thinking behind this
argument is:

87
 ...that for voluntary trades on the market to gravitate towards optimal results,
access to membership must be recast and removed from the regulatory
authority of the state. Entry visas, residency permits, and naturalization
certificates must instead be freely sold and traded on the market, just like any
other scarce and valuable good. In this account, trading in citizenship ensures
that a correct pricing mechanism will emerge through repeated transactions
between ‘purchasers’ and ‘sellers’ on carefully regulated platforms (Shachar
et al., 2017, p. 797).

The implicit assumption is that the market is an adequate mechanism for

deciding on issues of belonging, such as the allocation of membership.
However, this assumption is debatable. The philosopher Michael Sandel
(2013) argues against this view on the basis of fairness (if money is the
necessary means to obtaining goods, then the poor will be systematically
disadvantaged in the marketplace) and notes the effect of markets on values,
where markets do not just allocate goods, but also “express and promote
certain attitudes toward the goods being exchanged” (Sandel, 2013, p. 9).
Two further related objections can be raised against this argument. I shall
call the first one the objection from value as relative. This objection claims
that money per se cannot tell us much about how much different individuals
value something, given that money is unequally distributed. Why would the
investment of a fungible asset, such as money, which is unevenly distributed
be a more pertinent mechanism to express will than, e.g., risking one’s life?
Under the assumption that all human lives have equal worth, but that money
is unequally distributed, it seems that other things better express the will to
commit to a community than a sum of money. For example, granting
citizenship to those risking their own lives for the good of the community
would be a more adequate measure of the relevant will than granting
citizenship to those who are willing, say, to make a real estate investment
involving a tiny portion of their wealth for a few years. 226
The second objection is a variant of the first. Let us call it the objection
from the incapacity of the market to ascribe value. As Shachar correctly states,
the “Adequacy of Market as a Selection Argument” pays no attention to the
“background conditions of inequality that may well prohibit the vast majority
of the world's population from ‘expressing’ through monetary investments
that are far beyond their reach—the value that they attach to such membership
goods” (Shachar et al., 2017, p. 798). Thus, in a world marked by high
economic inequality, the market is not a self-evident mechanism for
identifying which agents “value” citizenship the most, even under the

226
While it seems compelling to use the value of life as a more relevant benchmark instead of
money, it is not without its challenges. The underlying assumption is that everyone values their
own life, but this may not be true for all individuals. Some people may not place a high value
on their own life and may be more willing to sacrifice it, for instance, to acquire citizenship. In
such a scenario, it does not necessarily imply that they are more deserving of citizenship than
others.

88
(debatable) assumption that one ought to grant citizenship on the basis of how
much the applicant desires it.

3.2.1.1.3. The Economic Approach to Human Behavior Argument

The third argument is the economic approach to human behavior argument.
The basic form of the argument is as follows:

Premise 1. If CIPs are grounded in assumptions of human nature, then they

ought to be allowed.

Premise 2. CIPs are grounded in assumptions of human nature.

Conclusion: CIPs ought to be allowed.

Shachar outlines this argument, indicating that its defenders argue that “the
commodification of citizenship is valuable and desirable because it is
grounded in assumptions of human nature” (Shachar et al., 2017, p. 800).
Here, the underlying assumptions are that commodifying is a natural
behaviour for humans and that natural behaviour should be promoted.
According to Shachar, this argument is based on the work of Gary Becker’s
theory “the economic approach of human nature.”227 As she writes:

this approach rests on tripartite assumptions of maximizing behavior, market

equilibrium, and stable preferences. Taken together, argues Becker, ‘these
three assumptions can explain 'all human behavior' and should apply regardless
of what goods are at stake (Becker, 1992; quoted in Shachar et al., 2017, p.
800).

Thus, in this view, were the commodification of goods were a natural tendency
of human behavior, nothing about citizenship would make it an exception to
this.
A first objection to this view, already introduced by Shachar, is based on
the evidence presented by Vivian Zelizer and other economic sociologists.
They have shown that the economic approach to human behavior is not a
natural characteristic of human beings in their approach to the world but an
acquired attitude:

the creation of an environment receptive to the commodification of institutions

and aspects of life previously held 'sacred' and, as such, not suitable for trade,
is not simply the result of rapid globalization or the rationalization and
disenchantment of modern life. Rather, it also requires a cultural, ideological,
and conceptual orientation that transforms the way we value certain relations
and the legal structures that govern them (Shachar et al., 2017, p. 800; Zelizer,
2017).

227
See Becker (1976).

89
A second objection that could be added to this is that the argument relies on
the faulty premise deeming that we should promote X because X is grounded
on (assumptions about) human nature. There are many aspects of human
nature that may be undesirable (for instance, violent behavior). Even if we
were to accept that commodification is an element of human nature, it still
would not follow that we ought to promote it. Indeed, the fact that something
belongs to our nature is no argument for the view that we ought to behave in
ways that give expression to this aspect of our nature.

3.2.1.1.4. The Readjustment of the Birthright Citizenship Arbitrariness

Argument
The fourth argument in favor of CIPs is the readjustment of the birthright
citizenship arbitrariness argument. The basic form of the argument is as
follows:

Premise 1. If CIPs counteract the bestowing of citizenship on unjustified

grounds, then they ought to be allowed.

Premise 2. CIPs counteract the bestowing of citizenship on unjustified

grounds.

Conclusion: CIPs ought to be allowed.

Here, an underlying assumption supporting premise 1 is that bestowing

citizenship on unjustified grounds is morally arbitrary. Džankić indicates that
those defending this argument do so on the basis that “most people acquiring
citizenship do so under the arbitrariness of birth, for which they have done
nothing”; therefore, in this view, “allowing its acquisition in exchange for
money will serve as a mechanism to readjust this arbitrariness” (Džankić,
2019, pp. 69–72). According to Džankić (Džankić, 2019, p. 69), this argument
has been defended by, among others, Dimitry Kochenov (2018).
This position appeals to the morally arbitrary228 nature of the traditional
mode of bestowing citizenship by birth, and presents an understanding of CIPs
as a tool that can readjust this moral arbitrariness.229 CIPs would thus be
considered a mechanism that awards citizenship to those who deserve it,

228
Here, the authors mean morally arbitrary in the sense that providing citizenship as a
birthright is unjustified due to the lack of desert or affectation of the agent receiving the
citizenship since she has done nothing to be born in one or another family or territory, and,
therefore, to be rewarded with one or another citizenship. For a distinction between the moral
and legal notions of arbitrariness, I suggest reading Mindus (2020). Arguments against some
aspects of the legal understanding of arbitrariness offered by Mindus appear in Prats (2021b).
229
A suggestive way of describing citizenship in line with the understanding of the defenders
of this argument is the one presented by Kalm (2020, p. 528): “there is something deeply
troubling about citizenship: that it is of such a momentous importance for the individual’s life
prospects yet is so accidentally distributed.”

90
“enhancing opportunities of those who had not obtained ‘the winning ticket’
through the birthright attribution of citizenship” (Džankić, 2019, p. 66).230
This argument is grounded on several assumptions. The first is that
citizenship is a good that is distributed by states. Surprisingly, this assumption
has been unquestioningly adopted by most participants in the CIPs debate.
The second assumption is that ascribing citizenship by birth is morally
arbitrary. The understanding of the morally arbitrary nature of birth is based
on the idea that it would be unjustifiable to grant citizenship based on a fact,
such as birth, that lies beyond a person’s control and which therefore cannot
be a mark of desert.231 Thus, granting rights by bestowing citizenship on an
agent who has done nothing to deserve it becomes an issue of moral luck.232
The third assumption is that money is a mark of desert or merit, and that
therefore, CIPs, by ascribing citizenship on economic grounds, would
function as a mechanism to readjust the aforementioned arbitrariness. Thus,
defenders of this argument assume that the arbitrariness—and hence
wrongness—of bestowing rights by moral luck can be readjusted by creating
a way to obtain citizenship by money. Money is here understood as a less
arbitrary item, the ownership of which reflects a person’s efforts and merits.

230
It is interesting to note that, according to Džankić, the understanding of citizenship that the
defenders of this argument seem to follow considers citizenship a key for obtaining rights and
life opportunities. Džankić’s whole paragraph makes it clear by saying: “in turn, as the
condition of birth (place or descent) gives individuals different life opportunities due to global
inequalities, the practice of investor citizenship would enhance opportunities of those who had
not obtained ‘the winning ticket’ through the birthright attribution of citizenship” (Džankić,
2019, p. 66). Notably, the majority of proponents of this argument do not offer arguments
supporting a prioritization of the individual or applicant’s view over the state or community one
when referring to citizenship. That the function of citizenship is protective and right-giving is
only one part of the story. As an element of differentiation between those belonging to the group
and the outsiders, from the community’s point of view, bestowal on the grounds of birth follows
a logic that makes it not arbitrary. A way of understanding that logic is through the identification
of elements in the particular person relevant for ascribing her the status granting membership
in the existing group. Traditionally, this has been done through being born into a member’s
family or being born in the community. These facts—correctly or incorrectly—are understood
as granting a higher level of reliability regarding the person who is incorporated into the group.
Moreover, it is not clear to me why the states should shape the domestic granting of citizenship
predominantly by the potential influence on global inequalities instead of their domestic and
communal interests and create on those grounds an alternative route to their membership. I
suspect that those arguing that citizenship policies should be ascribed with great consideration
given to world inequalities and the effects on individuals follow a particular understanding of
citizenship with a global and individualistic focus that is not shared by most states, which focus
on their domestic communities and their domestic security. An example of the former approach,
centered on the view of the applicants inserted in the globalized world is the notion of “strategic
citizenship” developed by Harpaz and Mateos (2018).
231
The argument seems to rely on the idea that the only item that can justify the attribution of
citizenship is desert, which is highly arguable, as we have seen in the previous footnote.
232
“Moral luck occurs when an agent can be correctly treated as an object of moral judgment
despite the fact that a significant aspect of what she is assessed for depends on factors beyond
her control” (Nelkin, 2019). For a good overview of moral luck, see the entry of the same name
in the Stanford Encyclopedia of Philosophy, by Nelkin (2019).

91
 Several objections can be raised here. The first addresses the unquestioned
assumption that citizenship is primarily a good that is distributed by states.
Scholars adopting this view regard citizenship from the perspective of
individuals, and how the attribution of a particular citizenship can affect
individual lives due to its associated entitlements and limitations, thus treating
citizenship as a good distributed by states. However, as I argue in the coming
chapter, this view is inexact from a legal perspective. Citizenship is a personal
legal status, a label establishing the position of a subject in the legal system,
granted by states with the interest of regulating and controlling their territories
and populations. The capacity of the state to ascribe legal positions and
classify individuals is essential for our international system, based on the idea
that states are sovereigns over their territory and population.233
The entitlements associated with this legal position are an effect of the
categorization, but they are not the primary reason for citizenships to exist and
for states to ascribe them as legal positions. If citizenship is not a good to be
distributed but a legal position by which to classify people, the parameters to
assess the justification for the attribution will be different to those that arise
when we consider citizenship primarily as a good distributed by states. By
way of example, the state may have strong reasons related to the common
good of the community, the preservation of intergeneration solidarities,
national security, etc., to deem birth a more suitable and less arbitrary criterion
than money for granting citizenship, thus been possible to justify its attribution
on grounds of birth.234
A second objection concerns the idea that granting citizenship by birth
would be arbitrary because such an attribution cannot be justified if it is made
on the basis of moral luck. This idea relies on several assumptions. Firstly, it
relies on the idea that justification must be on the basis of merit. However, no
arguments are provided to support this meritocratic view of justifiability, and
multiple examples prove its extension to be, at least, questionable.235
Moreover, the notion of desert, per se, is problematic. The selection of the

233
Without limiting the foregoing, international law has also provided some limits to the actions
of states against their population, the most well-known human rights. These limits in the actions
of what states can do to the population, however, do not eradicate the power of states to classify
their population respecting the limits above-mentioned. There are also some internal limits,
usually enshrined in constitutions.
234
Those could be some of the reasons for the state bestowing citizenship by birth. Another
issue that should be addressed is whether the assumptions upon which these reasons are built
are correct, i.e., whether being born in a particular family necessarily entails that this individual
will benefit the common good or act in a way preserving intergeneration solidarities, or
protecting the state, for instance.
235
An example of this incomplete or defective view is the following example. When justifying
a decision on who gets the custody of a child, most people would consider that it is more
defensible for the decision to be guided by the general interest of the child instead of granting
it to a random person who has worked harder for it (for instance, by going through many
miscarriages, have lost her own child, etc.).

92
criteria that should apply is arguable. That economic success is a better
qualification than other criteria for deserving a good is by no means obvious.236
A third objection concerns the view according to which money or economic
success would be a mark of merit. As the philosopher Michael Sandel
observes in his excellent book The Tyranny of Merit (Sandel, 2020),237
economic success greatly depends on items that are just as arbitrary as birth:
the talents received at birth; belonging to a community that both values and
promotes these talents; or the multiple fortuitous occasions that allow a person
to use them successfully. All of these factors randomly affect a person’s
economic success.238
Sandel is not alone in emphasizing the moral arbitrariness of talent. The
political philosopher John Rawls considered that “differences of talent are as
morally arbitrary as differences of class,” arguing that “income inequalities
due to natural talents are no more just than inequalities that arise from class
difference” since “from a moral standpoint, the two seem equally arbitrary”
(Rawls, 1971, pp. 73–4).
To the idea that economic success is as morally arbitrary as birth, another
claim should be added, made by the economist and philosopher Friedrich A.
Hayek. According to Hayek (1960, pp. 85–102), market results do not reward
merit, instead they reflect the value that consumers ascribe to the goods and
services that sellers offer.239 This claim goes against the idea that the money
obtained through the market serves as a sign of merit or desert.
The point on the scrutiny of the origins of the wealth is especially relevant
in the case of CIPs since, in most cases, the programs do not require any
tracking of the origins of the wealth. In the few cases in which information
about the origins of the wealth is prescribed, it is required only to find out if it

236
For a brilliant piece of work on the problematic nexus in public discourse between CIPs and
meritocratic ideals related to economic capacity, see Ammann (2020). Among several
interesting points she raises, it is necessary to mention her argument that CIPs are blatantly anti-
meritocratic, despite the public depiction of the programs. This is because meritocrats refuse to
give preference to a person based on her wealth, which is, precisely, what CIPs do (Ammann,
2020, p. 321). Yet, those in favor of the programs often advertise them in a way that blurs the
line between “merit” and wealth. According to Ammann, one problematic side effect of this
conflation of merit and wealth is that in the context of CIPs “wealth is treated as an indicator of
trustworthiness, on the one hand, and commitment vis-à-vis the host country, on the other
hand,” which, for her, cannot be granted without assessment.
237
In his book, Sandel presents several objections to the wider ideal of “meritocracy as a moral
and political project.” The most relevant are the objection about justice and the objection about
attitudes toward success and failure. “The first objection doubts that even a fully realized
meritocracy, in which jobs and pay perfectly reflected people’s efforts and talents, would be a
just society. The second objection worries that even if a meritocracy were fair, it would not be
a good society. It would generate hubris and anxiety among the winners and humiliation and
resentment among the losers—attitudes at odds with human flourishing and corrosive of the
common good” (Sandel, 2020, p. 120).
238
Not to mention the cases in which economic success is the consequence of a lottery or
inheritance.
239
Hayek reaches this conclusion by drawing a distinction between merit and value (See Hayek,
1960, pp. 85–102).

93
originated from illicit or criminal activities.240 However, the programs do not
evaluate whether it was acquired by chance, e.g., through a lottery; whether it
was the result of a legacy; the product of mixing labor with natural talents; or
even the product of a bank loan.241 Indeed, there are several examples of
acquisition of citizenship by investment using “dirty money” and for illicit
purposes.242
Lastly, it is perhaps appropriate to note an empirical problem with using
this argument to defend the establishment of CIPs. The argument is presented
by proponents of CIPs to justify the programs under the assumption that they
serve to improve an unjust condition under which talented and highly capable
people are condemned to a lesser life due to the limited possibilities offered
to them by their nationality at birth. However, as Kristin Surak—probably the
leading scholar on the empirical conditions of both programs and applicants—
remarks, “many investor citizens achieved their lofty economic status thanks
to their citizenship at birth” (Surak, 2021, p. 18). According to her, the
citizenship received at birth was often crucial to their ability to accumulate
great personal wealth at a particular historical moment (Fassin, 2020, p. 27;
Surak, 2021, p. 18). In the case of some developing countries, belonging to
that community as citizens by birth was indeed crucial for the richest to
achieve their financial status. Estimates show that between 50–100% of
oligarchs billionaires in Russia, Ukraine, Georgia, and Kazakhstan obtained
their fortunes thanks to their political connections in their home countries
(Freund, 2016, p. 28).243 The problem with this objection, however, is that it
240
De facto, even the existence of criminal activities has been disregarded in some cases, as
shown in the Al Jazeera documentary already referred to (footnote 114) regarding the case of
the Cypriot CIP.
241
Cases related to the Bulgarian CIP have been reported in which banks have granted loans
for the purpose of applying to the CIP. For more details, see (Tchobanov, 2018).
242
A well-known case is the one already mentioned of Francesco Corallo (see footnote 145).
Another famous case is the mentioned case of the former prime minister of Thailand, Thaksin
Shinawatra, who acquired Nicaraguan and Montenegrin passports as “an insurance policy
against imprisonment” (Abrahamian, 2015; Surak, 2016, p. 4) and who despite being convicted
of corruption and terrorism in Thailand was not extradited to Thailand because Montenegro
claimed that “Montenegrin citizens can only be extradited to the International Criminal Tribunal
for the Former Yugoslavia in the Hague” (Kajosevic, 2021). The Maltese CIP also has opened
the door for citizens of dubious reputation. Arkady Volozh, Boris Mints, and Alexander Nesis,
named on the so-called Kremlin List published by the White House, obtained Maltese passports
in 2016 (see Bagnoli, 2018).
243
For other voices remarking on the relevance of state capital and business opportunities in the
country of origin for entrepreneurs to increase their wealth, see Goodman (2008) and Osburd
(Bagnoli, 2018). In the case of Russia, a country whose nationals represent one of the principal
applicants for CIPs in the EU, the significant rise in private wealth came largely at the expense
of public wealth (Novokmet et al., 2017, p. 26). In this context, it is appropriate to wonder, with
Surak (2021, p. 29) “to what extent are the wealthy in developing economies suffering under
inequalities in citizenship?” From this empirical perspective, it seems that arguments
characterizing CIPs as a free-riding opportunity for the wealthy have some merits since, with
Surak again, CIPs provide “an option for the wealthy to sidestep the borders that incubate much
wealth accumulation and the exacerbation of class boundaries once they become inconvenient”
(Surak, 2021, p. 34).

94
seems to conflate the sociological notion of citizenship (here, social
membership or belonging to a community) with the legal notion of citizenship
(being ascribed status civitatis by the legal system).
The Readjustment of the Birthright Citizenship Arbitrariness Argument is
probably the strongest and most interesting argument in favor of CIPs among
those presented in this section. However, as I have shown, it is not exempt
from objections. A look at the empirical conditions is sufficient to see that, in
the current context, the argument is unconvincing.

3.2.1.2. Arguments Against Citizenship by Investment Programs

I have chosen the claims and arguments against CIPs presented in this section
because I consider them to be the most compelling ones discussed in the
academic debate. Before starting this section, it is necessary to recall two
warnings previously mentioned. Firstly, the debate consists mostly of claims
rather than arguments. Secondly, the different conceptions of citizenship—
political, sociological, and legal—appear to be used indiscriminately.
Under these circumstances, for the sake of clarity, I take two actions in this
section: I turn the claims made by authors in the literature into arguments; and
I divide the arguments raised against CIPs into three different categories.
These are: (i) the disruptive influence on politics and democracy (DIPD); (ii)
the disruptive influence on society and equality (DISE); and, (iii) the
disruptive influence on legal principles (DILP).

3.2.1.2.1. The Disruptive Influence on Politics and Democracy (DIPD)

Positions included here have the shared feature of characterizing the nature of
CIPs as corruptive for politics and democracy.

3.2.1.2.1.1. DIPD—Argument 1: The Corruptive Effect on Democracy

Argument
The first argument of this category is the corruptive effect of CIPs on
democracy argument. The argument has been made by several authors in
different versions. The simple form of the argument is as follows:

Premise 1. If CIPs corrupt democracy, then they ought not to be allowed.

Premise 2. CIPs corrupt democracy

Conclusion: CIPs ought not to be allowed.

A first version grounds the corruptive capacity of CIPs on an analogy with

selling votes. In this version, the underlying assumption is that democracy is
a desirable system that should not be corrupted. A second version refers to the
capacity of the programs to undermine the ability of democratic forms of
government to express dissatisfaction. In this version, the underlying

95
assumption is that democracy provides desirable ways of expressing
dissatisfaction that should be protected but that are undermined by CIPs. I
elaborate on these two versions in turn.
The first version of this argument has been defended by, among others, the
political scientist Rainer Bauböck, who argues that from an internal point of
view “selling passports” is objectionable because it is analogous to selling the
right to vote to outsiders since by selling citizenship, countries are also selling
the access to the core of political right of citizenship , i.e., the franchise in
democratic elections (Shachar and Bauböck, 2014, p. 20).
While this initial objection to the programs is attention-grabbing and
alarming, it is not immune to challenge. There is at least one problem related
to the scope of the objection. The objection rests on the assumption that
citizenship universally includes voting rights in all countries, which is not
accurate. In certain instances, voting rights are attributed to a country's
residents rather than exclusively to its citizens. Therefore, in countries where
resident-based non-national franchise is permitted, this objection would not
be applicable.
Moreover, what I have identified as the underlying assumption of this
version—that democracy is a desirable system—is also debatable. Without
going into the two-millennium discussion about the desirability of democracy,
an empirical objection can be presented here: the objection from the
democratic deficit of democracies.
This objection applies to the cases that Bauböck has in mind, in which the
franchise, particularly on a national level, is connected to citizenship, which
is either obtained by birth244 or naturalization, often requiring a number of
years of residency. During this residency period, individuals who are subject
to the authority's legal decisions in the territory where they reside or have
significant interests are completely disenfranchised.245 For these cases, CIPs
could be viewed not as a corrupting tool but as a compensation mechanism
aligned with the all-affected principle.246 That is, in this view, CIPs would be

244
Although effective after a certain age, usually 18.
245
Here, I have in mind naturalizers in countries granting franchise only to their citizens, a
condition that typically requires a certain number of years living in the host country. In
particular, citizens of countries whose country of origin does not accept dual citizenship are in
the tricky situation of needing to reject their former citizenship in order to naturalize and thus
be able to vote in their country of residence. There is also the highly complicated case of
unauthorized immigrants who, despite living in the country, and thus sharing its social and
political life, are totally excluded from democratically defending their interests. The cases of
expats moving from one country to another every few years are also relevant since they can
spend decades excluded from decisional procedures in their countries of residence just by the
mere fact of spending short periods of time there, which would breach the all-affected principle,
dear to much democratic theory, according to which all those who are affected by a decision
ought to have a say in its making.
246
The all-affected principle, also called the all-affected interests principle, claims, in short,
that all individuals should be able to influence decisions that affect their interests. This principle
has been criticized by several authors, particularly by Nozick (1974, pp. 268–71). Fung (2013,

96
regarded as an attempt to address this exclusion, offering voting rights to those
unfairly excluded from participating in political decisions that impact them.247
Lastly, Suryapratim Roy has presented an empirical objection against this
version of the argument (Roy, 2020, p. 11). Roy argues that the minuscule
number of investor citizens gaining voting rights renders their political
influence empirically insignificant.
The second version of this argument is presented by Ana Tanasoca (2016,
pp. 179–80), who agrees with Bauböck concerning the pernicious effect of
CIPs on democracy. According to her, CIPs are a tool for corrupting
democracy in so far as they undermine the ability of democratic forms of
government to express dissatisfaction. Since, in her view, an important value
of democracy is its capacity to serve as a tool to express dissatisfaction, it
follows that CIPs ought not to be established.
Tanasoca’s opposition to CIPs on the basis of their capacity to jeopardize
the role of democracy as a common tool to express dissatisfaction is based on
assumptions about the different ways of expressing dissatisfaction in
democracies and markets: “in the market, dissatisfaction is expressed by exit.
In democracies, it is supposed to be expressed through voice. Investors will
prefer exit to voice if they act as consumers, not as citizens” (Tanasoca, 2016,
p. 180).248
There are several objections that one can make to this second version of the
argument. Firstly, as it was the case with the first version of the argument,
there is a problem with the scope of validity of the argument. This version
makes no distinctions between programs nor between the motivations of the
applicants. This fact does not defeat the argument, but it demonstrates its over-
inclusive stance, which renders it inapplicable to some of the practices for
which it is supposed to be valid. Moreover, the argument is constructed
supposing that all CIPs’ applicants use the programs merely as an investment.
However, as I showed in Chapter Two, some applicants can use the programs
as a way to fast-track the route to citizenship in the countries where they
already live or intend to live. That is to say, this second version of the
argument assumes a particular and uniform attitude from applicants towards

p. 247) suggests a more elaborate version of this principle: “an individual should be able to
influence an organization if and only if that organization makes decisions that regularly or
deeply affect that individual’s important interests.” Interesting insights on this principle are
presented by Whelan (1983), Dahl (1990), Arrhenius (2005), Goodin (2007), Näsström (2011),
Hultin Rosenberg (2016) and Bengtson (2020).
247
Of course, the question here is why money should be an adequate mechanism to compensate
for this wrongness. I am not going to discuss this here since the point of presenting this objection
was not to defend this view but to show the contours of the argument.
248
Here, Tanasoca is using Hirschman’s terminology (Hirschman, 2004). The model claims
that before the perceived decrease of quality of an organization, its members have essentially
two options: either exit (leave the organization) or voice (communicate the problems and
complaints aiming to change something).

97
democracy, i.e., acting as investors/customers, but empirical evidence in
support of this idea is not provided.
Moreover, it is unclear on what grounds the existence of alternative ways
to express dissatisfaction (according to Tanasoca, through exit) would
necessarily entail undermining the democratic ways of expressing
dissatisfaction.
Also, notice that Tanasoca does not specify what she means by “investors
will prefer exit.” Since in Hirschman’s theory, exit means to withdraw from
the relationship, I see three different possibilities: (i) removing the sum
invested in the country; (ii) requesting renunciation of the newly acquired
citizenship, (iii) leaving the country (if they reside there).
(i) is, in my view, the most implausible of the three. This would disregard
the fact that in several cases, countries require that the investment to be
maintained for a certain period in order to grant citizenship. In the event that
the investment is removed, the grounds for naturalization through the CIP are
simply not fulfilled and citizenship is not obtained.
If Tanasoca means (ii), then as I understand it, she considers that the
possible negative effects on democracy of choosing to renounce one’s own
citizenship should be an argument against the freedom of choosing to
renounce citizenship. This seems to be paradoxically contrary to the value of
freedom upon which (most) democracies are sustained. If her argument is that
what is wrong is to renounce one’s citizenship when it has been acquired on
grounds involving economic transactions, but not in other cases (e.g. to choose
another citizenship in the case that the country of this second citizenship does
not accept multiple citizenships), then she needs to explain what makes it
particularly wrong in this case but not in the others.249
If the supposed danger is that it will jeopardize the function of democracy
as a common tool to express dissatisfaction, then further elaboration is needed
for how a few people renouncing citizenship can affect democracy as a tool
for the remaining majority to express dissatisfaction.
Lastly, if Tanasoca means (iii), leaving the country that granted citizenship
on exclusively economic grounds, and in which the CIP naturalizer resided,
as the consequence of having multiple citizenships, then the same would apply
not only to CIP citizens but also to any citizen having multiple citizenships or
residence permits.250 It would then need to be further elaborated under what

249
To that, it needs to be added that the right to renounce one’s own citizenship was already
established in international (soft) law in Article 15(2) of the Universal Declaration of Human
Rights (UDHR) without deeming it relevant the path followed to obtain citizenship. Since then,
it has been broadly recognized in national laws. Some authors suggest that there is a customary
international law core to the right to renounce citizenship with reference to the state practice of
certain lead jurisdictions. For a better insight, see, e.g., Price (2019).
250
Again, it is essential to mention that the right to leave one’s own country is recognized by
international law, firstly in Article 13(2) of the UDHR, and positivized in international law in
several binding documents, such as Article 12(2) of the International Covenant on Civil and
Political Rights (ICCPR), Article 10 of the Convention on the Rights of the Child, and Article

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conditions and for what reasons it would be a greater wrong for citizens
through investment to leave the country than it would for other citizens having
multiple citizenships or residence permits to leave.

3.2.1.2.1.2. DIPD—Argument 2: The Corruptive Effect on Politics Argument

The second argument in this category is the corruptive effect on politics
argument. The basic form of this argument is as follows:

Premise 1. If CIPs which allow discretion corrupt politics by enabling bribery,

then these CIPs ought not to be allowed.

Premise 2. CIPs which allow discretion corrupt politics by enabling bribery.

Conclusion: CIPs which allow discretion corrupt politics by enabling bribery

ought not to be allowed.

Džankić points out the potential of CIPs to corrupt politics by arguing that
“countries that implement investor citizenship programs and offer a degree of
discretion to their authorities open up the scope for bribery” (Džankić, 2012,
p. 14). According to her, “this is a further violation of the sphere boundary of
money since bribery is an illegal action and the exchange of money and
political power and influence is a blocked one” (Džankić, 2012, p. 14).
I consider this position to be flawed in some aspects. It is based on a limited
understanding of legal discretion, seemingly conflating the notions of
discretion and arbitrariness, as if these could be used indistinguishably. While
discretion is a necessary legal mechanism that enables the move from
positivized general rules to diverse particular cases, the arbitrariness of public
authorities is forbidden, sometimes explicitly (e.g. in the Spanish and Swiss
Constitutions)251 but otherwise implicitly in constitutionalized systems under
the Rule of Law. In Chapter Four, I will develop this point in detail, together
with the role of justification, determining how to distinguish between
discretion and arbitrariness. For now, I can simply note that this position
seems to overlook this crucial difference.
Notice that other problems arise from the lack of distinction between these
two notions and the assertion that discretion necessarily entails bribery. In
reality, there are numerous cases where discretion does not imply bribery.
Conversely, if, as I suspect, she identifies the risk not in discretion but in

8 of the International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (ICPMW). For an interesting insight into the asymmetric situation
of recognizing a right to leave without the existence of a correlated obligation for states to
accept immigrants, see Guilherme Marques Pedro’s doctoral dissertation The Human Right to
Leave: But Whereto? (Marques Pedro, 2022).
251
On items regarding citizenship, particularly on the arbitrary deprivation of nationality, it is
also expressly forbidden by Article 15(2) of the UDHR and Article 4(c) of the European
Convention on Nationality (ECN).

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potential arbitrary practices, then this argument does not apply solely to CIPs.
In that case, the fact that arbitrariness would open the door for bribery
becomes a concern, but only a secondary one because CIPs which allow
arbitrariness would be wrong from the outset for fundamental legal reasons.

3.2.1.2.2. The Disruptive Influence on Society and Equality (DISE)

Positions included in this group typically point to negative effects of
establishing CIPs for communal identity and communal life, for the concept
of citizenship, and for equality (by increasing inequality in both the national
and the international domains). I also include arguments and claims opposing
the economic sphere taking control of the social and political spheres.
The conception of citizenship that, in my view, comes across from these
claims made in the literature is the sociological one. This conception places
the citizen as the opposite of the marginalized or socially excluded person, in
line with T.H. Marshall’s theory that citizenship means to “fully belong to the
community” (Marshall, 1950).252

3.2.1.2.2.1. DISE—Argument 1: The Corruptive Effect on Communal

Identity Argument
The first argument in this category is the corruptive effect of CIPs on
communal identity argument. The basic form of this argument is as follows:

Premise 1. If CIPs corrupt communal identity, then they ought not to be

allowed.

Premise 2. CIPs corrupt communal identity.

Conclusion: CIPs ought not to be allowed.

The underlying assumption of those defending this argument is that communal

identity is a key element of citizenship and a relevant component of our
societies. They consider that because CIPs promote accidental and
instrumental interests regarding citizenship, they corrupt communal identity,
thereby undermining the concept of citizenship.
Džankić (2014; 2015) has defended this view. She considers that
citizenship is grounded on communal identity, which in turn, in her view,
requires citizens to act as stakeholders.253 According to her, citizens

252
To understand how, please see again section 3.2.1. and Mindus (2019).
253
Džankić develops her idea about the necessary separation of private and public spheres
introducing the concepts of “stakeholder citizen” and “stockholder citizen”. Following Bauböck
(Bauböck, 2007), she asserts that ordinary migrants, by being involved in the community (it is
not defined how, but I think probably by rooting their lives in the country, sharing a common
space, values, through linguistic and non-linguistic communication, etc.) are true “stakeholder
citizens” while citizens who naturalized through CIPs follow the logic of stockholders (who see
their membership in a polity as instrumental to the materialization of their personal interests)

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naturalized by CIPs cannot be understood as stakeholders in the community
“because they have only an accidental and instrumental interest in citizenship
in a state that offers them a favorable investment environment” (Džankić,
2014, p. 17).
I consider that this argument fails in several respects. Firstly, it claims that
CIPs corrupt “communal identity,” which is considered to be the key element
of citizenship. However, it is not proven that holding status civitatis is in other
cases necessarily connected to citizens sharing this particular “communal
identity.”254 Secondly, there is a danger that the claim is over-excluding. Thus,
mentally impaired people or babies, among others who are unable to prove
that they have the characteristics required (speaking the language, knowing
about the customs, etc.), would lack “communal identity” and would therefore
be excluded from citizenship under this notion.
However, on an alternative reading, Džankić might be saying that for
citizenship to offer a solution to safeguarding social cohesion, it needs some
form of “communal identity,” where identity is not understood in terms of a
diachronically and objectively persisting factor (language, religion, etc.) but
rather as an intersubjective self-defining feature of a different kind (which
allows one to identify with a collective, not just to be identified as a member
of a collective). If that is the correct meaning to attribute to “communal
identity,” i.e., the ability of the members of a group to self-identify as
members of that group, it is not clear why this ability would be undermined
by CIPs.255
Furthermore, Džankić’s argument points to the “accidental and
instrumental interest” (Džankić, 2014, p. 17) entailed by CIPs as the reason
why the policies corrupt communal identity. This raises several questions:
what makes an interest “accidental and instrumental”? An accident, in
philosophy, is an attribute that may or may not belong to a subject without

(Džankić, 2015, p. 2). Harpaz and Mateos have elaborated on this instrumentalist turn by
creating the notion of “strategic citizenship.” This notion refers to “a new field of inquiry
concerned with understanding the worldwide trend of acquisition of multiple citizenships for
primarily instrumental purposes” (Harpaz and Mateos, 2018, p. 853).
254
More importantly, a first fundamental problem is the under-elaborated notion of “communal
identity” that it is used. What does the author understand by “communal identity”? A possible
reading would be a set of shared attributes and experiences among the members of a
community. This set of shared attributes and experiences could include a common language,
common knowledge, common ancestral history, and, in a looser sense, a common way of doing
things. In this view, these shared attributes and experiences would constitute part of the identity
of the members of a community allowing mutual recognition in a way that makes them self-
identify with fellow nationals. If this reading is correct, it is, however, not trouble-free.
255
It is also interesting to note that, empirically, a “common identity” can be developed in
domains other than “national fellowship.” Thus, for instance, it is possible for some people to
feel a stronger sense of belongingness and identification with people that belong to the same
social class or who have a similar economic capacity, regardless of these not being national
fellows. Moreover, the requirement of sharing a “common identity” in order to be a citizen in
a sociological sense (i.e. not a marginalized person) is not without problems, particularly in a
world with increasing migratory movement and diverse forms of globally connect to others.

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affecting its essence. Instrumental is often opposed to what has intrinsic value
(Zimmerman and Bradley, 2019). So, should we deduce that there is an
interest that is essential (perhaps basic or fundamental?) and non-
instrumental—worth having or satisfying in se, in its own right—which can
only be held by citizens of a different kind (only those born with the
citizenship in question perhaps, ex iure sanguinis, or ex iure solis)? I take it
that a reasonable, plausible interpretation of such an interest can be, for
instance, an interest in transgenerational solidarity (a value that, according to
Bauböck, citizenship as a legal status protects).256
Indeed, it makes sense to say that citizens who have no other nationality to
rely on and whose parents and children are in the same situation have a strong
(if not basic, fundamental, and essential) interest in making sure that the state
works well, whilst citizens with many other nationalities at their disposal can
at any time “abandon the boat” and are therefore less dependent on the state
being well run.
If this is what Džankić means, the scope of the argument will not be limited
to CIPs but to the possibility of having multiple citizenships. Furthermore, in
this case, we could still ask if (all) ex iure soli or ex iure sanguinis citizens
have “essential interests” in virtue of having obtained their citizenship in this
way. In fact, it seems that the legal ground conferring the status would not
have much effect on changing people’s interests.
Perhaps one could say that there is a difference between naturalized people
and those born with a particular citizenship. Again, if what Džankić’s means
is the plausible interpretation just highlighted, we should ask whether citizens
born as such cannot develop “accidental and instrumental interest” in keeping
their original citizenship; and whether naturalized citizens would be any more
likely than those who acquired citizenship at birth to develop such “accidental
and instrumental interest”
The first question should be answered by saying that it is indeed possible
for citizens who acquired citizenship at birth to choose to retain that status
because it is convenient for them in an accidental and instrumental way.
Consider, for instance, the Swiss businessperson who lives abroad but keeps
his Swiss citizenship merely because it saves him great effort in cross-border
travel. Would that not qualify as having an “instrumental interest?” Most
probably, it would.
Regarding the second question, that is, whether naturalized citizens would
be any more likely than those born with the status to develop such an
“accidental and instrumental interest,” my answer is that naturalized
individuals are not necessarily more likely than those born with the citizenship
to hold “accidental” interest in the state. Rather, an argument a contrario can
be made: most naturalized individuals have exerted great effort to acquire their
new citizenship (years of waiting, civic and language tests, tests of the

256
On this latest point, see Bauböck’s (2003, 2007).

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“convenience” of their marriage, or investing high sums of money, maybe
risking their finances, etc.) and many may have had to renounce to their
original citizenship in doing so, so it would be wrong in these cases to suggest
that their “stake” in the state would somehow be less “essential” than their
fellow nationals who were simply born as such.
Yet, one interpretative possibility remains that would make DISE—
Argument 1 sound more attractive. Consider the person who has many
citizenships and has just acquired a new one through a CIP. Could we not say
that this person has an “accidental and instrumental interest” in the state
because she lacks an essential interest such as transgenerational solidarity?
This possibility cannot be excluded a priori, but would ultimately depend on
circumstances.
In other words, this view, even adopting a plausible understanding of what
counts as “accidental and instrumental interest,” is either unconvincing or very
much dependent on specific circumstances. So, whether or not this argument
has bite will depend on empirical factors such as reasons for naturalizing ex
iure pecunia, and not on the nature of the programs as such. As previously
stated, I consider DISE argument 1 to be unconvincing in this respect since it
disregards the wide spectrum of applicants’ motivations. In the case of
applicants using the programs to fast-track the route to citizenship in the
country in which they already live in, or in the case of stateless applicants, or
applicants who are de facto stateless because their state of origins will not
protect them, and who are seriously intending to commit to the country, this
argument will not bite.257

3.2.1.2.2.2. DISE—Argument 2: The Corrosive Effect of CIPs on Non-

Market Relations Argument
The next argument to be presented is the corrosive effect of CIPs on non-
market relations argument. The basic form of this argument is as follows:

Premise 1. If CIPs have a corrosive effect on non-market relations, then CIPs

ought not to be allowed.

Premise 2. CIPs have a corrosive effect on non-market relations.

Conclusion. CIPs ought not to be allowed.

Ayelet Shachar has defended this argument on several occasions, claiming
that CIPs “have a corrosive effect on non-market relations” (Shachar and
Bauböck, 2014, p. 7).258 In her text, Shachar claims that “placing a ‘for sale’
257
It is necessary to mention that in her later book The global market for investor citizenship
(2019), Džankić coins the term “long-distance citizens” to refer to the problematic subject
resulting from CIPs, which in turn reduces the scope of the problem that she sets out in previous
works. Yet, since she does not distinguish among individual cases, most of the objections
presented here are still valid.
258
Italics are mine.

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tag on citizenship, no matter what amount is written on it, has a corrosive
effect on non-market relations, eroding the ties that bind and altering our view
of what it means to belong to a political community” (Shachar and Bauböck,
2014, p. 7). In other works of hers, she has presented similar objections
arguing that CIPs have a corrosive effect on non-market relations by risking
“further eroding the willingness of members who habitually contribute to the
civic fiber of these societies” (Shachar and Hirschl, 2014, p. 249) due to their
perception of the wealthy newcomers as “free-riders” on their efforts.
Although this is a resounding claim, at least two objections to this view can
be identified regarding the connection between placing a price tag on
citizenship and the corrosion of “non-market relations.” These objections
point out to the psychodynamics feared by Shachar and the scope of her
argument.
Regarding the first objection, Joppke provides a reply to Shachar’s fears
arguing that “no evidence is provided for the underlying psychodynamics”
(Joppke, 2021, p. 209). Joppke adds that it would be difficult to find such
evidence because “not all price tags leave residues”. Further, he also argues
that “as small as they are, these programs and their beneficiaries remain
largely invisible to the existing citizenry”. That is to say, in Joppke’s view, the
scale of CIPs is certainly not of the kind that could create the impact that
Shachar fears.259
The scope objection is as follows. Shachar’s objection has at its core the
understanding of CIPs as a “commodification of citizenship,” which she
deems problematic due to the fact that the logic of money would guide and
commandeer citizenship. Shachar refers to the dismal consequences of the
“commodification” of citizenship in several of her works on CIPs. Two
examples are as follows.
In 2014, Shachar and Hirschl play with the "dystopian extreme” possibility
that the commodification of citizenship resulting from the straightforward
exchange between citizenship and money would “lead to a situation whereby
the size of their wallets, and nothing else, distinguishes suitable from
unsuitable candidates for initial entry and eventual citizenship” (Shachar and
Hirschl, 2014, p. 250). These concerns are dismissed by Erez (2021), who
argues for the importance of avoiding a conflation of selection by the ability
to pay and a complete capitulation of state sovereignty to market forces. In his
view, it is not clear that CIPs would lead to a reduction in other forms of non-
investor-based migration.260 Moreover, Erez endorses Hidalgo (2016) to

259
Joppke emphasizes the limited dimension of the programs on several occasions by arguing
that despite how conceptually interesting they are, they are empirically rare (Joppke, 2021, p.
210).
260
Joppke presents a similar objection, arguing that CIPs are “merely an exception for the (very)
rich, and it is in addition to the usual ways of acceding to citizenship that are the same for all,
irrespective of class; it does not compromise the chances of the non-rich (or of those unwilling
to use the investment option) to accede to citizenship” (Joppke, 2019, p. 865).

104
support his criticism against Shachar and Hirschl, arguing that migration
should not be considered a “zero-sum game” since it is possible to conceive
that adding investor migrants will “increase the quota of migrants a state is
willing to accept, given that it would now have more material resources”
(Erez, 2021, p. 169).
Shachar’s second example is taken from her contribution to the 2017 book
on citizenship she edited. There, she claims that CIPs have a:

disintegrating and ‘hollowing out’ impact of such transactions on citizenship

as membership. The core observation here is that such marketization processes
facilitate a legal rewriting of the basic logic of emancipatory conceptions of
citizenship, giving reign instead to the imperialistic idea that ‘trades’ and
‘transactions’ can cover the full terrain of human value and meaning. This
reflects a worldview according to which economics trump politics, and
membership in the political community—a manifold social and relational web
of connections—is reduced into a mere purchase-and-sale agreement (Shachar
et al., 2017, p. 806).

Although Shachar’s concerns deserve attention, a closer look may characterize

these as the product of a slippery slope. The slippery slope fallacy refers to
arguments in which it is claimed that a not-significant small first step leads to
a chain of related events that will conclude in a significantly more damaging
result. These sorts of arguments need in-depth investigation to determine
whether the small step can indeed lead to the major negative effect. In the case
of CIPs, it should be assessed whether the establishment of a CIP would have
the negative effects predicted. These effects could happen in two different
ways.
Firstly, the negative effects might be on the sociological notion of
citizenship, i.e., its substantive content would be undermined. I suspect that
such effects would be less significant than theorized for the following reasons.
If the CIP applicant is willing to obtain the citizenship for its external benefits,
as is most often the case, it is difficult to see how a few people obtaining
citizenship without intending to become part of the social citizenry would
negatively affect the social cohesion among other members sharing the
internal life of the country.261 If the applicant is using the CIP to shorten the
waiting time to naturalize in the country where she lives, it is again difficult
to imagine how (a few) people fast-tracking the process, where those people
already participate in the life of the society, would undermine citizenship or
negatively affect social cohesion.
If, on the contrary, the fear is not of potential damage to citizenship, but
concerns the vast notion of “non-market relations” or, using Shachar’s words,
“the full terrain of human value and meaning,” it is certainly difficult to agree

261
As Mindus (2019, p. 42) showed, the problem of social cohesion is the core problem of the
sociological notion of citizenship.

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with the prediction that speeding the route to status civitatis, a legal status
granting a passport, in “exchange for economic investments” would have the
vast potential negative systemic effects predicted on all non-market relations.
Furthermore, from her text, it seems that Shachar identifies the fundamental
problem with CIPs as lying in their transactional nature, not in the fact that
they grant citizenship without considering the characteristics of the person
obtaining it. It also seems that there are no relevant distinctions here
concerning the applicants’ motivations or their life circumstances (for
instance, if they live already in the country and are, therefore, part of its social
life). By this view, it appears that it would be equally wrong to fast-track the
route to citizenship for a stateless person living in the CIP-granting country
and to fast-track it for a person who has never lived in the country and has no
interest at all in being part of its social life. Following this argument, since
both actors would have an instrumental interest in citizenship, expressed
through a market logic, both would be wrong. Such a conclusion relies on the
fact that, in both cases, the instrumentalist approach would have corrosive
effects on non-market relations. However, I consider that the instrumental
interest expressed in these two cases is profoundly different and that the effect
on non-market relations differs significantly.
Therefore, while I can sympathize with the concerns raised by the
argument, I believe that we cannot dismiss the possibility that it may suffer
from the same kind of drawbacks as a slippery slope fallacy.

3.2.1.2.2.3. DISE—Argument 3: The Impact on the (Sociological) Notion of

Citizenship Argument
This third argument has two different versions. The first one refers to the
perverted view of citizenship grounded in long-term relations of trust and
shares responsibility that CIPs entail. The basic form of the argument of this
first version is as follows:

Premise 1. If CIPs modify the sociological notion of citizenship grounded in

long-term relations of trust and shared responsibility, then CIPs ought not to
be allowed.

Premise 2. CIPs modify the sociological notion of citizenship grounded in

long-term relations of trust and shared responsibility.

Conclusion: CIPs ought not to be allowed.

This argument has been presented on several occasions by different authors;

with the most elaborated formulation offered by Ayelet Shachar (Shachar and
Bauböck, 2014, p. 6). Shachar’s main concern here is that CIPs alter the nature
of citizenship in a detrimental way. She grounds her concern on two premises:
firstly that there is a “general moral intuition” against the “selling of

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citizenship” (Shachar and Bauböck, 2014, p. 6); and secondly that “such a
move [towards “the selling of citizenship”] may cause irreparable harm to the
view of citizenship as grounded in long-term relations of trust and shared
responsibility and may prefigure the conflation of the political and ethical with
the economic and calculative” (Shachar and Bauböck, 2014, p. 6).
I have two quibbles to express here. Firstly, grounding the argument on a
“general moral intuition” diminishes its strength. This is because this claim
requires a demonstration that this “moral intuition” is the product of existing
morality, and not of one’s individual morals.
The second objection is based on the fact that Shachar seems to use the
legal and sociological notions of citizenship interchangeably. While it is
arguably correct to assume that the sociological notion of citizenship is
grounded on long-term relations of trust and shared responsibility, it is unclear
why the establishment of a legal program providing a legal status—in most
cases one sought for its external benefits and concerning very few people—
would have the macro-detrimental effects on the sociological notion of
citizenship described.
CIPs are legal programs granting legal status, and most of their problematic
aspects are related to their legal dimension instead of their sociological one
for two reasons. Firstly, because, empirically, (most of) the few applicants that
apply to the program are not willing to engage in neither the political nor in
the social life of the country. Secondly, where CIPs applicants are interested
in active participation in the political and social life of the country, it is not
given for granted that their sincere interests in the wellbeing of the country
would be disqualified by the ground for conferring citizenship. If we cannot
know this, the first version of the argument seems unpersuasive.
Authors like Joppke or Kälin have presented similar objections to this view.
They would struggle with Shachar’s arguments due to her apparent conflation
of the sociological and the legal notions. Kälin, for instance, described CIPs
as “based on an individualistic, depoliticizing liberal conception of citizenship
that is formal, legalistic and without ties to a collective” (Kälin, 2015, p. 267).
That is, Kälin seems to characterize CIPs as a merely legal phenomenon that
does not intersect with any sociological aspects. Most likely, Kälin would
have trouble engaging with Shachar’s claim since the two authors apply
different conceptual approaches to the phenomenon.
Joppke (2019) considers CIPs to be a clear case of instrumentalization of
citizenship which, in his view, is enabled by following a notion grounded on
the Roman model of citizenship. He considers that Shachar’s opposition to
any form of instrumentalized citizenship is grounded on a Greek citizenship
model (ibid, p. 861), which, according to him, is incompatible with the current
liberal states and particularly with the notion of EU citizenship.262 Following

262
Joppke argues that when referring to EU citizenship, the most applicable model to apply is
the Roman one. In his view, “EU citizenship is Roman to the core, providing mostly free

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Oakeshott, (1975) Joppke argues against the Greek model on the basis that,
from the point of view of the state as societas, the nation-state is a distortion,
violating the nature of civic association. Joppke points out that “Oakeshott’s
important message is that citizenship is membership in a purpose-free ‘civil
association,’ a coercive meta-association, which leaves people free to pursue
substantive goals in their chosen enterprises and affiliations” (Joppke, 2019,
p. 863). In this view, Joppke argues, citizenship is by nature thin citizenship
(ibid).
Moreover, Joppke’s would reply to Shachar that an instrumentalist use is
not something to fear, and nor is it problematic under this view of citizenship.
Indeed, according to him, the instrumentalization of CIPs is not merely by the
applicants but also by states.263 “Citizenship by investment is blanket
instrumentalism on both sides: on the part of states which hand it out for
pecuniary reasons, and on the part of individuals, whose eyes are mainly on
the visa-free mobility that a ‘good’ passport provides” (Joppke, 2019, p. 865).
Joppke’s appreciation of the double-side instrumentalism exercised by both
applicants and states is, however, merely descriptive and does not address, the
ultimate normative question that interests Shachar.
The last objection to the presented view can be derived from Roy’s
perspective on CIPs. He argues that critics like Shachar often presuppose an
implicit conceptualization of citizenship as a primary good premised on
solidarity and belonging (Roy, 2020, p. 1). The problem, as Roy points out, is
that such conceptualization gives hierarchical superiority to the claims and
values of the pre-existing national communities, assuming that they should
determine the claims of access (Roy, 2020, p. 2). In his view, such accounts
suffer from a “streetlight effect”, in which prioritizing the claims of a pre-
existing community leads to a conflation of the separate questions of “who
should get in” and “who should belong”. Nevertheless, Roy's account doesn't
specify preferred alternatives or provide reasons for favoring access criteria
based on payment.
The second version of this argument refers to the perversion of the
substantive content of membership. This version is very close to the previous
one, and it is in line with Shachar’s previous arguments.. The basic form of
the argument of this second version is as follows:

Premise 1. If CIPs impact (negatively) the substantive content of membership,

then CIPs ought not to be allowed.

mobility rights that allow individuals to choose the community they want to join, if any. EU
citizenship (...) is the avant-garde of ‘citizenship lite’ (Joppke, 2010), being exclusively about
rights with no complementary duties whatsoever, decoupled from even the thinnest of
identities” (Joppke, 2019, p. 870).
263
Actually, Joppke points out that States have always been strategists in matters of citizenship.
According to him, the novelty is to see individuals as citizenship strategists. In Joppke’s view,
“this should be welcomed as a further step in the demystification of states and empowerment
of individuals” (Joppke, 2019, p. 875).

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 Premise 2. CIPs impact (negatively) the substantive content of membership.

Conclusion: CIPs ought not to be allowed.

An instance of this version has been presented by Shachar as well, who claims
that “what changes when we ‘sell’ citizenship is not just the price tag of
membership, but its substantive content as well” (Shachar and Bauböck, 2014,
p. 5). For her, citizenship, seen as membership, should not be granted
following the logic of money; otherwise its substantive content might undergo
change. This claim raises several questions.
Firstly, the specific substantive content to which Shachar alludes remains
unclear. A plausible reading of the “content of citizenship” could refer to the
bundle of rights and duties (or other legal positions) bestowed upon
individuals by the legal order when they acquire status civitatis. However, it
appears unlikely that this is what she means, since CIPs pertain solely to the
acquisition of citizenship status and do not specify any particular rights and
duties associated with citizenship. In fact, CIPs concern the process of
acquiring citizenship rather than defining the subsequent rights and duties of
citizens.
Given her use of the sociological notion, a more suitable assumption would
perhaps be that she is referring to the underlying solidarities that make social
cohesion possible in a particular territory. Here, again a preliminary task
would be to demonstrate that this would be the case considering the
circumstances already mentioned a few lines above, i.e., to demonstrate how
ascribing citizenship to a few people having, in most cases, an interest in the
external dimension of citizenship would disrupt the social cohesion of the
society.
Secondly, the claim also requires some reflections on the idea that the
substantive content of citizenship should not change. There are at least two
potential replies to this question. One appeals to tradition: this is how
citizenship has been understood for a certain period of time. This reply
commits the error consisting of unwarrantedly grounding a normative claim
on a descriptive statement without further support. A second potential reply is
that the change would have undesired effects that should be avoided. In this
case, anyone arguing against the CIPs using this claim should be able to
identify and describe these effects and explain what aims they would damage
and how, as well as the reasons why this should be avoided.
Lastly, other authors, especially Mavelli, would counter the view that CIPs
pervert the substantive content of membership. Mavelli claims that CIPs do
not undermine the (sociological) notion of citizenship grounded on
reciprocity, fairness, equality, mutual participation, and solidarity by
replacing these with economic ones. Instead, he regards CIPs as a natural
outcome of an ongoing process of neoliberalization or neoliberal
economization that reframes these principles in economic terms (Mavelli,

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2018, p. 490). Consequently, Mavelli views CIPs as a product of the neoliberal
(understanding of) citizenship, which “is the product of a more complex and
protean matrix of accumulation that frames individuals and groups as the
embodiment of different forms of capital value” (Mavelli, 2018, p. 490).264

3.2.1.2.2.4. DISE—Argument 4: The Inequality Effect Argument

The next DISE argument is the inequality effect argument, which basic form
is as follows:

Premise 1. If CIPs are responsible for increasing inequalities in rights and

status among social classes, then CIPs ought not to be allowed.

Premise 2. CIPs are responsible for increasing inequalities in rights and status
among social classes.

Conclusion: CIPs ought not to be allowed.

Rainer Bauböck among others (Shachar and Bauböck, 2014, p. 20) has
defended this view grounded on the notion of citizenship as an entity securing
equal access to rights, regardless of one’s social class. In his text, Bauböck
argues that the “rule of money” behind making citizenship into a marketable
commodity is problematic for two reasons. Firstly, it lets the logic of money
rule in the sphere of rights. Secondly, CIPs are the first step towards a scenario
that would allow, in the extreme, the wealthy to obtain whatever they want by
paying for it.
Bauböck bases this view on the danger posed of introducing a “market
logic” into the social and political sphere. In his view, this move could
eventually erode “the wall of protection” of equality of fundamental rights. In
his own words, “turning the status of citizenship itself into a marketable
commodity would tear down a wall of protection that keeps social class from
becoming, once again, a formal marker of inequality of citizenship rights and
status” (Shachar and Bauböck, 2014, p. 20). In other words, belonging to a
specific social class (determined not by titles but by economic power) would
dictate one’s rights and duties as a citizen.
Claiming that faster access to citizenship for economic contributors would,
eventually, lead to erosion of the wall of protection of equality of fundamental
rights seems excessive, and, in my opinion, resembles a slippery slope fallacy
once again. There are several aspects worth considering here. First and
foremost, implementing CIPs does not restrict access to citizenship solely to

264
Mavelli himself considers that the notion of “neoliberal citizenship” has an oxymoronic
flavor since neoliberalism does not only exercise a “disarticulation of citizenship” but also
prompts “the very overcoming of citizenship by making the traditional rights of protection and
mobility associated with this institution no longer a function of birth, residency, and family ties
but of an individual’s or group’s endowment of different forms of capital” (Mavelli, 2018, p.
490).

110
those who can afford it. Instead, it expedites the process for economic
contributors while preserving existing citizenship routes.265 Secondly, it
remains to be demonstrated how introducing a CIP would curb alternative
paths to acquire citizenship, and how the “rule of money” would dominate
other relevant social dimensions.266
Secondly, and more problematically, by relating the attribution and
protection of fundamental rights to citizenship, Bauböck seems to be using an
outdated view of fundamental rights. Against Hannah Arendt’s famous
definition of citizenship as “the right to have rights”(Arendt, [1951]1973), in
contemporary international law, fundamental rights are attributed to persons
(status personae), not citizens (status civitatis). By arguing against CIPs for
the potential reduction of the scope of those whose fundamental rights would
be defended if the “rule of money” would take over citizenship, Bauböck is
following a narrowed and unjustified understanding of the holders of
fundamental rights. Fundamental rights are no longer grounded in status
civitatis, and, for those aware that citizenship can be a mechanism of
exclusion, this should be something to celebrate.267 This argument, opposing
the establishment of CIPs for deteriorating a function that not longer
corresponds to citizenship, is at odds with decades of evolution of
international law and fundamental rights.

3.2.1.2.2.5. DISE—Argument 5: The Unequal Waiving of Requirements

Argument
The fifth DISE argument is probably the strongest argument against CIPs in
the existing debate. I have named this argument the unequal waiving of
requirements argument and its basic form is as follows:

Premise 1. If CIPs are responsible for introducing inequality by waiving

requirements, then CIPs ought not to be allowed.

Premise 2. CIPs are responsible for introducing inequality by waiving

requirements.

Conclusion: CIPs ought not to be allowed.

265
Such as ius solis, ius sanguinis or other ways to naturalize, such as by marriage, residence,
etc.
266
Indeed, there are multiple examples of relevant social items accessible through alternative
fast-track paths for those who pay, without this necessarily entailing the disappearance of non-
money-driven paths. An example is the coexistence of public and private universities in
European countries.
267
Indeed, the theoretical domain of fundamental rights has been expanding for the last decades.
From the protection of only those holding status civitatis (a controversial idea in itself) to the
extension through the relation to status personae, and the expansion of the notion of persona
from including only humans to the proposals of inclusion of other animals and even non-
biological entities. Good insights on the attribution of legal personality to non-humans are
provided by Pietrzykowski and Kurki (2017), and Kurki (2019).

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Shachar (Shachar and Bauböck, 2014, p. 6) claims that CIPs introduce
inequality of treatment among naturalization applicants in the ability to be
treated identically by the state during the process of naturalization. When
referring to the programs’ potential to increase inequality, she points out that
the difference in treatment in civic integration among CIPs applicants and
other naturalization applicants proves that CIPs entail inequality of treatment
between them. In her words, “if civic integration is a required precondition for
the bestowment of full membership by the state (as restrictive citizenship tests
increasingly indicate), how can this demand only apply to some and not to
others?” (Shachar and Bauböck, 2014, p. 6). The best empirical example of
this phenomenon comes from Bulgaria, which as we have seen in Chapter
Two, establishes highly demanding requirements for regular naturalizers, such
as long periods of residence, language tests, and the renouncement of previous
citizenships, while none of these are required to CIPs applicants.
This is probably the most persuasive of the arguments in the debate that
approach the phenomenon from a sociological perspective. However, it
depends on the hidden premise that unequal legal treatment negatively affects
social cohesion (the core problem of the sociological notion of citizenship),
and this has not been proved to be correct in the debate on CIPs. Without
further arguments strengthening this point, the argument seems incomplete.

3.2.1.2.2.6. DISE—Argument 6: The Widening of Global Inequality

Argument
The last DISE argument is the widening of global inequality argument. The
argument’s basic form is as follows:

Premise 1. If CIPs are responsible for widening the worldwide inequality gap,
then CIPs ought not to be allowed.

Premise 2. CIPs are responsible for widening the worldwide inequality gap.

Conclusion: CIPs ought not to be allowed.

This argument has been presented by several authors, including Ayelet

Shachar and Manuela Boatcă (Boatcă, 2015, p. 3). What Shachar describes as
“the global-inequality moral hazard” is the consequence of the fact that giving
preference to those who can pay hefty sums of money for passports adds
another barrier to mobility for the majority of the world’s non-affluent
population (Shachar et al., 2017, p. 804). According to Shachar, the programs
have the ability to “only exacerbate, rather than alleviate, the impact of pre-
existing economic inequality on the opportunity to gain access to membership
in desired destinations” (Shachar et al., 2017, p. 804) meaning that CIPs
“exacerbate inequality in its various dimensions” and that “these programs

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contribute to perpetuating and deepening patterns of global inequality in
contemporary mobility regimes and citizenship allocation.”268
Boatcă agrees that the establishment of CIPs increases worldwide
inequality, and points out that “the widening of the worldwide inequality gap
is paralleled by an increase in the commodification of citizenship” (Boatcă,
2015, p. 4). She argues that, in order to avoid increasing worldwide inequality,
the practice of “selling citizenship” should be restricted.
I consider the widening of global inequality argument an unconvincing
argument against which several objections can be raised. Firstly, Joppke
objects that although CIPs undeniably express inequality in terms of the
unequal distribution of wealth, it does not follow that they increase global
inequality, understood as diminishing the chances of the not wealthy to
acquire citizenship. In his view, “this is only possible on the assumption that
there is an absolute cap on citizenship, so that its acquisition through jus
pecuniae would diminish its availability on the ordinary naturalization path,”
(Joppke, 2021, p. 208) which is notoriously not the case.269
A problem with Boatcă’s position is that she does not demonstrate a causal
connection between the two facts: (i) the widening of the worldwide inequality
gap and; (ii) the increase in the commodification of citizenship. We can refer
to this objection as the objection from the causation/correlation non-
distinction. According to this objection, the correlation between inequality and
the commodification of citizenship does not prove causation.
Since Boatcă does not clarify the mechanism that would explain how
increasing worldwide inequality would be causally linked to granting
citizenship on economic grounds, we cannot consider her argument a strong
one. For the widening of the worldwide inequality argument to be an effective
argument against CIPs, one would need to demonstrate that there is a causal
nexus, not just any correlation. The programs would need to be the cause and
not merely a correlated or parallel effect of something else.
Moreover, and more importantly, none of the authors concerned with the
potential effect of CIPs on global inequality argue why states should be guided
by concerns of global inequality when designing their domestic laws

268
Shachar’s view seems to rely on an understanding of citizenship similar to the one presented
by Kalm, who sees citizenship as a form of capital “through which people are positioned
differently in transnational social space.” This characterization goes along with the current
world of jealously guarded closed borders in which “different citizenship allows various levels
of cross-border mobility” (Kalm, 2020, p. 536). In this context, “citizenship capital has become
increasingly important for one’s life chances” (ibid, p. 537). In Kalm’s view, “as a capital form,
citizenship has an autonomous force and impact, but it also shapes transnational positions in
combination with other capital forms” (ibid, p. 546). Joppke defends a different position on the
current value of citizenship, arguing that (liberal) citizenship “in a context of neoliberal
globalization counterpointed by nationalism, has become ‘more difficult to get’ and ‘easier to
lose,’ but also ‘less in value’”(Joppke, 2021, p. 247).
269
Indeed, in cases where caps exist, these limit the number of citizens who acquire citizenship
through CIPs, as in the case of the Maltese program.

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governing the bestowing of national citizenship. Call this the objection from
the domestic domain.
Based on the aforementioned points, this argument could be strengthened
by investing greater argumentative effort in two fronts. The first would be to
provide concrete data demonstrating that the programs are the root cause of
the observed widening inequality, rather than merely a correlated or
consequential factor. This would defeat the causation/correlation non-
distinction objection. The second would be to present compelling arguments
that establish states' genuine obligations—be they moral, political, or legal—
to consider the potential adverse impacts on global inequality resulting from
their domestic decisions concerning national citizenship attributions. This
would effectively refute the domestic domain objection.

3.2.1.2.3. The Disruptive Influence on Legal Principles (DILP)

The two most resounding arguments against CIPs due to the disruptive
influence of the programs on legal principles are the argument from the
principle of genuine link and the argument from the principle of sincere
cooperation. These two arguments have been repeated by both EU
institutions270 and academia.271 Namely, these two arguments are approaching
the phenomenon from a supranational legal perspective by asserting that CIPs
may violate certain international obligations and supranational principles,
such as failing to sufficiently demonstrate the “principle of genuine link,” an
argued international law principle, or failing to respect the “principle of
sincere cooperation,” a general principle of EU law.

3.2.1.2.3.1. DILP—Argument 1: The Argument from the Principle of Genuine

Link
The first argument in this category is the argument from the principle of
genuine link.272 The basic form of this argument is as follows:

Premise 1. If CIPs violate the principle of genuine link, then CIPs ought not to
be allowed.

Premise 2. CIPs violate the principle of genuine link.

Conclusion: CIPs ought not to be allowed.

Proponents of the genuine link principle against CIPs assert that international
law obliges states to follow this principle when conferring citizenship. Most
270
See Chapter Two.
271
Sergio Carrera presented what is probably the most elaborated version of these arguments
(Carrera Nuñez, 2014; Carrera Nuñez and de Groot, 2015).
272
This argument has not just been presented by the EU Parliament and Carrera but also other
scholars, such as Bauböck (Shachar and Bauböck, 2014, p. 19), and Shachar (Shachar et al.,
2017, p. 796).

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critics of the argument attack this premise. Before delving into the criticism
and in order to fully understand this argument, it is necessary to understand
what this principle is and how it originated.
Since the Nottebohm case (1955),273 it has been noted by some international
legal scholars and case law that having a “genuine link” would be a necessary
requirement for recognition of a person’s nationality. Some legal scholars
have gone one step further and argued that this requirement not only applies
for matters of recognition of nationality by a third state, but it has also been
interpreted as a principle that states ought to apply when granting
citizenship.274 This is the understanding that EU institutions seem to have
adopted when discussing CIPs, as shown in Chapter Two.
To assess whether these claims have a point, it is necessary to address the
case. In the Nottebohm case, the ICJ held that nationality constitutes

a legal bond having as its basis a social fact of attachment, a genuine

connection of existence, interests and sentiments, together with the existence
of reciprocal rights and duties. It may be said to constitute the juridical
expression of the fact that the individual upon whom it is conferred, either
directly by the law or as the result of an act of the authorities, is, in fact, more
closely connected with the population of the State conferring nationality than
with that of any other State. (Nottebohm Case, Judgment of the 6th of April
1955, 19 j j : I.C. J. Reports 1955).

In order to assess whether the genuine link is a principle of international law,

and particularly this understanding of it, several points should be stressed here.
The first regards the circumstances under which the ICJ established the
“genuine link” as a requirement. In the Nottebohm case, a German-born
citizen, later naturalized in Liechtenstein while resident in Guatemala, was
treated by Guatemalan authorities as a German, despite his change in
citizenship. The authorities confiscated his property and handed him over to a
US military base to be interned for several years. When Liechtenstein, in 1951,
acting on Nottebohm’s behalf, brought a suit against Guatemala before the

273
Judgment of the International Court of Justice of the 6th of April 1955, Nottebohm, I.C.J.
Reports 1955. See footnote 36.
274
Note that the claim that a “genuine link” is needed to grant citizenship is not identical to the
claim that the particular characteristics of the applicant need to be taken into account in the
assessment for ascribing the personal legal status that is status civitatis. I shall defend this latter
assertion—what I call the intuitu personae account—in Chapter Four. While the general
understanding of “genuine link” does not entail that an investment in the country would not
qualify as such (since there is an economic link to the country that may express a genuine
interest in its well-being, thus linking the person to the country and thus, arguably, expressing
a social fact of attachment) arguing that the attribution of a personal legal status needs to be
done on the basis of the personal characteristics of a particular subject—for which I shall argue
that possessing a certain amount of money or making a certain investment does not qualify as
such—is significantly different. This latter claim is the one I shall develop in detail in the
coming chapter. Thus, the “genuine link” principle per se does not disqualify money as the item
upon which to grant citizenship, while the intuitu personae account of the personal status does.

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ICJ, the Court declared that Guatemala was under no obligation to recognize
a nationality granted in circumstances in which the “genuine link” was
lacking, consequently determining that Liechtenstein was not entitled to
extend its protection to Nottebohm vis-à-vis Guatemala and its claim. For this
reason, the case was held to be inadmissible.
Leaving aside the quality of the judgment,275 two relevant points should be
highlighted here. Firstly, the purpose of the judgment was to determine
whether the acquisition of citizenship was made according to international
legal standards such that the state that granted citizenship could represent the
citizen’s interest before the court. That is to say, the “genuine link” was
established regarding recognition,276 i.e., it arose to establish whether the
bestowing of citizenship could impose certain obligations on third-state
parties.
Furthermore, and more importantly, the ICJ judgment dates from 1955.
Immediately after the Second World War, it was still uncommon in the
international community to have multiple citizenships, and the “genuine link”
as an expression of a tightly bound relation between an individual and the state
granting diplomatic representation was generally unchallenged. This mindset
clearly pervaded the judgment when stating that “it may be said to constitute
the juridical expression of the fact that the individual upon whom it is
conferred (...), is in fact, more closely connected with the population of the
State conferring nationality than with that of any other State.”277 The
phrasing—as if it would not be possible to have more than one citizenship—
clearly indicates a mindset according to which each person is strongly
associated with one state. However, the greatly different reality in which the
CIPs were established gives us reason to regard the “genuine link” as it was
regarded in the Nottebohm case as, at least, in need of an update.
The outdated nature of the typical understanding of the “genuine link” is
connected to Carrera’s apt criticism that “by supporting the ‘real connections’
as the most relevant standard, the European institutions may be paradoxically
fuelling nationalistic misuses by Member States of the ‘genuine link’ as a way
to justify restrictive integration policies on the acquisition of nationality”
(Carrera Núñez, 2014, p. 1).
275
As Macklin (2017) notes, “[a]mong legal scholars who take Nottebohm seriously as
jurisprudence, there is strong consensus that Nottebohm was wrong then, and maybe even more
wrong now.” Van den Brink reminds us that “the judgment was critically received from the
outset, said to be deficient in its reasoning and to be lacking a basis in international law” (van
den Brink, 2020). Joppke also points out the problems of the case by arguing that what the case
does is “using an idealized concept of citizenship to plunder and victimize a productive and
apparently perfectly honorable man, turning him into the “scum of the earth” that Hannah
Arendt called the stateless” (Joppke, 2021, p. 207). For a criticism about the quality of the
judgment, already in the sixties, see Kunz (1960).
276
For a detailed and clarifying explanation highlighting the fact that Nottebohm was imposing
the requirement of a genuine link regarding the recognition of citizenship by other states and
not on its bestowing or acquisition, see van den Brink (2020).
277
Italics added.

116
 In addition, as van den Brink pointed out, “the criterion of genuine link has
been expressly rejected on different occasions by different international
tribunals, including by the EU’s own Court of Justice” (van den Brink, 2020),
for instance, in the Micheletti case.278
Sarmiento elaborates on this point by referring to Micheletti, and adding
two more examples, the Rottman279 and the Ruiz Zambrano cases.280 Moreover,
Sarmiento remarks that in Micheletti, the CJEU had already stated that “the
acquisition and loss of nationality is a competence of each Member State”
(Sarmiento, 2020, p. 16). According to the author, in this case, the court
introduced some important points including, relevantly for our purposes, that
it recognized Member States’ autonomy in defining the terms of acquisition
of nationality.281
Considering the aforementioned more recent case law from the CJEU, it is,
at least, peculiar, that EU institutions have been threatening to bring CIP-
granting Member States before the CJEU on grounds relating to the principle
of genuine link.
Lastly, Sarmiento supplies two replies to the argument that, in light of
Nottebohm, EU law is bound through international law to uphold standards of
“meaningful nationality” against Member States’ discretionary practices in
citizenship policy. Firstly, he stresses the argument previously mentioned that
the validity of this standard is debatable as applied to current international
practice beyond the area of international protection.282 Secondly, even if the
standards were valid in such circumstances, it would be, he maintains,

278
Case C-369/90 Micheletti, ECLI: EU:C:1992:295.
279
Case C-135/08 Rottman, ECLI:EU:C:2010:104. Shaw (2020, p. 137) presents an
interpretation of the Rottman case in which she remarks, precisely, that despite the CJEU stated
that the competence in matters of nationality law remains with the Member States, “nonetheless,
in situations which are covered by EU law, states have the obligation to apply their national
rules in a manner that has due regard to EU law” (Italics added).
280
Case C-34/09 Ruiz Zambrano, ECLI:EU:C:2011:124.
281
Other relevant aspects of Micheletti mentioned by Sarmiento are that it develops an
“autonomous concept of EU citizenship,” which would later be confirmed by Rottman and Ruiz
Zambrano, highlighting the relevance of a common definition of “Community nationality” (EU
citizenship), and confirming that any condition which might have been set in international law
is subject to EU law, and not the other way around. Sarmiento remarks that this notion of the
autonomy of EU law “deploys its effects both internally and internationally, but above all, it
imposes limits to national or international law when they undermine the basic values enshrined
in the Treaties” (Sarmiento, 2020, p. 17).
282
Indeed, Sarmiento agrees with Spiro (2019) in considering that “meaningful nationality” is
not a general requirement under international law which falls on all States. In Sarmiento’s view,
“to date, international law has not created binding and positive obligations on States to ensure
specific conditions for the acquisition of nationality” (Sarmiento, 2020, p. 22). The same line
of thought is followed by Shaw (2020, p. 236) who argues that regardless of how desirable the
genuine link may be as a normative principle, or what its status is in international law, states
have by no means internalized it. An example of an argument in favor of creating an
international right to citizenship that would be grounded on the ethical foundation of ius nexi
(positivized as the principle of the genuine link) is presented by Von Rütte (2018).

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“questionable to assume that international law can trigger new competences
in favor of the EU” (Sarmiento, 2020).
In conclusion, although some scholars and EU institutions have for years
relied extensively on the argument from the principle of the genuine link in
arguing against CIPs, there are several fundamental problems with this
argument. Firstly, the judgment was highly criticized from the outset for its
poor legal quality. Secondly, the ratio materiae may limit the bearing of the
principle since it was established regarding recognition of naturalization by
other states, not bestowing of nationality.283 Thirdly, attempting to use this
principle in present-day cases of citizenship attribution would bring new and
different problems due to the number of individuals with multiple citizenships
and ties to several countries today, and the enormous growth in the number of
migrants worldwide compared to 1955.284 Fourthly, in the European context,
the CJEU developed case law at odds with this principle. Lastly, as van den
Brink and Sarmiento have shown, it is not only problematic to consider the
genuine link principle as an uncontested matter of international law, but also
to assume that international law could trigger the creation of new
competencies for the EU in its relations to the Member States.
All in all, it seems that the argument from the principle of genuine link is
an inadequate and problematic objection to the establishment of CIPs.285

3.2.1.2.3.2. DILP—Argument 2- The Argument from the Principle of Sincere

Cooperation
The last argument on which I focus is the argument from the principle of
sincere cooperation. Its basic form is as follows:

Premise 1. If CIPs violate the principle of sincere cooperation, then CIPs

ought not to be allowed.

283
Indeed, in the same judgment, the ICJ indicated that it is for each “sovereign State, to settle
by its own legislation the rules relating to the acquisition of its nationality” (see page 20 of the
judgment). For further arguments, see Spiro (2019).
284
There are at least two difficulties in this regard. Firstly, as mentioned by van den Brink
(2020, p. 82) following Spiro (2019, p. 17–8), “Dual nationality is now much more widespread
and accepted than it was then, and individuals have become far more mobile, often maintaining
social ties with different countries.” That is, in present-day reality, assuming that an individual
can be related or have ties with only one state is often empirically incorrect. Second, as
highlighted by Van den Brink (2020, p. 83), the requirement of a genuine link to recognize the
citizenship of a third state could also jeopardize the enjoyment of fundamental rights for many
EU citizens “if the Member States were allowed to refuse to recognize the nationality—and
with that EU citizenship—of persons who, in their view, have no genuine link with the Member
State of which they are nationals.” According to the same author, “to prevent this, the EU Court
of Justice ruled against national rules that impose additional conditions for the recognition of
nationality as long ago as 1992, in the Micheletti case” (ibid).
285
Some authors, like Margiotta (2020, p. 518), argue that the Commission’s claim concerning
the wrongness of CIPs due to a lack of “genuine link” between the applicants and the state of
naturalization is one of the several hypocrisies of the Commission in its approach to CIPs. In
this regard, see also Spiro (2018).

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 Premise 2. CIPs violate the principle of sincere cooperation.

Conclusion: CIPs ought not to be allowed.

The principle of sincere or loyal cooperation is enshrined in Article 4.3 of the

Treaty on the European Union (TEU). This principle requires that the Union
and the Member States shall:

in full mutual respect, assist each other in carrying out tasks which flow from
the Treaties. The Member State shall take any appropriate measure, general or
particular, to ensure fulfillment of the obligations arising out of the Treaties or
resulting from the acts of the institutions of the Union. The Member States shall
facilitate the achievement of the Union’s tasks and refrain from any measure
which could jeopardize the attainment of the Union’s objectives.286

According to Carrera, this provision includes positive obligations for Member

States, the first being “a reciprocal obligation to assist each other,” and the
second one is “a duty to take any measure facilitating the fulfillment of
obligations emerging from primary or secondary EU law” (Carrera Nuñez and
de Groot, 2015, p. 314). Moreover, it also includes a negative obligation
consisting of “abstaining from adopting measures jeopardizing the Union’s
objectives.” (ibid).
The relevance of the principle has been noted by the CJEU, which has
considered the principle to be a key component of the EU legal system, lying
at its core basis,287 and as a duty of general application across the various areas
of European law.
By exercising their sovereignty in establishing the programs without taking
other Member States’ interests into account, Bulgaria, Cyprus, and Malta have
been said to act in breach of the principle of sincere cooperation, thus acting
as free-riders, unjustly benefiting from the attractiveness of life elsewhere in
the Union and the substance of citizenship of the Union.
Although the argument from the principle of sincere cooperation seems to
be a strong one, it is not trouble-free. A few considerations need to be made.
The first regards the fact that this argument works only for CIPs in the EU but
does not address programs outside the EU and, therefore, cannot be used to
assess whether the “selling of citizenship” itself should exist as a practice.
A second consideration is that the scope of validity of the argument is
limited to how the programs have been established, not to the nature of the
programs themselves. This is because the argument is merely procedural,
bypassing the nature of citizenship.

286
Italics added.
287
Joined cases 6 and 11/69, Commission, ECLI:EU:C:1969:68, paragraph 16. See also case
43/75, Defrenne, ECLI:EU:C: 1976:56, paragraph 28.

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 A third and important consideration regards the assumption that CIPs in the
EU violate the principle of sincere cooperation. This assumption has been
insufficiently proved for several reasons. Firstly, as Article 4.3 TEU indicates,
the principle of sincere cooperation requires that members assist each other in
carrying out tasks flowing from the Treaties. The article continues by referring
to ensuring fulfillment of the obligations arising out of the Treaties or
resulting from the acts of the institutions of the Union. A priori, it is difficult
to see how this principle would apply to citizenship policies, a domaine
réservé of the Member States. Before using this principle against CIPs, this
connection should be clarified. Secondly, as Carrera correctly observes, the
principle includes a negative obligation consisting of “abstaining from
adopting measures jeopardizing the Union’s objectives.” A potential solution
to the problem just mentioned, i.e., that citizenship policies are unrelated to
the Treaties, could be to argue that although citizenship policies as a
competence of the states do not result from the Treaties, the states are obliged
to refrain from actions regarding their internal policies on citizenship that
could jeopardize the Union’s objectives. While this claim appears to stem
from the negative obligation included by the principle of sincere cooperation,
it is necessary to argue satisfactorily which of the Union objectives are
jeopardized by the institution of CIPs, for what reasons, and under what
circumstances. Since the programs differ greatly from one another, as we saw
in Chapter Two, this assessment should be done on an individual basis. To my
knowledge, such an assessment has not been made.

3.3. The Missing Debate

Although the debate on CIPs is nourished by a range of perspectives and
appealing arguments, I have shown that these are not without problems. In this
chapter, I have revealed that, on closer scrutiny, one can find flaws in the main
claims and arguments.
Another key observation has been that the normative debate has often
revolved around political and sociological perspectives. Regarding the legal
approach, scholars analyzing the phenomenon from a legal stance have done
so merely from the point of view of international and supranational law.
Strangely enough, the debate has entirely neglected assessing the adequacy
and legitimacy of the programs from a legal theoretical perspective, neither
analyzing the nature of the legal object granted (citizenship, status civitatis),
nor by examining the establishment of the CIPs.
To address this gap, the next chapter will delve into the “missing debate”
and explore a legal theoretical perspective on CIPs. By unveiling this
neglected aspect, I aim to contribute a fresh and comprehensive analysis of
the phenomenon. This will shed light on the adequacy and legitimacy of CIPs,
considering their legal implications and theoretical foundations. By

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incorporating the legal theoretical dimension into the broader debate, we can
gain a deeper understanding of the normative implications of CIPs and enrich
the ongoing discourse.

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Chapter Four: The Analytical Framework for
the Assessment

For that state in which the law is subject and has no authority, I perceive it to
be on the highway to ruin; but I see that the state in which the law is above the
rulers, and the rulers are the inferiors of the law, has salvation, and every
blessing which the Gods can confer.
Plato Laws, IV. 715d

In this chapter, I perform two tasks: I introduce the analytical framework that
I employ in the assessment of CIPs, and I argue that CIPs are substantially
arbitrary.
The analytical framework for assessment has two elements. The first allows
us to draw two distinctions: one between the notions of discretion and
arbitrariness; and the second between two types of arbitrariness—substantial
and procedural. I support the first distinction with references to scholarship in
law and legal theory, as well as with relevant case law.
The purpose of distinguishing discretion from arbitrariness is twofold. The
first purpose is to challenge claims in favor of the programs on the basis of
authorities’ discretion concerning a domain that is the exclusive competence
of the states. As I have mentioned on several occasions, citizenship is a
domain réservé of the states. Some proponents of CIPs argue in favor of the
legitimacy of the programs on the basis of this, and with reference to the fact
that legal actors and lawmakers enjoy discretionary powers in citizenship
policy, i.e., to decide on issues regarding citizenship. However, I find that this
claim often relies on a somewhat imprecise notion of what discretion implies
and how it is distinguished from arbitrariness. Indeed, it omits the relevant
fact that discretionary powers are not unlimited, thus encountering some
borders. Here, I shall make these limits explicit. This will enable further
assessment of the key question, i.e., whether the programs are arbitrary.
Delving into the notion of arbitrariness, I make an important distinction
between two types of arbitrariness, which I call substantial arbitrariness and
procedural arbitrariness. In this chapter, I distinguish these, and offer
examples of what counts as an instantiation of each. My purpose in doing this
is first to analyze whether the programs suffer from either of these kinds of
arbitrariness. Thus, in line with the distinction between substantial and
procedural arbitrariness, I ask two questions: were the programs substantially
arbitrary; and were the programs established in a way that suffers from

122
procedural arbitrariness? In the second part of this chapter, I address the first
of these questions, and in the next chapter, I address the second.
The second purpose of distinguishing discretion from arbitrariness is in
relation to the notion of the Rule of Law, a fundamental value of the EU. Since
arbitrariness is forbidden by, and detrimental to, the Rule of Law, identifying
whether the programs are discretionary or arbitrary is essential, not only for
the Member States offering CIPs but for the EU more broadly. Were the
programs indeed arbitrary, this would in itself constitute an argument for the
EU to object to CIPs, despite it being well-established that citizenship is a
domaine réservé of the Member States (often claimed as a reason to reject EU
action against CIPs). Due to the relevance of the notion of the Rule of Law,
and its relation to the aforementioned distinction between the notions of
discretion and arbitrariness, the task of the first part of this chapter will be to
offer an understanding of what is commonly meant by the Rule of Law both
by theorists and the EU.
The second tool that I use in this framework of analysis is to approach the
notion of citizenship qua legal status, more specifically, the view according to
which citizenship has an intuitu personae character. As repeatedly mentioned
in this work, scholars working in the field of migration studies often rely on
the idea that citizenship is problematic (van Steenbergen, 1994, p. 1), an
“essentially contested concept”288 (Collier et al., 2006, p. 212; Waldron, 2002,
p. 149, footnote 31), nothing other than an empty shell (de Groot, 1989, pp.
13–7),289 or even that “articulating a single definition of ‘citizenship’ would
be either a hopeless task or a sectarian project given the proliferation of
meanings and uses of the term” (Shachar, et al. 2017, p. 5). Citizenship has
been categorized as an object of “multiple dimensions”290 and it has been

288
W.B. Gallie (1956) introduced and popularized the notion of an “essentially contested
concept” when he identified that examining the uses and argumentative contexts of some
terms—which he labeled “essentially contested concepts”—soon reveals that they have no
clearly definable general use of any of them which could be set up as the correct or standard
use (Gallie, 1956, p. 168). Each party keeps maintaining that the special functions which the
contested term fulfills on their behalf, or insists on their interpretation as the correct, proper,
primary only important function of the term (ibid). The particular feature of these terms is that
the disputes that they generate are not resolvable by an argument of any kind, but sustained by
perfectly respectable arguments and evidence. That is to say, essentially contested concepts are
of the sort that involves endless disputes about their proper uses on the part of their users (ibid,
p. 169). Gallie emphasized that, in the case of these concepts, the contestation is at the core, not
just at the borderlines or penumbra of the concept. Moreover, and importantly, Gallie indicated
that there is no general method or principle for deciding between the claims made by the
different users of these concepts (ibid, p. 178). Mindus (2019b, p. 383) disagrees with this
characterization for the case of citizenship by arguing that “the fact that there is uncertainty
about what is meant when it comes to citizenship does not necessarily mean that it is a
controversial concept or that it would not be possible to find out what citizenship really means
in different contexts.”
289
For a well-founded criticism of this view, see d’Oliveira (2018, p. 25).
290
Leydet (2017) asserts at the voice entry “Citizenship” in Stanford Encyclopaedia of
Philosophy that “the concept of citizenship is composed of three main elements or dimensions”:
these are, the legal, political, and identity dimensions.

123
argued that the term is used to refer to different objects (Mindus 2014; 2019a;
2019b), so that “the very word citizenship can mean different things in
different contexts” (Mindus, 2019b, p. 384). While citizenship is certainly not
a straightforward notion to grasp, I argue in this chapter that approaching the
notion in its legal dimension, qua legal status, allows us to identify some of
its relevant characteristics.
The main argument that I then develop in this chapter is the idea that
citizenship qua personal legal status has an intuitu personae character, which
requires that its attribution be done on the basis of its subject’s personal
characteristics.
Once I have established (1) what substantial and procedural arbitrariness
are (and how they both differ from discretion); and (2) that citizenship is a
personal legal status which, as such, has an intuitu personae character
regulating the type of grounds on which the status may justifiably be ascribed
(i.e., only grounds relating to some personal characteristic of the status-
bearer), in the second part of the chapter I develop the chapter’s main
argument: I argue that CIPs are substantially arbitrary. My reason for making
this claim is that, assuming that status civitatis is a personal status that can
justifiably be conferred only on grounds referring to some personal
characteristic, money is not the type of object that can be said to be a “personal
characteristic” in itself. Therefore, conferring citizenship on economic
grounds, such as a financial transfer or investment, as in the case of CIPs,
amounts to an unwarranted way of obtaining a personal status. I argue that
money—a fungible asset, the ratio essendi of which is to be an object of
exchange—in the form of an investment cannot prima facie be considered a
personal characteristic of the person. This is because money, as a fungible
asset, by definition is silent concerning its owner’s characteristics. It follows
from this that such a ground for conferring the personal status of citizenship
is substantially arbitrary.
Thus, the intuitu personae character of citizenship qua personal legal
status, and the impossibility for money to be considered a personal
characteristic of the applicant, means that bestowing citizenship on grounds
of economic contributions without considering the personal characteristics or
traits of the applicant is wrong.
The last part of this chapter will connect both tools of the framework and
show that if my argument concerning the impropriety of exchanging a
personal legal status for money is correct, then programs that grant citizenship
merely for economic transactions and without considering the personal
characteristics of the applicants incur in a problem of arbitrariness. In the cases
of these programs, the EU would have an argument against them based on the
damage of arbitrariness to the Rule of Law—a fundamental EU value—
despite citizenship being a domaine réservé of Member States.

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4.1. The Notion of the Rule of Law: A Theoretical
Overview
The distinction between the notions of discretion and arbitrariness is relevant
due to the fact that arbitrariness undermines, and is contrary to, one of the
fundamental values of the EU, the Rule of Law. To comprehend the ways in
which this occurs and gauge its extent, it is essential to begin by defining the
Rule of Law. Therefore, in this initial section, I present the legal theoretical
and EU law perspective on the notion of the Rule of Law, emphasizing its
importance for legal systems.
The Rule of Law is generally understood as serving as a constraint on the
powerful and on their whimsical action, for it establishes that people should
be ruled by laws, not by people. The Rule of Law requires that the actions of
those in power should be limited by the constraints established by the laws.
This understanding of the Rule of Law dates back to ancient times and was
articulated by notable thinkers like Aristotle and Cicero. In his Politics (III,
16. 1287a), Aristotle claimed that “the rule of the law, it is argued, is
preferable to that of any individual. On the same principle, even if it be better
for certain individuals to govern, they should be made only guardians and
ministers of the law.”291 Cicero echoed this sentiment in his famous statement
“Legum (...) omnes servi sumus ut liberi esse possimus” (Cicero, 2000, p.
53).292
In the present day, Jeremy Waldron, a prominent legal and political
philosopher, views the Rule of Law as “one of the most important political
ideals of our time” (Waldron, 2016).293 From a legal perspective, Waldron
highlights that the Rule of Law encompasses different dimensions. Firstly, it
has a formal dimension centered on specific formal principles within a
society’s legal framework. These principles include generality, clarity,
publicity, stability, and prospectivity of the norms that govern a society.294
That is to say, the Rule of Law is not only a requirement but also serves as an
essential pillar for the relevant formal principles of law.

291
Available at: https://classicalwisdom.com/greek_books/politics-by-aristotle-book-iii/6/ (last
accessed 13/07/2023).
292
In English, it reads, “we are slaves of the law so that we can be free.”
293
Other important legal theorists and pieces of work touching upon the notion of the Rule of
Law are The Constitution of Liberty (Hayek, 1960); The Morality of Law (Fuller, 1969); The
Rule of Law and Its Virtue (Raz, 1979); and Law's Empire (Dworkin, 1995).
294
Waldron’s formal dimension principles coincide with some of the eight principles of the
Rule of Law indicated by Fuller (1969). The relevance of these principles is absolute for Fuller’s
notion of the Rule of Law, to the point that he deems that “a total failure in any one of these
eight directions does not simply result in a bad system of law; it results in something that is not
properly called a legal system at all” (1969, p. 39). Considering that for Fuller “neither a rule
of law nor a legal system can 'half exist’” (1969, p. 122), his position on the violation of the
principles is pretty categorical regarding the damage to the rule of law that a transgression of
them would entail.

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 Secondly, Waldron emphasizes the procedural and institutional dimensions
of the Rule of Law. In his reading of Waldron on the Rule of Law, Moreso
(2020) indicates that these dimensions entail that the norms are applied by
impartial and independent judicial organs in the exercise of their jurisdiction
in a way that they respect all the requirements of procedural fairness.295
Although the three dimensions of the Rule of Law identified—formal,
procedural, and institutional—typify the concept of the Rule of Law, different
interpretations of the Rule of Law place varying degrees of importance on
these dimensions.
Examining the various understandings of the Rule of Law, Waldron
identifies two views as the most prominent. The first encompasses many
conceptions of the Rule of Law that “place great emphasis on legal certainty,
predictability, and settlement; on the reliable character of their administration
by the state” (Waldron, 2008, p. 6).
The second view argues that:

the Rule of Law is not just about general rules; it is about their impartial
administration: a procedural understanding of the Rule of Law requires not
only that officials apply the rules as they are set out, but it also requires
application of the rules with all the care and attention to fairness that is signaled
by ideals such as ‘natural justice’ and ‘procedural due process’ (Waldron,
2008, pp. 7–8).

Waldron considers that these views are not mutually contradictory but rather
complementary, as they share a central and essential characteristic of the Rule
of Law. In his own words:

The most important demand of the Rule of Law is that people in positions of
authority should exercise their power within a constraining framework of well-
established public norms rather than in an arbitrary, ad hoc, (...) manner on the
basis of their own preferences or ideology. (...) The government should operate
within a framework of law in everything it does, and that it should be
accountable through law when there is a suggestion of unauthorized action by
those in power (Waldron, 2016).296

Waldron’s portrayal of the Rule of Law already emphasizes the two main
components that I later present as essential for distinguishing between
discretion and arbitrariness: the establishment of legal limits preventing the

295
Moreso also refers here to Raz (1979); Dicey (1982); Laporta (2007); Ferrajoli (1989; 2007);
Celano (2013) and Atria (2016).
296
In a different text, Waldron develops the same idea: “The Rule of Law is a multi-faceted
ideal. Most conceptions of this ideal, however, give central place to a requirement that people
in positions of authority should exercise their power within a constraining framework of public
norms, rather than on the basis of their own preferences, their ideology, or their own individual
sense of right and wrong” (Waldron, 2008, p. 6). (Italics in both texts added).

126
arbitrary behavior of authorities297 and the requirement of accountability,
obliging authorities to justify their decisions. The Rule of Law “aims to correct
abuses of power by insisting on a particular mode of the exercise of political
power: governance through law” (Waldron, 2008, p. 11). Therefore, as I
elaborate further, the very notion of Rule of Law is incompatible with the
arbitrary action of public authorities. Likewise, the arbitrary behavior of these
agents undermines the preservation of the Rule of Law, and, as observed,
undermines them due to its significance as a fundamental pillar for other legal
values and principles.
In legal dogmatics, the notion of the Rule of Law is often described as a
highly contested concept. Scholars, legal practitioners, legal institutions, and
politicians frequently adhere to slightly different notions of the concept. There
have been efforts to identify a common core to the diverse classifications,
which include formal and substantive notions, theoretical and practical
notions, and social and legal contextual notions, among others. However,
navigating through the different usages in highly distinct contexts can be
challenging and may present certain complications.
One of the primary challenges in understanding the concept of the Rule of
Law arises from its development in diverse socio-historical and legal contexts.
Translations of this notion from other languages, such as the German
“Rechtsstaat,” the French “État de droit,” or the Spanish “Estado de Derecho,”
often carry significant differences with them.298 Wennerström conducted a
detailed study of these different terms and found that, despite the social and
legal disparities in the contexts in which each term developed, they all share a
common feature. This is, in his own words “an ambition to control public
powers, in order to reduce the risks of it being abused” (Wennerström, 2007,
p. 54). In essence, the underlying goal behind these terms in different
languages is to constrain the exercise of authority and prevent its misuse.
Regarding the formal/substantive distinction, what characterizes what we
may refer to as formal definitions of the Rule of Law is their focus on the
process of enacting and promulgating laws within the legal system. These
definitions do not delve into considerations about the substantial content of
the judgment.299 Formal conceptions of the Rule of Law share several
assumptions, including: the principle of legality or supremacy of law;300 the
necessity of an independent judiciary; the requirement of publicly available
and generally applied laws; the prohibition of retroactive legislation and the

297
That the Rule of Law serves as a legal limit preventing arbitrariness has been noted by
innumerable authors. See for instance, among others, Postema (2013a; 2013b); Allan (2014);
Klimchuk (in Allan, 2014); and Lucy (2014). For the opposite opinion, see Austin (2014).
298
Wenneström brilliantly exposes some of these differences in his magnificent work on the
Rule of Law in the EU (Wennerström, 2007, pp. 49–50).
299
Some examples of formal notions are provided by Dicey (1982) and Raz (1979; 1990; 2019).
300
Wennerström argues that this principle entails the subordination of all state power to the
enacted law (2007, p. 85).

127
practice of judicial review of government acts (Stephenson, 2001;
Wennerström, 2007). On the other hand, substantive conceptions
acknowledge the importance of formal elements but prioritize upholding the
legal principles and values enshrined in the constitution. Despite these
differing emphases, both formal and substantive conceptions share the
common element of subordinating “all agents of state authority—the
legislative, executive and judicial branches—to the law” (Wennerström, 2007,
p. 79).301 This subordination ensures that no branch operates above the law and
that all government actions are subject to legal constraints.
Thus, despite the diversity of approaches and understandings of the Rule
of Law, all conceptions share certain fundamental elements centered around
the principle of legality or supremacy of law. This principle acts as a means
to curtail the power of all public authorities and prevent arbitrary behavior on
their part. As Dicey—one of the first modern scholars inquiring on the notion,
emphasized—the Rule of Law refers to “the supremacy of ‘regular law’ as the
necessary counterbalance to the arbitrary or discretionary powers of the
government” and other legal authorities (Dicey, 1982, 120). More recently,
Wennerström has defined the primary purpose or interest of the Rule of Law
as “to protect against anarchy and to establish public order, to allow people to
plan their affairs with reasonable confidence, and to guarantee against official
arbitrariness” (2007, p. 92).302
In essence, regardless of the diversity of interpretations surrounding the
Rule of Law, all conceptions share two core elements: the inherent
incompatibility of arbitrariness with the Rule of Law; and that the Rule of Law
acts as a constraint on the arbitrary actions of public authorities.
The importance of the Rule of Law extends beyond theoretical and
dogmatic considerations; it has also been formally acknowledged and valued
at the institutional level by the EU, where it holds the status of a fundamental
value within the legal order.303 Furthermore, in alignment with the perspectives
of legal theorists and dogmatic scholars, the EU regards the Rule of Law as a
prerequisite for and an enabler of upholding other core EU values304 and
essential legal principles. In the words of the European Commission:

301
See also Craig (1997, pp. 36–46) and Fernández Esteban (1999, pp. 92–4).
302
Italics are mine.
303
As stated in Article 2 of the TEU.
304
As recognized by the European Commission. On its webpage, one can read “(the Rule of
Law) is also a pre-requisite for the protection of all the other fundamental values of the Union,
including for fundamental rights and democracy. Respect for the rule of law is essential for the
very functioning of the EU: for the effective application of EU law, for the proper functioning
of the internal market, for maintaining an investment-friendly environment, and for mutual
trust. The core of the rule of law is effective judicial protection, which requires the
independence, quality, and efficiency of national justice systems.” (Italics added).
At https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-
law_en#:~:text=The%20rule%20of%20law%20is,the%20Treaty%20on%20European%20Uni
on.&text=The%20core%20of%20the%20rule,efficiency%20of%20national%20justice%20sy
stems (last accessed 04/09/2020).

128
 Under the rule of law, all public powers always act within the constraints set
out by law, in accordance with the values of democracy and fundamental
rights, and under the control of independent and impartial courts. The rule of
law includes principles such as legality, implying a transparent, accountable,
democratic and pluralistic process for enacting laws; legal certainty;
prohibiting the arbitrary exercise of executive power.305

According to the EU, the Rule of Law is not only a fundamental principle
within the Union but also forms the very foundation upon which the EU is
built.306 It is regarded as “the backbone of any modern constitutional
democracy” and its effective respect as “a prerequisite for confidence that EU
spending in Member States is sufficiently protected.”307 The EU's
understanding of the Rule of Law entails that “all members of a society—
governments and members of parliaments included—are equally subject to
the law, under the control of independent and impartial courts.”308
Indeed, the EU views the Rule of Law as its cornerstone for multiple
significant reasons. Firstly, it holds the status of a fundamental value within
the EU's framework. Secondly, it is deemed indispensable for preserving and
upholding other fundamental values and the Union itself. Thirdly, adherence
to the Rule of Law is crucial to maintaining the integrity of the entire EU legal
system and, consequently, to the continued existence of the EU as a
“community of law”. Furthermore, respect for the Rule of Law is essential for
safeguarding the rights of EU citizens, as it ensures their protection and
equality under the law.
Furthermore, and importantly, as the Proposal for a Regulation of the
European Parliament and of the Council on the protection of the Union's
budget in case of generalized deficiencies as regards the rule of law in the
Member States indicates, the Rule of Law is not only important for citizens
for the Union, but also for “business initiatives, innovation, investment and
the proper functioning of the internal market.”309 That is to say, hazards to the
Rule of Law do not only damage a fundamental value of the EU that is, in
turn, an essential pillar of the EU legal order; they also jeopardize one of the

305
Page 1 of COM(2020) 580 final (italics mine).
306
Ibid, page 2.
307
COM(2018) 324 final 2018/0136 (COD) page 1.
308
According to the Rule of Law Report 2020, factsheet, page 6. The reference to all members,
explicitly including governments and parliaments, is highly relevant to assessing whether the
CIPs in the EU were established in an arbitrary fashion. More details will be presented below.
309 COM(2018) 324 final 2018/0136 (COD) page 1.

129
fundamental assets that gains the confidence of investors310 and fosters the
economic life of the EU: legal stability and certainty.311
Therefore, damage to the Rule of Law entails not only negative
consequences to social justice and systemic dangers but also economic
disadvantages. Taking into account that arbitrariness is detrimental to and
forbidden by the Rule of Law, and considering the importance of the Rule of
Law to preserving a buoyant economic life in the EU, if the CIPs in the EU
are arbitrary or have been established in an arbitrary manner (thus damaging
the Rule of Law) we should take into account the potential long-term
economic detriment due to erosion of confidence that this could entail when
referring to the economic virtues of the programs. This aspect has typically
been neglected.
Interestingly, despite the emphasis and relevance that the EU institutions
ascribe to the Rule of Law, the EU does not provide an unequivocal
understanding of Rule of Law.312 Indeed, a definition is absent in the treaties,
and the case law of the CJEU has not sufficiently defined the notion for it to
cover all policy areas where it is used (Wennerström, 2007, p. 15).313
The most complete views of the EU understanding of the Rule of Law (at
least, concerning internal affairs) are dispersed among the several documents

310
The role of the Rule of Law in maintaining an investment-friendly environment is also
expressed by the European Commission on its website:
https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-
law_en#:~:text=The%20rule%20of%20law%20is,the%20Treaty%20on%20European%20Uni
on.&text=The%20core%20of%20the%20rule,efficiency%20of%20national%20justice%20sy
stems (first accessed 20/11/2020).
311
For an enlightening historical explanation of the relevance of legal stability and certainty,
and their importance to markets and investors, I strongly recommend the book Homo Deus: A
brief history of tomorrow by Harari (2016).
312
Although the Rule of Law is a fundamental value of the EU and despite the fact that several
recent EU documents emphasize its relevance, it is striking that prior 1992, the concept was
scarcely referred to in the EU (at that moment, European Community, EC) instruments,
documents, or declarations. In this regard, the CJEU partially took over this task: it did not only
pointed out its relevance a few years prior to the instruments (particularly in 1986, in the Case
C-294/83, Les Verts, ECLI:EU:C:1986:166, paragraph 23) (Raube et al., 2016, p. 1) but also
it is through its case law that the clearest elements of the EU Rule of Law conception have been
developed (Wennerström, 2007, p. 116).
313
This phenomenon is, however, not exclusive to the EU. Other international legal institutions
have made little effort to define this notion since its first introduction in modern international
law in the preamble (2a para.) of the Universal Declaration of Human Rights. The most
comprehensive definition of the Rule of Law by the United Nations (UN) was probably the one
appearing in the UN Secretariat Document S/2004/616 (page 4), stating that “the Rule of Law
is a concept at the very heart of the Organization’s mission. It refers to a principle of governance
in which all persons, institutions, and entities, public and private, including the State itself, are
accountable to laws that are publicly promulgated, equally enforced and independently
adjudicated. (...) It requires, as well, measures to ensure adherence to the principles of
supremacy of law, equality before the law, accountability to the law, fairness in the application
of the law, separation of powers, participation in decision-making, legal certainty, avoidance of
arbitrariness and procedural and legal transparency.” (Italics added). Accountability and
avoidance of arbitrariness already appear in this definition as key aspects of the Rule of Law.

130
quoted above. However, despite the fact that it has been identified that the
Union follows different notions of the Rule of Law depending on the policy
area, with clear differences among those followed in internal affairs,
enlargement, and development, these nonetheless share core elements.
Wennerström's insightful analysis identifies the common denominators across
these notions as the principle of legality (supremacy of the law) and judicial
independence (Wennerström, 2007, p. 302). Additionally, the fact that the
concept of the Rule of Law was originally a reaction to arbitrariness (ibid, p.
307), making this crucial to all understandings of the Rule of Law within the
EU.
In summary, at the core of the different understandings of the Rule of Law
followed by the EU, the main and defining aspects of the concept are the
principle of legality, judicial independence and the prohibition of
arbitrariness.

4.2. Distinguishing Discretion from Arbitrariness

The crux of the debate surrounding CIPs and the objection to EU intervention
in Member States’ territory lies in the concept of domaine réservé. The
programs’ advocates argue that Member States have full authority to make
decisions concerning the acquisition and loss of their national citizenship,
provided they adhere to their EU and international commitments. Hence, any
interference by the EU in citizenship matters is perceived as an infringement
of the sovereignty of individual Member States.
Furthermore, proponents of the programs contend that the decision to
implement them falls within the discretion of the legal authorities in each
Member State. While this assertion has merit, it is crucial to examine whether
the programs have been established through a legitimate exercise of discretion
or whether that discretion has deviated into arbitrary realms. Such an
evaluation requires a clear understanding of the differences between discretion
and arbitrariness. Therefore, in what follows, I will present the criteria
distinguishing these notions based on three legal perspectives—legal
philosophy, legal dogmatics, and case law.
To establish the legal philosophical view, I will examine the works of one
of the most eminent philosophers of the 20th Century, H.L.A. Hart. For the
legal dogmatic and jurisprudential views, the focus will be primarily on the
Spanish legal context, since it provides a robust foundation for this discussion,
thanks to Article 9.3 in the Spanish constitution explicitly prohibiting
arbitrariness by all public authorities.314 As a result, legal dogmatics and case

314
This article reads as follows: “The Constitution guarantees the principle of legality, the
hierarchy of norms, the publication of rules, the non-retroactivity of punitive provisions that are

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law in Spain have extensively developed and distinguished these two notions.
Additionally, I incorporate pertinent references to EU and other international
case law to support this distinction.
The three perspectives reveal a common emphasis on justification as the
central element for differentiation. All three also regard discretion as an
inherent part of any legal system, allowing legal actors to make choices and
exercise judgment within the bounds of the law, but these actors must provide
reasoned justifications for their decisions based on legal principles and
objective considerations of the specific circumstances. Legal decisions made
through discretion must also be accountable and subject to review. On the
other hand, arbitrariness implies decisions made without principled reasoning,
and lacking proper statement of reasons, justification, and objective legal
standards, often leading to decisions based on whims or personal preferences.
Ultimately, the analysis will show that the distinction rests on the rational
character of discretion, guided by practical reasoning and supported by
objective data relevant to the issue at hand.
Within the realm of legal philosophy, Hart approached the notion of
discretion and, incidentally, arbitrariness, mainly in two works: The Concept
of Law and an article entitled Discretion (Hart, 2013), a posthumously
published version of a meticulously curated rendition of the lecture he
delivered at Harvard in 1956. An examination of both of these works
collectively permits the identification of key elements that distinguish
discretion from arbitrariness. Furthermore, such an examination aligns with
Lacey's view (2013, p. 643) supporting the idea that Hart's concept of
discretion leans toward “weak discretion,” as opposed to “strong discretion,”
a point championed by Dworkin.315

not favorable or restrictive of individual rights, legal certainty, responsibility, and the
prohibition of arbitrariness by public authorities.” (Italics added).
315
In the midst of his debate with Hart, Dworkin introduced the concepts of “weak discretion”
and “strong discretion.” Hart, a legal positivist, and Dworkin, an advocate of legal
interpretivism, hold contrasting views on the nature of law, extending to judicial discretion.
Hart argues that judicial discretion is necessary when legal rules are ambiguous or inadequate,
essential for tailoring the law to fluid and intricate circumstances. In his view, judges are tasked
with the interpretation and application of legal rules, but their discretion should operate within
the confines of these rules and the principles that constitute the rule of recognition. The thrust
of Hart's position is that judges are not moral arbiters; their role is to apply the law as it exists,
not to make moral determinations. Dworkin criticizes Hart's view, arguing that Hart assigns
judges unrestricted discretion. Dworkin advocates for judges to base their decisions on the “best
narrative” of the law, which involves a coherent interpretation of the moral and ethical
principles underlying the law. According to Dworkin, judges should go beyond mere rule-
application and strive to uncover the morally optimal solution in each legal case, interpreting
the law aligning with inherent moral and ethical principles immanent in legal systems.
Principles, in Dworkin's view, serve as standards that mitigate legal discretion, ensuring judges
to not capriciously adjudicate cases in the absence of explicit rules. In his 1977 work Taking
Rights Seriously, Dworkin introduced a distinction between two forms of discretion: weak and
strong. “Weak discretion” allows judges some room for decision-making when legal rules are
ambiguous or do not provide a clear answer, provided that decisions align with principles
underlying the legal system. In contrast, “strong discretion” grants judges significant freedom

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 The Concept of Law, published in 1961, explores the nature of law and its
application. According to Hart, discretion and arbitrariness are distinct
concepts that play a crucial role in legal decision-making.316 In his view,
discretion refers to the freedom granted to legal authorities such as judges, to
make choices or decisions within a range of permissible options. It allows for
flexibility in applying legal rules to specific cases. On the other hand,
arbitrariness implies a lack of principled reasoning or justification in decision-
making, suggesting decisions that are made without any regard for legal
standards or principles, often based on personal whims or biases.
Hart argues that appropriately exercised discretion is a necessary and
legitimate aspect of the legal system (Hart, 1994, p. 128). He identifies some
key elements that distinguish discretion from arbitrariness. The first is the
existence of standards. According to Hart, discretion must be exercised within
the framework of pre-existing legal standards.317 These standards can be found
in statutes, precedents, legal principles, or any other recognized sources of law
(ibid, p. 133). They serve as guiding principles for decision-making and
provide a basis for evaluating the exercise of discretion. Discretionary powers
are not unlimited and must be exercised within the boundaries set by legal
norms.
The second distinguishing factor is that the exercise of discretion should be
free from personal caprice. Hart emphasizes that the decision-maker should
act consistently with the underlying principles and values of the legal system.
This means that decisions should be based on relevant legal considerations
and not on personal preferences or arbitrary factors. In Hart’s words:

Judges do not generally, when legal rules fail to determine a unique result,
intrude their personal preferences or blindly choose among alternatives; and
when words like “choice” and “discretion” ... are used to describe decisions,
these do not mean that courts do decide arbitrarily without elaborating reasons

to make decisions based on their own will, with few restrictions from the law or moral
principles. Dworkin advocates in favour of weak discretion, considering that strong discretion
would allow judges to decide cases arbitrarily, relying on their personal preferences without a
solid legal or moral foundation. Dworkin uses this distinction to criticize the conception of
discretion advocated by Hart, contending that his perspective allows for strong discretion,
which has the risk to lead to arbitrary and incoherent decision-making.
For an illuminating piece of work regarding the Hart-Dworkin debate, please see Shapiro
(2007).
316
Most of the work done on scrutinizing the nature of discretion has, actually, focused on
judicial discretion, which is beyond of the scope of this dissertation. Relevant pieces of work
on judicial discretion are the following: Isaacs (1923); Hodson (1961); Wasserstrom (1961);
Dworkin (1963; 1977); Greenawalt (1975); Hoffmaster (1982); Waluchow (1983); Shapiro
(1985); Galligan (1986); Barak (1989); Pattenden (1990); Hawkins (1992); Golub (1996); and
Wellman (2010). For a brilliant and exhaustive view of the issue, I strongly recommend the
excellent and rigorous work by Iglesias Vila (2001).
317
While in The Concept of Law Hart does not provide an exact formulation of the elements
distinguishing discretion from arbitrariness, his analysis and arguments throughout the book
lay the foundation for understanding the significance of standards and legal constraints on
discretion.

133
 for their decisions—and still less that any legal system authorizes decisions of
this kind (Hart, 1983, pp. 106–107).318

The final elements are the requirements of accountability and justification.

Hart stresses that the exercise of discretion must be accountable and subject
to justification (Hart, 1994, chapter seven). Decision-makers should be able
to provide reasons or justifications for their decisions that are based on legal
principles and norms. This ensures that decisions are made in a transparent
and reasoned manner, and allows for the review and evaluation of the exercise
of discretion by higher authorities or through judicial review. Furthermore,
Hart's emphasis on accountability and justification is intertwined with his
broader analysis of legal systems and the Rule of Law, in which he highlights
the significance of ensuring that decision-making processes are transparent,
reasoned, and subject to scrutiny to maintain the legitimacy of the legal
system.
While The Concept of Law does not focus specifically on providing a
workable formulation of the notions of discretion and arbitrariness, Hart
thoroughly explored the notion of discretion in an essay that circulated among
the Legal Philosophy Discussion Group at Harvard Law School in November
1956.319 In his text, Hart investigates the essence of discretion, its exercise,
and its distinguishing characteristics within the realm of law. Hart employes
“reflective analysis” (Hart, 2013, p. 654), to understand the true meaning of
discretion, discerning its defining features from actual usage.320 Through this
method, he reaches several conclusions.
First and foremost, Hart argues against equating discretion with mere
choice (tout court). While discretion does allow for freedom in decision-
making, it must not be exercised on a whim. Hart views discretion as an

318
Italics are mine.
319
Much later (2013) published in vol. 127 iss. 2, pp. 652 ff. of the Harvard Law Review. For
a contextualization of the text within Hart’s work, see Nicola Lacey's article in the same issue.
In her article, Lacey argues that the motivation for Hart to write about discretion lies in the
interest of “debunking the objection that the existence of discretion in judicial decision-making
is inconsistent with the Rule of Law in that it leaves unelected decision-makers with a free
choice, unconstrained by legal standards that have a proper democratic mandate” (Lacey, 2013,
p. 643).
320
As a result of his analysis, Hart concludes that the following features are characteristic of
discretion: (i) there is not a clear right or wrong—there are arguments weighing in favor of one
or other course; these are not conclusive though they have weight; (ii) there is not a clear
definable aim; (iii) the precise circumstances over which the decision will operate once it has
been made are not known with any very great certainty; (iv) there are distinguishable constituent
values or elements, but there are no clear principles or rules determining the relative importance
of these constituent values or, where they conflict, how a compromise should be made between
them; (v) we would not use the term “right” or “wrong” to them but rather “wise,” “sound” or
perhaps deploy comparatives such as “wiser” or “sounder”; (vi) if the person’s decision is
challenged, two paths can be followed to defend it: (a) justification; (b) vindication by results.
According to Hart, an exercise of discretion may be justified even in cases where it is not
vindicated by results (Hart, 2013, pp. 659–60).

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intellectual virtue, synonymous with practical wisdom and prudence. In his
own words:

discretion is after all the name of an intellectual virtue: it is a near-synonym

for practical wisdom or sagacity or prudence; it is the power of discerning or
distinguishing what in various fields is appropriate to be done and
etymologically connected with the notion of discerning (ibid, p. 656).

He draws an opposition between this and an action performed without

reflection and devoid of practical reason, i.e., an action grounded merely in a
temperamental and capricious desire. Discretion, by contrast, involves
discerning which actions are appropriate, based on a reasoned assessment of
alternatives. Actions arising from personal desires or capricious whims,
devoid of reflective thought, thus fall thus outside the scope of discretion.
The key distinction between the notions, therefore, lies in the rational
character of discretion in law. While it grants an agent or institution a space
for making free decisions, this freedom should be exercised through a process
of practical reasoning and not driven by arbitrary, unjustified desires. In his
own words, “One case where choice and discretion seem to diverge is where
the choice purports to be no more than the expression of personal whim,
immediate desire, or liking” (ibid, p. 657). Thus, it is clear that Hart regards
rationality as the main characteristic of discretion in law. Although discretion
is granted to a particular agent or institution as a space of freedom of decision
or action, this decision or action has to be motivated by an exercise of practical
reason rather than a capricious unjustified desire.321
Another significant aspect that Hart highlights in this early esay is that
discretion does not rely on predetermined guiding principles. However, and

321
The requirement of motivating a decision by giving reasons, i.e., providing a justification
for it through a statement of reasons, is a fundamental condition for distinguishing between
discretion and arbitrariness. As I shall show later, this condition is also highlighted by legal
dogmatics, case law, and by most legal scholars. Some examples are the following. Isaacs points
out that proceeding without a justification would imply an abuse of discretion (Isaacs, 1923,
pp. 349–350). Galligan claims that understanding discretion as a mere choice between courses
of action is too simplistic a view. Instead, Galligan considers that decisions are to be made on
the basis of reasons because no course of action can be torn away from the reasons that justify
it (Galligan, 1986, pp. 7–8). In turn, Barak (1989, pp. 118–121), referring to the judiciary,
indicates that the authorities, in their decisions, have to (i) evaluate factors relating to the
structure and development of the legal system, (ii) keep in mind institutional factors, (iii) take
note of the inter-relations among the several institutions. Similarly, the requirement for
providing reasons is also pointed out by Wasserstrom (1961, pp. 23–25), Lord Hodson (1961,
pp. 1–19), Bell (1992, pp. 96–97), Dworkin (1977, p. 33) and Pattenden (1990, p. 395). Marisa
Iglesias brilliantly sums up this common understanding and goes one step further, relating it to
the idea of legality: “If the idea of discretion embraces the need for justification, it is easy to
distinguish discretion from arbitrariness. Discretionary decisions are never unlawful. Like
every other judicial decision, they must be based on reasons. By contrast, arbitrary decisions
are irrational and unlawful due to the lack of justifying reasons for action. Hence, it is important
to stress that the notions of discretion and arbitrariness are incompatible with one another”
(Iglesias, 2001, p. 27). (Italics are mine).

135
importantly, this lack of pre-established principles does not imply absolute
freedom. On the contrary, Hart contends that exercising discretion necessitates
identifying and conscientiously weighing up relevant factors (ibid, p. 661). In
a scenario without pre-established principles, where we cannot deem a
decision right or wrong, discretion demands the identification of the factors to
consider: “It is necessary to identify the optimum conditions for the exercise
of discretion because where we cannot be sure of being right, we can at least
do what we can to obtain the best conditions for decisions” (ibid, p. 664). Last
but not least, Hart notes that the identification is relevant because this
procedure is what ensures the rationality of the decision: “decisions involving
discretion are rational primarily because of the manner in which they are
made” (ibid).322 Thus, in Hart’s view, this second requirement for identifying
the optimum conditions for the decision to be made, a procedural requirement,
is necessary for enabling the rational character of the decision, which is the
primary condition for a decision to be discretional, and not arbitrary.
Hart’s attempt to define the notion of discretion in law is a valuable one
that identifies some key aspects in distinguishing discretion from
arbitrariness.323 Firstly, while discretion is rooted in an exercise of practical
reason, arbitrariness is defined by its capricious and unfounded nature. As an
exercise of practical reason, it is expected that the agent presents reasons of a
certain quality supporting the rationality of her action.324 Secondly, for Hart,
discretional decisions or actions are not determined by principles or values.325
This claim may be controversial and contested when the discretion of the
authority is granted in a constitutional system, where both principles and
relevant values are stated in the constitution.326 That is to say, in constitutional

322
The phrase continues, “but of course the word ‘manner’ here must be understood to include
not only narrowly procedural factors and the deliberate exclusion of private interest, prejudice,
and the use of experience in the field but also the determined effort to identify what are the
various values which have to be considered and subjected in the course of discretion to some
form of compromise or subordination.” (Italics are mine)
323
He clearly states this distinction on the last page of his article: “I think the suggestion that
we never reach the “leap” is just as wrong as a description of discretion as a mere arbitrary
choice would be” (ibid, p. 665). (Italics are mine).
324
For an enlightening explanation of Hart’s article and, particularly, his view of rationality and
practical rationality, see Dajović (2023)
325
As Lacey (2013, p. 643) claimed, “the question of discretion touched on a number of core
puzzles related to Hart’s positivist theory of law” due to the difficulties in combining it with
the idea that law is a system of rules identified by reference to the rule of recognition leaving
aside any evaluative weight. For Lacey, this text seems to “predate The Concept of Law” and
she suggests that the way to go about understanding this text consistently with Hart’s greatest
work is by assuming that Hart viewed discretion rendered “weak” rather than “strong,” being
so accordingly consistent with the Rule of Law (Lacey, 2013, p. 644).
326
In brief, a broad notion of constitution understands it as the fundamental laws of political
organizations, typically (but not exclusively) in the form of states, that can exist in a written or
unwritten form, establishing the sort of government and a set of fundamental principles to which
the laws must conform. “Constitutional system” is the expression used to refer to a legal system
that has a constitution as its the fundamental and hierarchically superior law. Highly elaborated
notions of constitution have been provided by several legal philosophers. Among the extensive

136
systems, the discretion of authorities is restricted by the legal frame of the state
where they operate, and neither judges, administrators, nor legislators can
operate with absolute powers that allow them to contravene or overcome the
legal limits.
Thus, for Hart, while discretion is a necessary and legitimate aspect of the
legal system, arbitrariness is undesirable. An examination of the main works
in which he investigated the notion of discretion results in identifying that Hart
points out to several elements to establish the conditions for the distinction of
these two notions: adherence to legal standards; absence of personal caprice;
and the requirement for accountability and justification. Importantly, Hart
emphasizes that discretion differs from mere choice due to its rational
character, guided by practical reasoning and considering individual
circumstances of the case. This rational character of the decision and the
provision of the reasons is essential to support the accountability and
justification requirement. As we will see below, for legal dogmatics and in
case-law, as for Hart, justification is crucial in determining whether an action
falls under discretion or arbitrariness.
Within the realm of legal dogmatics, the Spanish administrative law scholar
Tomás Ramón Fernández stands out as one of the most prominent figures who
scrutinized the notions of discretion and arbitrarines for several decades.
Similarly to Hart, Fernández identifies a number of conditions for
distinguishing between the two notions. Additionally, Fernández provides a
comprehensive historical overview of the two notions, shedding light on the
reasons that have led to their frequent interchangeability. Understanding his
explanation is crucial for comprehending the frequent misuses and
misunderstandings surrounding arbitrariness and discretion. Informed by
Fernández, I now offer a brief historical excursus to enlighten the reader on
this matter.
According to Fernández, the term “arbitrariness” already incorporated
negative connotations of vagueness or capriciousness as early as the second
century BC (Fernández, 2016, p. 27). However, it was not until the
Enlightenment, particularly during the 17h century, in the context of the
conflicts between the Stuarts and the Parliament, that the pejorative view of
the term was solidified (ibid, p. 39).327 The negative connotations of the term
were cemented in the theoretical domain by Locke, for whom arbitrary power
is a power not granted by a law previously enacted, exercised capriciously to
satisfy sudden desires or the unlimited and unknown will of the decision-
maker, who cannot justify their decisions according to some guide or rule
(ibid, p. 50). Locke’s characterization anticipated by three centuries the
current general meaning of arbitrariness as any decision or action lacking a

literature on constitutions, see Barberis (1991), Guastini (1999), Moreso (2009), and Sartori
(2012). On the process of constitutionalization, I highly recommend Tarello (1998).
327
For further development of this claim, see Nieto García (2000).

137
justifiable reason because it exceeds the limits established by law for
achieving certain goals (ibid).
While the French Revolution inherited a modified meaning of the term
“arbitrariness” from the English Civil War, the evolution of the term took a
different course in the French context. In the English Civil War,
“arbitrariness” came to signify a defense of fundamental laws against the
King's subversion of these laws through “arbitrary and tyrannical power.”
However, during the French Revolution, the term “arbitrariness” was
employed not to restrain the King's tyrannical actions, but to establish “the
kingdom of the law” and eliminate such power altogether (ibid, p. 52).
A second relevant difference is that in the view of the French Revolution,
an action that was legal could not be arbitrary because the general will is
always right and cannot err and that which is arbitrary is by definition
illegal.328 The distinction of the terms “discretion” and “arbitrariness” in the
French context stems from the conjunction of the idea of “arbitrariness as
beyond the law” with Napoleon’s awareness of the need for a “space of
freedom” necessary for the legal agents, and which the law cannot foresee.
This was characterized as an arbitraire inévitable, constituting what we now
term the “discretion” of the public authorities (ibid, p. 55–6).329
The French distinction between the “space of freedom” necessary for
public authorities (i.e., discretion) and the notion of a capricious will acting
outside the law (i.e., arbitrariness) sparked debates among European legal
theorists in the decades that followed.330 In some countries, during the
legislative state era331 and prior to the establishment of the constitutional

328
As I mentioned before, although some scholars still use the terms “arbitrary” and “illegal”
interchangeably (see references in Cuono, 2013; Cuono and Mindus, 2018; Mindus, 2020), this
use of the term “arbitrary” as “illegal” is inappropriate and contrary to the general understanding
of “arbitrariness” followed by national and supranational law. I provide arguments supporting
this claim in Prats (2021b).
329
In a nutshell, the two European revolutions in the XVII and XVIII centuries, the English and
the French, established a new meaning for an adjective that until then was mostly neutral and
mainly descriptive, and made arbitrariness a key concept in the political discourse by relating
it to a sort of power that was unwanted (Fernández, 2016, p. 65).
330
The lack of distinction between the notions of “discretion” and “arbitrariness” can produce
terrible misunderstandings as well as the disparaging of all administrative discretion. An
example is Dicey (1982). In the foreword of his book, Roger Michener accurately indicated that
“Dicey saw that the rights of the citizen were potentially endangered by the discretionary
executive authority because he equated discretion with arbitrariness.” Justifiably, Davis (1969)
argued that discretion is ineliminable in the modern administrative state. Waldron (2016)
presents the criticism, relating it to the role of the Rule of Law and indicating that its function
is not to “eliminate discretion, but to ensure that it is properly framed and authorized, and that
the application of rules and judicial procedures is preserved for those cases where liberty and
well-being are most seriously at stake.”
331
“Legislative state” refers to the kind of state that appeared after the absolute state. In this
state, the principle of legality is of high relevance and serves as the limit for the different powers
(legislative, executive, and judicial). However, since the parliament has the competence to
determine the law and has no ulterior limit to its power (as in the constitutional state), de facto,
it has absolute power. Some authors have deemed this state as an “absolute democracy” (Ávila

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states,332 legislative power was regarded as the ultimate legal authority, and,
therefore, its decisions could not be considered arbitrary. This understanding
is rejected in constitutional systems, either explicitly or implicitly. In such
systems, the constitution establishes the supreme legal frame that has to be
respected by all public authorities, including lawmakers.333
Fernández highlights an example during the creation of the 1812 Spanish
Constitution as an early instance of recognizing the role of constitutions as
barriers against arbitrariness and protecting the indefeasible rights of people.
Quintana, an author of that time, expressed the importance of the constitution,
claiming that “this barrier should be a Constitution that assists and supports
the operations of the king when they are fair, and limits them when they are
bad pieces of advice” (ibid, pp. 58–9).334
This historical overview of the notions of discretion and arbitrariness
demonstrates how their current connotations have evolved. The distinction
between these terms arises from the effort to restrain the capricious will of
those in power and to ensure that their decisions align with higher laws.
Initially, lawmakers were seen as unrestricted sovereign actors, free from
superior laws. However, this perspective shifted, and lawmakers are now
viewed as agents subject to constitutional and supranational limits.335

Santamaría, 2009, p. 778). Thus, in the legislative state, the parliament dominates the state
through law (ibid, p. 786).
332
The expression “constitutional state” is used to refer to the political and legal entities whose
constitution establishes a substantive and formal limit to the power of public authorities. In
order to identify these, Gosewinkel (2018, p. 948) provides a list of five functions that embody
the “ideal type of the constitutional state” grounded on the suggestions of Grimm (2016): (1)
Constitutions emanate from a political decision rather than having their origin in a pre-
established truth; (2) Its purpose is to regulate the establishment and exercise of public power
as opposed to merely modifying a pre-existing public power; (3) No pre- or extra-constitutional
bearers of public power and no pre- or extra-constitutional means to exercise this power are
recognized; (4) Constitutional law enjoys primacy over all other laws and legal instruments.
Contraventions of the constitution have no legal validity; and (5) Constitutional law has its sole
source of legitimation in the decision of the people. The distinction between pouvoir constituant
and pouvoir constitué is then fundamental for the validity of a constitution” (Italics are mine).
These functions evince the essential linkage and importance of the respect for the Rule of law
in constitutional states due to the legal limits that the constitution establishes in these sorts of
states for the actions of public authorities. In this view, for the maintenance of constitutional
states, it is not only essential to respect the substantive principles and rights established in the
particular constitutions, but especially to ensure the functional or structural principles upon
which the constitutional systems rely. According to Gosewinkel, at the turn of the twenty-first
century, EU Member States were, for the first time, all constitutional states in which the Rule
of Law is a fundamental value.
333
In Fernández’s words, “constitutions have a regulative dimension that imposes some
normative limits to the politically legitimate power” (Fernández, 2016, p. 76). (Italics are mine).
That is to say, “in the constitutional state, legislator and administration are constrained by the
constitutional norms limiting arbitrariness” (ibid, p. 79).
334
In the Minuta del Decreto de convocatoria de las Cortes 22/05/1809. For more details see
Durán López (1996).
335
Constitutions introduce constraints in a multidimensional fashion: from the principles and
values they embed to the formal limits introduced by the hierarchy they establish and the
operational and functional borders they impose.

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Constitutional and supranational law is now seen as a normative constraint
supported by the Rule of Law.336
Thus, in the current understanding, any decision or action which operates
against the law will be deemed beyond the actor’s discretionary power, as it
would amount to a capricious action which would, as such, be considered
arbitrary.337
The historical reconstruction reveals that the most important element
distinguishing discretion from arbitrariness is justifiability. While arbitrary
decisions or actions stem from the agent’s capricious and unjustified will,
discretion involves decisions made within the bounds of the law and supported
by a rational justification. This second requirement will then define
arbitrariness as unjustified (lack of reasons of a certain pedigree), while
discretion is rationally justified.
Courts have also recognized and upheld the essential role of justifiability
in the distinction. In case law, numerous judgments have upheld and
strengthened its significance. Already in the 1980s, the Spanish Supreme
Court, in its Judgments of the 21st of November 1985, and of the 13th of July
1984, distinguished between the notions by stressing not only their
distinctness but also their opposing characters. The court emphasized that “it
is never permissible to confuse one for the other because what is discretional
has sufficient motivations, arguable or not, but require to be considered, while
what is arbitrary lacks any respectable motivation, it is based on only the sit
pro ratione voluntas; or if any reason is offered when deeply scrutinized, one
finds a lack of effort in contrasting reasons, its indefinable and inauthentic
character.”338
European case law also underscores the contrast between discretion and
arbitrariness emphasizing the crucial aspect of justifying through statement of

336
See the previous section.
337
This makes the relationship between the terms “arbitrary” and “illegal” or “contrary to the
legal frame established by the law” visible, in opposition to the discretion that is depicted as
inside the limits of the law. However, as I shall make clear later, although illegality may be, in
most cases, a characteristic of arbitrariness, the notions are not totally synonymous.
Arbitrariness is not exhausted in its characterization as illegal, but it is precisely the fact that
arbitrariness oversteps the limits of the law that makes the reasons provided by the authority
unsatisfactory and, therefore, unable to justify the decision. In this view, every time that an
authority acts in a way that exceeds its discretional power, it is acting both illegally and
arbitrarily; however, the reasons for characterizing it in one way or the other are different. While
the action will be illegal because it oversteps the limits established by the law, it will be arbitrary
because its placement beyond the law will not allow the authority to justify the decision in a
legally satisfactory way. Fernández also supports this idea in his text by claiming that “arbitrary
means what lacks justifying reasons because it exceeds the limits established by the law”
(Fernández, 2016, p. 50). Thus, thinking arbitrariness as merely illegal deprives our
understanding of its deep meaning, creating confusion and legal insecurity.
338
The doctrine established by the 13th of July 1984 judgment is still in force and frequently
quoted by the latest judgments from the Supreme Court. Some examples are the 3381/2006, of
the 12th of June of 2006, 757/2022, of the 15th of June 2022 and the 1242/2022, of the 4th of
October 2022.

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reasons of a high-degree of reasonability. In the case of Fox, Campbell, and
Hartley v. United Kingdom,339 the judgment by the European Court of Human
Rights (ECHR) stated that “The ‘reasonableness’ of the suspicion on which
an arrest must be based forms an essential part of the safeguard against
arbitrary arrest.”340 The Court emphasized that a failure in the justification
requirement, manifested in poor reasonableness, would amount to arbitrary
action.
A few years later, the ECHR stated in the Case of Societé Colas Est and
Others v. France341 that to establish protection against arbitrary action by the
public authorities of Member States, their interventions in the sphere of private
activities of any person must have a legal basis and must be justified on the
grounds laid down by the law.342 Here again, justification is depicted as the
main tool to prevent arbitrariness from the public authorities.
Along the same lines, in a judgment from the same year, Roquette Frères
SA v. Directeur Général de la Concurrence, de la Consommation et de la
Répression des Fraudes, and Commission of the European Communities,343
the CJEU identified justification as the key component to avoid arbitrariness,
stating that:

It follows that, for the purposes of enabling the competent national court to
satisfy itself that the coercive measures sought are not arbitrary, the
Commission is required to provide that court with explanations showing, in a
properly substantiated manner, that the Commission is in possession of
information and evidence providing reasonable grounds.344

Moreover, in this judgment the court emphasized the requirement to support

the justification based on relevant facts.345
There are plenty of examples of judgments which emphasizes the notion of
arbitrariness as capricious and unjustified, in opposition to discretion, and
outside the domain of the Rule of Law. These examples are not only present
in Spanish and European case law but also in American case law. The Inter-
American Court of Human Rights emphasized in the judgment Yatama vs.
Nicaragua346 that decisions taken by internal organs that can impact human
rights must be duly justified to avoid being arbitrary.347 The Court emphasized

339
See ECHR, Case Fox, Campbell y Hartley v. United Kingdom, Judgment of the 30th of
August 1990, para. 32.
340
Italics are mine.
341
See ECHR, Case of Société Colas Est and Others v. France, Judgment of the 16th of July
2002, para. 19.
342
Italics are mine.
343
See CJEU Case C-94/00, Roquette Frères SA, ECLI:EU:C:2002:603.
344
Italics are mine. See para. 61.
345
See para. 55
346
Case Yatama vs. Nicaragua. Excepciones Preliminares, Fondo, Reparaciones y Costas.
Judgment of the 23rd of June 2005. Serie C No. 127, párrs. 144, 153 y 164.
347
Italics are mine.

141
a notion of arbitrariness that amounts to it being unjustified and made clear
the requirement to provide reasons for the decision in order for it not to be
arbitrary.
Thus, the case law just discussed above reinforces the perspective of
arbitrariness as the absence of proper justification in the statement of reasons,
well in line with the position that we found in legal theory and in legal
dogmatics. In what follows, I delve into the elements for the distinction
supported by legal dogmatics.

4.2.1. Elements for the Distinction: Motivation and Justification

The factors that distinguish between discretion and arbitrariness lie in the
reasoned character of the law, decision, or action, along with the need to
provide reasons of relevance considering the specific circumstances of the
case in an objective manner. These requirements are captured in two elements:
motivation and justification, both need to be reasoned and possess a legal
character.
Motivation, in the legal context, it supposed to be located in the statement
of reasons and it entails succinctly providing reasons that can logically and
legally explain why a particular action or decision is consistent with the
normative hypothesis of the specific case. The motivation of the decision is
the first criterion that distinguishes discretion from arbitrariness (Fernández,
1991, p. 106). In the administrative context, the motivation is typically
succinct due to its purely instrumental aim of indicating to the receiver the
reasons that support the decision, to enable the possibility to file an appeal.348
For legal decisions, such as those made by legislators, the requirement of
motivation refers to the need to present what has motivated the enactment of
the law. That is to say, briefly state the reasons that make a particular law
necessary, appropriate, and timely. To motivate, thus, “requires that the facts
of consideration are established and that reasons grounding the action are
presented” (Fernández, 1998, p. 148).349
Courts have also stated the relevance of the motivation.350 The Spanish
Supreme Court judgment 874/2023, of the 27th of June 2023 described the
motivation as “not merely a formal requirement but a substantive one, as it

348
Regarding administrative decisions, García de Enterría and Fernández indicated in their
fundamental and acclaimed Curso de Derecho Administrativo—already in its 15th Edition—
that “To motivate an administrative act is to redirect the decision contained therein to a rule of
law that authorizes such a decision or from whose application it arises. For this reason, giving
reasons for an act obliges to fix, firstly, the facts from which consideration is based and to
include such facts in the case of a legal norm, and, secondly, to reason how such legal norm
imposes the resolution that is adopted in the operative part of the act” (García de Enterría and
Fernández, 1997, p. 556). (Italics are mine).
349
Italics are mine.
350
Usually referring to the administrative process.

142
serves as a guarantee that the decision has not been arbitrary and enables, if
necessary, a proper and adequate defense.”
Indeed, the motivation for decisions and laws serves as the initial stage in
their justification process. It acts as evidence that these actions are not a
product of the mere will or whim of the lawmaker, misusing their
discretionary power. Instead, it is essential to demonstrate that these decisions
are the outcome of a rational choice, of a will supported by objective reasons
that align with reality and can be verified. By providing sound and verifiable
justifications, the motivation strengthens the legitimacy of the decisions and
laws, ensuring they are not arbitrary but rather are grounded in rationality and
objective considerations (Cassagne and Fernández, 2017, pp. 32–3).
The second requirement is the need for an objective justification.
Justification has great relevance since its total absence—or the lack of an
objectively satisfactory or complete justification that is related to the
principles that inform the system under which the decision is adopted—will
make the decision arbitrary by unveiling that what really supports the decision
is the mere will of the decision-maker.351 In Fernández’s view (Fernández,
2016, p. 80), this is insufficient in present-day Constitutional systems.
Importantly, the notion of justification in decision-making goes beyond a
simple explanation of the cause behind a decision or action. It necessitates the
inclusion of reasons that not only adhere to the legal provisions but also align
with the specific context of the situation at hand. As highlighted in the
judgment of the Spanish Supreme Court on the 29th of November 1985, “the
justification has to be supported by objective and relevant data” (quoted in
Fernández, 1991, pp. 106–10).352 Moreover, and importantly, as the judgment
from the Spanish Supreme Court 757/2022, of the 15th of June 2022 indicates,

351
“The essence of the notion of arbitrariness is always the same, regardless if it is applied to
the judge, administration or to the lawmakers: a behavior is arbitrary when it does not have
another support that the mere will of the author when it is not sustained by reasons that not
only explain it but also justify it” (Fernandez, 2016, p. 91). (Italics are mine).
352
Italics added. Besides the aforementioned, other case law following the notion that what
distinguishes discretion from arbitrariness is the provision of reasons are the following: the
Spanish Supreme Court judgment of the 19th of July 1982—“It is arbitrary to act without formal
and material reasons”; the Spanish Supreme Court judgment of the 29th of July 1982—
arbitrariness is related to “the lack of a rational explanation.”; the Spanish Supreme Court
judgment of the 22nd of March 1988—what makes an act arbitrary is “the lack of justification.”;
and, by the Consejo General del Poder Judicial, the judgment of the 29th of July 1986 indicates
that it is arbitrary when there is a “contradiction with the nature of the institution regulated.”
(Italics are mine) That, in turn, requires at least an inquiry and delimitation of the nature of the
institution. In a different phrasing, see the Spanish Supreme Court judgment of the 11th of June
1987 indicating that a decision is to be deemed arbitrary if it suffers from a “lack of coherence
when the purposes do not match with the means or the legal technic used” (all of them quoted
in Fernández, 1998, pp. 157–8). An actual example of a judgment arguing that “discretion does
not exist nowadays outside the law, rather precisely in virtue of the law and in the extent that
the law has disposed of” is in the Spanish Supreme Court judgment of the 27th of March 1984
(quoted in Fernández, 1991, p. 118).

143
these reasons supported by objective and relevant data need to be disclosed in
order to avoid arbitrariness.
The judgment from the Spanish Supreme Court 141/2021, of the 15th of
March 2021 delves into these aspects, providing clarification. The judgment
argues that a decision:353

incurs in the unjustifiable flaw of arbitrariness, firstly, when it employs

arguments that do not conform to principles of reason and logic, the rules of
experience, or scientific knowledge; secondly, when the reasoning is based on
false premises, as in these cases, equally false conclusions will be reached; and
finally, when the normative criteria for application within the scope of the
decision to be made are not respected.354

The judgment argues that the justification can be established for a decision not
to be arbitrary by applying the rules of sound judgment.355 The court argues
that these rules are not codified norms but rather shaped by the most basic
principles of human logic. Here is the relevant excerpt:

They (the rules of sound judgment) encompass maxims or principles derived

from experience, obtained from circumstances and situations observed through
the examination of facts, behaviors, and events. They imply a system of
rational and reasonable assessment... allowing for a prudent, objective, and
well-founded judgment ... The ultimate purpose is to avoid the risks arising
from adopting mere intuitive hypotheses or absurd evaluative conclusions and,
thus, prevent arbitrary decisions. Sound judgment, therefore, is conceived as a
system comprised of the rules of logic, science, and experience, with the first
being a system that verifies the correctness of human reasoning ... Ultimately,
the aim is the establishment of a rationalistic conception.

The 141/2021 judgment characterizes arbitrary decisions as those unjustified

due to the non- provision of rational arguments that are grounded on the
relevant characteristics of the case. The judgment explicitly states that:

Therefore, arbitrariness exists when, even though the formal existence of an

argumentation is evident, the resolution is the result of an irrational or absurd
deductive process (Constitutional Court judgments 244/1994, para. 2;
160/1997, of the 2nd of October 1997, para. 7; 82/2002, of the 22nd of April
2002, para. 7; 59/2003, of the 24th of March 2003, para. 3; 90/2010, of the 15th
of November 2010, para. 3; or 56/2013, of the 11th of March 2013), or it is a
mere expression of will without any material or formal reasoning
(Constitutional Court judgments 164/2002, of the 17th of September 2002;
45/2005, of the 28th of February 2005; 164/2005, of the 20th of June 2005;

353
In the judgment, referring to judicial decisions.
354
Italics are mine.
355
In Spanish, las reglas de la sana crítica. Also quoted also in the Spanish Supreme Court
judgment 987/2023, of the 20th of June 2023.

144
 277/2005, of the 7th of November 2005; and 162/2006, of the 22nd of May 2006;
and judgment of this court 382/2016, of the 19th of May 2016).

The existence of a motivation and justification is recognized of such an

importance that the judgment of the Spanish Supreme Court 3381/2006, of the
12th of June 2006 considers that the “absolute lack of motivation and
justification” is sufficient for declaring void an article of a Decree based on
the arbitrary action entailed by such a lack of motivation and justification. In
the view of the court, the lack of motivation and justification and the
arbitrariness entailed “constitutes an insurmountable limit on the exercise of
discretionary authority.”
The level of effort required for justification depends on the complexity and
significance of the decision being made. It cannot be decided ex ante; rather,
it depends on the nature of the issue (Fernández, 1991, p. 111). Simple
decisions may require a concise statement of reasons, while more complex
and far-reaching decisions need a more thorough and comprehensive
justification. The effort to justify a decision that entails, for instance, knocking
down a wall built without a license, is not held to the same standard of depth
as the justification for a decision to lock down the entire population of a
country for weeks, or to sell the citizenship of a country by requiring,
primarily, an investment from the applicant.356
I have shown that legal philosophy, legal dogmatics, and case law share the
view that discretion and arbitrariness are distinguishable notions and that these
criteria would be those required to make this distinction. The inclusion of
reasons becomes a pivotal aspect in drawing this distinction, as it guarantees
that decisions and actions are well-founded on rational justifications, rather
than being influenced by mere caprice. Justifiability is thus the key notion.
It is necessary to acknowledge that the obligation to provide reasons has
also been enshrined at the supranational level. In the context of EU law, this
requirement is explicitly embedded in Article 190 TEU,357 which imposes a
general obligation pertaining both to norms (regulations and directives) and to
individual acts (decisions) of the Council and the Commission. Thus, at the
supranational level, EU law does not only imposes the necessity for
motivation and justification (thereby requiring the provision of reasons), but

356
In the work of Fernández, as well as in case law, there is no developed theory of what sort
of reasons would count as sufficiently good. I recognize that controversy and disagreement can
occur here despite the existing agreement that discretion requires justification, and that
justification is only achieved by reason inside the law. However, I shall not delve into this
matter since a deep discussion is beyond the scope of this dissertation and, as I shall show later,
not necessary to assess the CIPs in the EU.
357
Article 190 of the Maastricht Treaty (TEU) states precisely: “Regulations, directives and
decisions adopted jointly by the European Parliament and the Council, and such acts adopted
by the Council or the Commission, shall state the reasons on which they are based and shall
refer to any proposals or opinions which were required to be obtained pursuant to this Treaty.”
(Italics are mine)

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it also sets boundaries on administrative acts. Furthermore, importantly, it
encompasses the creation of norms. Fernández understands that “this
obligation is linked to the rights of defense and the possibility of effective
control by the Justice Court” (Fernández, 1998, p. 144).358
Regarding EU case law, the judgments of the CJEU also align with this
understanding. In the 1980s, in the the case of Commission vs. Council on the
26th of March 1987,359 the obligation to provide reasons is already explicitly
emphasized, ensuring that objective factors are considered for a potential
judicial review. According to the Court, “the choice of the legal basis for a
measure may not depend simply on an institution’s conviction as for the
objective pursued but must be based on objective factors which are amenable
to judicial review.”
It is important to note that both EU regulations and case law not only
require authorities to provide reasons for their actions, but also extend this
requirement beyond administrative acts to encompass lawmaking processes.
Thus, EU law proves an excellent example of the possibility of and necessity
for controlling the justification for the creation of Member States’ laws. This
control is achieved indirectly through the primacy of EU law over domestic
law, mandating that domestic laws conform to the norms of the treaties and
derivative law.
Moreover, this requirement of justification is reinforced by the need for
judicial control, which should apply to laws created by national lawmakers.
While this judicial control takes place at the national level, national courts
present preliminary rulings to the CJEU in some circumstances, as in those
stated in Article 267 TFEU..360 This can be seen as evidence of how
lawmaker’s power is restrained by both the constitution and the supranational
law of the EU.
The extension of the distinction of the notions of discretion and
arbitrariness and the prohibition of arbitrariness to the lawmakers is supported

358
Italics are mine. The reference to the possibility of controlling the legislator’s decisions by
the Courts is crucial due to the legal frame limiting the power of the legislator already
mentioned.
359
Case C-45/86, Commission, ECLI:EU:C:1987:163. Available at https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61986CJ0045 (last accessed
11/11/2022).
360
Article 267 TFEU (ex Article 234 TEC) states that “The Court of Justice of the European
Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of
the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or
agencies of the Union; Where such a question is raised before any court or tribunal of a Member
State, that court or tribunal may, if it considers that a decision on the question is necessary to
enable it to give judgment, request the Court to give a ruling thereon. Where any such question
is raised in a case pending before a court or tribunal of a Member State against whose decisions
there is no judicial remedy under national law, that court or tribunal shall bring the matter
before the Court. If such a question is raised in a case pending before a court or tribunal of a
Member State with regard to a person in custody, the Court of Justice of the European Union
shall act with the minimum of delay.” (Italics are mine).

146
not only in the EU law and in the Rule of Law,361 but also in the
constitutionalization of the legal systems. In his book, De la arbitrariedad del
legislador, Fernández (1998) builds his argument that the limitation of
arbitrariness also applies to legislators on the idea that any constitutional
system imposes legal limits on the power of the legislator, sometimes
explicitly but always implicitly. 362 Following De Otto (1987, p. 138) when
arguing that “no public power—including the legislative power—can be
considered sovereign .... because the notion of a Constitution as a supreme
norm is radically incompatible with recognizing sovereignty to them,”
Fernández contends that constitutions serve as legal constraints of legislators,
by requiring a provision of reasons justifying the legislators’ actions. These
reasons have to be rational, in accordance with the law, and must consider all
the relevant objective aspects.363
Sandulli supports this perspective, arguing that this limit is a consequence
of the notion and structure of constitutions. As such, he considers that it does
not necessarily require explicit statements to preclude arbitrariness:

There is no one today that will argue that the legislator can decide in an
arbitrary way, and that laws established in an arbitrary way should not be
considered unconstitutional. This is the case even for those countries whose
constitutions do not include an explicit preclusion of arbitrariness for the public
authorities. In these cases, one can appeal to the damage to the coherence of
the legal system by the violation of equality by a rule that introduces some
distinctions among subjects without a justification supported in pertinent and
appropriate reasons (Sandulli, 1975).

361
As I have shown in the previous section.
362
Some cases of constitutions in which this limitation is explicit are the Spanish and Swiss
Constitutions. The Spanish Constitutional Court has interpreted Article 9.3 prohibiting
arbitrariness by all public authorities as including the legislator in its case law. This is the case
in its judgment 49/1988, of the 22nd of March 1988, where the court declared that “The lack of
justification by the legislator makes her act arbitrary, which is against Article 9.3 of the
Constitution.” Fernández claims that the “preclusion of arbitrariness in the Article 9.3 of the
Constitution does not have exceptions, it is absolutely general, subjectively and objectively”
(Fernández, 2016, p. 103) and, following García de Enterría, he considers that “it needs to be
understood that the only power that has a place and can be considered legitimate in a
constitutional system is the one guided by reason and that, as a consequence, can be rationally
perceived and accepted by those obliged to respect it” (Fernández, 2016, p. 86, footnote 138;
García de Enterría, 1991).
363
Thus, the requirement for rationality and the consideration of all relevant elements is
extended to the legislator. In Fernández’s words, “the legislator can neither behave irrationally
nor unreasonably (irrazonablemente). The legislator has to justify that, at least, it has considered
all elements determinant of her decision and that the result is adequate and proportionate to the
intended purposes” (Fernández, 2016, p. 99). Fernández already argued in favor of this idea
decades ago, supported by the CJEU case law: “the legislator is constitutionally obliged to give
reasons for her decisions, as the judgment of the CJEU of the 26th of March 1987 shows”
(Fernández, 1998, p. 160). These reasons have to be coherent with the aims pursued (susceptible
to satisfactorily explaining their adequacy). They also have to be consistent with the objective
reality, i.e., with the facts used for deciding. Last but not least, they have to be “reasons
conforming to the rules of the formal logic” (Fernández, 1998, pp. 160–1).

147
Lastly, applying the justification requirement to lawmakers in a lax manner,
or even rejecting the need for them to provide reasons “complicates highly the
constitutional control of laws” (Fernández, 1998, p. 160). The most perilous
consequence of such an approach is that it undermines the essence of the Rule
of Law, which, as emphasized by the European Commission, is effective
judicial protection.

4.2.2. Substantial and Procedural Arbitrariness

The preceding section outlined the criteria for distinguishing discretion from
arbitrariness. It discussed motivation and justification, both based on the need
to provide specific types of reasons, as key elements. Additionally, it
identified the consideration of objective data and relevant circumstances as
crucial criteria for discerning between discretion and arbitrariness.
Having established the distinction between discretion and arbitrariness, it
is important to note that arbitrariness comes in various forms. I argue that there
are at least two ways in which a law can be considered arbitrary: it can be
procedurally or substantially arbitrary.
A law is deemed procedurally arbitrary when it can be justified due to its
motivation being justifiable by existing acceptable reasons, but where these
reasons have not been presented explicitly during the lawmaking process.
Additionally, a law may be considered procedurally arbitrary if the reasons
provided are insufficient and fail to meet the criterion of justification, despite
the existence of strong reasons supporting the law.
Procedural arbitrariness exhibits two distinct characteristics. Firstly, it can
manifest in varying degrees; a law with no stated reasons has a higher degree
of procedural arbitrariness, while a law with a statement of reasons that do not
fully justify the decision has a lower degree of procedural arbitrariness.
Secondly, procedurally arbitrary laws are deemed arbitrary because of their
lack of justification, but this type of arbitrariness can be rectified through the
mechanisms established by the law, allowing for the provision of reasons at a
later stage. For instance, reasons may be supplied during a later stage in the
enactment of the law. Unlike substantive arbitrariness, as I will explain later,
a law suffering from procedural arbitrariness is susceptible to being amended.
Substantive arbitrariness is more problematic than procedural arbitrariness.
A law is considered to suffer from substantive arbitrariness when it lacks
justification due to the impossibility of providing reasons that could qualify to
justify its enactment. Further, a law suffers from substantial arbitrariness when
it would be impossible to justify it because it would violate at least one of the
fundamental requirements presented above: coherence with the aim pursued;
consistency with objective reality (i.e., with the facts used in the decision,
conforming to the rules of the formal logic, etc.) (Fernández, 1998, pp. 160–

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1). Additionally, substantive arbitrariness may arise when a law requires an
impossible action (e.g., establishing an arithmetical or a physical
impossibility), or when it contradicts the conceptual sense of a legal institution
or object. In what follows, I will present a non-exhaustive list of examples in
which laws may have been established in a substantially arbitrary manner.364
A first example of a substantially arbitrary law involves an arithmetical or
logical impossibility. Let us consider a hypothetical law enacted by a legislator
stating that “from now on, two plus two equals five”. Such a law would be
deemed substantially arbitrary since the legislator would be unable to provide
any valid reasons that could justify the law to a rational agent. In this scenario,
the law would not only have enforceability problems (due to being contrary to
basic arithmetical principles), but rational agents would also perceive it as a
whim-driven and capricious act of the lawmaker, which action would exceed
the space of freedom typical from discretion.365
A second example of a substantially arbitrary law would involve requiring
the performance of something that is physically impossible, rendering it
impossible to justify. For instance, let us consider a hypothetical lawmaker
who correctly recognizes the historical economic and career disadvantage
faced by women366 due to the biological fact that gestation falls solely on their
shoulders. After this correct assessment, this lawmaker aims to compensate
women by establishing a law requiring that from now on, only men367 will
perform the task of gestating. In the current scenario where this is not possible,
neither biologically nor technologically, such a law is substantially arbitrary.
Despite the lawmaker’s accurate recognition of the social disadvantage that
women face, this law would remain unjustifiable due to its impossibility in
practice.
A third example of a substantially arbitrary law would involve a law that
contains a contradiction or misuses the conceptual sense of a legal institution.
That is to say, that in a particular legal system S, where the legal institution I
has a particular objective, any actions or decisions by lawmakers that misuse
it, or use it in a contrary sense, would be substantially arbitrary. For the sake
of clarification, let us imagine a legal system S, in which the legal institution

364
I am open to the possibility of many other circumstances existing that would make a law
substantially arbitrary under the distinction presented here.
365
In 2017, the Australian prime minister Malcolm Turnbull claimed his famous statement,
“The laws of mathematics are very commendable, but the only law that applies in Australia is
the law of Australia”. In the view offered here, in this context, there would be no opposition
between these two because for a legal decision to be considered justified, that is, not arbitrary,
it should not be contrary to the arithmetic and logic. Were that not the case, then the decision
could not be considered justified by a rational agent.
See https://www.newscientist.com/article/2140747-laws-of-mathematics-dont-apply-here-
says-australian-pm/ (last accessed 11/11/2022).
366
Here, I am referring to the traditional and simple definition of women, used to refer to
subjects with a uterus capable of gestating.
367
Here, I am referring to the traditional and simple definition of men, used to refer to subjects
without a uterus who are naturally incapable of gestating.

149
of “taxation” entails the collection of private money from certain subjects with
the goal of funding public expenditure, the public good, and the maintenance
of the state. In such a system, if a lawmaker were to enact a law stating that
all money collected through taxation would now be distributed among the
members of parliament for their personal enjoyment, this law would be
substantially arbitrary. The decision would be unjustifiable due to the
impossibility of providing reasons that align with the proper functioning and
purpose of the legal institution of “taxation”.
Another example of this kind is the legal institution of personal “legal
status.” As I will explain in the following section, a personal legal status refers
to the legal position or situation of an individual as determined by the legal
order, serving the purpose of classifying individuals to achieve specific pre-
established objectives. These individuals become the status bearers ascribed
by the legal order. The ability to classify individuals by ascribing statuses
based on chosen characteristics is essential for states to exercise control and
administration over their territories, over which states are sovereigns, as
recognized under international law.368
Given that the goal of ascribing personal legal statuses is to classify persons
in relation to their characteristics or traits (for instance, according to some
interpersonal relations, as it would be the case of certain civil statuses such as
marriage), the attribution of these personal statuses has to take two factors into
consideration. Firstly, the attribution should be granted based on specific
characteristics or traits of the individual. Secondly, these characteristics must
be relevant to the position or legal status that will be attributed to the person.
Let us now apply this framework to the personal legal status status civitatis,
citizenship. In order to avoid a situation of substantial arbitrariness, two
criteria must be satisfied: (i) the attribution of citizenship should be based on
personal characteristics or traits of the individual and, (ii) these characteristics
must be relevant for the particular status that is being granted.
If personal legal statuses like citizenship are granted without taking into
consideration any characteristics or traits of the individuals to whom they are
to be assigned, or if these characteristics are irrelevant to the particular status
being conferred, then we would encounter a case of substantive arbitrariness.
Unlike procedural arbitrariness, which can vary by degrees and may be
rectified by providing reasons at a later stage, substantive arbitrariness is
absolute and cannot be mitigated by subsequent justifications.
In the context of citizenship, a law would be substantially arbitrary if it
grants citizenship based on a factor that does not constitute a personal
characteristic of the individual seeking naturalization. Such a scenario would
lack a rational basis for ascribing the status of citizenship to that specific
person, rendering it unjustifiable.

368
My description pertains to how international law operates. I am not presenting any normative
arguments about the correctness or desirability of the current state of affairs.

150
 In the case of CIPs, it thus remains essential to determine whether money
can be considered a “personal characteristic” that could justify the attribution
of status civitatis. This specific aspect is the object of the final section of this
chapter.

4.3. Citizenship qua Personal Legal Status

As mentioned at the beginning of this chapter, the second part of my
framework for analysis concerns the element or “tool” constituted by the idea
that citizenship qua personal legal status has an intuitu personae character.
Here, I contend that citizenship has an intuitu personae character; that is, as a
personal legal status, it must be ascribed on the basis of the particular
characteristics of the individual recipient of the status. After defending the
view that citizenship is a personal legal status of this kind, the attribution of
which requires consideration of the personal characteristics of the bearer of
the status, the second relevant issue to elucidate in this subsection is whether
money—in the form of an investment—can be regarded as a personal
characteristic or as a proxy for one.
The significance of establishing this point lies in the fact that, if money
could be considered a personal characteristic in itself or as a proxy for some
underlying or assumed personal characteristic, the validity of my argument
against CIPs based on their substantial arbitrariness might be called into
question. However, if money cannot be considered a personal characteristic
itself or a proxy for one, then money would not qualify as a justifiable ground
for the acquisition of citizenship given that, in accordance with my first point
in this subsection, citizenship amounts to a personal legal status whose
attribution needs to be justified with reference to a personal characteristic of
the status-bearer.
I will proceed to argue that money cannot be regarded as a personal
characteristic on its own or as a proxy for such a characteristic. If money lacks
the attributes of a personal characteristic of the individual, then ascribing a
personal legal status like citizenship based on an individual’s possession of
money or economic contribution, would be incompatible with the justified
acquisition of citizenship, qua personal legal status. In such a scenario, a law
or legal measure that grants citizenship on economic grounds would suffer
from substantial arbitrariness, as defined in the former section. As previously
mentioned, arbitrariness is contrary and detrimental to the Rule of Law, a
fundamental value of the EU. Furthermore, given that substantial arbitrariness
is not amendable, the only viable solution to address this wrongness would be
to discontinue these programs.
While significant debate remains about the nature of citizenship, there is a
prevailing consensus that it is possible to identify a relation between
citizenship and law, which has been differently qualified as the “legal

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dimension,” “legal context,” “legal aspect,” or “legal notion” of citizenship.
In the following pages, I will operate under the assumption that citizenship, as
a legal object, is a legal status, a characterization that, to my knowledge, has
not been successfully rejected.369
Based on this assumption, this subsection assesses the legitimacy of the
CIPs in the EU based on an analysis of the concept of citizenship qua personal
legal status. The argument unfolds as follows:

Citizenship is a personal legal status.

The attribution of personal legal statuses is justified only with reference to

personal characteristics.

Money is not a personal characteristic.

Thus attributing citizenship on economic grounds is not justified.

If personal legal statuses need to be justified with reference to personal

characteristics, then bestowing citizenship primarily on economic grounds
cannot be justified; it would amount to an unjustified form of status
attribution. The attribution would be unjustified in so far as it occurs
regardless of the fact that the kind of status being attributed (citizenship) is
such that it may only be attributed on grounds relating to the status-bearer’s
individual characteristics. This is because status civitatis is a ‘personal legal
status’ in the first place.
If the attribution of a personal legal status occurs without regard to the
characteristics of the status bearer, it occurs in a way that is contrary to the
ratio essendi of the status. Hence, under the assumptions that (1) citizenship
is a personal legal status, (2) that in CIPs it is ascribed primarily on grounds
that are not personal characteristics of the status-bearer, we may conclude that
CIP-based citizenship conferral is unjustified and ought therefore not to be
allowed for being substantially arbitrary.
The argument will proceed through the following steps. In order to
demonstrate that citizenship, qua personal legal status, is a legal institution
which must be ascribed on the basis of personal characteristics, I navigate
several clusters of theories offered by jurists and legal philosophers on the
topic of legal status. It is worth noting that most theories presented in this
chapter share most of their fundamental aspects regarding the concept of
“legal status” (LS). Thus, for most theories, a LS: (1) refers to the position of
the individual in the legal system; (2) is understood to be a notion of law, not
of fact; (3) relates to a (or several) condition(s) activating the status; (4) is, in
most cases, understood to depend on a characteristic of the holder activating
369
For a good insight into the inquiry of whether citizenship is a legal status or a legal relation
and the arguments in favor of the former, see Mindus (2019, pp. 145–181).

152
the status (sometimes it is considered that such a property is what activates the
status);370 (5) may also be cast as a relational term that qualifies the relation
between the status holder and the status granter; (6) may also be defined in
terms of a set of capacities and/or incapacities activated by the status, or that
follow as a consequence of it; (7) is also conceived in terms of rights and
duties “coinciding” with the status or being a “consequence” of it.
The theories or views presented below can be categorized into three
groups.371 The first encompasses theories of high importance but limited
capacity for conceptual guidance for our purpose. It includes the theory that
considers a LS to be an instrument of legal systematization (Lindahl and
Mindus follow this view), as well as the theory that regards a LS as a set of
capacities and incapacities (Allen or Graveson are proponents of this view).
The second category comprises important theories that offer sufficient
conceptual guidance, which are therefore presented extensively. This category
includes the legal dogmatic theory considering LS as the position of an
individual before a legal system (a typical view of Roman Law, also adopted
by Guido Alpa and legal dogmatics) and Bentham’s theory considering LS a
legal institution justified by a property or quality of the status-holder.
The third category includes a theory that aims to provide conceptual
guidance, but which will be refuted due to its underlying assumptions
regarding the nature of law and the legal system, which are not applicable to
constitutional states under the Rule of Law. This is Austin’s “rights&co.”
view, which considers a LS to be a set of as rights, duties, capacities, and
incapacities.
The argument also needs to demonstrate that neither money nor an
investment can be considered a proxy for the personal characteristics of
individuals. Here, I provide arguments that show that neither the possession
of money nor deciding to invest in a country qualify as personal characteristics
in themselves, and nor do they qualify as a proxies of such characteristics,
which would justify the attribution of a personal legal status.
The description of the programs in Chapter Two already supports the
premise that CIPs grant citizenship primarily on economic grounds in the form
of an investment. This premise therefore requires no additional support.
Finally, in this chapter, I aim to provide a strong normative argument
grounded on the nature of citizenship qua personal legal status which proves
that citizenship may not be conferred merely on economic grounds, since this
would be opposed to the very legal concept of citizenship. If this is the case,
programs granting citizenship primarily on grounds of economic contributions
are substantially arbitrary.

370
Sometimes referred to as a property, attribute, or quality.
371
I draw my inspiration for the inclusion of theories in this section from the excellent doctoral
dissertation by Matija Žgur, entitled Legal Exclusionism: Legal Personhood between the
Erasure and the Rule of Law (Žgur, 2017).

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4.3.1. Theoretical Views on Legal Statuses
4.3.1.1. First Category: Relevant Theories with Limited Capacity for
Conceptual Guidance
The first category comprises relevant theories that provide limited conceptual
guidance. It includes two different views. The first view encompasses theories
according to which a LS is an instrument of legal systematization. This view
highlights the commonly shared idea that what characterizes statuses is their
nature as formal legal instruments. Sub-theories in this category share the
understanding that a status is essentially a middle-term or a bridge concept
which lacks semantic reference.
Thus, theories that consider that LS are intermediary legal terms align with
this view.372 The main proponent of this theory is Lars Lindahl, who
reformulates Alf Ross’ view of legal terms in such a way as to submit that
those are not only “vehicles of inference” but that they also have an
“instrumental function in legal systems” since they “satisfy the needs and
interest of individuals” (Lindahl, 2004, p. 198). Lindahl’s theory is complex
and would require to be extensively unpacking to be understood correctly.
Since Lindahl’s is a theory of ontological character that cannot provide much
conceptual guidance, I only mention it here. It suffices to say that from his
theory, two characterizations can be derived.

(a): LS is a middle-term, i.e., a vehicle of inference used for economy of

expression in legal deduction;373

(b): LS is a middle-term, i.e., a vehicle of justification for the ratio of a legal

rule (i.e. either of the legal ground for invoking the middle-term or of the
consequence that follows from its invocation).

In both, (a) and (b), LS is regarded as “an instrument of legal systematization.”

However, in (a) the set of rights and duties (or substantial legal content) to
which a given LS connects/gives access to is irrelevant for understanding what
it does in the legal system; whereas in (b) this is, indeed, relevant for
understanding what it does in the legal system.
Patricia Mindus (2014; 2017; 2019a), whose functionalist theory of
citizenship (FTC) has been mentioned on several occasions in this
dissertation, also supports the view of status as an intermediary legal term.
Mindus follows (b), deeming the set of rights and duties to which a given LS

372
The foundations of this theory are found in Alf Ross’ paper Tú-Tú (1957), where he proposes
that legal terms such as “ownership” in legal systems have no semantic reference of their own,
i.e., they do not refer to empirical objects. That is to say, on Ross’ account, these terms are
placed between the conditioning facts (juristic facts) and the conditioned legal (or normative)
consequences; they work as “intervening vehicles or causal connecting links promoting an
effect or providing the basis for a legal consequence” (Ross, 1957, p. 818).
373
Ross is a proponent of this theory but not of the following theory.

154
gives access to be relevant for understanding the role played by the LS within
a given legal order.
On the FTC, the legal notion of citizenship is a middle term that, as such,
does not correspond to any given empirical objects. Advocates of the FTC
have argued in favor of viewing citizenship not as an object with empirical
content or semantic reference but as a relational term between the entitlements
granted by the status and the criteria for acquisition and loss of the status
(Mindus, 2017, p. 51). On the FTC, the attribution of the status, (in this case
citizenship) occurs in a justified way under the condition that “extension
follows intension,” that is to say, “to who(m) citizenship is granted must
depend on what citizenship consists in” (Mindus, 2017, p. 53).
Furthermore, on the FTC theory, this connection between access criteria
(i.e., the conditioning state of affairs or legal grounds) and the entitlements
granted by citizenship (i.e., the normative consequences) are neither neutral
nor arbitrary. A suggestion on how to avoid arbitrariness is presented by
advocates of FTC, where it is argued that if the lawmaker is not to be
inconsistent, it is necessary that access criteria match the rationale of
attributing via the LS a particular set of rights to the citizen. That is to say, on
the FTC, the relevance of a particular (personal) characteristic as the basis for
obtaining a certain status depends on the congruence between that
characteristic and the specific entitlement (or set thereof) in question (Mindus
2014, p. 269). The congruence between the characteristic (or condition) and
the entitlement is necessarily a matter of reason-giving or justification (ibid,
p. 290).
The view that regards LS as a formal legal instrument is a theory about the
same object—namely status—but of a different kind from the other theories I
present below. It can be seen as a “proxy theory” that characterizes status as a
symbol or a placeholder, but it does not address the essential elements of the
notion, particularly because it considers that a LS is nothing more than an
explanatory tool or a bridge between other elements.374 Thus, in this case, we
are dealing with an ontological theory that provides limited conceptual
guidance.
The subsequent view of the notion can be termed the capacity-based theory
of legal status: status as capacities and incapacities. According to this view,
LS is defined as a set of capacities or incapacities of an individual. The view
states that LS is the individual’s set of (in)capacities as recognized by the legal
system.
Here, the main elements of a LS are the capacities or incapacities related to
it. The LS is made of constitutive parts, the nature of which is (in)capacities.
Drawing from Salmond’s work (1913, p. 211), this understanding holds that

374
Claiming that this theory is an explanatory tool or a bridge between other elements does not
mean whatever may serve as a proxy for this link, as we have seen in the case of (b), particularly
with Mindus’ theory.

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the “law of status” includes the different capacities that different classes of
people (infants, married women, “lunatics,” etc.) possess which enable them
to acquire rights and duties, as well as to enter (or not enter) into legal
relations.
Carlton Kemp Allen follows this understanding of status, highlighting that
status is “the condition of belonging to a particular class of persons to whom
the law assigns certain peculiar legal capacities or incapacities or both” (Allen,
1930, p. 288). While Allen, along with other proponents of this theory,
emphasizes the relation of status to a certain condition—in this case, that of
belonging to a particular class of persons—the most relevant element of their
description of status is not the condition itself, but the capacities and
incapacities related to this attribution.
Matija Žgur (2017, p. 32) outlines the relevant elements of this notion as
follows. Firstly, the status and the related capacities or incapacities are
ascribed to a particular person, and these are permanent or at least long-lasting
in nature. Secondly, legal status is the condition of membership,375 of
belonging to a group that entails a set of capacities or incapacities, but it is not
a cluster of (substantive) rights and duties. Thirdly, belonging to the group of
the capable or incapable is determined by “an established rule of law” in virtue
of which “legal consequences result to its members from the mere fact of
belonging to it” (Allen, 1930, p. 289).
It is necessary to add that, in this theory, according to Allen, unlike the first
theory discussed, the LS may originate either from an individual’s voluntary
act or from “circumstances which lie beyond the control and choice of the
individual” (Allen, 1930, p. 286). It is additionally relevant that, although
Allen regards any sort of capacity as always “a condition precedent to the
exercise of rights,” (Allen, 1930, p. 291) he distinguishes between two sorts
of capacities: passive capacities, i.e., “the capacity for enjoyment of rights”;
and active, i.e., “the capacity for exercise of rights” (Allen, 1930, p. 290).
Thus, from Allen’s perspective, the terms ‘status’, ‘capacity’, and ‘rights’
are profoundly interconnected. While he deems status a condition “which
gives rise to certain capacities or incapacities or both,” capacity is “the power
to acquire and exercise rights” (Allen, 1930, p. 292). In his view, however, the
condition is treated as a trigger for the elements of relevance, i.e., the
capacities and incapacities. The strong relationship between status and rights
through the capacities, already hinted at in Allen, is of great importance for
some of the theories that consider status as a legal instrument.
Graveson’s understanding of status also links the condition that status
represents to capacities and incapacities, particularly focusing on the latter

375
By this understanding, status is the condition of belonging to a group that enables the
capacities or incapacities. The status, thus, is granted because of the condition that makes the
individual belong to a group (having a mental illness, and therefore considered unable to
perform certain actions, for instance) on the grounds of what a legal capability or incapability
is established.

156
aspect, as he regards status as a “special condition of the abnormals”
(Graveson, 1953, p. 111; Žgur, 2017, p. 25). According to Alpa, Graveson’s
emphasis on abnormality is characteristic of the common law tradition,
distinguishing it from the civil law tradition: “Graveson notes that in common
law the concept of status assumed as a legal standing of a subject connected
with his belonging to a group does not concern the natural position of a
person.... It does not, therefore, involve the idea of normality, but the idea of
abnormality” (Alpa, 1993, p. 25).376
The reference to the “natural position of a person” as stated by Alpa is well-
founded in Graveson’s view. According to Graveson, human personality is
bipartite: (1) one element is purely biological, constituting the “natural
personality,” that, according to Graveson, is a set of “powers and incapacities
which determine what that person in fact can or cannot do” (Graveson, 1953,
p. 111); (2) the second element is legal, and its combination with (1) can take
two forms: (a) “legal personality” (for those capable) and which is “the legal
condition of the normal member of a society,” 377 and (b) status (for the
incapable) which is “the condition of those persons whom a particular society
regards as legally abnormal.” (ibid.) In Graveson’s viewpoint status thus
constitutes:

a special condition of a continuous and institutional nature, differing from the

legal position of the normal person, which is conferred by the law and not
purely by the act of the parties, whenever a person occupies a position of which
the creation, continuance or relinquishment and the incidents are a matter of
sufficient social or public concern378 (Graveson 1953, p. 2).

It is important to emphasize—again, from Graveson's perspective—that while

the condition serves as the trigger for status activation, the crucial aspect lies
in the incapacities assigned to the abnormal person. These function as forms
of capitis deminutio,379 i.e., as reductions of capacity from a certain “standard”

376
The translation is mine.
377
By “normal member of society” or “normal person” Graveson means “one of full age and
capacity who is neither married nor subject to any other legally imposed enabling or disabling
condition, such as would arise, for example, from his being a peer, a bankrupt or a convicted
felon” (Graveson, 1953, p. 2). This definition seems problematic for the reasons I shall present
below in the text, as well as hard to share in the present day.
378
The use of the term “personality” by Graveson can be confusing if one corresponds it to
“status personae” or “personhood”. In order for his theory to be more understandable, I think
that one has to infer that, on some occasions, Graveson uses “persona” and its derivatives in its
etymological sense, i.e., as a mask, something that is put on to create an appearance, a role, or
to create a character. On this reading, statuses would be a form of legally recognized masks that
allows the legal system to immediately know how that person may or may not be treated. In
this reading, both “legal personality” (in the sense of personhood) and “statuses” are two
different forms of “legal personalities” (in the sense of masks).
379
For a deeper insight on capitis deminutio, see the following entry in the Italian Encyclopedia.
http://www.treccani.it/enciclopedia/capitis-deminutio_(Enciclopedia-Italiana)/ (last accessed
11/11/2022).

157
which was set by status civitatis in Roman law—a particular status that
distinguishes its bearer from “normal” people.
Graveson, moreover, points out some essential features of statuses: (i) “it
is a personality (in the sense of mask) conferred by the State through the
application of general principles of law” (ibid, p. 112); (ii) “status is
essentially a conception of law, not a question of fact” (ibid, p. 114); its
attribution is a matter of a public or a social interest, not of individual’s interest
(ibid);380 (iv) when legally correctly acquired, [a status] entitles to “universal
recognition” (ibid, p. 119);381 (v) statuses are only ascribed to “objects which
have a basis of living personality,” either natural or legal persons, although he
considers that “there is theoretically no need so to limit the conception” (ibid,
p. 120);382 (vi) status, as a person’s legal personality, only makes sense as long
as there is a person to whom to attach it, that is to say, they cannot exist in
abstracto (ibid, p. 124); (vii) “the legal classification of society” is the
important role of statuses (ibid, p. 125); 383 and last but not least, (viii) status
has an institutional and permanent nature because statuses are usually based
on natural disabilities of individuals (ibid, p. 132). Thus, as for Graveson,
status is a matter of incapacities. For other authors, like Allen, it is a matter of
both capacities and incapacities (Žgur, 2017, p. 33).
Graveson’s distinction between “legal personality, the legal condition of
the normal member of a society,” and status “as the condition of those persons
whom a particular society regards as legally abnormal” (Graveson, 1953, p

380
I understand that the correct reading of this claim is that its truth is grounded in necessity
since statuses basically “sum up” information within the legal order, and this information-
concerning ability of the status is something that it is of primary relevance for the legal system
(for instance, it makes easier to identify to whom the law applies or what the limited legal
capacities of an individual are) but not to the same extent for the individual. Indeed, a status
may be “pernicious” for the individual without ceasing to be “beneficial” or easy to read for
other legal system’s actors.
381
I find this claim unfortunate and certainly confusing in relation to Graveson’s overall theory.
The use of the expression “entitles to” seems to refer to some interest of the individual for them
to be recognized as such. However, suppose the status is ascribed to the abnormal, thereby
highlighting her incapability. In that case, it is questionable whether she would have an interest
in the recognition, particularly in a time when social help for the incapables was much limited.
Moreover, it is unclear who would be the subjects recognizing the status. Since the attribution
of statuses is granted by legal systems and of interest to them, I assume that Graveson is not
referring to the recognition by other individuals. Under the most plausible meaning of “other
legal systems,” it is unclear why a status ascribed by state X to an individual I would be directly
recognized by state Y under the Y’s legal system, in its jurisdiction, and maybe against Y’s
own legal system. Empirically, there are many cases where this universal recognition does not
apply, for instance, regarding the ascription of the status “married” in the case of polygamous
marriages in some countries that do not accept polygamous marriages.
382
I consider that a correct reading of Graveson’s use of personality here requires understanding
“personality” in its meaning as “mask” presented above.
383
This claim does not point out the essential elements of statuses, but rather their function or
what they do in law. I envisage the function of “legal classification of the society” as connected
with the information interest of the state mentioned above. I understand that this legal
classification distributes individuals according to their (in)capacities into different categories
that coincide with the statuses ascribed.

158
111) is rooted in an excessively narrow understanding of what a “normal
person” would be in a society. This view has certain problematic aspects.
A first problem is that it leads to an overly exclusive understanding of
“legal personality” (here, personhood) since a significant portion of the
population would not meet the criteria for “normality” and, consequently,
would not qualify as a “legal person” (i.e., individuals with personhood). This
exclusion would not only affect children and women but also any married man
or anyone subject to legally enabling or disabling conditions. If we were to
follow this approach, the legal situation of these individuals would be
described using statuses instead of legal personality (personhood). Today we
would not describe it in an either/or way but most probably in a both/and way.
A second problem is that it is confusing and seems contradictory to describe
statuses as the condition of those persons regarded as legally abnormal by a
particular society, indicating that the normal person is one who has reached
the age of majority, but then arguing that statuses are permanent, if by that we
mean that they last for life. For instance, under this definition, children would
not have legal personality (personhood) but a status, but at the age of 18, they
would be granted legal personality, which means that the status could not be
permanent. If by permanent Graveson meant “long lasting,” then the
possibility of divorce without any time constraints that presently exists in
some countries would also render Graveson’s notion inaccurate.
The various issues with Graveson’s understanding of status diminished the
attractiveness of his theory. Moreover, his notion of status fails to capture
accurately the less static and more flexible nature of statuses today. An
illustrative example of this is the status of “marriage,” which used to have a
significantly more enduring character than it has today.
Graveson’s view has been categorized as part of the general theory that
links statuses to a set of capacities/incapacities. This view has several
limitations. Firstly, it offers little conceptual guidance due to providing little
knowledge about the essential elements of statuses. Secondly, some of the
views that it involves are now outdated. Yet, the main value of this view is
that it correctly shows the functions of statuses and, more importantly, it
correctly points out that the attribution of a status to a particular individual is
rooted in some quality or property of the status-holder (in the case of this
theory, a capability/incapability).

4.3.1.2. Second category: Relevant Theories with High Capacity for

Conceptual Guidance
In the second category, I introduce theories with higher capacity for
conceptual guidance. Since these are the theories that can help us to
understand what LSs are, I present them in detail.
I refer to the first of these theories as the legal dogmatic theory of status as
the position of an individual before a legal system. This view—the most

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common one in legal dogmatic sources—claims that LS is an individual’s
position before the legal system.
Roman law first gave expression to this idea. Adolf Berger, in his
Encyclopaedic Dictionary of Roman Law, asserts that status, in Roman Law,
“generally indicates a legal situation or condition. With regard to an
individual, the term refers either to his official rank or to his position as a free
Roman citizen and head of a family” (Berger, 1953, pp. 714–5). In Roman
law, there were three main statuses: one related to the group of free men (status
libertatis); one that was held vis-à-vis the community of citizens (status
civitatis); and one that was held with regard to the family (status familiae).
According to Giuliano Crifò, a Roman Law exegete, the Roman lawyers’
conception of status referred to the way of being of a human being before the
legal order (Crifò, 1960, p. 131). Similarly, more recently, Guido Alpa
provides a definition of status aligned to the one described. According to him,
“status (understood as the legal position of the individual in the society,
summarizing of rights and duties) ... is assumed, provisionally, to mean both
the way of being of an individual in society and the way of being identified in
society” (Alpa, 1993, p. 4).384
According to this view, the main features of the concept of legal status are
its relational character and the attribution of the status by the legal system. The
relational character refers to the fact that the status connects an individual to
a particular legal system by assigning a specific position to her. John Salmond
(Salmond, 1913) also referred to this early use of the term “status” and he went
further, indicating that this relationship allows the individual to be considered
a person in law.385

384
Although Alpa uses the expression “society” in his phrasing, I understand that he does not
intend to use the legal and sociological notions of statuses interchangeably, and that, by
“society,” he means “legal system”. This understanding is founded on the prior use of the
expression “the legal position”.
385
My reading of Salmond’s claim is that an individual is considered a person in law if and
only if a relationship exists between the individual and the legal system (granting the status). It
is unclear, however, on what grounds (being in the territory, being a citizen, etc.) this relation
would exist. What follows from this reading is that, if there is no legal relationship between a
legal system and an individual, then the individual could not be considered a person in law, i.e.,
status personae could not be ascribed to her. If by “legal system” one understands a “national
legal system,” then the consequence of this reading would be that a stateless individual on terra
nullius, on high seas, or in an anarchic or ungoverned territory would not hold the status
personae, which is, at least, counterintuitive in the 21st century. This intuition against the
consequence of Salmond’s claim is rooted in the shift of the notion of status personae as well
as the increase in the relevance of international law in the past decades. The 20th century has
stretched the concept of person in two directions. On the one hand, the attribution of such a
status has not been dependent on the relation between the (human) individual and a particular
(national) legal system, but on the possession of an attribute or characteristic (being a human)
and the attribution of status personae by the international legal system. As an example, at
present, every human being, merely in virtue of being a human being (belonging to the class of
humans; having a particular set of “genetic” properties or qualities), is considered a holder of
status personae. This important shift, allocating crucial relevance to the property or qualities of
the individuals holding a particular status, shall be examined later in this chapter. On the other

160
 In this perspective, the position is ascribed by the legal system, and it is not
determined or influenced by the individual’s actions or decisions.386 I
understand that the capacity to assign positions follows from the control
function of the states,387 and it is used merely to keep track of the individuals
under their jurisdiction. The main interest of the legal system, then, in
ascribing status to people is, then, informative and controller.388
Several scholars have noted the limitations of this understanding of status.
Matija Žgur argues that it is too vague (Žgur, 2017, p. 24). Allen elaborates
this criticism, arguing that the term used in this sense lacks technical and
juridical significance (Allen, 1930, p. 279). Salmond also recognizes the
limited value of this definition for practical reasons based on the scant
information that it conveys (Salmond, 1913, p. 210).
Although this view of the concept of LS provides us with some
understanding and has historical value, it fails to in-depth define the essential
elements of LSs. As a result, these definitions found in legal commentaries
have limited explanatory power. In my understanding, this view of LS treats
“legal status” as a lexical reference: in order to understand what a LS is, we
are obliged to look at the particular legal system establishing a particular
status, but in se, the concept of LS conveyed by this theory is like an empty
vessel that is filled with whatever a given legal system intends to fill a
determinate status with. While this approach is typical of legal dogmatics, it
is insufficient for a comprehensive examination of the concept. Therefore, it
must be complemented by other theories that adopt a philosophical
perspective, aiming to unravel its elements and offering more profound
conceptual guidance.

hand, the concept of status personae has been granted by national and international legal
systems to entities different than humans, such as companies or non-human animals. In the case
of animals, again, when status personae has been granted, it has been grounded on their
possession of a property or quality, i.e., their sentience and susceptibility to suffering.
386
This idea that individuals’ actions have no impact on the attribution of the status seems to be
wrong for the cases where consensual contracts between individuals entail a shift in their status,
the most obvious being marriage. This lodged objection can be refuted by understanding that
even in the cases where individuals freely consent to change their status, the shift in their LSs
takes place only when the operators of the legal system so decide (for instance, by creating a
law that allows marriage, by accepting their form of the marriage as a correct one, by registering
the marriage, etc.).
387
I do not take “control function” to mean the “coercive nature of law” or the fact that
“coerciveness” is a necessary feature of the State; rather I am following a more Foucaultian
understanding. On the Foucaultian account on control, see Gutting and Oksala (2022).
388
Regarding the temporality of the status, some authors following this theory think that a LS
is a perennial mark, while others consider that it can be shifted when the legal system so
establishes it. An example of a perennial status would be for a person belonging to a caste by
means of his family or blood in a legal system that would ascribe a fixed legal position in that
legal system on that basis. Examples of non-perennial statuses are abundant, such as
naturalization, marriage, divorce, etc. The understanding of status as perennial certainly
encounters obvious counterexamples in modern (western) societies, and, therefore, it would be
incorrect to regard this time-related characterization as a common characteristic of statuses in
the present.

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 The last view in this category can be termed status as based on a property.
This view maintains that statuses are granted on the grounds of a property or
characteristic of the individual who holds them. Thus, this view claims that a
LS is a legal institution justified by a characteristic, property, or quality of the
status-holder.
Jeremy Bentham was a well-known proponent of this view. In Chapter
XVII of his Traités de Législation civile et pénale. Tactique des assemblées
législatives, Bentham presents the following reflections on what états
(statuses) are:

Un état domestique ou civil n’est qu’une base idéale, autour de laquelle se

rangent des droits et des devoirs, et quelquefois des incapacités. Il faut
distinguer dans tous les états l’ouvrage de la nature ou de l’homme libre, d’avec
l’ouvrage de la loi. L'état naturel, c’est le fond, la substance, la base: l’état
légal, ce sont les droits, les obligations que la loi y a ajoutés. Connaître un état,
c’est donc connaitre séparément les droits et les obligations qui y sont réunis:
mais quel est le principe d’union qui les rassemble pour en faire la chose factice
qu’on appelle un état ou une condition? C’est l'identité de l'événement
investitif, par rapport à la possession de cet état389 (Bentham, 1829, p. 349).390

This complex fragment from Bentham’s work requires careful examination.

Bentham points out several aspects of civil (legal) statuses. Firstly, he refers
to statuses as fictitious entities (chose factice),391 a description that goes in line
with Bentham’s notion of the law as a human construction, a tool created by
men for achieving certain goals (Moreso, 1988). For Bentham, the universe
contains only physical objects and sensory impressions. He refers to these as
real entities, that is, “anything which can be perceived by the senses”
(Schofield, 2006, p. 8). Our language, however, includes names for other
things (properties or relations, for instance), but these are only fictitious
entities (Moreso, 2013, p. 224). By fictitious entities, Bentham means:

a sort of object which "in every language must, for the purpose of discourse,
be spoken of as existing—be spoken of in the like manner as those objects

389
In English: “A domestic or civil status is only an ideal base, around which are ranged rights
and duties, and sometimes disabilities. We must distinguish in all statuses the work of nature
or of a free man from the work of the law. The natural status is the substance, the base: the
legal status, these are the rights, the obligations that the law added to it. To know a status, it is,
therefore, to know separately the rights and the obligations which are united there: but what is
the principle of union which seems to bring them together to make them the factitious thing
which we call a status or a condition? It is the identity of the investitive event, in relation to the
possession of this status.” (Italics added).
390
Accessible at:
https://play.google.com/books/reader?id=krMUAAAAQAAJ&hl=es&printsec=frontcover&p
g=GBS.PP7
391
The notion of the “fictitious entities” is well elaborated in several works of Jeremy Bentham.
See A Fragment on Ontology, Chrestomathia and Essay on Logic of Bentham (see Bowring,
1838). For a deeper understanding of this important and complex notion, please see Moreso
(1988; 2013) and Schofield (2006).

162
 which really have existence, and to which existence is seriously meant to be
ascribed, are spoken of; but without any such danger as that of producing any
such persuasion as that of their possessing, each for itself, any separate, or
strictly speaking, any real existence (Bowring, 1838; viii; 198).

These fictitious entities serve a significant purpose and cannot be simply

disregarded because they are “necessary fruits of the imagination without
which, unreal as they are, language could not—scarcely could even thought,
be carried on” (Bowring, 1838; viii). However, it is important to note that
fictitious entities “only existed in real entities, and it was only from real
entities that the idea of fictitious entities could be derived” (Schofield, 2006,
p. 8) since, in Bentham’s understanding, there is nothing else that exists
besides real entities. Consequently, any legal construction made to achieve a
specific goal (in the case of statuses, for instance, one can argue for
categorizing the population of the territory) must be founded on a real entity.
Thus, despite legal statuses being considered a fictitious entity—a legal
construction built to achieve a certain goal—their existence needs to be
grounded on something real, on a “natural state” which, as Bentham argues
above, is “the background, the substance, the base.”
According to Bentham, LS is founded on a natural state or property, making
the status correspond to a base idéale, a conjunction of this natural property
or quality of the holder of the status with some rights and duties ascribed by
the lawmaker.392 That is to say, although the substance (the property or quality
of the holder) is nature-based (empirical), the LS granting rights and duties is
law-based, i.e., ascribed by the law (a non-empirical object, an abstraction),
making of the status a so-called “fictitious entity,” that makes sense when built
upon the empirical element.
As demonstrated, this understanding aligns with Bentham’s overarching
philosophy and his mentioned distinction between real entities (representing
physical objects) and fictitious entities (representing abstractions).393

392
A possible alternative interpretation would be the one arguing that by “base idéale,” Bentham
meant a grounding principle rooted in an “idea” as opposed to something empirical or concrete,
i.e., the meaning of the term “idea” derived from idealism. This interpretation would follow the
understanding of ideal in the metaphysical meaning that the idealistic tradition attributes to the
term starting with Christian Wolff, understood as opposed to “material” or “empirical.”
However, since most of Bentham’s work is directed against the contemporary forms of idealism
that dominated his times, I consider that this reading would be at odds with Bentham’s
philosophy. Bentham could be categorized as an “ontological monist”; that is to say, in his
view, reality can be reduced to empirical features of the world. Therefore, a reading
understanding “base” as a (natural, empirical) foundation and “ideal” as a “desired” quality
established by the lawmaker (the sovereign) as the one necessary for granting the status seems
more in tune with Bentham’s philosophy. It is also in tune with the characterization of statuses
as a fictitious entity already presented, and with the idea of law as a human construction
mentioned above. Below, I shall present Austin’s criticism, which in my view is grounded on
a misunderstanding of Bentham’s claim that would be at odds with Bentham’s philosophy.
393
This reading is supported by Bentham’s very well-known reflection on animal rights
appearing in a footnote of his Principles of Morals and Legislation. Here, Bentham points out

163
 Several scholars have offered further interpretations of Bentham’s
reference to the “base idéale.” The most well-known of these was probably
that offered by John Austin in his Lectures of Jurisprudence (XLI). Austin
reads Bentham in such a way that the notion of base idéale would amount to
or be synonymous with a hidden quality inherent in the status holder (Austin,
2002 [1879]).
The idea of hidden quality inherent of the status holder comes from the
scholastic jurists and has been criticized by Austin in earlier sections of his
text. Austin extends this criticism to Bentham as well, arguing that the notion
of “base idéale” is alike to the one of “fictitious quality” or “hidden quality”
of the scholastic jurists: “Now this base idéale (which is distinct from the
rights or duties constituting the condition, and also from the fact or event by
which the condition is engendered) is clearly the fictitious quality (expressed
in another shape) which, according to the scholastic jurists, forms the status”
(Austin, 2002 [1879]).
I find Austin’s interpretation and subsequent criticism to be problematic for
the following reasons. Firstly, his criticism of Bentham is founded on the
understanding that Bentham regards status as a “hidden condition.” Austin
reaches this conclusion after interpreting the “base idéale” to mean something
similar to the notion of “hidden quality” of the scholastic jurists that he has
criticized some pages before in his work. In Austin’s reading, the notions of
“hidden quality” of the scholastic and “fictitious quality” referred to by
Bentham are treated as equivalent. This is because Austin interprets Bentham
as thinking that between the fact or event by which the condition arose and the
rights&co. constituting the condition, a certain supposed quality was imagined
to intervene in the chain of causation. This supposed condition or quality,
which he understands to be mere fiction, was understood by Austin to be the
status. The supposition, therefore, that a status is a fictitious quality inhering
in the party who bears it has, in Austin’s view, “every fault which can possibly
belong to a figment” (Austin, 2002 [1879]). The supposed quality is merely
fictitious and hidden.
Two points here are unclear. Firstly, considering Bentham’s philosophy
and his detachment from idealism, it is surprising that Austin—a student of

to a natural property or quality of the animals (the capacity for suffering) as the condition that
should activate their status as right-holders. It would be unfair to deprive the reader of the beauty
of the quote. “The day may come when the rest of animal creation may acquire those rights
which never could have been withholden from them but by the hand of tyranny. The French
have already discovered that the blackness of the skin is no reason why a human being should
be abandoned without redress to the caprice of a tormentor. It may one day come to be
recognized that the number of legs, the villosity of the skin, or the termination of the os sacrum
are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is
it that should trace the insuperable line? Is it the faculty of reason, or perhaps the faculty of
discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a
more conversable animal, than an infant of a day or a week or even a month old. But suppose
they were otherwise, what would it avail? The question is not, Can they reason? nor Can they
talk? but, Can they suffer?" (Bentham, 2007, p. 311). (Italics are mine).

164
Bentham and, therefore great connoisseur of his philosophy—would deem
that Bentham would not admit an empirical base of the fictitious of statuses.
Understanding that the base that Bentham refers to is a quality or property of
the status-holder, that is, it has an empirical nature, seems to be in line not
only with the whole paragraph of Bentham but also with his philosophy and
disqualifies Austin’s criticism.394 Secondly, Austin does not sufficiently
clarify why a fictitious entity would necessarily be a hidden one. Moreover,
in his text, Bentham explicitly says that what constitutes a fictitious entity is
not the empirical base for the attribution (that is, the quality it relies upon) of
the status but the status itself, i.e., the final construction that combines the
empirical element (the natural property or quality of the person) and the
human action of applying a legal figure to it. For these reasons, I consider that
Austin’s criticism is founded on a perplexingly uncharitable reading of
Bentham’s paragraph that contradicts to Bentham’s philosophy and that
unjustifiably ascribes a fictitious and hidden nature to the element that, in
Bentham’s view, grounds LS.
My objection to Austin’s criticism is that the notion of “base idéale” does
not per se entail a “hidden quality.” As explained above, in the context of the
phrase and considering Bentham’s philosophy, it seems more likely that by
the one element of the “base idéale,” Bentham referred to the natural property
of the person to whom the status is granted. As we have seen, Bentham
explicitly states, “the natural status is the substance, the base.” A thoughtful
reading of the full paragraph favors this understanding over Austin’s. In
conclusion, although from Bentham’s text it does not seem that the hidden
nature of the quality is a necessary aspect of the “base idéale,” Austin’s whole
criticism is centered on this insufficiently proved claim, creating the
impression that he is attacking a straw man.
Another relevant point in Bentham’s text is his claim that the principle of
union between the status and its associated rights and obligations lies in the
identity of the investitive event, in relation to the possession of his status. That
is to say, the investitive event (IE) is responsible for creating the fictitious
entity, the status S, that ascribes to a subject X who has the natural inherent
and inalienable property P, a set of rights and duties, capacities and
incapacities R. On this reading, IE would correspond to the legal decision
made by the lawmaker establishing the attribution of a status (entailing a set
of rights and obligations) to a subject based on a natural property (“base
idéale”) of the subject.
Bentham’s theory of status is highly relevant to our analysis for several
reasons. Firstly, his notion of “base idéale” encompasses two relevant aspects

394
As Moreso highlights (Moreso, 2013, p. 221), Bentham’s philosophy is rooted in empiricist
epistemology (mostly in Locke and Hume) and nominalist ontology. Schofield disagrees with
Moreso on the relevance ascribed to Hume and describes his attitude to Hume as ambivalent
(Schofield, 2006, p. 3).

165
of the attribution of status. The first one is the natural condition of the property
held by the person.395 The second relevant aspect of understanding “idéale” as
“desired by the legal agent” regarding the natural property is that it highlights
a (legal) actor’s attribution of relevance to the particular natural property
selected in order to ascribe the man-made fictitious entity that LS are. As I
showed in the first section of this chapter, in constitutional systems under the
Rule of Law, such decisions have to be justified.396
Second, Bentham’s theory of status as a property is a conceptual theory;
that is to say, it is able to identify the relevant element or elements of the
concept of status, and it provides some guidance on the correct use of the
concept. Further, the disentanglement of the particular elements composing
the status serves to accomplish the aim of this section, that is, to assess the
correctness of obtaining citizenship—qua status—on grounds that involve
economic transactions.
Last but not least, this theory emphasizes an aspect that has already been
noted in other theories—the relevance of the natural element, the property or
quality of the status-holder, when ascribing a status to her.
This scrutiny of a person’s particular characteristics when granting a
personal status to her—something that can be perceived as intuitively
essential—has unsurprisingly gained greater legal relevance recently. The
surge in both the positivization of human rights (granted to those who qualify
for the status of “persons” by reason of their possessing the characteristic or
quality of “being humans”) and the rise of animal rights (in most cases granted
due to nonhuman animals’ possession of the quality of “being sentient”) are
two clear examples.

4.3.1.3. Third category: Conceptual Guidance Attempt Inapplicable to

States under the Rule of Law
The third view I present here can be called the rights&co.-based theory of
legal status: status as rights, duties, capacities and incapacities. This view
holds that statuses correspond merely to the set of rights&co. (rights, duties,
capacities, and incapacities). However, a difference with former theories is the
irrelevance of the qualities or properties of the status-holder in the attribution
of the status. This view sees LS as the individual’s set of rights&co. as
recognized by the legal system to belong to a class to which this set of
rights&co. is attributed.

395
It is unclear what constitutes a natural property and what its characteristics are. In my view,
a natural property has to be inherent to the holder and, therefore, of an inalienable character.
396
Interestingly, this view is also defended by Bentham himself. Moreso noted that Bentham
defended that the laws have to be “known, clear, concise, and complete as well as ‘rational’ in
the sense that they have to include the reasons for resulting in a particular legislative solution”
(Moreso, 2013, p. 242). (Italics are mine). See also Codification Proposal in The works of
Jeremy Bentham (1–11), ed. Bowring, IV.

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 This theory was developed first by the positivist legal philosopher John
Austin, already introduced above in his criticism of Bentham.397 Particularly
in his Lectures on Jurisprudence,398 Austin examines the notion of status,
presents a characterization of status (answering to the question of what a status
is), and gives a justification for its existence (answering to the question of why
we have statuses).399
Regarding the characterization of the nature of LS, Austin defines “status”
as the substantive content of its related rights, duties, capacities, and
incapacities: “The rights and duties, capacities or incapacities, which
determine a given person to any of these classes, constitute a condition or
status” (Austin, 2002 [1879], p. 706). For Austin, a status corresponds to a set
of rights&co. This categorization allows us to identify a theory that
understands LS to be the individual’s set of rights and duties, capacities and
incapacities, recognized by the legal system as belonging to a class to which
his set of rights&co is attributed. In this view, LS completely coincides with
its substantial legal content and does not exceed it. Austin rejects the idea that

397
A contemporary scholar who seems partially to follow this view is the legal philosopher
Jeremy Waldron. However, Waldron and Austin differ in that for Austin the properties or
qualities of the status-holder seem to be irrelevant, while this is not the case for Waldron.
According to Waldron, a LS is a “particular package of rights, powers, disabilities, duties,
privileges, immunities, and liabilities (rights&co.) accruing to a person by virtue of the
condition or situation they are in” (Waldron, 2015, p. 134). (Italics are mine). Thus, Waldron
distinguishes himself from Austin, for whom the attribution of rights&co. is merely founded on
a command of the sovereign, while for Waldron this attribution cannot be done in a capricious
or arbitrary way: “the rights and duties of a given status are not just any random set thereof,”
rather, the list “makes sense relative to some underlying idea that informs the status in question”
(ibid, p. 135). (Italics are mine). In other words, the correlation between a particular status and
a set of rights&co. “is a matter of their having a common rationale which explains how the
various rights, duties, and so on hang together, i.e., the underlying coherence of the package”
(ibid). These requirements basically entail the prohibition of an arbitrary way of acting
regarding legal statuses. Waldron defends that the same common rationale should also apply to
the selection of the attributes or qualities relevant for the attribution of the statuses to particular
individuals.
398
Namely, in Lectures XL-XLIII.
399
I consider this distinction between the what and the why in Austin’s theory relevant in order
to avoid contradictory conclusions. As I will argue below in the text, Austin’s reply on what
status are corresponds to the set of rights&co. related to the status (i.e., in this view, statuses
have a substantial content); while the reply to why we use status, despite the fact that these
would be nothing other than the set of rights&co., is merely “for the sake of commodious
explanation.” Without this distinction, one can end misunderstanding status to be a
methodological instrument for organizing law, i.e., an instrument of legal systematization. On
this reading, statuses would not have any substantive content but would instead only be formal
legal instruments. The first reading would correspond to a theory that claims that LS is the
individual’s set of rights and duties as recognized by the legal system to belong to a class to
which this set of rights and duties is attributed, i.e., LS coincides with its substantial legal
content, while the second reading would correspond to a theory that would claim that LS is an
instrument of legal systematization and as such does not coincide with the set of rights and
duties (or substantial legal content) that the status gives access to. Distinguishing the what and
the why allows us to see that Austin only supports the first theory and, therefore, he is not
contradicting himself.

167
a status corresponds to an event or a property in the individual to whom the
status is ascribed, even as a trigger of the status to be granted: “I still find no
mark by which a status or condition can be distinguished from any other
collection of rights and duties.” (ibid, p. 710)
As we have seen, Austin criticizes several previous understandings of
status in his Lectures, particularly those arguing that the attribution of a status
is based on some hidden condition or common generic character shaping what
a status is. According to him, there is “no common generic character which
determines what a status or a condition is” (ibid).
It is important to highlight that this understanding is in line with Austin’s
view of the law as commands issued by a sovereign to subjects, backed up by
threats of sanctions: in this setting, statuses are a set of rights&co. ascribed by
the sovereign to the individual members of a group “not as being that very
individual person” but rather as the individual “being a member of a class of
persons” (ibid) where this class of persons is created by the sovereign, who,
as such, does not need to provide a justification for her decision.
Austin’s understanding of laws as the commands of the sovereign, together
with his notion that sovereignty is free from any restraints by any kind of law,
and that no sanctions of any nature can be imposed on the sovereign leads him
to reject the need for an underlying rationale for the selection of attributes or
qualities that would explain the attribution of a status to a particular person.
The explanation of why a status is ascribed to an individual would, thus, rely
on the will of the sovereign who makes the decision. For that reason, instead
of delving into justifying the attribution of the status on the basis of an attribute
or quality of the individual, Austin conceptualizes statuses as the entitlements
provided by them: the so-called rights&co.
Austin’s understanding of the sovereign as an entity released from the
obligation to provide reasons to justify his decisions and entitled to command
according to his will is obviously incompatible with the Rule of Law, and,
therefore, inapplicable to the legal systems in which the programs object of
this dissertation are inserted.
Regarding the second question posed—why do we use statuses if they are
nothing other than the set of rights&co. to which they refer to—Austin replies
that their use is a mere matter of convenience: we use statuses merely “for the
sake of commodious expositions” (ibid).
In contrast with other theories presented here, Austin’s view strongly
rejects the idea that there is any inherent property in the status-bearer
justifying the attribution of a particular status to a particular individual.
According to Austin, the attribution of a status is based merely on the
sovereign’s preference to consider an individual X as a member of a group Y,
without the need to provide arguments or justification, but merely by
exercising her sovereign power. However, in present times, this view appears
absolutely unsatisfactory, at odds with the rationale of contemporary
constitutionalized systems and with the requirements imposed by the Rule of

168
Law of legal systems.400 In contrast to the legalistic state, where there is no
superior limit to the command of the agent who bears lawmaking power, in
constitutionalized systems, the constitution represents the superior legal frame
constraining the decisions of the sovereign (here the lawmaker).401
As already mentioned above, in constitutionalized systems under the Rule
of Law, lawmakers are obliged to provide reasons to justify their decisions in
order to ensure their actions are not arbitrary and stay within their
discretionary powers. Austin’s reluctance to link status attributions to the
qualities or properties of individuals is probably driven by the oxymoronic
view that this would entail that the holder of sovereign power must be
externally coerced. However, this perspective relies on a particular
interpretation of sovereignty that does not align with the legal systems in
question. Since committing to this theory would oblige us to make theoretical
commitments to a theory about sovereignty contrary to the Rule of Law and
to which we have no particular reasons to commit, we should discard this
theory.
In the preceding pages, I have explored several theories and views on the
nature of LSs. As demonstrated, most of the theories converge on certain key
points, notably that LSs are positions designated to individuals in particular
legal systems, and that their attribution is contingent on certain characteristics
of the individuals to whom the statuses are attributed.
Having established a clear understanding of what legal statuses are, we now
turn in the next section into the inquiry of whether money in the form of
investment—either in itself or taken as a proxy—can be considered a personal
characteristic that could qualify for the attribution of the personal legal status
that is citizenship.

4.3.2. Ought Money in the form of an Investment to Count as a

Personal Attribute or Characteristic?
In this section, I provide reasons to reject the assertion that money in the form
of investment could be regarded as a personal attribute or characteristic of the
applicant. These reasons are of an ontological nature founded on an analysis
of the object of exchange—money in the form of investment.
A personal characteristic is an inherent and non-transferable quality that is
specific to an individual. It can be used to distinguish and group the individual
on the basis of it. Some examples are ethnicity, cultural heritage, familial ties,
personal experiences and other unique traits that make each person distinct.
This notion explicitly excludes fungibles items, as they lack inherent

400
According to the understanding already presented in earlier sections of this chapter.
401
Not only Constitutional Law, but also supranational law, either International or European
Law.

169
individuality and cannot represent personal attributes that define a person’s
identity.
Money is a fungible asset. Fungibility entails different features. Firstly, it
lacks distinctive attributes or characteristics. Secondly, the lack of distinctive
attributes makes the fungible objects equivalent and indistinguishable: units
of fungible objects are essentially indistinguishable from one another,
allowing for easy interchangeability. Thirdly, the transferability and
transitivity of fungible items follow from their lack of particular and
distinctive attributes or characteristics.
Furthermore, in addition to fungible assets’ inherent lack of distinctive
attributes or characteristics, which renders them unsuitable candidates for
counting as personal attributes, the transferability and transitivity of money
further exacerbates its inadequacy as a personal attribute that would qualify
for ascribing a personal legal status. This is because the attributes that ought
to be considered should extend in time surpassing the moment of ascribing the
status. Examples of such enduring attributes in the context of citizenship
studies include blood relationships, language proficiency, comprehensive
understanding of the constitution, or exceptional abilities in arts or science,
among others.
Requiring a transference of money would entail that even if money
qualifies as a personal attribute, that attribute would be lost precisely before
the acquisition of the status. Consequently, the item in question would no
longer suffice as a valid personal attribute for the applicant in question.
The inherent properties of money, which make it an ideal medium for
economic exchanges and transferable transactions, render it unsuitable for
representing a personal attribute or characteristic required for the attribution
of a personal legal status, in the terms we have established. The same
properties of money as a fungible asset assuring its transitivity make it an
utterly inappropriate object to count among the personal attributes or
characteristics of the holder. Therefore, personal legal status ought not to be
exchanged for money.
In the case of CIPs, however, one may argue that what the programs require
in order to naturalize is not the fungible asset of money but the allocation of a
specific amount of money in a determined way, i.e., an investment. In this
view, the investment, not the money itself, would be or signify the attribute.
The question that this objection raises is, then: ought an investment to count
as or signify a personal attribute or characteristic? I think that this question
could be divided into two sub-questions. Firstly, one could wonder if the
intention of making an investment ought to count as a personal attribute or be
expressive of it. Secondly, one could wonder whether the act of investing or
the result of it is what ought to count as a personal attribute. Let me address
these questions separately.
Can the act of investing or the investment as a result count as a personal
attribute? I argue that it cannot. The act of investing can be seen as consisting

170
of two elements. The first element is a subjective element, i.e., the intention
of a person to take an action (in the case of CIPs, investing in a country in a
determined way). A second element is the object invested, i.e., money. We
have already seen that the fungible nature of money makes it inadmissible for
qualifying as a personal attribute of the candidate that justifies the attribution
of a personal status. We must therefore inquire whether the first element, the
intention, can count as or signify a personal attribute. That is to say, the
question that needs to be addressed relating to the first puzzle in the former
paragraph is whether an intention can count as or signify some personal
attribute or characteristic of the person in a manner that can justify the
attribution of a personal status merely on these grounds. I consider an intention
to be insufficient for the following reasons.
Firstly, intentions are subjective mental states which belong to the domain
of subjectivity, and, therefore, directly inaccessible to external evaluators. The
state, as the granter of the personal legal status, cannot be certain about what
an intention signifies, and, therefore, it seems to be inappropriate to base the
attribution of a personal status merely on an intention. Thus, even if it were
possible to qualify an intention as an attribute or a sign of an attribute, this,
per se, without further information, would not allow an external evaluator to
have certainty in establishing what the attribute signifies.
Against this argument, however, one could object that there are many cases
in law in which intentions are evaluated and used to qualify offenses. An
example was the crime of animal abuse in Spain as outlined in Article 337 of
the Criminal Code,402 which distinguished between acts of abuse against
animals committed using cruelty and those without cruelty.403 In the offense
categorization, cruelty is described as an attitude of mind, and is therefore
directly inaccessible to the external evaluator (in the case, the judge).404 In this
situation, the evaluator has to make inferences to determine the presence or
absence of this attitude of mind. That is to say, the evaluator has to support his
inferences in signs, pieces of evidence, or clues.
The key here is that even if complete certainty is not required, the evaluator
has to reach a high degree of certainty through the assessment of the facts
related to the action in order to be able to infer the attitude of mind of cruelty.
The inference method requires two elements. The first of these is a rich but
limited context of facts where some signs, pieces of evidence, or clues can be
considered in the evaluation. The second is reaching a high degree of certainty.

402
Introduced in the modification of the Criminal Code of 2015, repealed in 2023 by the Ley
Orgánica 3/2023, of the 28h of March, which instead introduced Articles 340 bis, 340 ter, 340
quater, and 340 quinquies.
403
For a detailed presentation of this crime, see Prats (2020).
404
The difficulties for third parties to access mental states and for external evaluators to prove
their presence have led some authors, like Mesías Rodríguez (2018, p. 89), to suggest that it is
inadequate to include the element of “cruelty” in the categorization of this crime.

171
 In the case of treating the intention to invest in a country as a personal
characteristic of the applicant upon which to support the attribution of the
personal legal status of citizenship, reaching a high degree of certainty about
the attribute that this intention entails would require assessing other elements.
The problem here is the difficulty of establishing prima facie what other
requirements should be considered due to the immense variety of possible
interests that could underpin the intention of applying (e.g. expediting the
route to citizenship where the applicant already lives, escaping taxes,
becoming a citizen to be able to enter into casinos only reserved for citizens,
obtaining diplomatic protection, as in the mentioned case of Francesco
Corallo, collecting citizenships as a hobby, securing the future of one’s family,
etc.). This makes it very difficult to reach the level of certainty that the law
typically requires to ascribe some legal consequence to an attitude or state of
mind.
In the case of the CIPs in the EU in 2018, as we have seen, the lack of
scrutiny concerning other requirements, or even concerning the origin of the
money, makes it the case that, de facto, the intention of investing to obtain
citizenship cannot signify anything beyond the mere interest of becoming a
citizen, telling us nothing about the reasons behind this interest or about the
personal characteristics of the applicant.405
Secondly, intentions can be highly fickle and need not persist for a long
period of time. Something qualifying as a personal characteristic defining the
person ought to have some persistence. This is especially relevant when using
such a characteristic to support the bestowing of a personal legal status like
citizenship that is expected to be lifelong.406 Intentions, which are obscure to
external evaluators and fickle, seem therefore to be unsuitable candidates for
personal characteristics, and particularly for the sort of personal attributes
upon which a state would wish to grant a lifelong personal legal status.
I have discussed some of the problems of attempting to use an intention as
a personal characteristic—or as something that signifies a personal
characteristic—of the person. There are also some complications with using
the more specific intention of investing in the country as a personal
characteristic of the applicant or a signifier of one. A first, time-related,
405
The difficulty represented by the assessment of intentions is better overcome in the
assessment of other requirements established to obtain citizenship, for instance, the learning of
a language, by testing the ability of the applicant through a test, and not the intention. Thus,
when states require the passing of a language test to obtain citizenship, what is required to be
proved is the result of the intention, the capacity developed, and not merely the intention itself.
Moreover, in this case, the exam has to be taken by the person who applies for citizenship, and
the satisfaction of the requirement cannot be externalized to a third person paid to do it,
precisely because of the relevance of proving the knowledge of the language being an attribute
or characteristic of the person who will obtain the personal LS. In this way, by assessing the
result and not the intention, the state can overcome the difficulty of accessing a subjective,
highly inaccessible, mental state such an intention.
406
Although the law contemplates the possibility of loss and renunciation of citizenship,
generally, the expectation is that citizenship will be for life.

172
complication of using the intention of acquiring citizenship through
investment as if it were a personal characteristic of the person is the scarcity
of information that this intention provides about the sort of citizen that the
applicant will be. That is to say, even if we grant that the act of investing
signifies a past intention of the person, it tells us nothing about her future
intentions, the sort of citizen she will be, or the way she will operate in the
future regarding both the investment and the well-being of the country.
Secondly, investments, by definition, are actions taken with the hope of
generating income or appreciating the value of the investment at some future
date.407 The act of investing may represent the investor’s desire for personal
gain but, without further information, it is impossible to assume any other
intention. If investing can be symptomatic of any intention of the investor, it
is only the intention of obtaining a personal gain or benefit, but per se, it
cannot provide further information about the investor’s personal attributes or
characteristics.
A possible way of avoiding these difficulties is to argue that what CIPs
require is not an intention but the effective act of investing in the country in a
particular way. Analogously, the requirement of knowing the national
language or being related to some citizen through marriage is not grounded on
the intention of learning the language or the intention of marrying but on the
fact of being knowledgeable of the language (what is demonstrated through
taking a test by the person who applied for citizenship) or being married (for
a certain period of time) to an individual who is already a citizen. Could one,
then, argue that the act of investing should be regarded as, or signify, a
personal characteristic of the person? That is, should we take the act of
investment as a proxy for a characteristic of the person? I again argue that this
is not the case.
The act of investing informs us only about two facts: (i) that the subject had
(in a specific moment of time) a fungible asset, but it does not tell us anything
about the capacity of this person to amass money when the source of the
money is neither inquired nor assessed;408 and (ii) that the person has an
interest in acquiring citizenship but, again, this does not provide any
information about the reasons for her desire to acquire this citizenship, nor of
what sort of citizen that the applicant will be.
For these reasons, from the mere act of investing in a particular country, it
is not possible to infer particular reasons about the interest of the applicant.

407
See, among other definitions,
https://www.investopedia.com/terms/i/investment.asp#:~:text=An%20investment%20is%20a
n%20asset%20or%20item%20that%20is%20purchased,what%20was%20originally%20put%
20in (last accessed 11/07/2023).
408
As mentioned in footnote 241, there have been cases related to the Bulgarian CIP in which
banks have granted loans for the purpose of applying to the CIP, which strengthens the claim
that the possession of the money without further inquiry into its origins cannot be considered a
personal characteristic of the applicant. See (Tchobanov, 2018).

173
Again, one could imagine a scenario in which the intention in acquiring
citizenship is to speed up the process of belonging to the community where
she lives; however, without further scrutiny of her intentions, it is also possible
that the applicant is one of the 1,000 richest persons in the world willing to
become a citizen for the mere purpose of accessing casinos limited to citizens
of the country. It is also possible that the reasons are as capricious as gambling
with ultra-rich fellows on the possibility of becoming a citizen of the country,
or having villainous political intentions. Such intentions, although unlikely,
are still possible intentions in applying for citizenship that cannot be excluded
prima facie in the absence of further investigation. This shows that the mere
act of investing to acquire citizenship, per se, without further scrutiny,
provides very little information about the person and, therefore, ought not to
be treated as signifying a personal characteristic that may support the
attribution of a personal legal status.
Lastly, an argument in favor of the idea that investing should qualify as an
attribute or personal characteristic would be based on the self-description of
the person as an investor. This argument would point out that for some people
investing is their profession, constituting a regular habit and a way of living,
and, as such, they recognize this activity as shaping and characterizing their
personality. These people would characterize themselves as investors,
considering that the investments signify some attribute or personal
characteristic of themselves (e.g., tenacity, risk tolerance, the capacity for
money generation, self-control, intelligence, etc.).
This is probably the strongest argument in favor of considering the
economic investment a proxy for a personal attribute of the applicant. I am
ready to accept that, in some cases, the act of investing may signify or prove
some desirable inner qualities or personal characteristics of the person upon
which the granting of a personal LS could be acceptable. However, I see at
least two problems with this argument: one general and one applied to the
cases of the existing CIPs in the EU.
The general problem concerns the difficulty of inferring these inner
qualities or characteristics from the regular acts of investing, as well as
establishing a way of assessing them. This general problem is not exclusive to
this case and can apply to the scrutiny of other inner attributes or
characteristics, but in the case of the investment, it seems that the uncertainty
is high. Again, using the example of knowing a language, one could argue that
passing a test does not give an absolute understanding of the linguistic abilities
of the person in several contexts and linguistic styles; however, it seems
intuitively easier to foresee the establishment of a minimum bar to assess the
understanding of the language by the person in this case than in the case of the

174
investors for assessing her ability.409 Building an assessment bar that would
allow the inference of certain characteristics of the person from his past
investment trajectory seems to be an extremely complicated task. I suggest
that those supporting the idea that being an investor is or signifies an inner
quality or personal characteristic of the person that ought to count as granting
a personal legal status should engage in providing solutions to this problem.
The second problem is specific to the CIPs in the EU in 2018, concerning
the empirical conditions of their establishment. Even if one concedes that
being an investor may, under certain circumstances, be considered an inner
quality or personal characteristic of the person, or a proxy thereof, regardless
of how complicated its evaluation may be, the truth is that the CIPs in the EU
do not grant citizenship to investors, but on investments grounds. As
demonstrated above, investments in the absence of further scrutiny of the
source of the money or the investing abilities of the applicant cannot, prima
facie, count as or signify, per se, a personal attribute or characteristic of the
person (neither the intention nor the money can count as that).
The detailed study of the CIPs presented in Chapter Two showed clear
examples: Cyprus established its program with the interest of granting
citizenship to those who lost certain amounts of money in the banking crisis,
without further scrutiny of the source of the money or the personal abilities of
the person to amass money (or to invest).410 In the case of Malta, one of the
requirements was to rent an apartment in the country for a lower price than the
average rental price in Stockholm city.411
While there are some visa programs whose conditions and scrutiny of the
person are more in line with our understanding of what an investor is, this is
certainly not the case for the way that CIPs in the EU were established.
Therefore, although the argument that being an investor can constitute or
signify an attribute or personal characteristic of the person is a strong one that
needs to be considered, it would not apply to the cases under consideration in
this dissertation because the programs do not grant citizenship to investors per
se, but do so on the basis of money or particular investments.
In this section, I provided arguments supporting the claim that at least
prima facie and without further scrutiny, neither money nor a particular
409
I suspect that this is probably due to the wider number of external factors influencing the
result of the investment that makes it more uncontrollable and unpredictable than learning a
language.
410
Moreover, in the case of the Cypriot CIP, some of the conditions established make it even
more difficult to accept that we are even dealing with investments. That is because having
money in a bank or purchasing a property for a certain amount that must be retained in the
country indefinitely would lie outside the notion of investment shared by most people. As
Kudryashova pointed out, “the absolute prohibition from selling the residential property used
as an investment for the purposes of naturalization in the Republic contradicts the very essence
of investment, which is conditioned on the prospect of future liquidity” (Kudryashova, 2018, p.
1286).
411
I also have difficulty seeing how the mere fact of renting an apartment can be considered an
“investment” in accordance with the meaning of investment presented above.

175
investment can be considered in itself—or as a proxy for—a personal attribute
or characteristic of the applicant. If this is a sound argument, then money in
the form of an investment cannot be considered a personal attribute. Since
citizenship qua personal legal status must be ascribed based on personal
characteristics or attributes of the receiver, and money cannot qualify as such,
a program bestowing citizenship on the grounds of economic investments
would be unjustifiable because to do so would be contrary to the ratio essendi
of citizenship as a personal legal status. In the first section of this chapter, I
have shown that legal measures of this kind suffer from flaws of substantial
arbitrariness. Since substantial arbitrariness is detrimental to the Rule of Law
and is not amendable, these sound arguments would provide a legal reason for
closing down the programs.
If my arguments regarding the ability of money in the form of an
investment to qualify as a personal characteristic or attribute are not sound,
and money in the form of an investment can be considered a personal
characteristic, then we would still need to investigate whether the programs
suffer from procedural arbitrariness. As mentioned above, procedural
arbitrariness occurs when, despite good arguments existing for a legal decision
or law, these arguments have not been presented at the lawmaking stage.
Unlike substantial arbitrariness, this sort of arbitrariness is amendable and
does not come in an all-nothing fashion but by degrees.
In order to assess whether the CIPs existing in the EU in 2018 suffered
from procedural arbitrariness, in the next chapter, I shall explore the debates
that preceded the establishment of the CIPs, to show the reasons that were
given for their institution.

176
Chapter Five: Were the CIPs in the EU
Established in a Procedurally Arbitrary Way?

In this chapter, I examine whether the CIPs in the EU were established in a

procedurally arbitrary manner. I draw on the distinction between discretion
and arbitrariness, emphasizing the requirement for public authorities in states
under the Rule of Law to provide justifications for their decisions. This
requirement applies universally to all public authorities.
The legitimacy of authorities in such states relies on reasoned and
reasonable actions, not merely on unlimited power, granted a priori. As
Fernández aptly notes, while it remains essential that authorities in a state
under the Rule of Law are legitimate, this does not provide a carte blanche
justification for all decisions they could potentially make. Instead, in each
particular case, each decision must be reached through reasoned and
reasonable action by the received power.
To assess the procedural arbitrariness of the CIPs, I turn to the domestic
debates that preceded their establishment in each EU member state. These
debates were held in various forums, including in parliamentary sessions and
in the details of supporting documents such as explanatory memorandums
accompanying the laws or bills. In the Bulgarian case, these arguments are
outlined in the bill designed to amend the law and in documents issued by
previous commissions considering the issue. In the Maltese and Cypriot CIPs,
the lawmakers’ purposes can be traced primarily through parliamentary
debates. My objective in scrutinizing these debates is to ascertain whether
there were well-founded arguments supporting the establishment of the
programs, and to evaluate their overall quality.
I focus on several key inquiries. Firstly, I explore whether the debates
addressed the issue of conferring citizenship on economic grounds, and
whether this was deemed compatible with the prevailing regulations on
citizenship within the national legal system. Secondly, I seek out discussions
of the possible benefits and risks associated with using economic grounds to
regulate the acquisition of citizenship. This involves examining such
questions as: whether the nature of citizenship makes it suitable for economic-
based criteria; what potential benefits and dangers are associated with
regulating citizenship acquisition on economic grounds; and whether granting
citizenship based on economic factors aligns coherently with other citizenship
regulations in the specific national legal system. Additionally, if economic

177
reasons were presented, I examine whether relevant studies or data supported
these claims, and whether alternative paths to increase the country's wealth
were considered. Lastly, I assess the reasons provided for favoring the
establishment of a CIP over other alternatives, if applicable.
The absence of any provision of reasons would indicate a high level of
procedural arbitrariness in the establishment of the CIP. If reasons were
provided but were insufficient (due to, e.g., the absence of relevant data), then
a lower degree of procedural arbitrariness might be attributed to the decision,
although this cannot be ascertained a priori. Instead, a thorough analysis of
the debates is required to make a definitive judgment.

5.1. The Establishment of the Bulgarian Program

The Bulgarian CIP was introduced in February 2013 by the SG 16/13
amendment of Bulgaria’s Citizenship Law, which added two new Articles,
12a and 14a.412 The bill that introduced these changes was the “Bill amending
and supplementing the Investment Promotion Act” (No. 202-01-54),413
submitted by the Council of Ministers on the 12th of September 2012, and
adopted by the National Assembly at its first vote on the 12th of October
2012.414 At a meeting of the Committee on Economic Policy, Energy and
Tourism on the 21st of November 2012,415 and at the subsequent plenary
session on the 29th of November 2012,416 the draft act was adopted, and the
proposal made by a Member of the Parliament (Annex No, 1 in the part of the
proposal of Article 14a)—to amend the Bulgarian Citizenship Act by creating
Article 14a was reflected in § 34 of the adopted law. By Decree No. 422 of
the 14th of December 2012 of the President of The Republic of Bulgaria,417 the
Act Amending and Supplementing the Investment Promotion Act was
returned to the National Assembly for a new discussion regarding some of its
provisions, including § 34.
On the 9th of January 2013, the Committee on Economic Policy, Energy
and Tourism discussed and adopted the Presidential Decree,418 and on the 5th

412
I want to thank the secretary-general of the national assembly, Stefana Karaslavova, for her
inestimable help in our email communications during October 2020.
413
Available at https://www.parliament.bg/bg/bills/ID/14098 (last accessed 14/11/2022).
414
Available at https://parliament.bg/bg/plenaryst/ns/7/ID/2814 (last accessed 14/11/2022).
415
Available at https://www.parliament.bg/bg/archive/7/3/224/steno/ID/2744 (last accessed
14/11/2022).
416
Available at https://www.parliament.bg/bg/plenaryst/ns/7/ID/2857 (last accessed
14/11/2022).
417
Available at https://dv.parliament.bg/DVWeb/showMaterialDV.jsp?idMat=71247 (last
accessed 14/11/2022).
418
Available at https://parliament.bg/bg/archive/7/3/224/steno/ID2762 (last accessed
14/11/2022).

178
of February 2013,419 supported at the second vote the texts of Article 12a and
Article 14a of the Bulgarian Citizenship Act (§ 34 of the draft act) and
proposed that they be adopted in plenary. The Act Amending and
Supplementing the Investment Promotion Act was finally adopted at a
meeting on the 13th of February 2013,420 and with its § 33 thereof the Bulgarian
Citizenship Act established the provisions of Article 12a and Article 14a
regulating the conditions under which a person who has obtained a permanent
residence permit under the Foreigners in The Republic of Bulgaria Act may
acquire Bulgarian citizenship.421 Thus, the bill developed into the “Law for
amendment and supplement of the Law for promotion of investments,” which
was promulgated in issue 16 of the State Gazette, 2013.422
As will be shown, the Bulgarian law was notably enacted in a much clearer
way than the Cypriot or Maltese CIPs, and the access to the documents is
much more transparent. The documents are easily accessible and traceable on
institutional websites, which is much harder in the case of Cypriot institutions.
Moreover, in the Bulgarian case there was some discussion as well as an effort
to motivate the suggested changes in the law. This cannot be said of the
Cypriot case, and the (albeit lengthy) discussions in the Maltese parliament
provide much less in the way of arguments and data that are properly
elaborated and reasoned.
In what follows, I analyze the bill, the reports from the different committees
participating in the creation of the CIP, the debates in the plenary sessions of
the National Assembly, and the law adopted. I aim to determine whether any
arguments were put forth in support of establishing the CIP, and if so, what
the nature and substance of these arguments was.
The bill aimed to create a new Chapter Nine in the Promotion Act of
Investments (PAI) (Закона за насърчаване на инвестициите) (ЗНИ), which
connects the Law on Foreigners in The Republic of Bulgaria with the Law on
Bulgarian Citizenship. The bill includes a provision authorizing the Minister
of economy, energy, and tourism to issue appropriate bylaws to the IPA to
determine specific, quantifiable economic criteria which foreigners wishing to
reside in Bulgaria must meet for the implementation of investments and job
creation in the country. According to the bill,423 the proposals were discussed
in an interdepartmental working group established by order of the Minister of
Economy, Energy and Tourism. The reports of these groups will be presented
below. The texts have been agreed in advance with all representatives: the

419
Available at https://www.parliament.bg/bg/archive/7/3/224/steno/ID/2803 (last accessed
14/11/2022).
420
Available at https://www.parliament.bg/bg/plenaryst/ns/7/ID/3208 (last accessed
14/11/2022). On how a bill becomes an act in Bulgaria, see
https://www.parliament.bg/en/billbecomeact (last accessed 14/11/2022).
421
The articles and conditions they imposed are described in Chapter Two of this dissertation.
422
Available at https://parliament.bg/bg/laws/ID/14098 (last accessed 14/11/2022).
423
P. 7 of the motivation section (p. 22 of the pdf text referred to above).

179
Ministry of Foreign Affairs, the Ministry of Interior, the Migration
Directorate, the MLSP, the Ministry of Justice, and SANS.
The bill includes a nine-pages document presenting the motives for the
draft of the law. The document present both the goals for changing the law
and the arguments and data supporting these changes. Regarding the goals,
the document states that “the change of the law aims at permanently
overcoming the decline in investment activity in the country in a crisis with
the introduction of additional opportunities to increase investment in
production and high value-added services and the creation of new high-
performance jobs.” Thus the expectation is that the change will positively
impact on economic growth and competitiveness through the development of
high value-added activities and increase consumption due to higher wages.424
In other words, the goals of the bill are exclusively economic.
Regarding the achievement of the goals, the document makes superficial
reference to data obtained by different agencies and institutions that
purportedly support the expected economic benefits of the proposed measures.
However, the analysis is cursory and does not disaggregate the different
measures, failing to provide a detailed breakdown of how each measure would
individually contribute to the attainment of these goals. Furthermore, the
placement of the measures granting citizenship to investors after the presented
data raises questions about whether these measures were adequately
considered in the calculations of the previously offered data.
In a nutshell, the section of the motivation document that introduces the
plan to bestow citizenship for investments lacks substantial and relevant data,
and provides no arguments for why citizenship is an adequate incentive for
foreign investment. The document fails to engage in a thorough discussion or
to provide any reasoning to support conferring a personal status such as
citizenship based on an investment. Neither a characterization of the object
nor arguments supporting its bestowing for investments are developed.
Instead, it assumes these matters without proper justification. This absence is
particularly disturbing when viewed against the background of Bulgaria’s
very strict naturalization requirements for regular applicants, including
passing a language test, ten years of residence in the country, and renouncing
previous citizenship/s.425 The very different set of criteria created by this
modification immerses Bulgarian Citizenship Law in the dangerous realm of
internal legal incoherence.426
Of the several Committees consulted during the process of establishing the
CIP, most expressed favorable opinions without questioning the practice of
granting citizenship to investors under less stringent requirements than those

424
Pp. 1, 2, and 6 of the motivation document.
425
See Chapter Two.
426
For references on the relevance of coherence for Law and for legal systems, please see
footnote 106.

180
imposed on ordinary naturalizers. On the 26th of September 2012, the
Committee on Labor and Social Policy427 voted in favor of the legislation
without further scrutiny. Although in the report of the Committee on Internal
Security and Public Order428 on the 1st of October 2012 it is stated that the
committee voted in favor, some concerns were voiced regarding the
unconstitutionality of amending the law for acquiring Bulgarian citizenship
via a bylaw. Yet, no concerns were raised relating to the appropriateness of
conferring citizenship on economic grounds. Neither were raised any such
concerns in the reports of the Committee on Regional Policy and Local
Government on the 27th of September 2012,429 and of the Committee on Legal
Affairs on the 11th of October 2012.430 The latter, however, expressed some
concerns about the placement of Chapter IX, indicating that it belonged
instead in the Law on Foreigners in The Republic of Bulgaria and the Law on
Bulgarian Citizenship. Finally, the related reports of the Committee on
Economic Policy, Energy and Tourism on the 21st of November 2012,431 the
9th of January 2013,432 and the 5th of of February 2013433 expressed no relevant
concerns about the nature of citizenship as an object susceptible to be
exchanged for money, barring some references to the President’s opinion
referred to in the report on the 9th of January 2013.434

427
Available at
https://www.parliament.bg/bg/parliamentarycommittees/members/231/reports/ID/3756 (last
accessed 10/11/2022).
428
Available at
https://www.parliament.bg/bg/parliamentarycommittees/members/229/reports/ID/3759 (last
accessed 10/11/2022).
429
Available at
https://www.parliament.bg/bg/parliamentarycommittees/members/227/reports/ID/3763 (last
accessed 10/11/2022).
430
Available at
https://www.parliament.bg/bg/parliamentarycommittees/members/226/reports/ID/3791 (last
accessed 10/11/2022).
431
Available at
https://www.parliament.bg/bg/parliamentarycommittees/members/224/reports/ID/3902 (last
accessed 10/11/2022).
432
Available at
https://www.parliament.bg/bg/parliamentarycommittees/members/224/reports/ID/3966 (last
accessed 10/11/2022).
433
Available at
https://www.parliament.bg/bg/parliamentarycommittees/members/224/reports/ID/4061 (last
accessed 11/11/2022).
434
In the report, the President defends a notion of citizenship qua legal status that should be
granted considering the particular characteristics of the citizen-to-be. The English translation
of the Bulgarian text is the following. “The President points out that the only differences in the
two statuses (citizenship and permanent residence) are in the right to hold certain public
positions and in part of the political rights that remain reserved for Bulgarian citizens. These
minimal differences lead to the conclusion that in terms of the opportunity to invest in Bulgaria,
the status of permanent resident in the country provides the necessary conditions, rights, and
guarantees. There is no direct connection between any of the subjective rights inherent only in
the citizens of The Republic of Bulgaria and the opportunity to do successful business in the
country.” The President noted in his reasoning that “when regulating the legal possibility of

181
 Discussions in the National Assembly took place on two occasions, on the
12th of October 2012,435 and on the 13th of February 2013.436 On the first
occasion, the proposal was merely presented along with the previous work and
discussions that took place in the Committees. No debate concerning the
adequacy of granting citizenship for investments took place. Instead, the
debate revolved around the economic motivations for the modification. On the
second occasion, the debate intensified, and several arguments for and against
the proposal were provided, yet the debate continued to revolve around the
economic aspects of the proposal, with very little said regarding the attribution
of citizenship for investments.
Atanas Merdzhanov (KB, for Bulgarian Coalition) opposed the proposal
because “it creates opportunities for the purchase of European citizenship”
and because this will probably be severely sanctioned by the EU. Moreover,
it was reminded that the proposal encountered opposition from Minister
Tsvetanov and his deputies. In a second intervention, Merdzhanov supported
the proposal of fellow KB member Kornelia Ninova, who had already
suggested in a meeting of the committee that there should be a six month
requirement for permanent residence. In the same meeting, Ninova also
argued against the drafting of the CIP: first, she referred to the opinion of the
Ministry of Interior that the texts endanger national security;437 and then she
argued that the text as it was drafted brought legal uncertainty, since it
contradicted the Law on Foreigners in The Republic of Bulgaria and the Law
on Bulgarian Citizenship, which were then under review; thirdly, Ninova
pointed out that the proposals were presented beyond the President’s veto in
an unconstitutional fashion.
In the short debate, the arguments in favor of the CIP followed the same
line and were based on economic arguments concerning benefits for Bulgaria.
Thus, Martin Dimitrov (SC) defended the establishment of the CIP, arguing
only on the basis of the need to increase investment and argued that the
program as it was built would attract investors. The debate proceeded with no
consideration or in-depth reflection on the adequacy and risks of granting
citizenship in exchange for investment and without taking into account the
applicants’ personal characteristics. Neither concerns were expressed about
the incoherence that the law entailed between the strict requirements

acquiring citizenship by naturalization, it is important to take into account its nature as a

political and legal connection of the person with the state. This relationship is of a lasting and
sustainable nature, and the specific rights and obligations related to the institution of citizenship
derive from it.” According to the President, the leading consideration here should be the merits
of the person to The Republic of Bulgaria and the interest that the state has in creating the
political and legal relationship state-citizen through naturalization.
435
Available at https://parliament.bg/bg/plenaryst/ns/7/ID/2814 (last accessed 14/11/2022).
436
Available at https://www.parliament.bg/bg/plenaryst/ns/7/ID/3208 (last accessed
14/11/2022).
437
This opinion was also expressed by other members of KB, such as Alexander Radoslavov,
in his intervention.

182
established for other naturalizers and the extremely lax requirements
established for investors.
The absence of thoughtful consideration and justification of all relevant
aspects, as observed in previous documents and debates, remained unchanged
in the law once the bill was established. Similarly, the law was not coupled
with additional motivations but rather relied on those already presented in the
examined documents.
Based on this analysis, we can draw the following conclusions. Firstly, the
establishment of the Bulgarian CIP was primarily driven by the intention to
attract foreign investment to the country rather than by a fundamental shift in
citizenship policy. This is evident not only in the reports and debates that led
to the amendment of the Law for the Promotion of Investments but also in the
fact that the motivation behind the change of the law does not include a
thorough examination of the suitability of granting citizenship on economic
grounds, considering the character and nature of status civitatis.
Secondly, as a consequence of the primary focus on attracting foreign
investment, although the documents and debates presented some arguments
motivating the suggested changes, they revolve around the potential economic
benefits, while neglecting a comprehensive discussion of the legitimacy and
broader implications of granting citizenship in pursuit of economic objectives.
This lack of thorough examination, and the positioning of the CIP as a
secondary measure to achieve economic goals, prevented a fundamental
debate on the appropriateness of bestowing citizenship on economic grounds.
Considering the significance of the object granted—citizenship, a core
sociological and political item, the key to national and European franchise,
and an artifact to which national and supranational entitlements and
obligations are ascribed—and recognizing the incoherence with existing
Bulgarian naturalization law that this amendment entails, one would expect a
more substantial effort to provide well-founded arguments to support the
conferral of citizenship on economic grounds. Such arguments should be an
integral part of the overall assessment of objective factors underlying this
significant policy shift.
In alignment with the court’s ruling on the 26th of March 1987,438
Commission vs. Council,439 it is necessary to note the adequacy of the
statement indicating that “the choice of the legal basis for a measure may not
depend simply on an institution’s conviction as for the objective pursued but
must be based on objective factors which are amenable to judicial review.”
Regrettably, during the deliberations surrounding the establishment of the
Bulgarian CIP, there was a notable absence of reasons supporting the
appropriateness of exchanging citizenship for investments. Moreover, there

438
Available at https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A61986CJ0045 (last accessed 13/11/2022).
439
Case C-45/86, Commission, ECLI:EU:C:1987:163

183
was a lack of debate about the need for taking this action instead of others less
risky actions that might achieved the desired economic goal, as some members
of the KB suggested.
Applying the conditions I have established for the distinction between
discretion and arbitrariness, it becomes evident that the dearth of reasons
plausibly indicates a non-insignificant degree of procedural arbitrariness in
the case of the Bulgarian CIP. However, as I demonstrate below, Bulgaria is
not the most striking example of this. The Cypriot CIP surpasses Bulgaria in
terms of procedural arbitrariness, raising more significant concerns in this
regard.

5.2. The Establishment of the Cypriot Program

The legislator should not only not be arbitrary, but she is also constitutionally
obliged to limit any arbitrary behavior from the government authorities
(Fernández, 2016, pp. 102–3).

As mentioned in Chapter Two, Cyprus’ program was established by legal

amendments which came into force in 2013, introducing the new section 111A
to the Citizenship Law, and it ended in November 2020 after the corruption
scandal unveiled by Al Jazeera, which involved multiple members of the
Cypriot Parliament.440 Al Jazeera’s documentary uncovered a corruption
scandal which many academics had theorized as possible when discussing
CIPs, providing an extraordinary verification of scholars claims about
corruption regarding CIPs.
The documentary’s release prompted the program’s immediate closure. In
what follows, I prove that the empirical investigation could have been
preceded by legal arguments against the program based on the arbitrary way
in which the CIP was established. Below, it will become evident that these
legal arguments could have sufficed for both a national and supranational
intervention against the program based merely on legal grounds, without the
necessity to prove its de facto corrupting nature.
Two different forums discussed the modification of the Law introducing
the Cypriot CIP. The first was the Council of Ministers, where it was discussed
in several meetings. These took place on the 10th of October 2011,441 the 16th

440
Al Jazeera’s investigation and documentary can be watched at
https://www.youtube.com/watch?v=Oj18cya_gvw&ab_channel=AlJazeeraEnglish (last
accessed 14/11/2022). For more details, see Chapter Two of this dissertation.
441
Available at
http://www.cm.gov.cy/cm/cm.nsf/All/CC32518337BD0A25C22583E500298A75/$file/72.67
6.pdf?OpenElement (last accessed 12/11/2022).

184
of April 2013,442 the 24th of May 2013,443 on the 19th of March 2014,444 and on
the 13th of September 2016,445 slowly paving the way for the program’s
enactment. The second forum was the Plenum of the Cypriot Parliament.446
However, as I present in detail below, in the parliament “no substantive
discussion took place on the Investor Citizenship program”.447
In the Council of Ministers, the minutes of the decisions present the criteria
and conditions for the acquisition of citizenship by investment in a great detail.
Besides introducing the various requirements regarding applicants’ expected
investments, these emphasize the requirement of a clean criminal record to
ensure the legality of the financial sources and the profile of the applicant.448
However, it is striking that in the various decisions there is not one argument
offered to support the necessity for and adequacy of the program. Thus, the
Council of Ministers’ decisions opened the door to conferring citizenship on
economic grounds without arguing for the need and convenience for
establishing a CIP, instead merely detailing the conditions for qualifying for
citizenship. As I have shown in the previous pages, this lack of argument
supporting the decision makes it difficult to endorse the idea the decisions

442
Available at
http://www.cm.gov.cy/cm/cm.nsf/All/B44340862195B616C22583E50029A9AB/$file/74.912
.pdf?OpenElement (last accessed 12/11/2022). Although these first two decisions paved the
path toward the acquisition of citizenship by investment, it was not until 2013 that the
program as such was designed and drafted.
443
Available at
http://www.cm.gov.cy/cm/cm.nsf/All/8A6CEB9C46E1E520C22583E50029A9D5/$file/75.14
8.pdf?OpenElement (last accessed 12/11/2022).
444
Available at
http://www.cm.gov.cy/cm/cm.nsf/All/533622FF078EF0B1C22583E50029C3D9/$file/76.668.
pdf?OpenElement (last accessed 12/11/2022).
445
Available at:
http://www.cm.gov.cy/cm/cm.nsf/All/3E353C9246EEFC4DC22583E5002A3941/$file/81.29
2.pdf?OpenElement All the decisions are available at:
http://www.cm.gov.cy/cm/cm.nsf/dml_interim_main_gr/dml_interim_main_gr?OpenDocume
nt (both last accessed 12/11/2022).
446
The minutes of the Plenum are available at:
http://www.parliament.cy/images/media/redirectfile/%CE%99%CE%84%20%CE%92%CE%
BF%CF%85%CE%BB%CE%B5%CF%85%CF%84%CE%B9%CE%BA%CE%AE%20%C
E%A0%CE%B5%CF%81%CE%AF%CE%BF%CE%B4%CE%BF%CF%82%20-
%20%CE%A3%CF%8D%CE%BD%CE%BF%CE%B4%CE%BF%CF%82%20%CE%92%
CE%84%20(13.09.2012%20-%2015.07.2013).pdf (last accessed 14/11/2022). I want to thank
Spyridoula Georgopoulou for her help in looking into the document and translating the
relevant fragments into English for me.
447
Paraphrasing Despina Pantelidou from the Cypriot Parliament Committees Service (House
of Representatives), whom I thank for her collaboration through our communications by email
in June 2020.
448
Yet, the Al Jazeera documentary has demonstrated the looseness of the application of these
criteria and how easy it was for criminals to obtain Cypriot and EU passports by applying to
the Cypriot CIP. In their investigations, it was evidenced that even when candidates were open
about their criminal records, it was common that key persons in the process still facilitated their
obtainment of citizenship just by increasing the sum of the financial investment, usually in the
private business of those parliamentarians involved.

185
were established through discretion; instead, they seem to qualify as arbitrary
decisions supported solely on the basis of the interest or the whim of the agents
in power.
The analysis of the minutes of the parliamentary debate fares no better. As
the officer of the Cypriot Parliament Committees Service communicated to
me, substantive debates providing reasons for implementing the CIP did not
take place. The analysis of the Minutes of the House of Representatives for
the ninth parliamentary period—session B (13th of September 2012—15th of
July 2013) shows that the investor programs related to citizenship and
migratory statuses have barely been referred to on a few occasions during that
period.
On the 4th of April 2013,449 the minutes referred to question no.
23.06.010.02.517, dated the 3rd of April 2013, by the Nicosia MP Mr. Giorgos
Perdikis (Γιώργος Περδίκης).450 As one can see, the question does not refer
specifically to the CIP but to programs granting residential and migration
permits for investors.

449
Minutes of the House of Representatives. Budget period—summary II. Meeting of the 4th of
April 2013 Start time: 4.35 p.m. No. 27, page 1523 and above of the aforementioned document.
450
The English translation of the text at the Minutes is the following: “More and more
countries in Europe facing economic problems are seeking to attract foreign exchange by
granting a permanent or temporary visa to foreign investors who are interested in putting in
their portfolio real estate or government bonds. This applies especially to the southeast
European countries that are attempting to attract big investors from countries outside the EU,
especially China (and Asia in general), America, the Middle East, and Russia. The most
recent example is Hungary, but also Spain and Portugal. Greece is considering doing this too.
In particular, the Greek Ministry of development is considering a provision in the bill on
strategic investment under which a five-year residence permit will be granted—but not
work—to third-country nationals who have received a visa. A residence permit may also be
issued to members of their families. The length of the stay will be taken into account for the
granting of citizenship. The value of the Middle East, and Russia, have real estate will be
indexed based on any changes in objective values. In Hungary, last month the government
passed a law that gives the opportunity to non-citizens residents in the European Union
investing €250,000 and over in government bonds of the country’s five-year term to obtain
permanent residence in the country. The so-called “housing-bonds,” as they are now known,
offer a guaranteed annual yield of 2% and allow foreigners who buy them to declare
permanent residence of Hungary without necessarily having to reside in the country. These
investors can work, start their own businesses, buy real estate and travel freely in the
Schengen zone of the European Union for ninety days every six months. In the next eight
years, they can apply for a Hungarian passport and become citizens of the country. Already
hundreds of prospective investors, who come from China, the Middle East, and Russia, have
expressed interest in such investments in Hungary. In Portugal, foreigners who invest
€500,000 or more in real estate acquire permanent residence for five years and have the
opportunity to get citizenship after six years. In Cyprus, since 2011 foreigners who buy a
property worth more than €300,000 can obtain a permanent residence permit. I would ask the
minister responsible for informing the House of Representatives whether the existing program
in Cyprus has paid off and if it can be remodeled and readjusted, in view of the new
conditions created by the Eurogroup decisions, to strengthen the National Solidarity Fund.” A
reply to the question can be found at http://www2.parliament.cy/parliamentgr/008-
3f/23_06_010_02.517.htm (last accessed 14/11/2022).

186
 On the 30th of April 2013,451 the minutes reflect the very short debate that
took place on the amendments to the law that would introduce the CIP.
According to them, the House Judiciary Committee studied a bill passed in its
session of the 25th of April 2013, including the amendment of the citizenship
law to establish the investor program. That meeting was called and attended
by the director of the Department of Archives of Population and Migration, as
well as representatives of the Ministry of Economic Affairs and the Office of
the Attorney General of the Republic. According to the minutes, the main
issues discussed at the meeting were broad and related to diverse topics, such
as the provisions on issuing biometric ID cards, the issue of convictions and
citizenship, and the interest of the amendment for budgetary measures.
According to the minutes:

the House Judiciary Committee judged that the bill in question was necessary
and, in order to move immediately for a vote, it did not have the time necessary
for the in-depth examination of its welfare nor the time required to carry out
exhaustive social dialogue to the required extent with affected groups of
citizens, normally required for legislatures of this nature.

The minutes also indicate that because the bill included several different kinds
of issues, some of which would require discussions of a different kind, “the
commission decided to push for a vote in its plenary session Parliament at this
stage only for the provisions of the bill under petition relating to revision the
basic legislation under amendment of the charges imposed.” Furthermore, the
minutes indicate that the commission asked the competent authorities to
indicate the provisions related exclusively to reviewing fees in order to
implement the above decision. Thus, the vote of the plenary left aside other
aspects mentioned in the bill and focused on the fees.
The parliament approved the amendments without reference to further
discussion of the implications of approving the highly diverse amendments,
and with no specific approach to the particularities of each of the amendments
to be approved or their supporting reasons, beyond a generic economic
interest. Thereby, a reading of the parliament minutes shows that the
parliament did not base its decision on a reasoned discussion, and nor did they
discuss any arguments provided in the bill’s proposals. Instead, out of an
unjustified sense of urgency and without the due discussion that should have
taken place in the parliament, several amendments were approved without
sufficient justification, including the introduction of new section 111A to the
Cypriot Citizenship Law which established the CIP.
In the minutes, there is another notable reference to the CIP. Question
23.06.010.02.738, posed on the 5th of July 2013, submitted by Lemesos MP
Giannos Lamaris (Γιάννος Λαμάρης), requires that “the competent minister
informs and submits in the House of Commons Representatives the bill with
451
Pp. 1757–9 of the text.

187
new criteria for exceptional naturalization of investors in Cyprus, in
accordance to the Cabinet’s decision published in the Press on the 24th of May
2013.” Once again, the focus appears to be solely on the practicalities of
implementing the program, specifically the criteria established for the CIP,
rather than delving into the fundamental reasons behind its establishment.
Based on the analysis of the minutes and communications with the Cypriot
Parliament Committees Services, it becomes evident that the parliamentary
debate surrounding the Cypriot CIP lacked a reasoned exposition of arguments
and reasons supporting the decision to make the state’s citizenship subject to
exchange for money. Applying the theory developed earlier, the complete
absence of supporting reasons for such an important decision leads to the
conclusion that the establishment of the Cypriot CIP can be regarded as
arbitrary, rather than the result of a carefully considered exercise of
parliamentary discretion in legislation.
Referring again to the court’s judgment of the court of the 26th of March
1987, Commission vs. Council, the provision of reasons based on objective
factors supporting the establishment of the legal basis are essential for judicial
review. In addition, regarding the possibility of judicial review, the President
of the Cyprus Parliament has the right to seek an opinion from the Supreme
Court before the issuance of any law or decision of the Parliament to determine
whether it aligns with the constitution.452 If the Supreme Court finds any
conflict or inconsistency with the constitution, the law or decision cannot be
implemented.453 This option was totally neglected in the case of the Cypriot
CIP.

5.3. The Establishment of the Maltese Program

As extensively demonstrated in this dissertation, the Maltese CIP was the EU
program that sparked the most vigorous political debate at both national and
supranational levels, both before and after its implementation.454 Media
attention closely followed the creation and subsequent enactment of the CIP.
Additionally, the program underwent thorough discussions both in the EU
parliament (see Chapter Two) and in the national parliament. In what follows,
I reconstruct the debate in the Maltese Parliament, introducing the arguments
that were presented to support the establishment of the Maltese CIP.
452
Which sustenance is rooted in the Rule of Law. Therefore, one can argue that any arbitrary
action by the public authorities damaging the Rule of Law is likewise jeopardizes the
constitution.
453 According to
http://www.parliament.cy/el/%CE%B1%CF%81%CF%87%CE%B5%CE%AF%CE%BF/%C
E%BD%CE%BF%CE%BC%CE%BF%CE%B8%CE%B5%CF%83%CE%AF%CE%B1
(last accessed 14/11/2022).
454
The Bulgarian and Cypriot CIPs have received more attention afterward due to the
corruption scandals related to them.

188
 The Maltese CIP was introduced by the LN 47 2014. The main Act of
Parliament which provides for the scheme was Act XV of 2013—Maltese
Citizenship (Amendment) Act.455 The Bill n.19—Maltese Citizenship
(Amendment) Bill456—was debated in sittings 55 (on the 30th of September
2013), 67 (on the 28th of October 2013), 68 (on the 29th of October 2013), 71
and 72 (on the 5th of November 2013), 73 and 74 (on the 6th of November
2013), 75 and 76 (on the 8th of November 2013), 77 (on the 9th of November
2013), and finally 79 (on the 12th of November 2013).
The first reading took place on sitting 55 (page 696), and the second reading
and debate started almost one month later. It is in the first sitting, number 67,
where most of the arguments presented in favor of establishing the investor
program were presented. Specifically, the Maltese Minister for Home Affairs
and National Security, Emmanuel Mallia, indicated the following as the main
reasons for establishing the program. The first was to attract wealth to the
country “in order to contribute to the economic development of Malta” (page
353, sitting 67). Secondly, the program would be able to attract international
investors to Malta: “The Government of Malta is also launching this
individual investor program in order to attract to Malta private international
investors who are granted Maltese citizenship towards investment” (ibid).
Thirdly, the program is established with a view to socially benefiting the
Maltese population, since a social fund will be created. In the words of the
Minister:

the Maltese people will benefit not only because a large capital inflow will be
attracted from this program, but because this capital will be put into a fund that
the money from their investment income will be used to improve the quality
of life so that we have better infrastructure, efficient social housing, better
pensions and various improvements in services to benefit the Maltese and
Gozitan people. (pp. 353–4, sitting 67)

It is relevant to mention that no information is provided in this discussion

about how the fund will be constituted and managed.
These are the three primary reasons the government presented in the
parliament in order to justify the program’s establishment. In his long speech,
the Minister rhetorically repeated these reasons on several occasions (p. 357
onwards). Below, I check if these qualify as good reasons. Before that, a few

455
I thank Eleanor Scerri (director of international relations of the Maltese Parliament) for the
information provided in our communications by email on the 5th of May 2020, which directed
me to the documents to be consulted. The link to the Act XV 2013 can be found at:
https://parlament.mt/en/12th-leg/acts-12th/act-xv-of-
2013/?page=2&numItems=10&text=&number=&totalItems=186 (last accessed 14/11/2022).
It is necessary to add that in addition to LN 47/2014, there are a number of Legal Notices which
are related to the citizenship scheme as follows: LN 45/2013, LN 17/2014, LN 59/2014, LN
63/2014, LN 96/2018, LN 384/2018 and LN 385/2018.
456
Motion 70.

189
more details of the parliamentary debate are worth mentioning in order to
understand its richness and the arguments of those opposing the Maltese CIP.
Besides presenting the government’s reasons, Minister Mallia added a few
more comments about the establishment of the investor program. Firstly, the
Minister argued that the program would not amount to the sale of citizenship
because citizenship continues to be an item in the domain of public law since,
as he quotes, “citizenship is the state’s reserved domain. A sovereign state in
principle is free to legislate or otherwise determine how and to whom its
nationality may be granted.” Secondly, he indicated that investor programs are
a well-established practice and that other countries have had CIPs for decades
(p. 354, sitting 67).
A few comments are necessary here. Firstly, the Minister refers to
programs of several countries (like Austria, Romania, or Canada) which are
sufficiently different that they do not qualify as CIPs (for instance, long
periods of stay or lack of systematicity, required to qualify as a program).
Secondly, the Minister’s words seem to entail that something’s mere existence
is a reason for allowing its propagation, i.e., for a normative justification. It
would be wiser to assess the correctness of the phenomenon before using its
existence as an argument for its promotion.
Lastly, the Minister responded to the objections he received in private
conversations. He first stated that the program would not damage the country’s
image. However, he did not provide convincing reasons supporting this claim.
Secondly, he indicated that the money would be used to improve social
services. Yet once more he did not explain how this would happen and in what
form. Thirdly, he rejected the claim that the state would lose its sovereignty
by arguing that it keeps its capacity to decide on the laws establishing the
forms in which citizenship is granted. However, he bypassed the fact that in
the original program, Henley and Partners, a foreign private consultant, had
the capacity to decide who would be granted citizenship.457 Fourthly, he argued
that the program would not entail a danger because the antecedents and some
personal aptitudes of the applicants would be assessed when considering their
applications.458 Lastly, he argued that the fact that there will be a regulator and
a specialist consultant agency during the process entails a higher degree of
security throughout (pp. 353–6, sitting 67).
In addition to presenting the reasons for the government to establish the
CIP, the Minister indicated the applicants’ expected reasons for participating.
He referred to the following: (i) (primarily) to increase mobility; (ii) to find a
secure place for their families; (iii) to enjoy the quality of life of Malta, either

457
In Chapter Two, I have already mentioned some of the exclusive and generous prerogatives
that the Henley and Partners’ contract actually entails for the private actor.
458
Here, I understand that it refers to the criteria established merely to secure that the applicant
is criminally and legally clean. For a description, see Chapter Two.

190
as a first or second residence; and (iv) tax reasons, which he considers may
benefit Malta’s economy (pp. 357–8).
The most significant part of the parliamentary debate was formed by the
opposition’s arguments against the CIP. In what follows, I briefly outline the
most relevant of these, to give the reader a sense of their general concerns.
Jasson Azzopardi, in sitting 67, already presented some of the objections to
the program that would later be most repeated (pp. 361–374). Firstly, he
considered that the program amounts to the privatization of citizenship.
Secondly, he deemed that the program would damage Malta’s reputation.
Thirdly, he rejected the Minister’s statement about precedents in other
countries, arguing that no other country has established a CIP in the proposed
form. Fourthly, he considered that advertising the program for its visa-free
access to other countries could damage the relations among countries and
incentivize them to impose visas on Maltese citizens. Fifthly, he claimed that
the way the program was being implemented “smells like corruption: this is
it, due diligence travesty!”. Sixthly, he warned that someone getting
citizenship by investment would potentially have a merely and specifically
economic interest in the country, so if uncertainty rises she will probably
leave, taking with her the investments, which could introduce instability to the
country in a fragile moment. Seventhly, he claimed that the program perverts
the notion of citizenship, which is usually related to identity and roots.
Eighthly, he stated that national identity is based on the bond of citizenship,
which entails a willingness to participate in the country's social and political
institutions and a sense of loyalty towards the constitution of the country,
something that is not demanded by the program. Ninthly, he claimed that the
CIP “is an extreme kind of mercantilism that reduces one of the most
important bonds in a democracy to a financial transaction.” Tenthly, he
considered that the way the program was suggested was easily corrupted:
since there is an economic interest for many actors to grant citizenship, it is
unlikely that many applications will be rejected. Last but not least, he
considered that the program exchanged the Rule of Law for the “rule of
money” by making citizenship a commodity.
Azzopardi fleshed out his criticism in sitting 68, where he added the
following objections (pages 432 onwards). Firstly, the program will damage
Malta’s image, leading it to be seen as a tax haven. Secondly, if the
government must persist in its goal, then the price should be higher. Thirdly,
the requirement should be a link of investment, not only a donation, as it was
drafted. Fourthly, the program should require some period of residence before
granting citizenship. Fifthly, the entity scrutinizing the applications should not
have a conflict of interest, i.e., gaining money by accepting candidates.
Sixthly, Azzoparadi opposed the minister’s exaggerated discretionary powers,
which allow him to decide which applications to accept through the program.
Seventhly, the scheme did not permit serious scrutiny, since this should be

191
done by an independent authority in order to avoid abuse. Lastly, there should
be transparency concerning how the fund would be managed and distributed.
Also, in sitting 68, MP Mario de Marco provided further objections to the
program (pp. 435—440). Firstly, he opposed the sale of citizenship unless
further residence or a long-term and continuous relationship—a link—with
Malta were required. Secondly, he deemed that the program’s scheme was an
absolute betrayal of national values. Thirdly, he considered that the program
damaged the reputation of Malta. He concluded his intervention by offering
collaboration to create “a truly serious program that requires years of
residence, and it is truly linked to the country.”
In sitting 69, MP and opposition leader Simon Bussutil presented the
following objections (pp. 474–480). Firstly, the program was not a real
investment program but a sales scheme. Secondly, qualifying for citizenship
should require a direct link with the country. Thirdly, the program affects
Malta’s sovereignty by granting passports. He remarked that a nation is not a
collection of individuals but something bigger, and that the passport is not
only a piece of paper but something that runs deeper, affecting the collective
and its sovereignty. Fourthly, the scheme, as it was drafted, damaged Malta’s
reputation. Fifthly, the program would damage Malta’s relationship with the
EU. Sixthly, the program could also damage Malta’s relationship with other
countries, which may impose a visa on Maltese citizens as retaliation.
Seventhly, if a price is put on citizenship, it should be higher: the suggested
price was very low. Eighthly, Bussutil opposed the entity examining the
applications. Ninthly, the program put too much power in the Minister’s
hands. Lastly, there needed to be more transparency since the names of the
new CIP-citizens would not be published.
In sitting 71, MP Charlo’ Bonnici (pp. 564–569) staunchly opposed the
presented program due to its perversion of the notion of citizenship and the
considerable weight of public opinion against it. He argued that if the
government wanted to persist in establishing a CIP, then it should at least
make some changes. According to him, those who qualify for citizenship
through the program should be of exceptional service to the country, live for
a period in Malta, and invest in the country by creating jobs and by investing
in the country’s social development.
The MP Robert Cutajas (pp. 569–570) added a problem of inconsistency to
the list of objections: regular criteria demanded of other immigrants were
suggested to be waived because of an economic contribution. According to
him, the program “is a clear example of two weights, two measures.”
MP Frederick Azzopardi limited his objections in sitting 71 (p. 570) to the
fact that the program would damage Malta’s reputation. He opposed it on the
basis that “it is against the principles of the nationalist party to put citizenship
on sale.”
MP Francis Zammit Dimech’s comments (pp. 583–4) took a more
introspective turn. According to him, “granting Maltese citizenship requires

192
the exercise of thinking who do we consider to be like us ... [I]t should entail
a reflection on what it means to be a citizen of Malta, but (in this program) it
does not.”
In sitting 72, MP Claudette Buttigieg (p. 630) focused the criticism on the
program’s lack of a requirement of residence before citizenship—which
should be essential—and on the fact that, according to her, the CIP should
require a real investment and not a donation.
In this sitting, MP Ryan Callus brought interesting facts into his criticism
(p. 631). According to him, the Prime Minister first announced the scheme in
London before it was voted for by parliament. Moreover, Henley and Partners
began to advertise it before the Bill of Law was even submitted to parliament.
According to him, this way of operating discredited the function of parliament
and the whole debate on the Maltese CIP.
In sitting 73, the MP Kristy Debono (p. 664) criticized the fact that the plan
to create a CIP was not even mentioned in the party’s electoral program at the
government.
The MP Clyde Puli (pp. 672–5) brought the following criticisms. Firstly,
the program commodified citizenship. Secondly, it damaged the country's
reputation. Thirdly, it wrongly gave control of the acquisition of Maltese
citizenship to a foreign company (Henley and Partners). Fourthly, the program
was immoral because it distinguished and discriminated between the value
and respect of human lives459 on the basis of ability to pay. Fifthly, the price
for citizenship was very low, considering its value. Its value lies in the fact
that it represents a nation of people sharing feelings and values, a history, and
collective memory, who share a sense of tradition, an identity, language, and
culture—people who express a sense of belonging to their country and to all
their citizenship (which is only a legal expression of that sentiment)
represents. Therefore, in his eyes, citizenship cannot be valued monetarily,
even though there is great sentimental and emotional value behind it.
In sitting 74, MP George Pullicino (p. 711) made an interesting point by
distinguishing between the Bulgarian and Maltese CIPs on the basis of the fact
that those obtaining citizenship through the Bulgarian CIP could not go to all
Schengen countries since Bulgaria is not in the Schengen area. By contrast,
Maltese citizenship had added value because one can go to the Schengen area
without any ties.
In sitting 77, the vote took place. The many arguments presented by the
opposition, together with the proportions in the vote, in which most of the
opposition voted against the program, showed that the Maltese CIP was
controversial from its inception. It is also interesting to note, as pointed out in
the criticisms, that while the opposition largely opposed the implementation
of the Maltese CIP, they nonetheless requested (under the assumption that it

459
In this claim, Puli seems to confuse here the notions of status civitatis and status personae.

193
would be passed due to the governing party’s parliamentary majority) that the
program should at least be implemented in a more carefully considered way.
After examining the debate and considering the opposition’s criticisms, let
us return to the analysis of the government’s rationale for implementing the
CIP. As previously demonstrated, the government put forth three main
(insufficiently elaborated) reasons in support of the program: (i) enhancing the
country’s wealth; (ii) attracting international investors to Malta; and (iii)
establishing a social fund using a portion of the funds generated through the
program. As we have explored in previous sections, justification through the
provision of reasons is a fundamental requirement for distinguishing
discretion from arbitrariness. However, justification goes beyond mere
reason-giving; it necessitates that these reasons possess a specific quality and
are suitable for the stated object and purpose.
The distinction between discretion and arbitrariness requires a justification,
which demands a comprehensive motivation. This motivation must elucidate
what motivated the creation of the law; stating the reasons that make this law
necessary, appropriate and timely. That, in turn, requires establishing the facts
for consideration together with the reasons that ground the action through a
rational decision supported by objective, verifiable reasons. These
requirements are essential to distinguish the justification from the mere
explanation of the cause of a particular decision. Additionally, in order to
make this distinction accurate, in the justification too, the reasons provided
should not only accord with the law but also be appropriate in the particular
context. This justification has to be supported by objective and relevant data.
The reasons offered in the parliamentary debate appear to perform poorly
in terms of meeting the requirements outlined in Chapter Four. Although the
Minister explained the government’s intention to establish the program,
several fundamental aspects were conspicuously absent. Notably, while the
Minister mentioned the potential economic gains and the expectation to attract
investors, these reasons lacked supporting information or data. Moreover, the
necessity of implementing a CIP to achieve the economic objective was not
thoroughly discussed. To bolster the decision, it would have been pertinent to
present data highlighting the country’s poor financial state and the limitations
of alternative approaches to improving the financial situation. Additionally,
substantial data demonstrating the projected economic gains would have been
expected. As an example of this neglect, the Minister mentioned potential
reasons for applicants to apply without providing the sources of these
assumptions, rendering them speculative and lacking a solid foundation. We
would expect a comprehensive and realistic study of the applicants’ intentions
to be presented to parliament.
Most significantly, in terms of the claim about economic benefit, one would
also expect arguments supporting the idea that an object like citizenship can
be granted for money. Mere mention of the economic benefits gained from
“selling” citizenship does not address the normative question of whether we

194
ought to sell the object: it does not provide us with a normative account about
whether this would be right.460 To establish the adequacy of the program, it
would have been essential to outline a notion of citizenship that was coherent
with other expressions in the law, thereby legitimizing the practice. This
notion of citizenship should demonstrate, for instance, the falsehood of my
contention in Chapter Four that citizenship qua personal status ought not to be
granted on grounds of a fungible asset. This step is highly relevant because if
the contention of Chapter Four is correct, there is very limited room for a
justification for any sort of CIP. Unfortunately, the reasons presented in the
parliamentary debate overlooked this critical consideration. The Minister
failed to address this central matter even when some MPs advocated for a
more comprehensive inquiry into the issue.
Secondly, the Minister’s third reason focused on the benefits of the money
to the Maltese population through the creation of a social fund. However, he
omitted any further explanation of the fund’s planned form, how it would be
allocated, the profile of the beneficiaries, or why this money needed to be
acquired through the implementation of a CIP and not through alternative
means. One would expect the government to commit to some notion of
citizenship coherent with the concept’s expression in other laws, and to
provide arguments on why the attribution of citizenship for money is not only
correct but also the appropriate way to obtain money for a public fund.
Unfortunately, as has been shown, the parliamentary discussion fell short in
providing such essential justifications.
Lastly, the intense parliamentary debate presented above, spanning
multiple sittings and engaging MPs in diverse and multiple arguments against
the implementation of the program, clearly reflects a substantial level of
dissatisfaction within a significant portion of the parliament regarding the
establishment of the CIP. Moreover, it underscores the prevailing sentiment
that the reasons the government presented in support of the program were
unconvincing and inadequate to justify a practice of such paramount
significance.
Upon analyzing the government’s reasons, it becomes evident that they put
remarkable little effort into justifying the CIP. Consequently, the deficient
quality of the reasons renders them insufficient for a full justification of the
CIP, relegating them to mere explanations of the government’s intentions and
desires. As a result, one can argue that the government’s attempt to
demonstrate the appropriateness of the CIP reveals that the program suffered
from a non insignificant degree of procedural arbitrariness.

460
For the different ways to assess the legitimacy of the Maltese program, please see my
contribution to the book Money Matters in Migration: Policy, Participation, and Citizenship
(Prats, 2021c).

195
5.4. Conclusions of the Chapter
Throughout this chapter, I have examined the political debates surrounding
the establishment of CIPs in Bulgaria, Cyprus, and Malta. By delving into the
details of these debates, I aimed both to shed light on the reasons given to
justify the creation of these programs and to assess whether the programs
suffered from procedural arbitrariness. Examining these debates revealed
certain degrees of procedural arbitrariness in the establishment of the
programs, although to different degrees.
The analysis revealed interesting similarities and differences among the
programs. For instance, while the Bulgarian and Maltese documents are
relatively easy to access, that is not the case for the Cypriot CIP. Moreover, in
Bulgaria and Malta, there were efforts to discuss the establishment of CIPs,
and some arguments were presented. However, these arguments mainly
revolved around economic considerations, with a primary focus on attracting
investors. The debates lacked in-depth reflection on the adequacy and risks of
granting citizenship in exchange for investment, and little consideration was
given to the personal characteristics of the applicants. Furthermore, the
stringent requirements imposed on other naturalization applicants, particularly
in the Bulgarian case, contrasted sharply with the lax requirements for
investors. In both cases, the reasons provided were unconvincing, and the data
supporting the programs was insufficient, suggesting a certain degree of
procedural arbitrariness.
As we have seen in Chapter Four, to avoid arbitrariness, the programs
would need to be justified by the provision of reasons. Justification requires
several things. Firstly, it needs to be indicated what motivated the enactment
of the law. Secondly, it is necessary to state the reasons that make this law
necessary, appropriate and timely. Thirdly, it must establish the facts that
would need to be considered together with the reasons that ground the
action through some rational choice supported by objective, verifiable data.
We can see that the programs have met these requirements to different
degrees, but they have generally done so poorly.
In Bulgaria, a debate indeed took place, and some arguments were
presented, primarily focusing on economic considerations and on attracting
investors. However, there was a lack of in-depth reflection on the adequacy
and risks of granting citizenship in exchange for investment and without
taking into account the applicants’ personal characteristics. Moreover, no
concerns were expressed about the incoherence in the law between the
stringent requirements established for other naturalization applicants and the
extremely lax requirements required of investors. The approval of the bill
followed the same line of reasoning.
Thus, in Bulgaria, citizenship was instrumentalized to achieve a merely
economic aim without even considering whether this, status civitatis, was an
object susceptible to being conferred on economic grounds. There was no

196
consideration of alternative options for attracting investment, nor was it made
clear why establishing a CIP would be the most desirable option available.
There was also an absence of data and objective factors supporting the
institution’s conviction of the need to establish a CIP. In conclusion, although
the Bulgarian CIP was discussed extensively in the appropriate forums, the
reasons provided were unconvincing, and the data supporting them was
insufficient. For these reasons, the program seems to suffer from a certain
degree of procedural arbitrariness.
Similarly, in Malta, the debate surrounding the CIP included economic
benefits but failed to address essential questions about the nature of citizenship
and the appropriateness of exchanging it for money. Arguments against the
program did not adequately consider whether citizenship should be exchanged
for money, focusing mainly on economic benefits. However, these economic
benefits were speculated upon without concrete data to support these claims,
and the potential impact on society was not adequately explained. Moreover,
arguments were not presented to explain why this economic gain should be
obtained by exchanging citizenship instead of following other paths. The
program’s motivation lacked a clear rationale, disregarding crucial questions
about citizenship. The shallow economic reasons argued did not justify the
use of citizenship to attract investment. Moreover, the provision of data was
also omitted. As a result, the Maltese program appears to suffer from some
degree of procedural arbitrariness.
Finally, the case of Cyprus stands out as the most blatant example of
procedural arbitrariness. There was a significant lack of substantial debate
about the desirability and merits of exchanging citizenship for money, and no
reasons were given in favor of such an exchange. Discussion of the program's
benefits and inappropriateness was omitted entirely, and the decision to
approve the CIP was made hastily without reasoned arguments or
justifications. In essence, the parliament did not base its decision on a
reasoned discussion at all, and nor did it discuss any arguments provided by
the bill’s proponents. Instead, it rushed to approve the CIP, without any
reasoned exposition of the arguments and reasons to support the decision. This
lack of justification and reasoned discourse makes the Cypriot program the
most evident case of procedural arbitrariness. The institutions not only failed
to provide sufficiently high quality reasons to motivate and justify the
program—as arguably happened in Bulgaria and Malta—but entirely
neglected this duty, as if their mandate would allow them to operate without
constrictions.
In summary, while there may be room for debate regarding the degree of
procedural arbitrariness in the cases of Bulgaria and Malta, the lack of
justification and reasoned discussion in the case of Cyprus is undeniable and
the existence of a high degree of procedural arbitrariness for that CIP is
unmistakable.

197
Chapter Six: Conclusions

In this dissertation, I have addressed the research questions posed in Chapter

One and provided insights into the phenomenon of CIPs in the EU.
Firstly, I clarified the definition of CIPs to differentiate them from other
migration programs based on economic contributions. By establishing a
common understanding of CIPs, I aimed to promote clearer communication
and facilitate further research in the field. The hope is that when scholars talk
about CIPs, they will refer to objects of the same kind, which, as I have shown,
has not always been the case in the past.
A second goal was to identify which programs existed in the EU in a
particular period. For that purpose, I applied the aforementioned definition to
the laws on citizenship in force in the different EU member states at the
beginning of 2018. My finding was that in that particular period, there were
CIPs in Bulgaria, Cyprus, and Malta. This conclusion differed from the
assessment of early works of other scholars, but it was consistent with the
findings of the 2019 Report of the Commission Investor Citizenship and
Residence Schemes in the European Union as well as with the later work of
most scholars on the phenomenon. At the time of finishing this dissertation
(2023), there is general agreement with my early findings on the programs
established by Member States of the EU.
In Chapter Two, I conducted a detailed investigation into the laws
establishing the CIPs and their particularities. I presented these laws in the
context of other laws granting citizenship to naturalizers in the same countries.
This analysis revealed some unexpected findings. One was the high degree of
incoherence in certain countries between the criteria required to naturalize
investors and other paths to citizenship, particularly in Bulgaria. Another
significant finding was that the programs do not inquire about the personal
characteristics of applicants or the source of their funds, including whether the
funds were acquired through their merits. The actions performed in this
chapter allowed me to address the first three research questions related to the
nature of the programs. These were: (1) what are CIPs?; (2) which CIPs were
in place in the EU in 2018?; and, (3) which provisions do the CIPs in the EU
include?
Also in Chapter Two, I discussed the perspectives of EU institutions
regarding the existence of the programs. The acquisition of European
citizenship through national citizenship has led to the interest of EU

198
institutions in CIPs. I demonstrated that EU institutions, particularly the EU
Commission, have opposed the programs from a political standpoint and have
often relied on flawed legal arguments. Since citizenship is an exclusive
competence of Member States, the politicized approach of the EU has rightly
been criticized by some legal scholars.
Moreover, I showed that the normative stance against the programs is not
unique to EU institutions. In Chapter Three, I presented the scholarly
normative debate and the most resounding arguments in it. Three interesting
findings appeared in this chapter. A first finding is that most of the arguments
currently presented are of political or sociological nature, often grounded on
particular understandings of the notion of citizenship from these arenas, whose
underlying assumptions are not generalizable to views in other fields.
Contrasting some of the arguments with the analysis of the applicants and
states’ motivations presented in Chapter Two also demonstrates that some of
the arguments are empirically flawed. Generalizations of these arguments may
also be empirically problematic. Moreover, it has been shown that participants
in the debate sometimes use notions of citizenship belonging to different
domains interchangeably, thus talking past each other and making a common
understanding of the phenomenon and its adequacy more blurrier. A second
finding is that legal arguments against the programs are scarce and the existing
ones are not free from problems. Lastly, I have shown that the discussion lacks
a legal theoretical approach and that there is a missing debate on the adequacy
of the programs.
This missing debate leads to the two main research questions of this
dissertation, presented in Chapter One: (A) ought we to have CIPs within the
EU?; and, (B) does the EU posses strong legal arguments to reject the CIPs
in the EU? I devoted Chapters Four and Five to answering these questions.
In Chapter Four, I introduced a framework for the analysis and elaborated
some theoretical legal arguments against the practice of CIPs. Throughout
Chapters Four and Five, I defended the fundamental thesis of this dissertation,
which is that CIPs in the EU in 2018 were arbitrary and, therefore ought not
to have been enacted. This conclusion provided a negative answer to research
question (A) and a positive answer to research question (B) based on the
following aspects.
Firstly, I explained the differences between the legal notions of discretion
and arbitrariness and emphasized how arbitrariness is detrimental to and
forbidden by the Rule of Law. The distinction aimed to clarify the notions and
respond to those who assume that the exclusive competence of Member States
on issues of citizenship grants unrestricted powers to their public authorities.
Under this distinction, I argued that lawmakers must provide reasons of a
certain pedigree to justify their legal decisions concerning the attribution of
citizenship, despite this being a domaine réservé of states.
Next, I delved into the notion of arbitrariness by distinguishing between
two types of arbitrariness: substantial and procedural arbitrariness. Substantial

199
arbitrariness occurs when it is not possible to provide reasons to justify the
decisions of the legal actors. Substantial arbitrariness appears in an all-or-
nothing fashion and cannot be amended. In Chapter Four, I argued that CIPs
in the EU in 2018 suffered from substantial arbitrariness based on two facts.
Firstly, citizenship qua personal legal status, as an item that has an intuitu
personae character, cannot justifiably be granted without considering the
personal characteristics of the person intending to naturalize. Secondly,
money alone or as a proxy cannot be considered a personal characteristic of
the applicant.
If this account is correct, CIPs in the EU have a problem of substantial
arbitrariness. Further, it is necessary to highlight that, if this account is correct,
a CIP ascribing citizenship merely on grounds of economic transactions and
not relying on personal characteristics of the applicant—or not providing
arguments on why an investment or the activity to invest should account as a
personal characteristic of the person in the form we have seen in Chapter
Four—would be unjustified and, therefore, substantially arbitrary. I have also
argued that in the event that this argument is flawed because it is correct to
grant citizenship on grounds unrelated to personal characteristics or because
money can account as a personal characteristic, it is still necessary to assess
whether the programs were free from procedural arbitrariness.
Procedural arbitrariness occurs when a legal decision lacks sufficient
justification, despite there being reasons to justify it. Typically, this sort of
arbitrariness arises when the reasons have not been (adequately) presented in
the appropriate forums. Procedural arbitrariness comes in degrees, and it is
usually amendable following established procedures. In Chapter Five, I
presented the different forums where the programs existing in the EU in 2018
were discussed prior to their establishment. My investigation revealed that all
programs suffer from procedural arbitrariness, albeit arguably to varying
degrees.
While the Bulgarian program exhibited some problems related to legal
coherence in matters of citizenship, it had the lowest degree of procedural
arbitrariness among the three programs evaluated. As shown in Chapter Five,
prior to the institution of the Bulgarian CIP a debate took place, reasons were
provided, and data was presented to support the decision of establishing the
program. However, the debate was incomplete, most reasons were of a solely
economic nature, and the data presented was arguably insufficient. Therefore,
it is difficult to argue that the program is entirely free from procedural
arbitrariness.
The case of Malta is similar to that of Bulgarian but arguably suffers a
higher degree of procedural arbitrariness. Prior to the institution of the Maltese
CIP a(n extensive) debate took place where reasons in favor of the program
were provided, most of which were of a solely economic nature. Additionally,
there was a striking lack of objective and relevant data supporting the
economic aspirations of the program’s proponents. Although the idea of

200
distributing economic gains in a social manner was mentioned, it was not
adequately specified how this would happen. Moreover, as with all the CIPs
assessed, there was a failure to present arguments for why economic gains
should be obtained through a CIP or whether citizenship is an appropriate
object to be ascribed on the basis of financial transactions.
While the reasons provided to support the Bulgarian and Maltese CIPs were
flawed, lacking appropriate assessment of relevant data and neglecting
important issues, at least some discussion took place, and in both cases
arguments were presented in an attempt to justify the programs. However, the
Cypriot CIP was different. No substantive discussion took place on the
program in the parliament and no arguments were presented on the
appropriateness of establishing the CIP during the institution process beyond
mentioning a generic economic interest. The focus revolved solely around the
practicalities of implementing the CIP without addressing the fundamental
reasons for its establishment. Motivated by an unjustified sense of urgency
and lacking both justification and the expected and appropriate debate on the
adequacy of the practice, the program was approved. Thus, unlike in Bulgaria
and Malta, where the degree of procedural arbitrariness is debatable, the
Cypriot CIP clearly suffers from a high degree of procedural arbitrariness.
In conclusion, this dissertation aimed to answer the question of whether we
ought to have CIPs in the EU and the question of whether the EU has strong
legal arguments for rejecting these CIPs. Regarding the first question, I hope
it has been proved that the arbitrary nature of the programs in the EU in 2018
serves as a reason to reject them. If the argument in Chapter Four is sound,
then any CIP that grants citizenship primarily on economic grounds and
neglects basing the attribution on the personal characteristics of the applicant
ought not to exist. If this argument is flawed, the establishment of these
programs would not entail substantial arbitrariness. However, in that case, if
future programs were planned, it is strongly recommended that those creating
such programs provide an appropriate justification following the guidelines
proposed in this dissertation to avoid procedural arbitrariness. Regarding the
second question, this dissertation has demonstrated that despite European
institutions seemingly opposing the programs in 2018 on political grounds and
relying on controversial legal arguments, there are actually strong legal
arguments to support their actions based on the arbitrariness of the programs.

201
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Universal Declaration of Human Rights (UDHR) (1948)
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European Convention on Human Rights (1953)
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Amsterdam Treaty (1999)
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Treaty on the Functioning of the European Union (TFEU) (2009)
The Charter of Fundamental Rights of the European Union (2009)

215