Friday 21 May, 2021
Here is an update on case T-252/20 from Dr Alexandra von Westernhagen who, as you will know, formulated the original legal arguments on which the case is based.
In our last update we mentioned that the Council’s response to the substance of our application was due on 7 January 2021.
However, we are still waiting to see the Council’s defence in our case:
The Council first asked for an extension of the deadline for submission of its defence until 8 February 2021.
On 10 February 2021, we were then informed by the General Court (where our case currently is) that the Council had asked the General Court to stay proceedings – or to decline jurisdiction in our case.
We have been told that these requests have been made in view of two proceedings which have been launched from France by way of a different court action called ‘preliminary reference’.
These two cases from France are currently pending before the ECJ (the ultimate court) because preliminary reference requests go directly to the ECJ and not first to the General Court.
We considered a direct action to the General Court to be preferable as it enables us to show the unfairness of citizenship deprivation irrespective of the specific circumstances of the UK citizens involved and mount a more comprehensive challenge.
Following our related submissions to the General Court of 17 February and 10 March 2021, the General Court has meanwhile informed us that it will not stay proceedings in our case.
However, we are still due to hear back regarding the request to decline jurisdiction.
If the General Court decided to decline jurisdiction in our case, it would be joined with the two cases from France in the ECJ.
We have argued that declination of jurisdiction in our case and joining it with the two cases from France is not appropriate.
This is because, to the best of our knowledge, the two cases from France are fundamentally different from ours:
They essentially deal with the rights of those UK citizens who have already exercised free movement rights.
Our case deals with the status and nature of EU citizenship as such.
Or, as Jeremy Morgan QC has put it in the latest (December 2020) issue of “Costs Briefing”:
“The most ambitious [citizenship] case is Silver v Council (T-252/20) a claim launched in April this year in the General Court (the EU court of first instance) by DAC Beachcroft’s London office. If wholly successful it would result in all UK citizens alive at Brexit retaining EU Citizenship even if they had never left the UK. The basis of the claim is that under the EU Treaties EU citizenship is the fundamental status of nationals of EU states, that it is a personal right of the citizen which does not lapse upon the withdrawal of one’s State from the EU and cannot be removed without consent or due process. There is ample EU authority on the fundamental status of EU citizenship, but its full extent has yet to be examined in the courts.”
To the best of our knowledge, declination of jurisdiction only very rarely takes place and in circumstances where there is virtually complete overlap between the cases pending before the ECJ and this Court.
Also, our case is being argued in English while the two cases from France are in French.
Again, we are still to hear back from the General Court regarding the request to decline jurisdiction but will, of course, update you as soon as we hear back.