How to protect the rights of UK citizens in the EU27 after Brexit? Analysis of the Shindler judgment

Professor Steve Peers, University of Essex*

Introduction

The EU General Court today gave its judgment in the case of Shindler and others, on the legality of the EU Council decision giving the EU Commission a mandate to negotiate the Brexit withdrawal agreement with the UK. In the Court’s view, the case, which was brought by a group of UK citizens living in the other EU Member States, was inadmissible. Although this necessarily meant that the Court did not rule on the merits of the legal challenge, the judgment nevertheless touched on a number of interesting issues regarding the process and consequences of the UK’s withdrawal from the EU.

Today’s judgment could still be appealed to the full Court of Justice, and indeed the applicants’ lawyer has announced an intention to appeal. However, it might be difficult for the Court to give a ruling on the appeal before Brexit day. The judgment also arguably leaves the door open to potential legal challenges against further steps in the Brexit process.

Furthermore, it should be noted that today’s judgment does not have any direct implications for other cases raising Brexit legal issues, which I summarised here, including the Wightman case on whether the UK’s notification of withdrawal from the EU can be unilaterally revoked (on the background to Wightman in the Scottish courts, see here; on the legal arguments on unilaterally revocability, see here). To add to that, a parallel case in the Dutch courts on the legal status of UK citizens in the EU (see discussion here) has been stalled until Brexit day, and the CJEU has ruled already that the UK remains fully part of EU law until that date (as discussed here).

The judgment

While the applicants presumably disagree with the UK’s decision to trigger the Brexit process, the EU General Court only has jurisdiction over acts of the EU institutions or other bodies, not acts of the Member States. The applicants therefore challenged the Council’s response to the UK’s notification of withdrawal from the EU under Article 50 TEU. (Note that the act being challenged in this case – namely the Council’s decision to give the Commission a negotiating mandate for the withdrawal agreement – is different from the European Council’s adoption of negotiating guidelines for the agreement, although a legal challenge brought against those guidelines would surely have had the same result as this case). The Commission planned to intervene in support of the Council, although ultimately its application to do so was irrelevant. No Member States intervened.

When individuals (natural or legal persons) seek the annulment of acts adopted by the EU institutions directly before the EU General Court, they are subject to restrictive conditions on standing set out in Article 263 TFEU. In order to sue, they must either be: a) addressees of the act; b) directly and individually concerned by it; or c) directly concerned by it, if it is a regulatory act which does not entail implementing measures.

 

Shindler and others are not addressees of the Council’s negotiating mandate, and they were likely covered by point c), since the EU courts have ruled (see the Inuit judgment, and the discussion here) that point c) applies whenever the EU act is not adopted by an EU legislative process, which the negotiating mandate was not. However, the General Court never really got to that stage of legal analysis, since it ruled that they lacked standing anyway, because they did not meet the requirement that ‘the binding legal effects of the measure being challenged must be capable of affecting the interests of the applicant, by bringing about a distinct change in his legal position’.

In the Court’s view, the decision on the negotiating mandate was binding. However, while, following previous CJEU case law (the cases referred to were discussed here and here), a negotiation mandate produces legal effects between the EU and Member States, and between EU institutions, it ‘does not directly affect the legal situation of the applicants’.

On that point, the decision on the negotiating mandate was legally distinct from the UK decision to withdraw from the EU (which was not defined by the Court), and from the notification of the UK’s intention to withdraw from the EU sent by the Prime Minister. The latter notification, not the former decision to withdraw, started the two-year time limit set out under Article 50, after which the Treaties cease to apply to the UK in the absence of a withdrawal agreement, unless there is an agreement to extend the period. (Today’s judgment does not address the question at issue in Wightman – ie whether the notification can be revoked).

Nor does the decision on the negotiating mandate ‘alter the legal situation of UK citizens resident in one of the European Union’s other 27 Member States’, as regards either their situation when that decision was adopted or their situation on Brexit day. The negotiating mandate ‘merely constitutes a preparatory act for any final agreement’, which would have to be approved by the Council with the consent of the European Parliament. Annulling it would not change the position of UK citizens, because the notification would still be valid and the two-year time limit would still apply. Although the UK citizens’ status, ‘particularly as regards their status as EU citizens, is likely to be affected’ from Brexit day, whether or not there is a withdrawal agreement, that change would not result from the decision to adopt the negotiating mandate.

The Court then rejected a number of counter-arguments of the applicants against this finding. First, they had argued that the Council’s decision was ‘an implicit act by which the Council accepted the notification of intention to withdraw’. In the Court’s view, although the decision produced effects within the EU and between the EU and Member States, it did not produce legal effects for the applicants: for them it ‘must be considered to be a preparatory act’ without ‘direct legal effects’.

Nor did it implicitly accept the UK’s notification to withdraw, as it was distinct from the decision to withdraw or the notification of that decision. Also, withdrawal from the EU ‘is based on a unilateral decision’ by a Member State ‘pursuant to its own constitutional requirements’. Article 50 refers twice to a decision by a Member State – and then to notifying its intention to withdraw, not to making a ‘request’ to withdraw. Article 50(3) TEU, setting out the two-year deadline and the possibility of a no deal outcome, ‘confirms that the possibility for a Member State to withdraw from the EU is not subject to authorisation from the EU institutions’.

So there is no process of accepting the notification from the EU institutions, in which they check if the UK has met its own constitutional requirements: ‘[s]uch a decision of acceptance by the Council or by any other EU institution is not needed and is not provided for by Article 50 TEU.’ Anyway, the notification was sent to the European Council, not the Council; and the Council’s reference to the Brexit process in its negotiating mandate only observed the legal situation, not created it.

Next, the applicants had argued that the Council's negotiating mandate ‘does not include an objective to ensure that UK citizens who obtained the status of EU citizen before 29 March 2019 maintain that status’, therefore failing to protect them fully or provide for legal certainty. The Court rejected this argument for several reasons: the negotiating mandate was (unsurprisingly) simply a negotiating mandate, not a final position; there would not necessarily be an agreement; the position of UK citizens will not be determined unilaterally by the EU but also depend on the UK’s position; and the final agreement will need consent of the European Parliament. So the mandate, being addressed to the Commission, did not itself determine the position of UK citizens after Brexit.

Also, the absence of any provision in the mandate on EU citizenship and voting rights ‘does not directly affect [UK citizens’] legal situation’, because the negotiating mandate ‘is merely a preparatory act which cannot prejudge the content of any final agreement, particularly as regards the personal scope of any provisions on the protection of the status and rights of UK citizens in the EU 27’. Furthermore, the mandate could not establish the rights of UK citizens in the EU27 in the absence of an agreement, and so an argument based on the Council’s failure to address this scenario was unfounded.

Thirdly, the applicants had argued that ‘the Council should have refused or stayed the opening of negotiations’, because the withdrawal process is ‘void’ due to ‘the absence of definite constitutional authorisation based on the votes of all UK citizens, who are also EU citizens’. More precisely, the applicants object to being denied the vote in the 2016 referendum and the 2017 UK general election, because UK citizens who have been living outside the UK for more than 15 years lose the right to vote. Also, they argued that the European Union (Notification of Withdrawal) Act 2017 does not require the UK to notify its withdrawal but only authorises the Prime Minister to do so, and that:

legal proceedings are currently underway before a UK court, that the Council and the United Kingdom should have sought judicial review of the constitutionality of the notification of the intention to withdraw pursuant to the principle of sincere cooperation provided for in Article 4(3) TEU, and that the Council also should have requested the opinion of the Court as to the compatibility with the Treaties of depriving expatriate UK citizens of the right to vote and their indirect representation by MPs, pursuant to Article 218(11) TFEU. They add that to dismiss the present action for inadmissibility would infringe the principle of democracy, in so far as removing EU citizenship in March 2019 will occur in circumstances that are illegal, where EU citizens have been deprived of the right to vote.

In the Court's view, these are substantive arguments that do not impact the admissibility of the case, because they do not impact the Court’s finding that the negotiating mandate ‘does not directly affect the legal situation of the applicants’. So ‘[e]ven if the Council should have refused to open the negotiations or should have verified that the decision by which the United Kingdom decided to leave the European Union had been taken in accordance with its own constitutional requirements’, the negotiating mandate only authorised the start of talks and set the negotiation objectives of the EU. Equally, even if the Council ‘was wrong’ not to check the compatibility of the withdrawal agreement with EU law (ie, the process in Article 218(11) TFEU which the applicants refer to), which the Court noted is optional, or ‘infringed the principle of sincere cooperation’, that would not alter the admissibility criteria either.

As for the alleged infringement of the principle of democracy, this did not change the criteria for admissibility either, as it would in effect amount to the tail wagging the dog: ‘tantamount to inferring the admissibility of an action for annulment under Article 263 TFEU from the possible unlawfulness of the contested decision’. Just because the EU institution allegedly seriously breached EU law or had a major adverse impact on the applicant, it does not follow that the challenge is admissible. Anyway, again the negotiating mandate ‘does not, of itself, restrict the applicants’ rights’.

Next, the Court rejected the argument that this was the applicants' only legal remedy before they lose EU citizenship. But the Court repeated that the Council decision was not the cause of the UK leaving the EU, and added that protection of EU law rights can also be secured by national courts. In this case, the Court noted that the voting franchise ‘and, indeed, the notification of intention to withdraw, were open to challenge before the UK courts, which may, where appropriate, refer questions to the Court for a preliminary ruling on the interpretation of the Treaties, pursuant to Article 267 TFEU.’ More precisely, the Court observed that the High Court had already rejected a case brought by Mr Shindler concerning the franchise, as well as the Webster challenge to ‘the alleged lack of a decision to withdraw taken in accordance with the United Kingdom’s constitutional requirements’.

Finally, the applicants argued that no such route through the UK courts would be possible after Brexit day, as the UK might not consider itself bound by an EU court decision. However, the Court ruled that it could not alter the rules on admissibility of legal actions in light of this scenario.

Comments

It’s striking that the General Court has chosen a less obvious route to find that this case is inadmissible – the lack of direct impact on the applicants – rather than the more obvious route of finding that there is no ‘direct concern’, or that the negotiating mandate calls for further implementing measures (ie negotiations with the UK). The implication of the Court’s judgment is that that the withdrawal agreement – if it is ratified in some form – would have a direct impact on the applicants, and that they could try afresh to challenge it then. But then they would have to face the hurdle of showing direct concern and the absence of implementing measures – which could be a difficult hurdle to surmount given that the withdrawal agreement will be implemented by national bodies in the EU27 and the UK.

As for alternative routes to challenge the Council’s negotiating mandate, it is hard to see exactly what could be attacked via the national courts (which can ask the CJEU whether an EU act is invalid: direct challenges like today’s case are only one means of challenging the legality of EU acts). Again, though, the Council’s decision to conclude a final withdrawal agreement could be attacked via the EU27 national courts, even if a direct action would face different standing challenges; recent case law of the CJEU (see discussion here) has confirmed that the EU’s conclusion of international treaties can indeed be challenged by this route.

Another route to challenging the validity of EU acts is by claiming damages liability of the EU, which is not subject to the same standing rules. According to the CJEU case law, the EU incurs damages liability when it acts unlawfully, its unlawful acts cause damage to individuals, and it commits a sufficient serious breach of a legal rule conferring rights on individuals. But it’s hard to see how damages liability could be incurred by the negotiating mandate, since the logic of the Shindler ruling is that the mandate could not cause damage to individuals, as it did not directly affect their legal position. On the other hand, an argument about damages liability could be made if there is a withdrawal agreement, although note that the threshold to succeed in a damages claim is quite high: see, for instance, the Ledra Advertising case on losses of Cypriot bank depositors, discussed here.

In the case of no withdrawal agreement (or replacement treaty ring-fencing rights), there would be nothing which could be the subject of legal challenge at EU level, although UK citizens could still try to argue in the national courts of the remaining Member States that there is a principle of acquired rights which EU law recognises (see again the Dutch case discussed here, which is on hold), or at least that EU legislation on the position of non-EU citizens (which has partly harmonised national law) applies to them. Equally there would be no EU act to claim resulted in damages, although UK citizens (and others) might try to argue that the EU’s conduct of the negotiations could be the subject of a damages claim.

Moving to the core of the Court’s reasoning, it is a persuasive argument that the decision to establish a negotiating mandate did not directly impact upon the applicants’ rights. The process was indeed triggered by the UK, with the negotiating mandate at most taking note of that decision; and any later impact on individual rights will flow from the final agreement (if ratified) or the absence of a deal.  While the Court seemed to assume that UK citizens lose EU citizenship as a result of Brexit, it did not expressly say as much.

The Court was also right to stress that withdrawal is the responsibility of the UK in accordance with its own constitutional requirements, meaning that the Council could not in some sense review whether the UK had met those requirements when it submitted its notification to withdraw. It’s particularly unclear how exactly the Council should have sought judicial review of the UK’s notification, or how the Article 218 process of assessing draft international treaties for their compatibility with EU law could extend to an examination of the franchise in the UK referendum and general elections. The general assertion that the circumstances are ‘illegal’ due to the limited franchise in the referendum rather overlooked the legal process in the UK, which had already (as the Court noted) rejected a claim challenging the legality of the franchise restrictions. Having said that, the Court later indicated that national court disputes over the Article 50 process in the UK could be sent to the CJEU – although it did not as such suggest that this would, after all, entail a review of those national constitutional requirements in light of EU law.

Similarly the Court rightly rejected the arguments about the negotiation mandate being insufficient because it depends upon the final agreement (if ratified) what the rights of individuals are, and applies its usual case law refusing to rethink the strict rules on standing in light of the applicants’ particular circumstances. 

It’s useful to examine briefly what the Court would have ruled on if it had examined the merits of the claim, which are summarised here. The first argument was that withdrawal from the Euratom treaty had to be a separate legal process; I have a different view, as set out here. (Note that winning on this point would not have helped with the key legal objective of preserving UK citizens’ rights).

The second argument was that the negotiating mandate wrongly claims that the EU alone was competent to conclude the withdrawal agreement, and that it should be jointly ratified with EU Member States. Leaving aside the merits of this argument, with respect it is hard to see how it helps the applicants if they had won on this point, because it would have seriously increased the risk of a no deal scenario – which would, as I recently pointed out, leave UK citizens in the EU27 in particular much worse off than under the withdrawal agreement.

The third and fifth arguments have been addressed in an indirect way by the judgment, despite the finding of inadmissibility: the limited franchise is a matter to be addressed in accordance with the UK’s own constitutional requirements, and the lack of certainty regarding the final outcome is simply unavoidable at the point when the Council adopts a negotiating mandate. Finally, the fourth argument – concerning the lack of a vote for UK citizens living in overseas countries and territories – is another form of franchise argument, which again should be left to the UK’s constitutional requirements to address.

Finally, on the overall context of the case: while in my view, protection of the rights of UK citizens in the EU27 (and the parallel rights of the EU27 in the UK) is absolutely fundamental, the focus should be on securing those rights in future – either by reversing Brexit, or failing that by at least avoiding a no deal outcome – rather than re-litigating the franchise of the referendum, by trying to induce the EU courts to rule on an issue (national constitutional requirements) which should be wholly outside their remit.  In the event of a no deal outcome, despite the apparent indifference of the Commission to the fate of UK citizens in the EU27, the focus has to be on securing a ring-fenced treaty on securing the rights of citizens on both sides; failing that, EU-wide legislation on the acquired rights of UK citizens (hopefully matching parallel action by the UK for EU27 citizens); and failing that, litigation to argue that the EU and/or its Member States have an obligation to preserve their rights as much as possible.

*Supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'

Barnard & Peers: chapter 10, chapter 27

Photo credit: European Sanctions Blog