Opinion of the Advocate General — ECLI:EU:C:2023:53
Date: 2023-01-26
Language of the case: Danish
Subject matter: Citizenship of the Union;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
16 November 2021 
Referring court: 
Østre Landsret (Denmark) 
Date of the decision to refer: 
11 October 2021 
Applicant: 
X 
Defendant: 
Udlændinge- og Integrationsministeriet 
  
Subject matter of the main proceedings 
Action for annulment of the decision of 31 January 2017 of the Udlændinge- og 
Integrationsministeriet (Ministry of Immigration and Integration, Denmark; ‘the 
Ministry’) declaring that the applicant, X, has lost her Danish nationality, and a 
request that the case be referred back for reconsideration. The Østre Landsret 
(High Court of Eastern Denmark) is hearing the case at first instance. 
The request for a preliminary ruling concerns the question as to whether it is 
contrary to Article 20 TFEU that the applicant, X, lost her Danish nationality 
(citizenship) 1 by operation of law 2 when she reached the age of 22. When she 
lost her Danish nationality she also lost, at the same time, the status arising from 
Article 20 TFEU on citizenship of the Union, and it is therefore common ground 
in the main proceedings that EU law applies. 
 
1 Translator’s note: the terms ‘indfødsret’ (‘nationality’) and ‘statsborgerskab’ (‘citizenship’) are 
used as synonyms in the Danish text. 
2 Translator’s note: the Danish text uses the Latin term ‘ex lege’. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-689/21 
 
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Subject matter and legal basis of the request 
The request is made pursuant to the second paragraph of Article 267 TFEU and 
concerns the interpretation of Article 20 TFEU, in conjunction with Article 7 of 
the Charter of Fundamental Rights of the European Union (‘the Charter’), as those 
provisions have been interpreted most recently by the judgment of the Court of 
Justice of 12 March 2019, Tjebbes and Others (C-221/17, EU:C:2019:189). 
Questions referred for a preliminary ruling 
1. Does Article 20 TFEU, in conjunction with Article 7 [of the Charter], 
preclude legislation of a Member State, such as that at issue in the main 
proceedings, under which citizenship of that Member State is, in principle, lost by 
operation of law on reaching the age of 22 in the case of persons born outside that 
Member State who have never lived in that Member State and who have also not 
resided there in circumstances that indicate a close attachment to that Member 
State, with the result that persons who do not also have citizenship of another 
Member State are deprived of their status as Union citizens and of the rights 
attaching to that status, taking into account that it follows from the legislation at 
issue in the main proceedings that: 
(a) a close attachment to the Member State is presumed to exist, in particular, 
after a total of one year’s residence in that Member State, 
(b) if an application to retain citizenship is submitted before the person reaches 
the age of 22, authorisation to retain citizenship of the Member State under 
less stringent conditions may be obtained and for that purpose the competent 
authorities must examine the consequences of loss of citizenship, and 
(c) lost citizenship can be recovered after the person concerned reaches the age 
of 22 only by means of naturalisation, to which a number of requirements 
are attached, including that of uninterrupted residence in the Member State 
for a longer duration, although the period of residence may be somewhat 
shortened for former nationals of that Member State? 
Provisions of EU law and case-law cited 
Article 20 TFEU 
Article 7 of the Charter 
Judgment of the Court of Justice of 12 March 2019, Tjebbes and Others 
(C-221/17, EU:C:2019:189), in particular paragraphs 41, 42 and 48, read in 
conjunction with paragraphs 9 and 22, and judgment of 2 March 2010, Rottmann 
(C-135/08, EU:C:2010:104) 
UDLÆNDINGE- OG INTEGRATIONSMINISTERIET 
 
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Provisions of international law cited 
The European Convention of 6 November 1997 on Nationality (‘the Convention 
on Nationality’); Article 7(1)(e). 
Provisions of national law cited 
Prior to the judgment in Tjebbes 
The Consolidated Law on Danish nationality (Consolidated Law No 422 of 7 June 
2004; ‘the Nationality Law’). The decision contested in the main proceedings was 
adopted on the basis of the rule, laid down in Paragraph 8 of the Nationality Law, 
on loss of Danish nationality by operation of law at the age of 22, which was 
worded, at the date of that decision, as follows: 
‘Paragraph 8: A person born abroad who has never lived in the Kingdom of 
Denmark and who has not resided there in circumstances that suggest a close 
attachment to Denmark shall lose his or her Danish nationality on reaching the 
age of 22, unless he or she would thereby become stateless. The Minister for 
Refugees, Migrants and Integration, or the person whom he or she authorises to 
do so, may, however, upon application submitted before that date, allow 
nationality to be retained.’ 
It follows from the wording of that provision that, on reaching the age of 22, 
Danish nationals with dual nationality who were born abroad, who have not lived 
in Denmark and have not resided in Denmark in circumstances that suggest a 
connection with the country, lose their Danish nationality when they reach the age 
of 22. However, before reaching the age of 22, such persons may make an 
application to the Ministry to retain their Danish nationality. 
That provision was initially introduced by Law No 123 of 18 April 1925. That 
provision was designed to prevent Danish nationality from being transmitted, 
from generation to generation, to persons abroad who have no knowledge of, or 
affiliation with, Denmark. 
The application to retain Danish nationality must be made between the ages of 21 
and 22 years. As regards the time of application, the Ministry processes 
applications for a certificate of Danish nationality (so-called ‘proof of Danish 
nationality’) irrespective of when the application is submitted, and also 
irrespective of whether the application is submitted before the age of 21, between 
the ages of 21 and 22 or after the person has reached the age of 22. According to 
ministerial practice, the assessment as to whether nationality should be retained 
must be made as close to the age of 22 as possible, which is why, for instance, 
applications submitted before the age of 21 can constitute the basis only for a 
certificate of nationality with reservation. In order for it to be accepted, the 
application must, however, be made before the person concerned reaches the age 
of 22. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-689/21 
 
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Circular on naturalisation (Circular No 10873 of 13 October 2015 on 
naturalisation, as amended by Circular No 9248 of 16 March 2016): 
Under Paragraph 44(1) of the Grundlov (Basic Law or Constitution), a foreign 
national may obtain nationality only by way of statute (naturalisation). Former 
Danish citizens who have lost their Danish nationality under Paragraph 8(1) of the 
Nationality Law must, therefore, in principle, satisfy the general conditions for 
obtaining Danish citizenship by way of statute (naturalisation), namely, inter alia, 
the conditions relating to long-term residence, age, character, debts due to the 
public authorities, self-sufficiency, employment, knowledge of the Danish 
language and of Danish society, culture and history. However, the residence 
condition may be relaxed for former Danish citizens who have lost their Danish 
nationality under Paragraph 8(1) and, moreover, a residence permit will be 
granted, on application, to a foreign national who previously held Danish 
nationality, unless that right has been excluded on a separate ground. It is the 
Immigration Committee of the Folketing (Danish Parliament) which decides 
whether the general conditions of residence can be waived and whether 
citizenship can be recovered. 
Following the judgment in Tjebbes 
Following the judgment in Tjebbes, which was delivered on 12 March 2019 – that 
is to say, after the adoption of the decision of 31 January 2017 which is being 
contested in the main proceedings – the Ministry considered, in an information 
note of 11 October 2019, that it was necessary, as a result of that judgment, to 
amend the rules of the Nationality Law relating to the loss of Danish nationality. 
In the light of the foregoing, Paragraph 8(1) of the Nationality Law was amended 
to its current wording by Law No L 63 of 28 January 2020 amending the Law on 
Danish Nationality; Paragraph 8, however, was drafted in the same terms as 
before, with the mere amendment of a single pronoun (som/der). By contrast, the 
travaux préparatoires relating to that legislative amendment of 2020 express a 
wish for clarification, as it is provided for therein that, when examining 
applications for a certificate attesting the retention of Danish nationality, the 
Ministry should take into consideration a number of additional factors for the 
purpose of carrying out an individual examination of the effects, in relation to EU 
law, of the loss of Danish nationality and hence of Union citizenship, in particular 
whether the effects are proportionate to the purpose of that loss (that is to say, the 
interest in ensuring that a genuine link is maintained between Danish citizens and 
Denmark). In practice, according to the Ministry, the judgment in Tjebbes implies 
that, in the examination of an applicant’s application for a certificate attesting the 
retention of Danish nationality, factors connecting that applicant to other EU 
Member States must also be taken into consideration, for example whether the 
loss of Union citizenship would cause the person concerned to face difficulties in 
maintaining a family or occupational link in one (or more) Member State(s), 
already established through the Union citizen’s exercise of the right to free 
movement within the European Union. 
UDLÆNDINGE- OG INTEGRATIONSMINISTERIET 
 
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As regards the maintenance of the requirement, in Paragraph 8, that a person’s 
application to retain Danish nationality must have been made before that person 
reaches the age of 22, even after the judgment in Tjebbes, it is clear from the draft 
amending law that the Ministry is of the opinion that the Danish system, which 
requires applications to be submitted before the age of 22, makes possible an 
individual examination, as demanded by the Court of Justice, and that that 
judgment does not appear to require that such an examination must be possible at 
any given point in time. The Ministry therefore takes the view that that judgment 
does not preclude the maintenance of a rule, such as that provided for in 
Paragraph 8(1) of the Nationality Law, which requires Danish citizens born 
abroad who have never lived in Denmark and who have never resided there in 
circumstances that suggest a connection with Denmark to submit an application 
before they reach the age of 22 in order to retain Danish nationality. 
National practice cited 
As regards the possibility of being allowed to retain nationality, it is apparent from 
administrative practice that, even if a person has never lived in Denmark, first, he 
or she will not lose Danish nationality if, before reaching the age of 22, he or she 
has resided in Denmark for at least one year. In such a case, the person concerned 
is deemed to have a close attachment to Denmark within the meaning of the first 
sentence of Paragraph 8(1). Second, periods of residence of less than one year 
may not lead to loss of Danish nationality if the residence is an expression of a 
‘particularly close attachment to Denmark’. According to the travaux 
préparatoires, this may include military service, attendance at a Danish folk high 
school, traineeships or recurrent holidays of some duration. Third, in 
circumstances where Danish nationality would normally be lost under the 
provision, the Ministry may, in accordance with the second sentence of 
Paragraph 8(1), grant a specific exemption allowing for the retention of nationality 
on application made before the age of 22, which will be decided on a case-by-case 
basis. That assessment will, in particular, attach particular weight to the person’s 
knowledge of the Danish language, the extent of periods of holidays in Denmark 
and contact with Denmark in general, for example through correspondence with 
Danish relatives or contact with Danish circles abroad. 
The administrative practice has not changed following the judgment in Tjebbes, 
although, following the legislative amendment made as a result of that judgment, 
an individual examination of the effects of loss of Danish nationality, and hence 
loss of Union citizenship, in relation to EU law is now also carried out in all cases 
provided that the application is made between the ages of 21 and 22. 
Succinct presentation of the facts and procedure in the main proceedings 
1 X was born on 5 October 1992 in the United States to a Danish mother and an 
American father and has, since birth, held Danish and American nationality. X has 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-689/21 
 
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two siblings in the United States, one of whom has Danish citizenship, and no 
parents or siblings in Denmark. 
2 On 17 November 2014, X, who has never lived in Denmark, applied to the 
Ministry, after she had reached the age of 22, to retain her Danish nationality 
(citizenship). 
3 On the basis of the information in the application, the Ministry established that X 
had stayed in Denmark for a maximum of 44 weeks before reaching the age of 22. 
X had also declared that she had stayed in Denmark for five weeks after her 22nd 
birthday and that in 2015 she had been a member of the Danish women’s national 
basketball team. X also pointed out that, in 2005, she had spent approximately 
three to four weeks in France. There is no indication that X has, in addition, 
resided elsewhere in the territory of the European Union. 
4 By decision of 31 January 2017, the Ministry announced that X had lost her 
Danish nationality when she reached the age of 22, in accordance with the first 
sentence of Paragraph 8(1) of the Nationality Law, and that it was not possible to 
apply the derogation provided for in the second sentence of Article 8(1) of that 
law, since her application to retain that nationality had been made after she had 
reached the age of 22. 
5 X has brought an action against the Ministry’s decision in which she seeks 
annulment of that decision and referral of the case back for reconsideration. 
6 Following the amendment to the Nationality Law on 28 January 2020 as a result 
of the delivery of the judgment in Tjebbes, the Ministry took the view that former 
Danish citizens who had reached the age of 22 on 1 November 1993 or later who 
had applied to retain their citizenship before the age of 22 and who had received a 
decision that they would lose their citizenship under (the then) Paragraph 8 of the 
Nationality Law, by which they also lost their Union citizenship, could apply for 
review of their application. However, X had not applied to retain her Danish 
nationality before reaching the age of 22 and could not, therefore, according to the 
Ministry of Immigration and Integration, secure reconsideration of her case and, 
therefore, of the contested decision of 31 January 2017. 
The essential arguments of the parties in the main proceedings 
7 X has argued that Paragraph 8(1) of the Nationality Law concerning the loss of 
Danish citizenship by operation of law is contrary to Article 20 TFEU, in 
conjunction with Article 7 of the Charter. 
8 In support of that argument, X has submitted that the automatic loss, not subject to 
any exception, which is provided for by that provision is disproportionate, even 
though the provision pursues a legitimate and objective aim of maintaining a 
genuine connection and safeguarding the special relationship of solidarity and 
good faith between the Member State and its citizens. 
UDLÆNDINGE- OG INTEGRATIONSMINISTERIET 
 
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9 Under that provision, Danish citizenship that has been lost when a person has 
reached the age of 22 can be recovered only under the general naturalisation 
scheme. 
10 The legislation at issue does not provide for an easy way of interrupting or 
extending the period after which forfeiture may occur. However, it follows from 
the judgment in Tjebbes that the rules relating to loss of citizenship can be 
proportionate only if, as in that judgment, they are linked to very easy access to 
recovery of that citizenship, something which does not exist under the Danish 
legislation. Moreover, under Danish law, recovery does not happen ex tunc. The 
possibility of recovery provided for by Danish law does not, therefore, constitute 
such easy access to recovery of Danish nationality as to satisfy the proportionality 
requirement in EU law, as set out in the judgment in Tjebbes. 
11 The Ministry contends that Paragraph 8(1) of the Nationality Law concerning the 
loss, by operation of law, of Danish citizenship on the ground of lack of 
connection to Denmark is not contrary to Article 20 TFEU, in conjunction with 
Article 7 of the Charter. 
12 In support of that argument the Ministry claims that the Danish rules on loss of 
nationality when the person concerned reaches the age of 22 are based on 
legitimate grounds and are proportionate. In the assessment as to whether the 
Danish rules are lawful and proportionate, due account must be taken of the fact 
that the Member States must enjoy a broad margin of discretion when defining the 
conditions for the acquisition and loss of nationality. 
13 The assessment of the lawfulness and proportionality of Paragraph 8(1) of the 
Nationality Law for persons, such as X, who had already reached the age of 22 at 
the time of the application must be based on an overall assessment of the Danish 
rules on loss and recovery of nationality. The Danish legislature has taken the 
view that persons born abroad who have not lived in Denmark or resided in 
Denmark to any significant extent gradually lose their ties of loyalty and solidarity 
and their connection to Denmark as they grow up, and that it is therefore 
particularly proportionate with regards to these persons to distinguish between 
their legal situation before and after the age of 22. The provision in Paragraph 8 
thus sets a reasonable and proportionate time limit of 22 years of age before loss 
of nationality by operation of law with regard to persons who were born and 
brought up abroad and who have not otherwise resided in Denmark for any 
lengthy period before the age of 22. A person who was born in Denmark and 
acquired Danish nationality at birth will not be covered by Paragraph 8 of the 
Nationality Law. This means that such a person cannot lose his or her Danish 
nationality by operation of law, even if he or she leaves Denmark shortly after 
birth and thus has neither lived in the country nor resided there for at least one 
year. The proportionality of the loss of nationality by operation of law for persons 
who have reached the age of 22 must be assessed in the light of the rather relaxed 
rules on retention of citizenship until the age of 22. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-689/21 
 
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14 Paragraph 8(1) of the Nationality Law ensures, overall, that persons with Danish 
nationality have a certain degree of solidarity and loyalty to Denmark and a 
sufficient link with the country. These are recognised in the judgments in Tjebbes 
and Rottmann as legitimate considerations which the Member States may take into 
account when assessing whether national citizenship should be lost, with the 
consequence that Union citizenship is also lost. The legitimacy of taking such 
factors into account when assessing whether a citizen should lose his or her 
citizenship is also supported by public international law (see Article 7(1)(e) of the 
Convention on Nationality). Furthermore, that legitimacy and proportionality are 
supported by the fact that the Minister for Immigration and Integration may, on 
the basis of a specific assessment, upon application submitted before the deadline 
referred to in the first sentence of Paragraph 8(1) of the Nationality Law, that is to 
say between the ages of 21 and 22, allow nationality to be retained nonetheless. 
15 Moreover, Paragraph 8(1) of the Nationality Law, as drafted following the 
judgment in Tjebbes, provides for an individual examination of the consequences 
of the loss of Danish nationality, and hence loss of Union citizenship, in relation 
to EU law, for persons who are under 22 years of age at the time of application. 
Thus, when examining applications submitted before the age of 22, in accordance 
with the second sentence of Paragraph 8(1) of the Nationality Law in its current 
version, the Ministry must assess, in the light of EU law, whether the effects of the 
applicant’s loss of nationality are proportionate in relation to the purpose of that 
loss. That assessment also takes into account factors connecting the applicant to 
other countries of the European Union. Those rules ensure, in particular, that the 
requirement laid down in paragraph 41 of the judgment in Tjebbes is met. 
16 Furthermore, when assessing the proportionality of Paragraph 8(1) of the 
Nationality Law, it must be borne in mind that it is possible, for persons who have 
reached the age of 22 and who have lost their Danish nationality by operation of 
law, to recover it in the case where a number of conditions are met, including a 
requirement to have a permanent residence permit and residency requirements. 
When submitting the matter to the Danish Parliament’s Immigration Committee 
for its opinion on whether it is possible to waive those requirements and whether 
recovery is possible, the consequences of the loss may be the subject of an 
individual assessment with regard to whether nationality should be recovered. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
17 It follows from the first sentence of Paragraph 8(1) of the Nationality Law, in its 
earlier version and as currently in force, that a Danish citizen with dual nationality 
who was born abroad, who has not lived in Denmark and has not resided there in 
circumstances that suggest a close attachment to Denmark and who, before 
reaching the age of 22, has not applied for his or her Danish nationality to be 
maintained, loses that nationality on reaching the age of 22. If the person 
concerned is not a national of an EU Member State, he or she will hence also lose 
his or her Union citizenship. 
UDLÆNDINGE- OG INTEGRATIONSMINISTERIET 
 
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18 After a person has reached the age of 22, nationality may be recovered only under 
the general naturalisation scheme. 
19 In the view of the Østre Landsret, the meaning of the judgment in Case C-221/17, 
Tjebbes, in particular that of paragraphs 41, 42 and 48, in conjunction with 
paragraphs 9 and 22 of that judgment, is uncertain. 
20 In that context and in the light of the content of the judgment in Tjebbes, the Østre 
Landsret also finds that there is such uncertainty as to the compatibility with 
Article 20 TFEU, in conjunction with Article 7 of the Charter, of the automatic 
loss, not subject to any exception, of national citizenship (and hence of Union 
citizenship) which, under the first sentence of Paragraph 8(1) of the Nationality 
Law, occurs when the person concerned reaches the age of 22, in conjunction with 
the difficulty of recovering Danish nationality by naturalisation after that person 
has reached the age of 22, that questions should be put to the Court of Justice on 
this matter. 
21 As the court of first instance in the present case, the Østre Landsret finds, in the 
light of the foregoing, that it is necessary to refer questions to the Court of Justice 
of the European Union for a preliminary ruling.