The question whether it would be lawful for a Member State to revoke the notification of withdrawal from the EU before the two-year lapse (laid down in the third paragraph of Article 50 TEU) has, clearly, vital political, economic and social implications. Even though it cuts to the core of the philosophy governing the “ever closer Union” and the role that States and private individuals play in it, it’s also a matter to which the provision itself does not give a definite answer. Moreover, there is no case law issued on the matter by the CJEU that could contribute to the interpretation of the provision, while the UK Supreme Court seems to have posited the irrevocability of a withdrawal notification in the famous judgment issued in the case of R (Miller) v Secretary of State for Exiting the European Union [UKSC 2016/0196], foregoing the opportunity to use the preliminary reference mechanism. This absence of relevant CJEU case-law is expected to change after the Inner House of the Court of Session in Scotland decided on 21.09.2018 to refer a relevant preliminary question (see O. Garner’s analysis),
Part of the literature expressing interesting and strong legal arguments has suggested the answer to the above question to the positive (e.g. P. Craig, S. Peers, O. Garner, A. Sari). Arguing the contrary and attempting a contribution to the academic debate, this post’s point of view is based on the fundamental principle that the EU legal order constitutes an “autonomous legal system”, which is governed by its own rules enacted by its own institutions and interpreted by its established Court (C-26/62, Van Gend en Loos). It is, therefore, argued that the legal lacuna regarding the provision of revoking the withdrawal notification, leads, according to the interpretation of the provision set out in Article 50 TEU – in line with the letter and spirit thereof – to the conclusion that permitting such a revocation would contradict the principle of autonomy, regardless of whether it is unilateral or initiated upon consensus.
The present post is divided into two parts. In the first part I approach the interpretation of Article 50 TEU through its letter and spirit. In the second part I develop my argumentation concerning the critical role that the fundamental principle of autonomy should play when attempting to find the true meaning of the provision and to fill the legal gap concerning the right to revoke the withdrawal notification. Continue reading →
On the day that Theresa May declared that withdrawal negotiations between the United Kingdom and the European Union have reached an impasse, the Inner House of the Court of Session in Scotland issued a judgment that may pave the road for a third option between no deal and May’s imperilled Chequers deal. The Scottish court decided to refer the following question in a preliminary reference to the Court of Justice of the European Union:
‘Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU’.
The purpose of the reference is to clarify for Members of Parliament whether it would be a legally valid option under Section 13 of the European Union (Withdrawal) Act to withhold a resolution approving any negotiated withdrawal agreement, or lack thereof, and instead vote to revoke notification under Article 50(2).
This post will summarise the reasoning of the Court of Session judgment. It will then engage with the arguments for and against the proposition that notice under Article 50(2) may indeed be revoked unilaterally. The argument will be forwarded that such a unilateral revocation by the United Kingdom should be possible, so long as a decision is made to do so in accordance with the constitutional requirements of the Member State. The post will conclude with consideration of the second limb of the conditions and effects of such a revocation for the Member State remaining within the EU. If unilateral revocation is indeed possible, it will be argued that the most desirable method of creating such a statutory power would be to include it within legislation mandating the holding of a second referendum on the question of whether the United Kingdom should leave or remain within the European Union, and to predicate its operation thereupon. Continue reading →
Last week, the Court handed down a decision on the provisions of the Agreement on the Free Movement of Persons (AFMP) between Switzerland and the EU. It denied that a French national who had moved to Switzerland and who wanted to rely on the AFMP’s freedom of establishment provisions to challenge a French legal mechanism of exit taxation on unrealised capital gains could do so. The case is of interest for those following Swiss-EU relations, as the ECJ had (and missed) the opportunity to say more on the rather specific version of freedom of establishment enshrined in the Agreement. At the same time, there are also certain lessons to be learned for the interpretation of future agreements of the EU with third countries dealing with access to the internal market and the free movement of persons (looking at you, Brexit). Arguably, there is a certain meandering in the reasoning of the Court on the AFMP, and this latest case seems to demonstrate a return to the early days of a more restrictive interpretation, based to a substantial degree on the fact that Switzerland has said no to the internal market. Below, I will briefly explain the facts of Picart and the decision of the Court. Then, I will examine in more depth the above claim on the Court’s shift in interpretive methodology and the alternative approaches to the interpretation of the AFMP that could have been taken. Continue reading →
Many Europeans in the United Kingdom and British citizens on the continent are currently wondering whether they should adopt the nationality of their host state, in order to guarantee their residence rights after Brexit. One disadvantage of doing this is that they cease to be foreigners, people living in a state ‘other than that of which they are a national’ (Article 3, Citizenship Directive) and so lose all the specific rights that EU law grants to migrants in a host state, most notably those concerning family members. These migrants’ rights are largely found in the Citizenship Directive, and are the basis for the provisions on Citizens’ rights in the draft Brexit Withdrawal Treaty. Ceasing to be a foreigner thus creates legal risks, as well as advantages.
Lounes has now added an interesting twist to this situation. The essence of this judgment is that a migrant Union Citizen who naturalizes cannot be compared to a native citizen – their migrant history means that they should be treated differently, and continue to enjoy the rights they had as a migrant. It holds out the possibility of the best of both worlds for the potential Brexit victim. On the one hand, all the security that comes with possessing the nationality of their host state. On the other, all the privileges that come with being seen as a migrant in EU law. The draft Withdrawal Treaty, published on 28th February, seems to take this approach too. However, before the champagne can be uncorked we must wait for the final Treaty text, for it would only take small changes in the way that it defines those it protects to spoil the naturalization party. Continue reading →
Update (19/6/2018): On 19th June 2018 the Amsterdam Appeal Court decided not to refer the question of whether EU citizenship is automatically lost with Member State withdrawal to the Court of Justice of the European Union. The questions were declared ‘insufficiently concrete’ in light of the hypothetical nature of the complaint. It remains to be seen whether the legal dispute could re-surface if and when the issue of the loss of EU citizenship does become concrete when the United Kingdom’s withdrawal from the European Union is finalised. The judgment (in Dutch) can be found here, and a summary (in English) here.
Introduction: A New Route from Amsterdam to Luxembourg
Despite the United Kingdom’s impending withdrawal from the European Union, a direct Eurostar train route from London to Amsterdam will soon be established. This route will enable, amongst others, all of those holding the status and rights of EU citizenship to move ‘freely’ between the two metropolises. This class still includes nationals of the United Kingdom, and ostensibly will continue to do until that Member State’s withdrawal is concluded in accordance with Article 50 TEU. An incorporeal yet no less direct route has now also been established between Amsterdam and Luxembourg as a result of a preliminary reference by the Rechtbank Amsterdam (‘District Court’) to the European Court of Justice (‘ECJ’) under Article 267 TFEU. Such a judicial pathway may facilitate retention of the status and rights created by Article 9 TEU and Article 20 TFEU for the aforementioned nationals of the withdrawing state. Continue reading →
When Britain leaves the EU there will be several million citizens of other Member States living in the UK, and probably around a million UK citizens living elsewhere in the EU. What happens to their rights when they suddenly cease to be living in the EU, or to be a Union citizen? This was one of the three ‘divorce’ issues that were addressed in the first phase of Brexit negotiations (the others were the Northern Irish border and the financial arrangements around withdrawal). That phase ended in December 2017 with a joint report to the Council setting out a basis for a future withdrawal agreement.
The citizen’s rights chapter of this report (paras 6-41) was the easiest to negotiate. The reason for this is that the UK, even fervent Brexiteers, had always maintained that it had no desire to throw out Union citizens already living in the country, and so very quickly the two sides could agree on a guiding principle: a freezing of the status quo. Those with Union rights at the time of the breakup would continue to enjoy them for as long as they remained, even if that be for life, while those who migrated after the Brexit date would fall under whatever new regime might be negotiated. The position of those who may arrive during a transition period, if one is negotiated, was not discussed, and is now the subject of fierce exchanges.
Thus where Union citizens and family members live in the UK on the basis of the citizen’s rights directive (2004/38), or Article 21 TFEU, or where UK citizens and family members live in other member states on either of these bases, at the date of withdrawal – which will probably be 30th March 2019 – then they will continue to enjoy the same rights, including non-discrimination and rights regarding social assistance, as they did before. The rights of their future children will also be the same as if the directive still applied, even if the children are adopted, conceived or born after Brexit. Moreover, the right to be joined by family members falling within Article 2 or Article 3(2) (partners in durable relationships) will continue after Brexit, provided that the relationship existed before Brexit day. The right to be joined by other Article 3 family members, such as more distant dependents, appears to be dropped after Brexit. For those who have lived in their host state for more than five years, their right of permanent residence, which gives them a right to social assistance if necessary, will continue provided they do not spend more than five years continuously abroad. Continue reading →
The future of EU-UK judicial cooperation in criminal matters is far from certain. In her Florence speech, Theresa May affirmed that one of the goals of the UK government was to establish a “comprehensive framework for future security, law enforcement and criminal justice cooperation” after Brexit. In the government’s ‘Future Partnership Paper’, the government also expressed the need of concluding a separate agreement that guarantees the future of cooperation in police and security matters between the UK and the EU. Despite all the efforts, the latest decisions have shown how difficult an agreement in this area will be. Continue reading →
The European Law Blog will be taking a summer recess. We’ll be back end of August with new commentaries, including on key Summer developments. Please do send us on your contributions throughout this period and we will get back to you in due course. Happy Holidays to all our readers!
By Oliver Garner
An impasse in Brexit negotiations exists between the United Kingdom and the European Union regarding the jurisdiction of the Court of Justice of the European Union. This post will consider the legal viability of a proposed solution to this stalemate: a joint EU-UK court to adjudicate upon citizens’ rights. Although the proposals have limited the substantive remit of such a potential court to citizens’ rights, due to this area being the most contentious between the EU and the UK, in principle one could envisage a joint court with jurisdiction over all aspects of the withdrawal agreement. It may be argued that such a solution would be politically unacceptable for the European Union as it allows the United Kingdom to “have its cake and eat it” through a substitute for the Court of Justice over which the withdrawing state has far more influence. However, this post will focus on the legal rather than political viability of the proposal. This post will consider the proposal with a particular focus on whether the joint court could violate the Court of Justice’s stringent conditions for protecting the autonomy of the EU legal order. A comparison will be drawn to the similar proposals for an EEA court in the original EEA agreement, and the eventually established EFTA court. Finally, beyond the United Kingdom’s withdrawal, the post will move on to consider whether the idea of a joint national and European court could provide a solution to the problems that arise from the unique composite nature of the EU legal order. Continue reading →
On 14 May 2017, the Secretary of State for Exiting the European Union David Davis was interviewed on ‘Peston on Sunday’ and the topic was, unsurprisingly, Brexit. The contentious issues of the sequencing of the negotiations according to the Council’s Guidelines for withdrawal arose. As is now known, the Chief Negotiator for the EU, Michel Barnier, has insisted that the issues of EU citizenship rights, the UK’s financial liabilities and the border between the Republic of Ireland and Northern Ireland are resolved before any discussion of the future trade relationship with the UK can proceed. This position was further affirmed in the Negotiating Directives issued by the Council on 22 May 2017 which deal exclusively with the negotiating priorities of the Withdrawal Agreement. The goal of this contribution is to point out that the plain language of Article 50 does not in fact envision the necessity of a future, separate agreement to deal with the future relationship between the EU and the UK, contrary to much debate both at UK and EU level. To be perfectly clear: I am not arguing that in fact the future relationship is not likely, or even bound, to entail such as an agreement. The argument is instead entirely predicated on the textual interpretation of the Article. Continue reading →
Opinion 2/15 on the EU’s powers to conclude the EU-Singapore Free Trade Agreement (EUSFTA) delivered Tuesday received considerable attention from the press. This comes as no surprise as the Court’s Opinion has consequences for future EU trade deals such as CETA and potentially a future UK-EU FTA. Despite the fact that the ECJ concluded that the agreement should be concluded jointly with the Member States, the Financial Times jubilantly claimed victory for the European Union, belittling Wallonia in the process. This victory claim calls for three initial comments as there are aspects of the Opinion that might merit a different conclusion. Continue reading →
Following the delivery by Sir Tim Barrow of a letter to European Council President Donald Tusk notifying the European Council of the United Kingdom’s intention to withdraw from the EU, the two-year time period within which the UK and EU shall negotiate and conclude a withdrawal agreement has commenced.
According to Article 50(2) TEU, the first step in this process is for the European Council to agree upon a set of guidelines defining the framework for the EU side of the negotiations.
As the Brexit negotiations become a reality, the position of UK citizens living in other EU states, and of EU citizens living in the UK attracts ever more discussion, particularly within the UK, where there has been great political support for the idea that those already established in the UK should not simply be thrown out. Nevertheless, aspects of UK procedure and bureaucracy are making it extremely difficult for Union citizens to obtain recognition of their right to reside. At the heart of this is the lack of a UK population register and of any registration requirement, meaning that most Union citizens moving to the UK do so without formalities. That may seem refreshingly easy at first. However, it means that if a Union citizen wants the UK to recognize that they have a right of permanent residence, they have to prove retrospectively that their last five years have been both in the UK, and in compliance with the terms of the Citizenship directive. That raises enormous evidential problems. One of these is to do with sickness insurance: while taking no active steps to require this from new arrivals, the UK takes the view that only those who were privately insured against almost all medical risks were actually lawfully present. This comes as a nasty shock to many migrant citizens – most of them, like over 90% of UK citizens, use the National Health Service rather than private insurance. The discussion below explains how this situation has arisen, and considers whether the UK’s standpoint complies with Union law. It suggests that this issue should not be ignored in Brexit negotiations, as it concerns the rights and lives of many thousands of Europeans. Continue reading →
I. Introduction: A New Initiative for UK nationals After Brexit?
On 11 January 2016, the European Commission registered a European Citizens Initiative to create a “European Free Movement Instrument”. The purpose of the Initiative is to lobby the European Union institutions to create a mechanism by which individuals may be directly granted the rights of free movement provided by EU citizenship, which is currently predicated upon nationality of a Member State in accordance with Article 20 TFEU. The proposers of the Initiative – the “Choose Freedom Campaign” – outline that their intention is not to reform the nature of Citizenship of the European Union; they concede that “the EU isn’t a government, and only Nation states can issue Citizenship”. Instead, their ambition is more limited – they argue that the European Union should institute a “Universal Mechanism” in order to provide individuals with a European Union passport: “we beg the Commission to delineate a method by which all Europeans of good standing may be granted a signal & permanent instrument of their status and of their right to free movement through the Union by way of a unified document of laissez-passer as permitted by Article (4) of Council Regulation 1417/2013, or by another method”.
Although the information on the Initiative on the Commission’s website and the accompanying press release do not explicitly link the putative Free Movement Mechanism to Brexit, it seems clear that such a competence for the European Union to directly issue EU passports would address the loss of rights that will be attendant to UK nationals losing the status of EU citizenship provided to them through nationality of a Member State once the United Kingdom has withdrawn in accordance with Article 50 TEU. Continue reading →