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Saturday 25 January, 2020

EU citizenship is a permanent status – and the right to ask the courts for clarification on this point exists beyond 31 January 2020

This legal analysis has been provided by someone who we would currently like to remain anonymous. They are a very experienced legal expert with a most extensive knowledge of EU law.

  1. The basic points to argue that EU citizenship is permanent are:
    • EU citizenship is a right which has already been given to UK nationals by the EU itself and NOT the UK government (Article 20 TFEU: “Citizenship of the Union is hereby established”).
    • The EU has its own legal personality enabling it to do so (Article 47 TEU).
    • EU citizenship is additional to and does not replace national citizenship (Article 9 TEU and Article 20 TFEU).
    • Removing that right, once given, can only be done by a means that is compatible with EU law (“In all its activities, the Union shall observe the principle of equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies”: Article 9 TEU).
    • The CJEU has declared at several occasions that EU citizenship is a fundamental status which is vested in the individual; and it has been very cautious when it comes to removing or even limiting the rights attached to it – see for example Rottmann (C-135/08).
    • The careful exercise of the principle of proportionality by a proper due legal process when considering removing national and EU rights, as in Rottmann, is far removed from the mass extinction of rights which is now supposedly accepted to take place with the UK’s exit from the EU.
    • It has been argued that the wording of Article 20 TFEU (‘Every person holding the nationality of a Member State shall be a citizen of the Union’) confirms that exit of a member state from the EU removes EU citizenship of its nationals.
    • However, EU citizenship was established with the Maastricht Treaty of 1992, whereas the possibility for a member state to exit the EU was only established with the Lisbon Treaty of 2007 (through Article 50 TEU). It is therefore difficult to conceive that the authors of the Maastricht Treaty had the potential removal of EU citizenship through a member state’s exit in mind when drafting Article 20 TFEU.
    • It is also irrelevant that the UK will not form part of the EU territory anymore following withdrawal from the EU: residents of the Crown Dependencies are included in the definition of British citizens and thus qualify as EU citizens, even though they reside in territories which are not part of the EU.
  2. What this means in practice:
    • All UK citizens who are currently holding EU citizenship will do so beyond 31 January 2020.
    • In practice, once the interim period is over, not all the rights attached to EU citizenship will be exercisable by UK citizens. This will affect in particular the right to vote and to stand as a candidate at elections to the European Parliament.
    • However, free movement rights will have to be preserved, whether they have already been exercised or not.
  3. The right to ask the courts for clarification on this point exists beyond 31 January 2020:
    • While the withdrawal of the UK from the EU releases it from future obligations, under the Vienna Convention on the Law of the Treaties that does not affect rights, obligations or legal situations created before withdrawal takes effect.
    • Similarly, the UK is bound to the European Convention on Human Rights, whose Article 6 guarantees that everyone is entitled to a fair and public hearing within a reasonable time in the determination of his civil rights and obligations.
    • During the transition period (currently set to end at the end of 2020), it is also bound to the vast majority of EU law (Article 127 of the WA), including most provisions of the Charter of Fundamental Rights of the European Union (featuring a whole Title on Citizens’ Rights)
    • At EU level, we should remind ourselves that according to Article 174 of the withdrawal agreement, the CJEU keeps jurisdiction over a question of interpretation of a provision of Union law referred to in this agreement.
  4. Why it is important:
    • A recent Eurobarometer polls shows that, in all EU countries (including the UK), over half of the population recognises that they are European citizens, with an EU average of 73%.
    • It is important now to find proper answers and do justice to the fundamental place that EU citizenship has in the European integration and peace process. This has been recognised by the European Parliament in a Resolution on implementing and monitoring provisions on citizens’ rights in the Withdrawal Agreement adopted by a massive majority on 15 January 2020:
      “20. Recalls that many UK citizens, both those resident in the UK and those resident in the EU-27, have expressed strong opposition to losing the rights they currently enjoy pursuant to Article 20 of the TFEU; proposes that the EU-27 examine how to mitigate this within the limits of EU primary law while fully respecting the principles of reciprocity, equity, symmetry and non-discrimination.”
    • It should be added that preserving EU Citizens’ rights for UK citizens is not dependant on reciprocity: as the UK will no longer form part of the EU (territory) going forward, it will not have to provide for free movement of EU citizens and other rights connected to the status of EU Citizenship, unless this is negotiated as part of the future relationship between the UK and the EU.