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Table of Contents: I. Introduction. – II. Setting the scene. – II.1. Applicable nationality – Ranking and mobility quality. – II.2. Constellations. – II.3. Right to return – Conditions (Home MS(/MS) movement MS/Home MS). – II.4. “Circular” right to return – (Home MS/MS movement Home MS/Home MS). – II.5. Naturalisation – Lounes (Home MS/MS residence MS/Home MS). – III. Lounes judgment. – III.1. Dual nationality and the Directive – Home MS rank always applicable. – III.2. Dual nationality and Art. 21, para. 1, TFEU. – III.3. Discussion. – IV. “New” issues. – IV.1. Does Lounes apply only in the Member State of naturalisation? – Geographical scope. – IV.2. To whom does Lounes apply? – Individual scope. – IV.3. Emphasis on having the mobility quality. – V. Conclusion – A choice: Nationality competence or abandonment of reverse discrimination.
Abstract: This Article will introduce the principle of ranking of nationalities and mobility quality in EU free movement law and will explain how this applies to dual EU citizens. It describes how the right to return case-law was detrimental to dual EU citizens moving between Member States of nationality and how the recent Lounes judgment (judgment of 14 November 2017, case C-165/16) affects this. The Article furthermore explains how Lounes should be applied by reference to the geographical and individual scopes, as well as the consequences of this judgment. The conclusion drawn is that, in the near future, the Court of Justice will be faced with a major choice: either it will extend the right to return, by largely abandoning the principle of reverse discrimination, as well as by revising its case-law on individuals who lost the nationality of their Member State of origin and the rights attached thereto; or it will restrict the nationality laws of Member States as to the duty to renounce nationality, and the automatic loss of nationality upon acquisition of a nationality.
Keywords: EU citizenship – dual EU citizens – nationality – free movement of persons – right to return – Lounes.
European Papers, Vol. 3, 2018, No 3, pp. 1075-1113
ISSN 2499-8249 - doi: 10.15166/2499-8249/238
* PhD student, National Center of Competence in Research – the Migration-Mobility Nexus (NCCR on the move) and University of Bern, email@example.com. This research was funded by the Swiss National Science Foundation. With this Article I would also like to honour Professor Dr Hans-Ulrich Jessurun d’Oliveira, a champion in the field of nationality law, who turned 85 on the 2nd of July 2018.