Opinion of Advocate General

Mr President,

Members of the Court,

1. In this reference for a preliminary ruling the Tribunal Superior de Justicia de Cantabria seeks a ruling from the Court of Justice on the interpretation of Articles 3(c), 7, 52, 53 and 56 of the EEC Treaty, and of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services.

2. I shall briefly summarize the facts of the case; for the details I would refer the Court to the Report for the Hearing.

3. Against that background, the national court raises in substance the question of the compatibility with Community law of the legislation on which the refusal of the Spanish authorities to issue a permanent residence card was based.

4. That conclusion, in my view, is such as to rule out the possibility of denying the right of establishment to a national of a Member State on the sole ground that he also holds the nationality of a nonmember country and was last resident in that country. Once it has been established that the person in question is a national of a Member State, there is no other factor or criterion which must or may be taken into consideration.

5. In fact the terms of the problem can be simplified in relation to the terms in which it was presented in the course of the proceedings.

6. Those considerations also find support in the case-law of the Court which, in a case involving the problem of dual nationality, namely Gullung, implicitly acknowledged that the person in question was entitled to rely on both nationalities in order to take advantage of the facilities offered by Community law. The fact that in that case two Community nationalities were involved is not in my view such as to detract from the principle laid down there.

7. Finally, I would remind the Court of the Declarations made by the German Government and the United Kingdom, which are annexed to the Treaty and relate to the definition of persons who are to be regarded as their nationals for Community purposes, that is to say persons who are subject to Community law inasmuch as they are regarded by those two Governments as German and British nationals respectively. Apart from any legal effects which may arise from those declarations, they show that those two States have construed the expression national of a Member State, for the purposes of the relevant Community legislation, as being very wide in scope, certainly far wider than the circumstances of the present case; for instance, even individuals who do not have any personal or territorial link with the existing Republic of Germany and do not in any event meet the requirements of effective nationality laid down in the Canevaro judgment, still less those laid down in the Nottebohm judgment, are regarded as German nationals.

8. In the light of those considerations, therefore, I propose that the Court answer the question submitted by the Tribunal Superior de Justicia de Cantabria as follows:

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.