Opinion of Advocate General Tesauro delivered on 30 January 1992

1 Original language: Italian.

2 OJ 1973 L 172, p. 14.

3 Italian nationality is based on Law No. 555 of 13 June 1912 (Official Gazette of the Italian Republic of 30 June 1912) and, more specifically, on Article 1, as amended by Article 5 of Law No 123 of 21 April 1983 (Official Gazette of the Italian Republic of 26 April 1983), according to which the child of an Italian father or mother is himself an Italian citizen.

4 In that regard, it must be pointed out that the equivalence of a qualification recognized not by reason of nationality but because the qualification in question has been acquired in one of the Contracting Sutes.

5 That statement is also accompanied by a Declaration on the citizenship of a Member State, which is annexed to the Final Act and on the basis of which the Conference states that wherever the Treaty establishing the European Community refers to nationals of the Member States, the question whether a person has the nationality of one Member State or another is to be determined exclusively by reference to the national law of the State concerned. The Member States may specify by way of information which persons are to be regarded as their nationals for Community purposes by lodging a statement to that effect with the Presidency; they may, if necessary, modify that statement.

6 Judgment in Case 136/78, Ministère Public v Auer [1979] ECR 437, paragraph 28.

7 Emphasis added.

8 Amongst other things, still in accordance with its view of Italian nationality as only latent and in suspense, the Spanish Government refers to the Agreement on dual nationality of 29 October 1979 concluded between Italy and Argentina (Official Gazette of the Italian Republic No. 152 of 14 June 1973) in support of that contention. In that regard, it may be pointed out that the agreement applies exclusively to Italian and Argentine nationals who only subsequendv acquire the nationality of the other country. It is classified as an agreement derogating from Article 8(1) of Law No. 555 of 1912 on nationality, according to which the voluntary acquisition by an Italian national of another nationality automatically entails the loss of Italian nationality. The agreement in question is therefore inapplicable to Mr Micheletti since he has simultaneously held Doth Italian and Argentine nationality since birth.

9 Judgment of 6 April 1955, 1955 Series, p. 4. As is well known, in that judgment the International Court of Justice applied the concept of effective nationality in establishing whether the only State of which Nottebohm was a national had a right to exercise diplomatic protection, stating that in the circumstances of the case there was no genuine connexion with the State (Liechtenstein) which had conferred that nationality upon him.

10 Judgment in Case 292/86, Gullung v Conseils de l'Ordre des Avocats du Barreau de Colmar et de Saveme [1988] ECR 111, paragraph 12.

11 In its Declaration the German Government sutes that All Germans as defined in the Basic Law for the Federal Republic of Germany shall be considered nationals .... According to Article 116(1) of the Basic Law, not only persons holding German nationality but also those who nad that status on 31 December 1937 are to be considered Germans.

12 Judgment of 2 May of the Permanent Court of Arbitration in Revue de Droit International Privé et de Droit Pénal International, 1912, p. 331.

13 Judgment of 6 April 1955 of the International Court of Justice.