EU Advocate General says UK nationals cannot keep EU citizenship benefits

UK citizens who were hoping to maintain the benefits of EU citizenship after the UK withdrawal from the European Union were disappointed to hear the opinion of Advocate General Anthony Michael Collins at the EU Court of Justice on Thursday.

The opinion refers to a case brought to the EU Court by a British woman living in France following her loss of electoral rights, which derive from EU citizenship.

The Advocate General reminded that EU citizenship is additional to the nationality of EU member states and does not replace it. He also argued that the loss of EU citizenship rights for British nationals is a consequence of the “sovereign decision of the UK to withdraw from the European Union”.

The opinion is not binding as the role of the Advocate General is to provide an independent advice before the judges decide on the case. The rulings, however, frequently follow the opinion. The Court is expected to make the final decision later in June.  

Loss of voting rights

The case considered by the Court concerns a British woman who has lived in France since 1984. As an EU citizen, she could vote and stand as a candidate in municipal elections in her town of residence.

But following the UK exit from the EU, she was removed from the electoral roll and excluded from the local elections that took place in March 2020. At that point the UK and the EU were in the post-Brexit transition period negotiated as part of the withdrawal agreement.  

Alice Bouilliez appealed the decision but the mayor of Thoux refused to restore her registration. Supported by Julien Fouchet, a French barrister who has fought several cases on the EU citizenship of British nationals, she took legal action at the regional court in Auch, which agreed to request an interpretation of the rules to the Court of Justice of the EU.

The key question was whether British nationals, or a group of them, could continue to be considered EU citizens and enjoy related benefits, such as voting rights. If not, the question was whether this would be disproportionate for the rights of the individual and contrary to the EU Treaty and Charter of Fundamental Rights.

The reason was that Mrs Bouillez had already lost her political rights in the UK, as the national law does not allow individuals who have lived abroad for more than 15 years to vote. The exclusion from the French municipal elections had therefore deprived her completely of the electoral rights.

“EU citizens must be nationals of a member state”

In his opinion, the Advocate General said British nationals do not retain the benefits of EU citizenship following the UK’s withdrawal from the EU because, under the EU Treaty, EU citizens must be nationals of a member state.

On that basis, the EU is “powerless to create Union citizenship independently from nationality”.

As regards the timing, he said that British nationals ceased to be EU citizens “as of the entry into force of the withdrawal agreement,” even if some rights, such as free movement, continued during the transition period.

Once outside the EU, he added, “any deprivation of the right to participate in the democratic process as a British national arises exclusively as a consequence of UK law”.

The magistrate also argued that the EU was “in no position to insist” that the UK adheres to the founding EU principles, nor to secure rights of citizens no longer part of the EU, because “the UK’s sovereign choice to leave the EU amounts to a rejection of the principles underlying the EU”.

In addition, there is no legal basis to distinguish between British nationals who exercised their EU rights and those who did not as all British nationals were EU citizens before Brexit, “regardless of what use they may have made of that status”.

The Advocate General also noted that Mrs Bouillez has resided in France since 1984 and is married to a French citizen, so she could have acquired French nationality to retain EU citizenship.

Mrs Bouillez said she did not do so because, as a former official in the then UK Foreign and Commonwealth Office, she took an oath of allegiance to the Queen.

Prior to the opinion, Alice Bouillez told Europe Street applying for French nationality was “not really needed” because of the “extra-status provided by EU citizenship”.

She was hoping her acquired rights would be recognised and that she was asking “nothing extra”.

“It is a disappointing moment but we are exploring our options,” she told Europe Street on Thursday. She also noted the “all too obvious fragility of European citizenship as a status that can be relied upon.”

Maintaining EU citizenship

Several other cases have been brought to the EU Court over the past years about the EU citizenship of British.

Two cases supported by Mr Fouchet have sought to invalidate the withdrawal agreement, or part of it, as it removes the EU citizenship of British nationals without any “proportionality test”. One of them concerns a UK councillor in France who was unable to stand for re-election. The Court ruled these cases inadmissible but the appeal is pending.

Another case brought by London-based law firm Beachcroft LLP argued that EU citizenship is a “fundamental status” and a “personal right” conferred directly to the citizen by EU law, so it that “cannot be removed arbitrarily without the consent of the citizen and without due process”. The Luxembourg Court dismissed this too.

Last September a British national who was standing in Berlin’s municipal elections challenged in court the decision by the local electoral commission to block his candidacy.

In 2018, a Court in the Netherlands judged “inadmissible” a case by British nationals arguing that EU citizenship is an “independent source of rights and obligations” and cannot be revoked, especially since the EU Treaty does not specify what to do about it when a country leaves the bloc.

Also in 2018, a group of British nationals launched a European Citizens’ Initiative to ensure that once attained, EU citizenship cannot be lost. The initiative did not reach the one million signatures required to ask EU legislation on the matter.

Anthony Simpson, Director of the Bertrand Russell Peace Foundation, who initiated the initiative, on Thursday commented that the loss of EU citizenship “is accompanied by democratic decline as an entire tier of political representation at the European Parliament has been removed”.

The Advocate General opinion, he said, “is not altogether surprising, but the political, economic and social damage caused to the lives of millions by loss of status continues to unfold.”

EU citizenship was introduced by the Treaty of Maastricht of 1992. Beyond free movement rights, it grants EU nationals who live in other EU member states the right to vote and stand as candidates in municipal and European elections, the right to receive consular protection in non-EU states from other EU countries, and the right to participate in European Citizens’ Initiatives.

Claudia Delpero © all rights reserved

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