Professor Steve Peers, University of Essex
In today’s judgment, the CJEU has finally confirmed that UK citizens lost EU citizenship as a consequence of Brexit, following the earlier Advocate-General’s opinion, which I discussed here. (There are other pending cases on this issue – see my compilation of Brexit litigation – but there’s no reason to think that the CJEU would decide them differently).
The judgment is striking for the extent to which it dismisses arguments that British citizens have retained EU citizenship. It’s definitely the end of an era. And yet, it also contains foreshadowing of issues that will be relevant to the post-Brexit future relationship between the UK and the EU.
Summary of the judgment
The case concerned a UK citizen resident in France, who lost the right to vote in local elections following Brexit day (1 February 2020) as a consequence of no longer being a national of a Member State, and therefore no longer having the right to vote in local elections. She challenged her removal from the electoral roll on the grounds that she could no longer vote in the UK (as she had been abroad more than 15 years), and a French court asked the CJEU questions about the interpretation of EU law and the validity of the EU Council decision to conclude the withdrawal agreement. In the UK citizen’s view, the loss of EU citizenship status ‘cannot be an automatic consequence of the United Kingdom’s withdrawal from the European Union’, because ‘that loss infringes the principles of legal certainty and proportionality and also constitutes discrimination between Union citizens and an infringement of her freedom of movement’.
However, the Court began by observing that ‘citizenship of the Union requires possession of the nationality of a Member State’, by reference to the Treaty provisions which say just that. In the Court’s view, ‘the authors of the Treaties thus established an inseparable and exclusive link between possession of the nationality of a Member State and not only the acquisition, but also the retention, of the status of citizen of the Union’ (emphasis added). The Court placed its prior case law holding that EU citizenship ‘is destined to be the fundamental status of nationals of the Member States’ in that context. It also noted that in the various Treaty provisions on EU citizens’ rights, ‘none of those provisions enshrines that right in favour of nationals of a third State’.
It then agreed with the Commission’s argument that there was no exception from those who moved within the EU: the exercise of free movement rights is ‘consequently, not such as to enable him or her to retain the status of citizen of the Union and all the rights attached thereto by the FEU Treaty if, following the withdrawal of his or her State of origin from the European Union, he or she no longer holds the nationality of a Member State’.
Secondly, the Court reiterated prior case law that the UK chose to leave unilaterally, ‘in accordance with its own constitutional requirements’, and that the leaving Member State is not ‘required to take its decision in concert with the other Member States or with the EU institutions’: ‘[t]he decision to withdraw is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice’. Having left the EU in accordance with Article 50, the UK ‘is no longer, as from’ the date of entry into force of the withdrawal agreement, ‘a Member State’. It followed that ‘as from 1 February 2020, United Kingdom nationals no longer hold the nationality of a Member State, but that of a third State’. And ‘possession of the nationality of a Member State is an essential condition for a person to be able to acquire and retain the status of citizen of the Union and to benefit fully from the rights attaching to that status. The loss of nationality of a Member State therefore entails, for the person concerned, the automatic loss of his or her status as a citizen of the Union’ (emphasis added). Being ‘nationals of a third State as from 1 February 2020’, UK citizens ‘lost the status of a citizen of the Union as from that date’, so ‘no longer enjoy’ voting rights in local elections. ‘It is irrelevant, in that regard, that United Kingdom nationals have previously exercised their right to reside in a Member State’.
Was the loss of EU citizenship disproportionate? In the Court’s view, this was ‘an automatic consequence of the sole sovereign decision taken by the United Kingdom to withdraw from the European Union’; and the 15-year rule ‘is a choice of electoral law made by that former Member State, now a third State’. There was no need to carry out an ‘individual examination’ of the loss of citizenship: here the Court distinguished Brexit from its prior case law in which it ruled that loss of EU citizenship resulting from a Member State depriving a person of its nationality in individual cases needed to be justified – as distinct from (again) ‘the automatic result of a sovereign decision made by a former Member State, under Article 50(1) TEU, to withdraw from the European Union and thus to become a third State with respect to the European Union’. So ‘case-law arising from those various judgments cannot therefore be applied to a situation such as that in the main proceedings’.
The Court then dismissed a more technical argument that the withdrawal agreement must be interpreted to mean that voting rights in local elections for British citizens were retained. (In fact, the provisions on the transition period expressly excluded the application of this right). The Court observed that the argument being made ‘would create an asymmetry between the rights conferred by that agreement on United Kingdom nationals and Union citizens’, which it ruled was ‘contrary to the purpose of that agreement’, as the preamble stated the objective of ensuring ‘mutual protection for citizens of the Union and for United Kingdom nationals who exercised their respective rights of free movement before the end of the transition period’.
Similarly, the Court noted that after the end of the transition period, the citizens’ rights Part of the withdrawal agreement (discussed here) ‘lays down…rules designed to protect, on a reciprocal and equal basis, the situation of citizens of the Union and that of United Kingdom nationals…who exercised their rights to freedom of movement before the end of the transition period.’ It stated that ‘[t]he purpose of those rules, which apply…as from the end of the transition period, is…to ensure reciprocal protection for Union citizens and United Kingdom nationals….those rules concern the rights connected with residence, the rights of employed and self-employed persons, professional qualifications and the coordination of social security systems.’ But the citizens’ rights part did not retain voting rights after the end of the transition period either. The prohibition on discrimination on grounds of nationality in the withdrawal agreement only applied to citizens’ rights listed in the agreement – which did not include voting rights. Yet again, the Court noted that the deprivation of this right followed from ‘the United Kingdom’s sovereign decision to withdraw from the European Union’. Various rights in the EU Treaties equally did not help, because (again) UK citizens ‘are no longer nationals of a Member State’.
The Court did, however, note that Member States retain a right ‘to grant, under conditions which they lay down in their national law, a right to vote and to stand as a candidate to nationals of a third State residing in their territory’. (A number of Member States and the UK have indeed to some extent retained voting rights in local elections).
Next, the Court turned to questions about the validity of the Council’s decision to conclude the withdrawal agreement. It confirmed prior case law that it had the jurisdiction to examine whether treaties which the EU has concluded are ‘compatible with the Treaties and with the rules of international law which, in accordance with the Treaties, are binding on the Union’, although in that context it could only rule on whether the EU decision concluding the treaty was valid, not whether the treaty itself was valid. However, the Court ruled that arguments about voting in European Parliament elections, and EU citizens voting in the UK, were irrelevant – focussing on the issue litigated in the national court (UK citizens voting in the EU).
The Court dismissed all the arguments that the decision to conclude the withdrawal agreement was invalid. Again, various Articles of the EU Treaties were not relevant, because as Article 50 says, the Treaties have ‘ceased to apply to the United Kingdom from the date of entry into force of that agreement’, therefore UK nationals ‘no longer hold, as from that date, the nationality of a Member State but that of a third State. It follows that, as from that date, they are no longer citizens of the Union.’
As for the principle of proportionality, the Court took the view that:
there is nothing in the documents before the Court to suggest that the European Union, as a contracting party to the Withdrawal Agreement, exceeded the limits of its discretion in the conduct of external relations, by not requiring that, in that agreement in general or in Article 127 thereof in particular, a right to vote and to stand as a candidate in municipal elections in the Member State of residence be provided for United Kingdom nationals who exercised their right to reside in a Member State before the end of the transition period.
It reiterated prior case law that ‘the EU institutions enjoy broad discretion in policy decisions in the conduct of external relations’ and noted that:
In the exercise of their prerogatives in that area, those institutions may enter into international agreements based, inter alia, on the principle of reciprocity and mutual advantages. Thus, they are not required to grant, unilaterally, third-country nationals rights such as the right to vote and to stand as a candidate in municipal elections in the Member State of residence, which, moreover, is reserved solely to Union citizens….
Therefore the EU Council ‘cannot be criticised for’ concluding the withdrawal agreement without ensuring a continued right to vote for UK citizens in local EU elections. And again, the loss of a voting right in the UK under the 15-year rule was a decision by the UK, not attributable to the EU.
The judgment is very similar to the Advocate-General’s opinion, although it does not include the point in the opinion that Member States chose not to confer on the EU the power to determine who can become an EU citizen. I don’t think this means it’s likely that the Court would rule, if asked somehow, that the EU does have such power; its judgment implicitly suggests there’s no such power (as the judgment confirms that EU citizenship is exclusively for nationals of Member States). In any event, there’s no sign that the EU institutions and Member States have any interest in unilaterally creating some form of EU consolation citizenship for Brits. The excited suggestion of one MEP to this end is not a source of EU law.
Nor does the judgment repeat the opinion’s observation that the applicant could simply obtain French citizenship, or the explicit conclusion that the applicant had no legitimate expectation to the retention of EU citizenship (although one might conclude that the Court implicitly rejects this when it attributes the responsibility for the consequences of withdrawal to the UK).
The centre-piece of the Court’s judgment is the simple linguistic interpretation of the Treaties: EU citizenship is conferred upon nationals of Member States; the UK is no longer a Member State; therefore UK nationals are no longer citizens of the Union. The Court does not explicitly address the argument that the Treaties only provide rules on the acquisition of EU citizenship, but not its loss; but it implicitly rejects them by ruling that the loss of EU citizenship follows from the withdrawal from the EU. In my view, this line of argument is unfounded because it imports words into the Treaties that don’t exist: there’s no wording in the definition of EU citizenship in the Treaties to suggest that this is solely a rule on how that citizenship is acquired. And it’s reasonable to deduce that there’s no need for an explicit provision on the loss of EU citizenship, because Article 50 covers that ground by necessary implication. Also, a key means of how EU citizenship is acquired in practice is by accession to the EU – which the withdrawal process mirrors. So the more logical comparison is between the collective, not the individual, acquisition and loss of EU citizenship.
Also, the Court is keen to point out that the consequences of the loss of EU citizenship follow from the UK’s sovereign decision to leave the EU. This is consistent with prior CJEU case law (see Wightman and Shindler, discussed here and here). It again points out (and some Remainers seem unwilling to accept this) that the process of leaving the EU is up to the national law of the Member State choosing to leave, with no approval from the EU required (the notion that the EU ‘shouldn’t have let the UK leave’, or should somehow consider various facts – still less wild allegations – about the process of leaving, is obviously unfounded). In this context, it is worth remembering that some on the Leave side were prone to misleading or false comments about the impact for Brits of leaving the EU: for instance, this infamous tweet by the current Prime Minister (‘Brexit will make no difference’).
The Court does knock on the head the attempt to rely on the previous case law on the loss of EU citizenship (Rottmann, Tjebbes and Wiener Landesregierung – see discussion here), because they all concern the loss of EU citizenship via means of loss of nationality of a Member State. In fact, those judgments reinforce, not contradict, the logic of today’s ruling – that there is an inextricable link between EU citizenship and nationality of a Member State.
Today’s judgment is the end of the assumption – strongly held by many – that EU citizenship is a status conferred upon individuals, not a status linked to a state’s membership of the European Union. There’s certainly an argument that EU citizenship should be based on the former approach, the wording of the Treaties (as the judgment 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.
Finally, though, there are interesting nods to the post-Brexit future in the Court’s judgment. Although it does not mention the possible relevance of EU law on long-term resident non-EU citizens (on which, see here as regards its application to Brits, and here and here as regards proposals for reform), it goes out of its way to mention the citizens’ rights provisions of the withdrawal agreement, which now govern the position of those EU citizens who moved to the UK, and UK citizens who moved to the EU, before the end of the transition period. In this context (and other contexts), it mentions the importance of reciprocity in EU external relations – implicitly echoing the concerns of those who thought that arguments for Brits to retain EU citizenship, like some demands made by Leave supporters, sought to ‘have their cake and eat it too’. The Court also notes that the EU institutions have great political discretion in external relations. Time will tell whether, if UK/EU relations deteriorate still further, this might come to be seen as ‘the gun in the first act’.
Photo: Garry Knight, via Wikimedia commons