Elena Prats

This article maps the conceptual contours of discretion and arbitrariness in law, highlighting their precise distinction and the conditions that separate legitimate discretionary action from impermissible arbitrariness. Discretion is characterized as reasoned, justified on objective factors, and accountable decision-making within legal boundaries, whereas arbitrariness arises when decisions lack justification, rational coherence, or adherence to legal principles. Drawing on Hart’s legal philosophy, legal dogmatics, and case law, the study identifies the elements that sustain lawful discretion and prevent arbitrariness. Furthermore, it introduces a typology of arbitrariness, distinguishing procedural and substantial arbitrariness.

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.