A union of states or people? New court case about nature of EU citizenship

A fresh legal challenge is about to be launched at the Court of Justice of the European Union to determine whether EU citizenship is a permanent status.

The case will put into questions some parts of the agreement on the UK withdrawal from the EU, which was negotiated on the assumption that UK citizens will no longer be EU citizens after Brexit. The related European Council decision, adopted on 30 January 2020, can be challenged until 24 April 2020. The procedure leading to a judgment is then expected to last around 18 months.

If successful, the case would not only recognise that British citizens born before 31 January 2020 (the date the UK left the European Union) remain EU citizens, but it would also establish that the relationship between the European Union and EU citizens exists beyond the belonging to an EU member state.

Individuals can bring direct action against EU acts if they can prove they have been personally impacted by the measure in question.

In this instance, the case will involve three categories of individuals: British citizens who have never left the UK, British citizens who have never left the UK but intend to move to the EU in the future, and British citizens who have already exercised EU free movement rights. Under the withdrawal agreement, all these groups have lost EU citizenship and can no longer move freely across EU countries.

The lawyers leading the case are Alexandra von Westernhagen, David Harrison and Stephen Hocking from DAC Beachcroft, and Takis Tridimas from Matrix Chambers, all in London.

The intention is “to not only launch the case, but to exhaust every possible way to win it,” Alexandra von Westernhagen told Europe Street. “In the end, we want the Court to confirm that EU citizenship is under the jurisdiction of the EU and a principally permanent status,” she added.

What defines EU citizenship

The creation of a European form of citizenship was considered since the 1960s in the then European Economic Community, but it materialised only in 1992 with the Treaty of Maastricht. This introduced the concept of EU citizenship with the objective “to strengthen the protection of the rights and interests of the nationals of its member states”.

Under EU Treaties, every person holding the nationality of a member state is a citizen of the Union.

EU citizenship, which is additional and does not replace national citizenship, grants the right to move and reside freely in other EU member states, the right to vote and stand as candidates in the European Parliament election and in municipal elections in the EU country of residence, the right to diplomatic protection in non-EU states by the authorities of another EU country when their own is not represented, the right to petition the European Parliament and complain with the Ombudsman on EU maladministration, the right to access EU documents and write to any EU institution in one of the EU languages and receive a response in that language.

A mistake in the withdrawal agreement?

The lawyers will argue that EU citizenship is a right that was given to UK nationals by the EU and not the UK government, as it was defined in EU Treaties and the EU has its own legal personality.

In addition, while EU citizenship was established in 1992, the possibility for a member state to exit the EU was only established with the Lisbon Treaty of 2007, so it is unlikely that the authors of the articles on EU citizenship had conceived its potential removal through an EU exit.

There are also the rulings of the Court of Justice, which in several occasions stated that EU citizenship is a fundamental status and has been cautious in removing or limiting the rights attached to it.

In practice, even if the case is successful, it might not be possible for British citizens to exercise all the rights deriving from EU citizenship. But lawyers believe free movement should be preserved without a condition of reciprocity from the UK towards EU citizens.

Asked whether there is a risk to create “second-class” EU citizens who benefit of only partial rights, and to have a principle recognised in law but not enforceable in reality (the UK will no longer issue EU passports and transnational rights such as access to healthcare and coordination of pensions depend on the agreement and systems in place at national level), lawyers said that some of the details will have to be decided by separate court decisions if the basic principle that EU citizenship is a permanent status is accepted.

Another question is about “duties” associated to EU citizenship. “Like national citizenship, EU citizenship refers to a relationship between the citizen and the European Union, which is defined by rights, duties and political participation,” says a European Parliament briefing. However, lawyers say that so far, the EU Treaties do not foresee any duties for EU citizens, but only rights.

A fundamental question on the EU nature

The case brings together several initiatives started independently during the Brexit negotiations. David Harrison of DAC Beachcroft LLP had complained with EU institutions that “nobody could take away his EU citizenship”. Mr Harrison started to study the options with colleague Alexandra von Westernhagen, reaching out to organisations pursuing similar interests.

In the meantime, Joshua Silver, a Physics Professor from the University of Oxford who lives in the south of France, was contacting the European Commission and consulting lawyers on the same topic. Professor Silver set up a website registering people determined to retain EU citizenship. Earlier this year, the group met and Mr Silver is now running the crowdfunding campaign to support the case.

“Most UK citizens seem to think that somehow their EU citizenship ‘evaporated’ on 31 January 2020, but there is a very clear legal argument that that is not the case,” Professor Silver said.

“There is, in our view, a huge oversight in the whole exit negotiations,” Alexandra von Westernhagen told Europe Street. She added that the charged political situation around Brexit in the UK has “made the issue much more a UK question than it actually is”.

“Whether EU citizenship is a permanent status that belongs to the individual or not is a question of principle which decides upon the nature of the European Union. Is it a Union for its member states only? Or is it also a Union for and between the people of Europe? This is a fundamental question for all 515 million EU citizens and everybody else who believes in the idea of an international, value-based citizenship,” Ms von Westernhagen added.

Similar but procedurally different cases are being considered in Spain, Germany, Belgium, the Netherlands and Italy.

Separate case in France

Separately, on March 30th, another challenge against the withdrawal agreement was filed to the Court of Justice of the European Union.

Julien Fouchet, the lawyer in Bordeaux supporting the case, told Europe Street the legal dispute concerns 10 British citizens and 13 areas, including the right to vote for Britons abroad and the loss of EU citizenship without any assessment on the proportionality of its impacts. Unlike the case brought from the UK, the aim of this legal challenge is to invalidate the withdrawal agreement altogether.

Previous attempts to seize the EU Court to retain EU citizenship for British nationals have failed, but the new case has a wider scope. A European Citizen Initiative was also launched to invite the European Commission to cover gaps in this area, but it did not reach the one million signatures required for the EU to respond.

Claudia Delpero © all rights reserved.

Photo by Ilovetheeu / CC BY-SA via Wikimedia Commons.

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