Quite a stir has been generated by the decision of a Dutch court to make a reference to the Court of Justice of the European Union on the issue of the EU citizenship rights of UK nationals post-Brexit.
The Article 267 procedure allows a national court to pause a case before it in order to send questions on how EU law ought to be interpreted to the CJEU. The Luxembourg court then answers the questions and leaves it to the national court to dispose of the case in the light of those answers.
In this case, two questions have been included in the reference. The first asks the Court of Justice whether the UK’s departure from the EU means that UK nationals will automatically lose EU citizenship and the rights such citizenship brings.
If the answer to the first question is no, then the national court asks the Court of Justice to determine what conditions ought to apply to the maintenance or limitation of those rights.
The applicants argue that because the Article 20 of the Treaty on the Functioning of the European Union (TFEU) says that EU citizenship “shall be additional to national citizenship and not replace it” this means that the EU citizens who are already EU citizens cannot be deprived en masse of the EU citizenship because the state of which they are a national leaves the EU.
On this basis they successfully convinced a judge in Amsterdam District Court to refer a question to the CJEU on the basis that:
“It is reasonable to doubt the correctness of the interpretation of Article 20 of the Treaty on the Functioning of the European Union that the loss of the status of citizen of an EU member state also leads to loss of EU citizenship”.
This approach seeks to use get the Court of Justice to put its money where its citizenship rhetoric mouth has been. In particular, the CJEU has placed significant emphasis on the importance of EU citizenship, most notably its statement in Grzelczyck that EU citizenship was “destined to be the fundamental status of nationals of Member States”. After all, if EU citizenship is a fundamental status belonging to individuals, how can it be stripped from those individuals en masse and against their will?
In addition, the Court of Justice has ruled in cases such as Rottmann, that while the acquisition and deprivation of nationality is a Member State competence, if in exercising that competence Member States take decisions which result in the loss of EU nationality they are acting within the field of EU law and must ensure that their decisions satisfy the requirements of EU law. These requirements imposed a duty to ensure that any decision that resulted in the deprivation of EU citizenship satisfied a proportionality test. This must surely mean that if Member States are bound to respect the principle of proportionality in acting to deprive a person of EU citizenship, the EU is subject to the same duty.
The Weakness of the Claim
First, the Court of Justice may rule that the reference is premature. It is, to say the very least, not yet clear what the eventual deal between the EU and UK will be. We do not therefore know what EU law rights will be retained or lost by UK nationals once Brexit takes effect. In addition, even if the Court of Justice were to rule that any Brexit deal had to ensure that any loss of rights by UK nationals was proportionate, what would the Dutch Court be able to do with such a ruling? There is no deal before it whose impact on rights it can judge to be proportionate or disproportionate.
The Court of Justice has been clear that it is entitled to refuse to answer questions that are hypothetical or where the Court does not have the factual or legal material before it to give a useful answer. As it said in Blanco Pérez and Chao Gómez:
‘the Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated 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’ (paragraph 36).
The reference from the Dutch Court clearly falls into this category. It is hypothetical and incapable of producing answers from the CJEU that could then be applied in the litigation before the national courts.
Furthermore, if the substance of the applicants’ case is that the EU institutions are precluded from depriving UK nationals of EU law rights then it would probably be more appropriate for the action to take the form of an action for annulment of the relevant EU law as provided for under Article 263. This could occur once the measures depriving UK nationals of EU law rights are given legal form (although national actions implementing this EU law could later on, be challenged in national courts and then made the subject of an Article 267 reference).
Even if the Court agrees to give the answers sought, the merits of the case seem weak. The argument that ceasing to be a national of a Member State does not lead to loss of EU citizenship because Article 20 TFEU (and Article 9 of the Treaty on European Union) state that EU citizenship is ‘additional to national citizenship’ is not compatible with the full text of the article or other references to citizenship in the Treaties.
What Article 20 TFEU actually states is:
‘Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’
Article 9 TEU is almost identical stating:
‘Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.’
Thus, both articles clearly make EU citizenship dependent on holding the nationality of an EU Member State. This is in line with the Preamble of the Treaty on European Unionwhich states that the signatories are ‘resolved to establish a citizenship common to nationals of their countries’.
Seen in this light, it is clear that the reference to EU citizenship being ‘additional’ is intended to provide reassurance that EU citizenship will not extinguish or replace national citizenship, not to remove the link between nationality of a Member State and EU citizenship.
In addition, while the Court of Justice has said that EU citizenship is ‘destined to become the fundamental status’ of nationals of Member States, this destiny has not yet been realized. Indeed, in recent cases such as Dano and Alimanovic, the Court has backed away from its development of EU citizenship in this direction (See D. Thym ‘When Union Citizens Turn into Illegal Immigrants: The Dano Case’ (2015) 40 European Law Review 249-262 and R. McCrea Forward or Back: The Future of European Integration and the Impossibility of the Status Quo European Law Journal Volume 23, Issue 1-2, March 2017 Pages 66–93.
Furthermore, even if a proportionality analysis were to be engaged upon, the need to defer to a majority decision in a national referendum would surely weigh heavily with the Court. Finally, a ruling that precluded the EU from removing the EU law rights of UK citizens would raise other issues. It would undermine the reciprocity inherent in the EU system as there would be no means of ensuring reciprocal rights for EU citizens in the UK. It would also create a category of EU citizen deprived of the ability to participate in the democratic life of the EU as UK EU citizens would be unable to vote in European Parliament elections, something that the European Court of Human Rights found problematic in relation to the previous exclusion of Gibraltar from European Parliamentary elections.
Karen Alter’s work notes the greater enthusiasm for using EU law on the part of lower courts in national systems. The reference provides a moment in the spotlight for Amsterdam District Court which agreed to make the reference to the CJEU under Article 267 but the Court of Justice would be foolish to agree to take on such a speculative case at this stage. Partly because referendums are such a horrendous way to take multi-faceted political decisions, we still have very little idea what kind of EU legal changes are in store for UK nationals. Fundamental rights issues calling for judicial intervention may eventually arise if Brexit leads, for example, to expulsion of people with established private and family lives but we cannot know that until the shape of the eventual deal is clear.
It is very sad for UK citizens who feel the same attachment as many of their fellow EU citizens to their European citizenship. But the appropriate place for them to channel these feelings into action is in the political arena. Despite the progress made by the European integration project we are still largely in an era of national democracy and this means that UK citizens are bound by the decision of a majority their fellow citizens. For the Court of Justice to intervene in the way that it has been asked to would be a major error.
Author’s note: I should mention that the Rottmann and Blanco Pérez decisions were the subject of opinions from AG Poiares Maduro while I was working as a référendaire in his cabinet.
This article was originally published on the website of the UK Constitutional Law Association and is reproduced here with the author's kind permission.