Professor Anthony Arnull, University of Birmingham, UK
The decision of 7 February 2018
The interim decision of the District Court, Amsterdam, of 7 February 2018 caused quite a stir among Brexit-watchers. The case concerned promised not only to be the first reference to the Court of Justice on Brexit but also to raise one of the most fundamental questions posed by the UK’s decision to withdraw from the EU: whether, in the absence of an agreement to the contrary, withdrawal would necessarily mean that UK nationals would lose their EU citizenship and the rights that status gave them.
The proceedings had been brought by seven claimants. The first five were UK nationals resident in the Netherlands. The sixth and seventh were associations. One, Brexpats, had been established to protect the interests of UK nationals affected by Brexit. Its claim was found to be inadmissible. The other, CADS, had been established to promote Anglo-Dutch trade relations. A challenge to the admissibility of its claim was rejected. The defendants were the State of the Netherlands and the Municipality of Amsterdam. The case was heard by Judge F B Bakels, a former Vice President of the Netherlands Supreme Court who, it is understood, had chosen to devote a short period of time before his retirement to hearing first instance cases.
The claimants were seeking a ruling that, should UK citizens retain EU citizenship after Brexit, the defendants would respect the attendant rights of the first five claimants. In particular, they asked the court to rule that the defendants should not agree to implement any agreement between the UK and the EU27 which failed to guarantee those rights. Such a ruling may not strictly speaking be necessary, since the withdrawal agreement, as an act of secondary EU law, could not alter the rights conferred by citizenship of the Union, which derive ultimately from the TFEU. In practice, however, a ruling in the terms sought might avoid the need for further litigation on the point.
Should the withdrawal of the UK from the EU be found to remove from UK citizens their status as citizens of the EU (as the wording of Article 20(1) TFEU would suggest), the claimants sought an order requiring the Netherlands to carry out an individual assessment of the compatibility with the principle of proportionality of any decision to restrict rights deriving from EU citizenship; ordering the Municipality to give effect to the individual assessments carried out; prohibiting the State from insisting that one of the claimants should relinquish her UK nationality; and ordering the Municipality and the State to facilitate multiple nationality for a person seeking Netherlands nationality within two weeks of the court’s ruling. The claimants argued that these claims required an authoritative ruling on the effect of Article 20 TFEU. They had therefore drafted a number of questions with a view to having them referred to the Court of Justice for a preliminary ruling.
The claimants stated that they had all made use of the fundamental freedoms to reside and work in another Member State and that the uncertainty surrounding their future legal position was already causing them harm. In organising their lives, they had to take account of the distinct possibility that the Netherlands might after Brexit classify them as third country nationals and require them to leave without conducting an individual assessment of their circumstances. That threat meant that they had to decide now whether to seek citizenship of the Netherlands. This was an expensive process and might have consequences for their right to retain UK nationality and therefore for their continuing right to visit the UK. There were also questions about the status of partners who might or might not have UK nationality; parents of UK nationality who had children born in the Netherlands; and UK nationals in the Netherlands whose work made it essential for them to continue to be able to travel freely throughout the EU27.
The judge ruled that, in order to assess these claims, it was necessary to establish whether loss of the status of nationality of a Member State automatically resulted in loss of citizenship of the Union or whether considerations of fundamental, acquired and minority rights and solidarity between EU citizens might require that outcome to be qualified. He therefore announced his intention to submit two questions to the Court of Justice:
Whether, in the absence of an agreement on the matter in the Brexit negotiations, UK withdrawal from the EU would automatically deprive UK nationals of their status as EU citizens and of the rights and freedoms attaching thereto;
If not, whether those rights and freedoms were subject to any conditions or restrictions.
The parties were given the right to comment on the proposed questions within a week of the judgment. They were expressly told they could not comment on any other aspect of the judgment or on the judge’s intention to refer questions to the Court of Justice.
The decision of 20 February 2018
It therefore seemed likely that the Court of Justice would be given the opportunity to rule on issues of profound significance for the scope of EU citizenship and the course of the Brexit negotiations. However, on 20 February 2018, Judge Bakels granted the State and the Municipality permission to appeal to the Court of Appeal, Amsterdam, against his earlier ruling. The appellants argued that the uncertainty of which the claimants were complaining could not be resolved by the proposed questions because their legal position depended on the content of the withdrawal agreement. This was not entirely correct because, as noted above, the provisions of the TFEU on citizenship will take precedence over the terms of the withdrawal agreement. The appellants rejected the claimants’ argument that they were already suffering harm and asserted that there was no real dispute between the parties.
Appearing to have a change of heart, Judge Bakels decided to depart from the normal rule laid down by the Netherlands Code of Civil Procedure that an appeal could be lodged only at the same time as the final judgment. He acknowledged that this did not in itself suspend the decision to refer to the Court of Justice. However, he observed that it would be contrary to due process for a reference to be made at this stage and decided that this should not now be done. It would be for the Court of Appeal, Amsterdam, to decide whether a reference should be made and, if so, what questions should be referred.
Challenging reference decisions
There is a considerable body of case law on the circumstances in which a decision of a national court to make a reference to the Court of Justice may be challenged before a superior national court. It may seem surprising that such an appeal is possible. In Joined Cases C-332/92, C-333/92 and C-335/92, Eurico Italia, for example, the Court of Justice pointed out (para 17) that
‘it has consistently held that it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court.’
Moreover, the Court made it clear in Case 166/73 Rheinmühlen v Einfuhr- und Vorratsstelle Getreide that a national court cannot be deprived of its power to make a reference by the rulings of superior national courts. Indeed, in that case Advocate General Warner argued (at pp. 43-44) that ‘national legislation cannot effectively provide for a right of appeal against an order of a lower Court referring a question to this Court.’ The discretion conferred on lower national courts by what is now Article 267 TFEU, he said, was exercisable at any stage of proceedings before them and could not ‘be fettered by any rule or provision of national law’ (at p. 47).
The view of Advocate General Warner was not initially followed by the Court. In Case 146/73 Rheinmuhlen-Düsseldorf (para 3), the Court ruled:
‘in the case of a court against whose decisions there is a judicial remedy under national law, Article  does not preclude a decision of such a court referring a question to this Court for a preliminary ruling from remaining subject to the remedies normally available under national law.’
The Court added: ‘Nevertheless, in the interests of clarity and legal certainty, this Court must abide by the decision to refer, which must have its full effect so long as it has not been revoked.’
In 2008, that approach was substantially modified in Case C-210/06 Cartesio. In that case, the Court of Justice declared (paras 95 and 96):
‘Where rules of national law apply which relate to the right of appeal against a decision making a reference for a preliminary ruling, and under those rules the main proceedings remain pending before the referring court in their entirety, the order for reference alone being the subject of a limited appeal, the autonomous jurisdiction which Article [267 TFEU] confers on the referring court to make a reference to the Court would be called into question, if – by varying the order for reference, by setting it aside and by ordering the referring court to resume the proceedings – the appellate court could prevent the referring court from exercising the right, conferred on it by the [TFEU], to make a reference to the Court.
In accordance with Article [267 TFEU], the assessment of the relevance and necessity of the question referred for a preliminary ruling is, in principle, the responsibility of the referring court alone, subject to the limited verification made by the Court in accordance with the case-law… Thus, it is for the referring court to draw the proper inferences from a judgment delivered on an appeal against its decision to refer and, in particular, to come to a conclusion as to whether it is appropriate to maintain the reference for a preliminary ruling, or to amend it or to withdraw it.’
The Court’s ruling in Cartesio effectively made judgments of superior courts on the appropriateness of a reference advisory only. That outcome might in some cases be incompatible with the national court hierarchy. In the Lady & Kid case (Order of 11 February 2010), the Danish Supreme Court therefore ruled that references made by lower Danish courts should no longer be subject to appeal. (See M Broberg and N Fenger, Preliminary References to the European Court of Justice (OUP, 2nd ed, 2014) 329-330; M Broberg and N Fenger, ‘Preliminary references as a right: but for whom? The extent to which preliminary reference decisions can be subject to appeal’ (2011) 36 European Law Review 276.) Similarly, in a decision of 30 March 2010, the Belgian Cour de Cassation declared an appeal brought against a reference by a lower court inadmissible (see K Lenaerts, I Maselis and K Gutman, EU Procedural Law (OUP, 2014, 81). The same conclusion was reached by the Irish Supreme Court as long ago as 1983: see Campus Oil v Minister for Industry and Energy  1 Common Market Law Reports 479; D O’Keeffe, ‘Appeals against an order to refer under Article 177 of the EEC Treaty’ (1984) 9 European Law Review 87.
It should be noted, however, that Cartesio does not apply unless it is only the decision of the lower court to make a reference that is the subject of an appeal and where the main proceedings therefore ‘remain pending before the referring court in their entirety’ (para 98). Thus, in Case C-525/06 Nationale Loterij, the Court held that there was no need to reply to a reference made by a court before which the case concerned was no longer pending, having been brought in its entirety before a higher court. Responsibility for ensuring that the outcome was consistent with the requirements of Union law in such circumstances belonged to the latter court.
Implications for the Amsterdam proceedings
What are the implications of the case law briefly summarised above for the proceedings brought before the District Court, Amsterdam? It will be noted that no reference has so far been made in those proceedings. It would therefore seem to follow that the argument that a reference should be made will need to be repeated before the Amsterdam Court of Appeal.
The question whether an appeal could be brought against a decision of a national court not to make a reference was considered by the Danish Supreme Court in Lady & Kid. It was held there that this remained possible and that, if the appellate court decided that a reference should be made, that ruling would be binding on the lower court. However, O’Keeffe (above, p103) argues persuasively that ‘[t]he reference in a case where the appellate court finds it necessary should be by order of the appellate court, otherwise the discretion of the lower court under Article  is directly violated...’ This appears to have been the view taken by Judge Bakels in his decision of 20 February 2018.
The grounds of appeal put forward by the Netherlands Government are varied. On the central issue of the effect of Article 20 TFEU, the Government asserts that this provision is acte clair and rejects the judge’s reasoning on acquired rights. A national court might easily conclude that these questions at least should be referred to the Court of Justice, provided it did not accept the argument of the Netherlands Government that the case is artificial or contrived.
As the Court explained in Case C-62/14 Gauweiler v Deutscher Bundestag (para 25),
‘…questions concerning EU law enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation, or the determination of validity, of a rule of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it…’
This makes it necessary for the national court to ‘give at least some explanation’ of why it has chosen the EU provisions of which it is requesting an interpretation (Case C-370/12 Pringle, para 84).
The claimants in the case under discussion have given plausible explanations of the range of ways in which the uncertainty surrounding their status is causing them direct and immediate harm. Even if the claims of only one of the claimants were considered credible, that would be enough to justify a reference to the Court of Justice. In his first ruling, the judge was satisfied that there was in the circumstances ‘no question of a hypothetical or notional dispute’. The questions he decided to refer to the Court were based on a detailed examination of the legal background and included extensive analysis of the case law of the Court. It therefore seems unlikely that the Court would refuse to give a ruling if it were asked to do so.
It is not clear why Judge Bakels departed from the normal rule by permitting an appeal to be brought at the interim stage and changed his mind about the desirability of a reference. If the case were none the less to reach the Court of Justice by way of a reference from either the District Court or the Court of Appeal, it would present the Court of Justice with a welcome opportunity to clarify the scope of citizenship of the Union. This would enable the Brexit negotiations to proceed on the basis of a correct understanding of the law and provide a degree of certainty to current citizens of the Union whose interests are in danger of being overlooked.
Barnard & Peers: chapter 27
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