By Gareth Davies
If the UK withdraws from the EU, then its citizens will cease to be citizens of the Union. That much is simple – Article 20 TFEU doesn’t leave any doubt that Union citizens are those who are citizens of the Member States.
Still, while that provision was once thought to make Union citizenship dependent on national citizenship, in Rottmann the Court turned it neatly around, showing how it made national citizenship equally dependent on EU law. In that case a German citizen was faced with threatened denaturalisation, which would be likely to leave him stateless. He argued that the denaturalisation, because it also deprived him of his Union citizenship, was an interference with his EU law rights, and so should be constrained by EU law.
He won on the principle, although he probably lost on the facts: the Court said that indeed, a national measure which deprives a Union citizen of their Union citizenship clearly falls within the scope of EU law, and is therefore subject to judicial review in the light of EU law rules and principles. However, it went on to say that such a measure is not per se prohibited. It must merely be proportionate. Denaturalising fraudsters probably is, in most circumstances.
Rottmann to the rescue for UK citizens?
There is an argument circulating, more in a spirit of desperation than of hope, that Rottmann might offer a way to block Brexit, or at least to amend it in some way. A decision to leave the EU would, after all, be a measure depriving around 60 million Union citizens of their Union citizenship and its associated rights and privileges. Not only that, but this would be clearly contrary to the wishes of at least half, probably more than half, of those citizens. Therefore, can we not argue that a decision to invoke Article 50 TEU is subject to Rottmanesque judicial review?
There are three reasons why this argument fails, although even in failing it does reveal something interesting about the nature of Union citizenship.
Firstly, Rottmann concerned a state that was a Member of the EU, and therefore subject to its law. That it should apply its nationality (and other) rules in the light of EU law is hardly surprising. However, if the UK leaves then it will no longer be subject to EU law, and it will only be at the point that it ceases to be subject to EU law that its citizens will cease to be citizens of the Union. Once the UK is no longer under any obligation to apply or respect EU law, there would be no basis (at least in EU law) for challenging the consequences of its national measures for the rights and privileges of disaffected FUCs (Former Union Citizens).
This rather procedural argument is less persuasive than one based on the bigger Treaty picture: by inserting Article 50 into the TEU the Member States, and for that matter the European Parliament, clearly accepted the possibility of departure from the Union, and associated removal of Union citizenship from national communities. To read Rottmann as possibly preventing this is to see it as an attempted coup d’etat, as a ruling that undermines an explicit provision of the Treaty and removes a more fundamental element of national sovereignty than Van Gend or Costa ever did. Is this plausible, when the case presents itself merely as an orthodox ruling that Member States must take account of the consequences of their actions for EU law?
It may help here to conceive of individual membership and national membership of the Union. The latter is regulated by Articles 49 and 50 TEU, and the former essentially created by Union citizenship. Whether a state member may deprive a person of their individual membership is, post-Rottmann, and understandably, an EU law matter. However, whether a community as a whole may take a decision to resign their membership, both individual and national, is another question, and there is nothing in Rottmann which suggests that it is intended to be about this.
To make Rottmann work in this way we would have to deny the legitimacy of the national process, so that if the UK government gave notice of withdrawal under Article 50, this would be regarded as merely an action by the 52% on the 48%, a Rottmann situation multiplied many times, instead of as a legitimate democratic choice. This may be appealing to the most die-hard Euro-federalists, for whom the legitimacy of the state and its actions is always questionable, but the legal problem is Article 50 again: in deferring decisions on exit to national constitutional requirements it clearly leaves it up to the Member State to decide when and how to decide to withdraw; which processes and majorities suffice to authorise that decision. To interpret Rottmann to trump this would require a judgment even more grandiose than Van Gend or Costa, something in which the Court pronounced that the present state of integration was such that the removal of their fundamental status and rights from a group of Union citizens could only be permitted if the national constitutional process leading to it was itself sufficiently democratic to comply with the requirements of EU law. That might entail not just super-majorities, and even reflection periods, but measures such as extended transition periods, allowing those whose European identity was important to them sufficient time to emigrate and naturalise elsewhere.
It’s a fun idea, but it’s not going to happen. It isn’t so much applying Rottmann, as extrapolating it several large steps. Twenty years ago it was perhaps imaginable, for an Euro-optimist, that by now we would have reached that point, or even that Member States would have been considered to have lost the sovereignty to withdraw at all. Then along came 9/11, enlargement and some economic problems, the integrative roll slowed down, and things turned out differently. The philosophy required to sustain a judgment like this no longer lives, even among the institutions, where, ironically, it is self-proclaimed federalists who have embraced Brexit and Article 50 most wholeheartedly. If Verhofstadt, Juncker, and Schulz think that Member States still have enough sovereignty to withdraw, and to decide autonomously whether they should withdraw, then we may conclude that the glorious-and-irreversible-submission-to-destiny view of the EU is currently dead.
The third argument why Rottmann doesn’t help against Brexit is based on Rottmann itself: the Court didn’t say that Union citizenship couldn’t be removed, just that a measure doing so had to be proportionate. Is it really likely that a negotiated arrangement within the framework of the Treaty and national constitutional requirements is disproportionate? At the very least, this argument could only be made once the final arrangements were known. Perhaps, just perhaps, in some wild lawyers’ fantasy, one might be able to imagine that after a truly drastic break, in which British citizens lost the rights to travel or stay in other EU states, and where the negotiations leading to this were contested and controversial, the Court might be persuaded to subject the final arrangement to some proportionality review. It is hard to see how such review could be effective though: merely annulling an agreement adopted under Article 50 would not necessarily help matters – it would just leave the UK outside without a deal.
All the arguments that citizenship should limit withdrawal rely implicitly on a certain view of Union citizenship: that it is a status so profound that it transcends mere institutional arrangements, almost a fundamental right of Europeans, such that Union and national procedures can be made subject to it, rather than vice versa. That view, it is suggested, is no longer widely held, and is not compatible with a Brexit. If we accept that Union citizenship can be removed by a national parliamentary majority of 51% than we implicitly regard that citizenship as a contingent status of convenience, a discount card in the supermarket that is Europe, rather than a corollary of supranational belonging. Europeanness may still be something inherent and deep, beyond the capacity of governments to remove, but Union citizenship is apparently not constitutive of, or constituted by, Europeanness. As the brexiteers like to say, Britain will not be less European because it leaves the EU.
That leaves just the Court. For the last two decades it has claimed that Union citizenship is destined to be the fundamental status of nationals of the Member States. Sometimes, to be fair, confidence slips and is replaced by hope, and it says just that citizenship is intended to be that status. Nevertheless, one senses an attempt at constitutive rhetoric, at the beginning of a line of thought which, if left to develop, might one day lead us to the point where Union citizenship is irreversible, personal, transcending national politics and even the Treaty text.
Can the Court maintain this? When Union membership is as fragile and uncertain as Brexit and the opinion polls in other states suggest, it is hard to see its citizenship as in any way fundamental, or in terms of destiny. However, supreme courts do not just reflect reality – they also shape it. The Court has been remarkably consistent and effective in doing this throughout the history of the EU. That, of course, is why it was so passionately opposed by the leading brexiteers. The process of EU re-examination which they have begun will offer it a challenge like none before.