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Friday, 25 February 2022

Brexit means Brexit for UK nationals and EU citizenship: analysis of an Advocate-General’s opinion

 



Professor Steve Peers, University of Essex

Did British citizens retain their EU citizenship after Brexit? The EU and the UK government assume not, but some Brits have begged to differ.

The issue has reached the EU courts in several ways. Three cases went directly to the EU General Court, challenging the EU Council’s decision to conclude the withdrawal agreement, on the grounds that the agreement (in the applicants’ view) wrongly removed their EU citizenship. Last August, the EU General Court rejected all these cases for lack of standing; the applicants have all appealed to the CJEU. (See my compilation of Brexit litigation for further details).

Two cases reached the CJEU via national courts sending questions about the interpretation of EU law and the validity of the decision to conclude the withdrawal agreement. This route does not raise standing problems. The first of these cases (Case C-673/20 EP) has led to an opinion of an Advocate-General of the CJEU yesterday – which argued that British nationals have lost their EU citizenship as a result of Brexit, and the decision concluding the withdrawal agreement was valid.  

Summary of the opinion

The opinion begins by quoting Article 9 TEU: “Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship” – and noting that Article 20(1) TFEU is nearly identical. It then summarises the specific issue in this case: the loss of local election voting rights of a UK citizen in France, due to her loss of the status of EU citizen (which entails such voting rights) as a consequence of Brexit. Interpreting these Articles in the context of the Treaties as a whole, the Advocate-General states that:

Article 9 TEU and Article 20(1) TFEU provide that Union citizens must be nationals of a Member State. Union citizenship is additional to, and does not replace, nationality conferred by the Member States. In that context, it is important to acknowledge that the Member States could have decided to pool their competences and to confer on the European Union the power to determine who is entitled to become a Union citizen. That explicit choice by the Member States not only renders the European Union powerless to create Union citizenship independently from nationality as conferred by the Member States, but also raises a constitutional barrier to such a power being implied under Union law. [para 22]

This is an answer to those who argue that the EU could confer EU citizenship as such on Brits, Russians or any other nationals of non-EU countries. It leads to his next point, dismissing the relevance of the previous CJEU judgments on the limits of the loss of EU citizenship which were referred to by the applicant (RottmannTjebbes and Wiener Landesregierung – see discussion here) on the grounds that they all concern the loss of EU citizenship via means of loss of nationality of a Member State.

By comparison, the UK’s withdrawal from the EU took place on the basis of Article 50 TEU, which had the consequence of the UK ceasing to be a Member State. Article 50(3) TEU states explicitly that ‘the Treaties shall cease to apply’ to a State that leaves the EU when a withdrawal agreement enters into force, or ‘failing that’ two years after its notification to leave (unless that time frame is extended by mutual agreement). The opinion interprets this to mean that:

…In consequence, the United Kingdom no longer resolved, inter alia, to establish a citizenship common to that of the nationals of EU Member States or to create an ever closer union among the peoples of Europe. Since the existence of Union citizenship depends upon the acquisition and possession of the nationality of a Member State, and the United Kingdom voluntarily abandoned that status in the manner prescribed by Union law, British nationals ceased to be Union citizens. [para 28]

He then examined – and dismissed – the specific arguments made by the applicant. First, she argued that she retained her EU citizenship despite the UK leaving the EU. In his view, since the EU ‘has freely determined that acquisition of citizenship of a Member State is a condition precedent for the conferral of Union citizenship’, her argument that links to a State ground a claim to that State’s nationality fail. Equally, in his view, her argument that her links with France prevent deprivation of her EU citizenship must fail, as she could always claim French nationality (and therefore EU citizenship): “[w]ithout her possession of the nationality of a Member State, France cannot recognise EP as a Union citizen.”

Although EU citizenship, according to case law, aims to integrate EU citizens into the society of the host State, this did not mean, in the Advocate-General’s view, that the history of such integration in an individual case prevented the loss of EU citizenship:

…In addition to the objection that EP, like all other British nationals, ceased to meet the essential precondition for the enjoyment of the status and benefits of Union citizenship, namely Member State nationality, as a direct consequence of the United Kingdom’s sovereign decision to withdraw from the European Union, it may further be observed that the integration of third-country nationals into the societies of the Member States is not among the goals furthered by Union citizenship. [para 34]

A brief reference in the Rottmann opinion to the independence of EU citizenship from Member State nationality was not relevant either, as that opinion also made it clear that nationality of a Member State was a condition to have the status of EU citizen: “far from supporting the proposition advanced by EP, point 23 of the Opinion of Advocate General Poiares Maduro in Rottmann entirely undermines it” [footnote omitted].

…It describes the rationale for Union citizenship being contingent upon holding the nationality of a Member State as the Member States’ mutual commitment to construct a new form of civic and political allegiance on a European scale. By its sovereign decision to leave the European Union, the United Kingdom signalled its clear determination to repudiate that commitment. In the context of that act by a sovereign State, an individual cannot seek to rely upon his or her British nationality to assert a claim either to Union citizenship or to its benefits. [para 37]

A technical argument about the scope of the transition period in the withdrawal agreement (discussed here) failed too: the opinion concludes that only some EU law continued to apply to Member States as regards UK nationals during that period, and this did not include voting rights in local elections.

The opinion then returns to the argument that the judgments in RottmannTjebbes and Wiener Landesregierung – which require that the loss of EU citizenship via the loss of Member State nationality require an individual decision subject to proportionality, legitimate expectations, and the right to be heard – apply to Brexit. Here, the Advocate-General reiterates more fully that the earlier rulings do not apply by analogy to a State withdrawing from the EU:  

…The principle of proportionality requires that a competent authority balance conflicting rights and norms before taking a decision affecting an individual. The circumstances of this case require no balancing by the deciding authority that would take account of EP’s personal circumstances. As a direct result of the sovereign decision of the United Kingdom to withdraw from the European Union, a person in EP’s position lost the right to vote and to stand as a candidate in municipal elections in France, her Member State of residence. It is that sovereign decision, not that of a Member State or any authority thereof, that caused EP to lose the benefit of those rights. [para 42]

The applicant could not compare herself to a stateless person, as she remains a national of the UK:

…She can address any issue that she may have concerning her status or rights as a British national to the United Kingdom authorities. France or the European Union are incapable of playing any role in such a dispute. [para 43]

The same applied to her argument based on legitimate expectations:

…Any breach of legitimate expectations that EP may wish to ventilate concerning her status as a Union citizen is to be addressed to the United Kingdom, which has withdrawn from the European Union, and not to either the French authorities or to the European Union. [para 44]

And also to the argument that ‘the French authorities stripped her of the right to vote and to stand as a candidate in municipal elections, thereby depriving her of the right to participate in the democratic process’:

…Any deprivation of her right to participate in the democratic process as a British national arises exclusively as a consequence of United Kingdom law. [para 45]

Nor could she rely upon the principle of non-discrimination on grounds of nationality, in Article 18 TFEU, because although that principle applied to UK citizens during the transition period in general, the specific issue of voting rights was excluded from it by the withdrawal agreement, and non-EU citizens are in a different position than EU citizens. However, it remains to Member States, if they so choose, to allow non-EU citizens to vote in local elections.

Finally, in light of his analysis, the Advocate-General answers the specific questions referred by the national court to the effect that:

-          due to the UK’s decision to leave the EU and the withdrawal agreement, UK nationals are no longer EU citizens; any legal questions arising from this are a matter for the UK, outside the CJEU’s jurisdiction;

-          various Treaty articles and the withdrawal agreement do not preserve EU citizenship rights for UK nationals, because the UK has ceased to be a Member State and ‘the exercise of rights conferred by Union law does not furnish any legal basis upon which an individual’s status as a Union citizen falls to be determined’; and

-          the decision concluding the withdrawal agreement is valid, because the loss of voting rights follows from the UK’s decision to leave the EU, considering that the EU (according to prior case law) has a wide discretion in external relations and did not exceed the margins of that discretion.

More fundamentally, as to whether the withdrawal agreement ‘infringes certain principles underlying EU identity and is disproportionate since it contains no exception to the rule that British nationals lose the rights attaching to Union citizenship’, the opinion argues:

…Since the United Kingdom’s sovereign choice to leave the European Union amounts to a rejection of the principles underlying the European Union, and the Withdrawal Agreement is an agreement between the European Union and the United Kingdom to facilitate the latter’s orderly withdrawal from the former, the European Union was in no position to insist that the United Kingdom fully adhere to any of the European Union’s founding principles. Nor could the European Union secure rights that, in any event, it was not bound to assert on behalf of persons who are nationals of a State that has left the European Union and who are therefore no longer Union citizens. Finally, since Union citizenship depends upon the possession of Member State citizenship, no response other than the exclusion of British nationals from the definition of Union citizens was possible whilst remaining within the scope of the Treaties. [para 75]

Comments

Advocate-General’s opinions are not binding on the CJEU judges, so this is not the final word on the legal issues yet. But let’s examine what the opinion would mean if the judges follow it.

The opinion is, first and foremost, a complete rejection of the argument that UK citizens retain EU citizenship after Brexit. It explicitly applies whether those UK citizens have exercised free movement rights or not; and although it is focussed on voting rights (the subject-matter of the case) there is no logical reason to limit its effect to voting rights only. So the free movement rights of EU citizenship have also been lost – after the end of the transition period. (The applicant’s technical arguments about whether the transition period exceptions applied to Member States – even if those arguments had been successful – would anyway be moot now, following the end of that period).

The Advocate-General mentions the prospect of the applicant obtaining French citizenship (therefore EU citizenship), but not all UK citizens would find that route so easy. However, this is not crucial to the main logic of his legal argument, which is simply that EU citizenship depends on holding the nationality of a Member State – and the UK is no longer a Member State.

Moreover, in the view of the Advocate-General, the responsibility for the UK no longer being a Member State is solely that of the UK, given that the UK took a unilateral decision to leave the EU. This is consistent with prior CJEU case law (see Wightman and Shindler, discussed here and here). It follows implicitly that this case was not about whether Brexit itself was legally valid, since that was a matter for UK law (and that issue was not even raised by the national court). This is apparently sufficient in itself to defeat the argument relating to legitimate expectations, without needing to examine whether the EU created such expectations.

The Advocate-General does not discuss the common line of argument that ‘there is no provision explicitly detailing what happens to EU citizenship when a Member State leaves the EU’, presumably because he considers his conclusion as to the requirement of a link to the nationality of a Member State sufficient. If necessary, though, the response to that argument is simply that (as the opinion points out), Article 50 states that the Treaties cease to apply to the withdrawing Member State; and the Treaties create the concept of EU citizenship.

As for the analogy which the applicant sought to draw between Brexit and the prior CJEU judgments on the loss of EU citizenship, the opinion convincingly argues that the prior judgments confirm the link between Member State nationality and EU citizenship, not weaken it. For if EU citizenship could exist independently of holding Member State nationality, on the basis that the person concerned had once held the nationality of a Member State, then those judgments would have reached their conclusions on an entirely different basis. The whole point of the prior judgments is that the loss of Member State nationality fell within the scope of EU law because it led to the loss of EU citizenship.

The applicant’s argument turns on an assumption that EU citizenship is a status linked to individuals, not a status linked to a state’s membership of the European Union. But while there could well be an argument that EU citizenship should be based on the former approach, the wording of the Treaties (as the opinion confirms) points inescapably to the latter. Member States simply did not choose to create a status of EU citizenship independently from that of nationality of a Member State.

A further argument, not discussed by the Advocate-General, is that a comparison with the means of acquisition of EU citizenship is unhelpful to the applicant too. Brexit is a collective loss of EU citizenship, not an individual loss; so the better analogy is not with the case law on individual loss, but with the mechanism of collective acquisition. And the means by which nationals of the last 16 Member States to join the EU collectively obtained EU citizenship was those States’ accession to the EU on the basis of Article 49 TEU. It logically follows that the collective loss of EU citizenship follows logically from the parallel process of leaving the EU set out in Article 50.  

Photo: Garry Knight, via Wikimedia commons

Barnard & Peers: chapter 26

8 comments:

  1. good as we europeeans in the uk have no right to vote eather. so why would they be better off then us.

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    1. In fact I believe that the UK has retained the voting rights under national law, as have some Member States for UK citizens.

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  2. The opinion is clearly sound legally speaking but misses an opportunity to clarify the situation of EU citizens when their State leaves the EU. The case-law on loss of nationality in my view is a red herring because the people concerned have not lost their underlying nationality. This is an unprecedented situation for which there is no precedent in case-law. Requiring the applicant to obtain a new nationality to keep existing rights is pretty misguided. The crux of the matter is that it's not about whether third-country nationals can be granted EU citizenship but whether EU citizens can be stripped of the rights they already had (and were exercising). The AG says that it's the automatic consequence of UK law but that's not quite true because it was within the gift of the Member States to come up with a novel solution for an unprecedented situation. Since they did not do so, it means that EU citizenship has no value at all if it can be lost at any time and the EU is powerless to do anything about it.

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    1. EU citizenship has value as long as the Member State of nationality remains in the EU. Therefore its loss is a factor to consider if someone advocates leaving the EU. And EU law quite rightly leaves it to Member States to decide whether they want to stay members. The EU should not be a prison.

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    2. Clement - you are exactly right and that is what the AG's opinion didn't touch at all.

      None of the member states have come up with anything novel - and one could argue why not of course. However, this is affecting people's lives. In the previous cases Steve mentioned, the judges wanted tangible proof positive of how lives were being affected, but Brexit hadn't happened yet and all we could do was provide our suppositions. They were spot on of course and now we seen even more issues that were not forseen. The EC said, for example, we could also hold a long-term EU residency permit as TCNs in addition to our WA status, which would allow things such limited freedom of movement and the rights for British students to study across the bloc with local fees. Friends have already had rejections for the second, for example from Italy, saying they have not been advised and have no mechanism in place to provide LTR in addition to WA. Of course, in Ireland, it turns out that Irish citizens can only be out of the country for two years before losing voting rights. So giving us back local voting rights across the EU (like we have in five EU/EFTA countries) could open a can of worms for Ireland... at the end of the day, this is about Briish people having exercised their treaty rights in good faith.

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    3. The AG opinion addresses the key issue. Is there such a thing as EU citizenship for those who are not nationals of a Member State? In his view no. This follows the literal wording of the Treaties. There's no suggestion of an exception for former Member States; indeed Article 50 states that the Treaties no longer apply to them.

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  3. This analysis isvery thorough and explains a lot of what was said. Thank you. I do hope though that European Citizenship does not suffer asa whole as I am convinced that a robust citizenship that is held individually should not be able to be fragilized by wholesale denial of it by the partition of Europe due to the withdrawal of the UK. I do not have to get rid of my car if the garage that sold it to me went bust or moved its concession to sell that particular brand of car.

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    1. But a car is not a legal status based on the dealer's participation in an organisation.

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