By Oliver Garner
Update (21/02/2018; 19:00 CET): On 20th February 2017, an appeal to the ‘intention’ of the District Court to refer questions to the Court of Justice of the European Union was admitted. The Dutch government and the Municipality of Amsterdam now have three weeks within which to appeal.
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.
- Does the withdrawal of the United Kingdom from the EU automatically lead to the loss of EU citizenship of [United Kingdom] nationals and thus to the elimination of rights and freedoms deriving from EU citizenship, if and in so far as the negotiations between the European Council and the United Kingdom are not otherwise agreed [sic]?
- If the answer to the first question is in the negative, should conditions or restrictions be imposed on the maintenance of the rights and freedoms to be derived from EU citizenship?
These legal questions cut to the core of the ambiguity that has enshrouded EU citizenship since its ‘creation’ 25 years ago. The potential for the European Court of Justice (ECJ) to provide an authoritative answer thereto could finally lead to a settled and binding definition of the ambit of the ‘existential status’. Specifically, the crucial constitutional question is whether nationality of a Member State is a necessary condition for the retention of the status in the same way that it is a condition sine qua non for its acquisition.
The analysis thereof will proceed in four sections: first, a brief chronology of the facts that have led to the ‘Amsterdam Case’ will be provided. This is followed by a summary of the English translation of the Amsterdam District Court’s judgment. Next, delineation of the arguments for three options facing the ECJ will be provided: ‘Option I’ for automatic extinction; ‘Option II’ against automatic extinction; and the potential compromise of an ‘Option III’. Finally, the piece will conclude with consideration of the potential ramifications of such an ‘emancipative’ constitutional move by the European Union’s judicial institution.
The following paragraphs provide a brief chronology of the context behind the Amsterdam case with delineation of the relevant legal and political sources (see also Gareth Davies’ recent post on this topic). In light of the teleological or ‘purpose-based’ reasoning of the ECJ, knowledge of such context is relevant for consideration of the legal merits of the case. On the 17th December 2015 an Act of Parliament mandating a referendum on whether the United Kingdom should remain a member of the European Union received the Royal Assent. On 23rd June 2016 this referendum returned a vote to leave the European Union by a margin of 52:48. On the 24th January 2017, the United Kingdom Supreme Court returned the Miller judgment on appeal confirming the High Court’s decision of 3rd November 2016 that a further Act of Parliament was required in order to fulfil the necessary condition for withdrawal mandated by the European Union Treaties’ withdrawal clause. On 16th March 2017 this legislation endowing the Prime Minister with the statutory power to give notification of withdrawal under Article 50(2) TEU was promulgated.
On 29th March 2017, the Prime Minister of the United Kingdom exercised this power to ‘trigger’ Article 50 TEU through the medium of a letter delivered to the President of the European Council. On 29th April 2017, the European Council enacted its guidelines for Brexit negotiations in accordance with the second sentence of Article 50(2). Paragraph 8 of these guidelines declared: “Agreeing reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom’s withdrawal from the Union will be the first priority of the negotiations”.
On 8th December 2017 the European Commission, in its role as the negotiator of the European Union mandated by Article 50(2), and the United Kingdom issued a joint report on the progress of the first phase of withdrawal negotiations. Paragraphs 6-32 detail the substance of the agreement on ‘Citizens’ rights’; paragraphs 33-36 detail the ‘Legal effect of the citizens’ rights Part’; and paragraphs 37-41 delineates the agreement on the ‘Consistent interpretation of the citizens’ rights Part’. On the same day a Communication from the Commission to the European Council on the state of progress of negotiations detailed, in section 4. a), that ‘[T]he principle underlying the Union’s position are that the Withdrawal Agreement should protect the rights of Union citizens, United Kingdom nationals and their family members who, at the date of withdrawal, have enjoyed rights relating to free movement under Union law, as well as rights which are in the process of being obtained and the rights the enjoyment of which will intervene at a later date’. On the basis of these documents, on 15th December 2017 the European Council issued updated guidelines. Paragraph 1 of which declared that the institution ‘welcomes the progress achieved during the first phase of negotiations…and decides that it is sufficient to move to the second phase related to transition and the framework for the future relationship’.
Following this move to the second phase of political negotiations, on the 17th January 2018, the Amsterdam District court admitted a claim by a group of United Kingdom nationals claiming that their status and rights as EU citizens could not be revoked as a result of the Member State of their nationality’s withdrawal. The case was defended by the Kingdom of Netherlands and the municipality of Amsterdam, upon whom the claimants argued a duty existed to protect UK citizens resident in the territory. On the 7th February in Brussels, the European Commission published the first document of the second phase of withdrawal negotiations. This pertains to the legal arrangements for the transitional arrangement between the United Kingdom and the European Union. On the same date in Amsterdam, the Dutch District Court gave judgment in the present case. It found that ‘there is reason to doubt the correctness of the interpretation of Article 20 TFEU that the loss of the status of [national] of an EU Member State leads to loss of EU citizenship as well’. Consequently, it referred the aforementioned questions for judgment by the ECJ in order to enable it to give final judgment on the basis of a ‘correct’ interpretation of EU law. The following section will consider the arguments for both interpretations of what this ‘correct’ answer could be.
Section 1 of the judgment provides a summary of the proceedings, including a description of the UK nationals who are the plaintiffs, and the Dutch authorities who are the defendants, and their advocates. Paragraphs 2.1 to 2.4 provide a chronology of the facts similar to that provided in the above section of this post. Paragraphs 3.1 to 3.3 summarise the legal dispute. A point of interest is the conditional nature of the plaintiff’s claim. In the event that EU citizenship is retained following Brexit, they claim that the Dutch State and the Municipality of Amsterdam must respect, protect and guarantee the rights arising therefrom. In the converse event that the withdrawal of the United Kingdom leads to the citizens of the state losing EU citizenship, they make an alternative claim that the Dutch State does not restrict the rights arising therefrom without an individual assessment of the proportionality principle first being carried out. The manifestation of such assessment for particular plaintiffs includes a claim that the Dutch State would be prohibited from insisting on the relinquishment of British nationality, and the claim that the Municipality of Amsterdam must insist to the State that multiple nationality be facilitated for a person who applies for Dutch nationality. It may be inferred that these diverging conditional pathways have informed the manner in which the District Court formulated its reference questions. Furthermore, the claims arising in the event of the second option shift the facts into the territory of Rottmann and Lounes (discussed further below), as opposed to merely drawing upon these cases by analogy. Finally, salience of the claims with regard to naturalisation into Dutch nationality with regard to the inverse guarantees contained within the Dutch coalition government negotiations may be raised here, without being commented upon further.
Paragraphs 4.1 to 4.8 decide upon the admissibility of the civil organisation plaintiffs, before Section 5 engages in the substantive assessment of the claims. Paragraph 5.1 delineates the three grounds for the plaintiff’s claims: i) the doctrine of acquired rights, ii) the EU citizenship of article 20 of the TFEU and iii) article 8 of the ECHR. The legal analysis in this post will focus mainly on the second claim, whilst touching upon the first claim in the discussion of the ‘Option III compromise’. For more on the potential relevance of Article 8 of the ECHR to the rights of UK nationals after Brexit, see here. Paragraph 5.2 presents the defendant’s defences that i) the proceedings constitute an undesirable breach of the political negotiation process on Brexit and ii) the plaintiffs have set up a notional dispute exclusively intended to get the case put forward to the ECJ.
Paragraphs 5.3-5.9 and Paragraph 5.10 respectively dismiss these defences. The former reasoning may be encapsulated in the statement in Paragraph 5.4 that ‘[t]he simple fact that proceedings are surrounded by political sensitivity is insufficient in this context’; the latter may be encapsulated in the Paragraph 5.10 statement that ‘[t]he plaintiffs have credibly demonstrated that the case relates in part to a very real threat and in part to exiting [sic] infringements of their fundamental rights and freedoms at an individual level’. Of particular interest are the statements in Paragraph 5.7 which may provide a connecting thread to the ECJ’s Rottmann and Lounes case-law on the consequences of naturalisation as a Dutch citizens on the plaintiff’s continuing retention of UK nationality. Finally, the statements pertaining to the degree of protection of those in the minority within a democratic legal state against the social or political morality shall be picked up again in the normative analysis of the claim below. In brief, it may be suggested that such dicta by the national court of a Member State in relation to the internal constitutional processes of another Member State may be construed as encroaching into unwarranted appraisal of ‘fundamental structures, political and constitutional’ of a Member State as protected by Article 4(2) TEU.
The remainder of the judgment proceeds to assessment of the claims and the ‘ground(s)’ on which they are based. This parenthetical pluralisation is indicative of the holistic manner in which the District Court either collates or conflates – depending upon whether one takes a charitable or uncharitable opinion of their judicial methodology – the different claims and the legal sources upon which they are predicated. Such a holistic approach may also be followed by the ECJ in their assessment of the referred questions. Paragraphs 5.11 to 5.14 assesses the argumentation on the basis of Article 70 of the Vienna Convention on the Law of Treaties (VCLT) and Article 20 TFEU. In Paragraph 5.13, the District Court establishes its view that the lex specialis of the TEU and TFEU are distinguished from the lex generalis of the VCLT ‘to the extent that they [the former] not only create rights and obligations between states, they also create rights and obligations for the citizens of the Union’.
The Dutch court proceeds to cite dutifully the mantra of the ‘individual, autonomous legal order’ by which the European Court of Justice ‘emancipated’ EU law in Van Gend en Loos. This conclusion that ‘the TEU gives its own rule for the procedure to be followed in the event that a member state notifies its with to leave the EU’ (Paragraph 5.13) means that the analysis below will focus on the TEU and TFEU legal sources – mainly Article 20 TFEU and Article 50 TEU – rather than consideration of the residual VCLT sources. (For analysis of Article 68 of the latter in relation to the question of revocation of Article 50 TEU notification, see here).
As a final point relevant to Article 20 TFEU, the District Court states in the second sentence of Paragraph 5.14 that ‘[t]he construction of this provision implies a link between the citizenship of a Member State and EU citizenship’. One must, before engaging in criticism of this wording, reiterate that this is a professional albeit unofficial English translation of the judgment. However, the statement that the provisions merely ‘implies’ a link between nationality and EU citizenship is unrepresentative of the nature of this connection of Member State nationality as the the primary condition sine qua non for the acquisition of the status of EU citizenship. The recognition in the next sentence that ‘the acquisition of EU citizenship, with its associated rights and freedoms, is reserved for subjects of the members states of the EU’ remedies this understatement, to a certain extent. The final sentence of this paragraph provides a summation of the two perspectives upon the crux of the dispute: ‘In this light, it is defensible that, as a downside of this, the loss of the status of a citizen of an EU member state leads to the loss of EU citizenship. In view of the following however, this conclusion is not necessarily compelling’.
The ‘following’ encapsulates consideration of two of the grounds delineated in Paragraph 5.1. Consideration of the third ground of art.8 ECHR is absent, at least in the English translation that this piece draws from. Paragraphs 5.15 to 5.16 consider ‘the doctrine of acquired rights’, and Paragraphs 5.19 to 5.12 consider the ‘[b]road interpretation of EU citizenship and rights deriving therefrom’. The latter will form the basis of the consideration of ‘Option I’ and ‘Option II’ below, and the latter shall be drawn upon in consideration of the compromise ‘Option III’. Before the delivery of the ‘Result’ from Paragraphs 5.25 to 5.28, the Court delivers a series of paragraphs on themes which do not fit coherently within the three grounds elucidated by the plaintiffs. These are: ‘Protection of the minority against the majority’ (Paragraph 5.22); ‘Solidarity between EU citizens and between them and the Member States’ (Paragraph 5.23); and ‘[c]omplications in the case of young children who are EU citizens’ (Paragraph 5.24). The sudden and unexpected manifestation of such abstract considerations of aspects of general constitutional theory could be construed as falling within Alexander Somek’s conception of judicial ‘emancipative dissonance’ cited above. As such, the content of these paragraphs will be considered within the auspices of the ECJ’s methodology of ‘teleological interpretation’ in the analysis of ‘Option II’ and ‘Option III’ below.
Legal Analysis of the Questions Referred: The Arguments for and against Automatic extinction and a Potential Compromise
As a preliminary procedural point, the Amsterdam District Court statement that ‘there is reason to doubt the correctness of the interpretation…that the loss of status of citizen of an EU Member State leads to loss of EU citizenship’ (Para. 5.25) indicates their judgment that activation of the preliminary reference procedure is legitimate. The relevant doctrine of EU law is the third-limb of the CILFIT test: the national court is not capable of determining the case because the correct application of EU law is not so obvious so as to leave no scope for reasonable doubt. Such a decision is ostensibly justifiable on the basis of the identified ‘penumbra of uncertainty’ in the interpretation of the positive law provisions of Article 8 TEU, Article 20 TFEU and Article 50 TEU, and the conception of EU citizenship that has been constructed in the judicial pronouncements upon these legal sources. Thus, in divergence to Ronan McCrea’s recent arguments as to the weakness of the claim, this post will proceed on the basis that the District Court was justified to refer the questions in order to resolve the dispute before it. The exact nature of this interpretative dispute which requires an authoritative decision by the ECJ, and the possible resolutions thereof, will be considered below.
In the abstract, one could present the dispute in question as being rooted in the different answers that may be provided by different judicial methodologies for interpreting the relevant legal sources. I would suggest that ‘purely’ textual interpretation of the Treaties would produce the conclusion that nationals of a departed Member State necessarily lose the status and rights of EU citizenship. By contrast, the teleological interpretation of the Treaties that has been developed and employed extensively by the ECJ could produce the opposite conclusion – automatic loss of EU citizenship upon withdrawal of the Member State of nationality would undermine the purpose for which this status was created 25 years ago, and the development it has undergone over the course of its existence. This iterative constructive development has arisen from the necessity for the ECJ to play an ‘interstitial gap-filling role’ as individuals came to bring claims on the basis of factual situations which did not immediately fall under the ‘core of certainty’ established by the wording of Article 20(2) TFEU and the rights delineated therein. The cases in which these precedents were established are relevant for the argument that although Article 20 TFEU establishes the condition for acquisition of EU citizenship, it does not follow as a matter of logical necessity that its text along with Article 50 TEU also exhausts the ambit of the conditions for the retention or loss thereof.
Option I: The argument for automatic extinction of EU citizenship upon withdrawal
The former argument as rooted in the text of the Treaty provisions is relatively simple. The congruent first sentences of Article 20 TFEU and Article 9 TEU both establish the legal condition for the acquisition of the status of EU citizenship as being the pre-existing ‘holding’ of ‘nationality of a Member State’. The disclaimer in the next sentence delineating the ‘additionality’ of EU citizenship and confirming that it shall ‘not replace national citizenship’ was iteratively addended to the provision at Treaty amendments in response to political concerns of certain Member States with regard to the original Article 8a of the Maastricht Treaty (see the ‘Edinburgh Declaration on citizenship of the Union’ by the Kingdom of Denmark). Consequently, Article 20 TFEU establishes that, in contrast to modes of ‘naturalisation’ which are possible for the acquisition of many national citizenships, EU citizenship cannot be acquired by any means other than the prior holding or acquisition of nationality of a Member State of the European Union. The District Court recognises this argumentation in their statement that ‘it is defensible that, as a downside of this [EU citizenship being reserved for subjects of the Member States of the EU], the loss of the status of citizen of an EU member state leads to the loss of EU citizenship’ (Para. 5.14).
For the purposes of EU law, the prior acquisitive condition of ‘nationality of a Member State’ is determined by Article 49 TEU – governing accession to the European Union – and Article 50 TEU – governing withdrawal therefrom. As a brief aside, the first limb of the condition – ‘nationality’ – may be regarded as determinable by the law of the respective Member States’ constitutional orders. This picture has been complicated somewhat by the decision of the ECJ in Rottmann that when Member States determine the conditions for the revocation of this status from specific individuals then they act within the scope of EU law and thus their executive action must fulfil the conditions of the principle of proportionality. This case shall be considered more extensively in the argument against automatic loss below – however, disentanglement of the two constitutive elements of the condition for acquisition of EU citizenship may already lead to a means of distinguishing the present ‘Amsterdam case’ from Rottmann. Broadly, whereas the latter case addressed the revocation of the former element of ‘nationality’ of a Member State, the present case addresses the revocation of the latter element of the ‘membership’ by the state of nationality. (See, along similar lines, Gareth Davies’ distinction of the Rottmann facts from the facts of the UK’s withdrawal on the basis of the distinction between the conditions for ‘state membership’ and ‘individual membership’ of the European Union; see discussion thereof by myself at page 15 herein).
Returning to Article 49 TEU and Article 50 TEU, the former provision delineates the condition for acquisition of the status of ‘Member’ for a State, and the latter provisions delineates the conditions for the (elective) revocation of this status. The acquisitive condition is the ratification of an agreement between the Member State and the applicant State in accordance with the respective constitutional requirements of the contracting States. The primary revocatory condition is the date of entry into force of a withdrawal agreement between the European Union and a Member State which has notified the European Council of its intention following a decision to withdraw from the Union made in accordance with its own constitutional requirements. The secondary residual condition is the elapse of two years after the notification referred to above, in the absence of a unanimous decision in the European Council to extend. Article 50(3) TEU clarifies that ‘[T]he Treaties shall cease to apply to the State in question’. This includes the provisions for the acquisition of EU citizenship delineated in Article 20 TFEU. Concurrently, the lapse of the conditions for being a ‘Member State’ of the European Union may be concluded to extinguish the condition of holding ‘nationality’ of such a state for the purpose of continuing to be a ‘Citizen’ of the European Union.
The reasoning may be summarised in the following syllogism:
(1) The condition to be an EU citizen is holding nationality of a Member State of the European Union (Article 20 TFEU);
(2) This condition may be extinguished through a decision taken in accordance with the constitutional requirements of a State holding this Membership; (Article 50 TEU);
(3) Therefore, upon the extinction of State Membership of the European Union, the status of EU citizenship for those individuals who have acquired and retained it through nationality of the departing Member State will concordantly be extinguished.
Option II: The argument against automatic loss of EU citizenship
This teleological argument against automatic loss of EU citizenship may be preceded by a meta-textual argument: namely, although Article 20 TFEU is explicit on the condition for the acquisition of EU citizenship, it is silent on the condition for extinction thereof, and concordantly it is not possible to infer the logical necessity of such extinction from this text. This is reinforced by an argumentative move to consideration of the purposes for which the text was promulgated. By reference to the Preamble and Article 2 TEU , this may be construed as contributed to an ‘ever closer union amongst the peoples of Europe’, and indeed it is this telos which has informed the judicial statements synthesised above. Therefore, the argument would conclude that it would run contrary to the purposes for which EU citizenship were created if it were to be automatically extinguished for all nationals of a Member State that has embarked upon withdrawal from the European Union in accordance with Article 50 TEU.The teleological argument that Member State withdrawal does not necessarily lead to the extinction of EU citizenship for the nationals of that state is predicated upon the judicial dicta of the ECJ in the cases cited in paragraphs 5.19 and 5.20 of the Amsterdam District Court decision. In Paragraph 5.19, the District Court provides a delineation of the ECJ’s conception of EU citizenship: ‘the CJEU has ruled that citizenship of the Union should be the primary status of nationals of the EU Member States and that, on that basis, subject to explicit legal exceptions, [they] are entitled to equal treatment in law’. A subtle yet significant aspect of this statement is that it is posed in contrast as opposed to congruence with the positive law sources discussed in Option I above through the conjunction used in the pre-emptory sub-clause ‘[w]hile Article 20 TFEU states that citizenship of the Union comes alongside national citizenship… (emphasis added)’. This could be regarded as preparing the scene for an ‘emancipatory dissonant’ move whereby the judicial dicta that ostensibly is grounded within the purpose underlying the promulgated text is in fact utilised to come to a conclusion that stands in contradistinction to the positive law.
The District Court cites the ECJ judgments in Grzelczyck, D’Hoop, Wittgenstein, and Runevic Vardyn and Wardy in support of this statement. It may be suggested that the District Court has taken an expansive interpretation of the (in)famous statement that ‘Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for’. (Rudy Grzelczyck at Para. 31). It may be inferred that the District Court has taken the first clause of the above statement to mean that EU citizenship will eventually become the primary political and legal source of rights and duties for individuals even outside the scope of EU law. The more conservative interpretation of the dicta would hold that the ECJ were merely referring to the eventual goal for Article 20 TFEU to become the primary source of these rights and incipient duties within the boundaries of the EU legal order. This would be a future desideratum in distinction, and as a break from, the ‘piecemeal’ approach before the Treaty of Maastricht whereby individuals’ legal rights and duties were grounded in disparate primary and secondary law sources.
The District Court supplements this judicial conception of EU citizenship with the further conditions as to the loss thereof that have been established in the Rottmann and Lounes cases: ‘Once lawfully acquired, EU citizenship is an independent source of rights and obligations that cannot be simply reduced or affected by national government actions’ (Para. 5.20). As a procedural point of the judicial fidelity to binding sources of law, it cannot be ignored that the national court cites the non-binding and advisory conclusions of the Advocate General as opposed to the binding decision of the Grand Chamber in the former case to support this proposition. Such a cavalier and selective approach to the citation of sources leaves the District Court open to accusations of the appearance of political bias. The next sentence delineates the ECJ’s conclusion that ‘with regard to the withdrawal of the nationality of a citizen of an EU Member State…an assessment of the principle of proportionality should take place’. Although this is a fair summation of the Rottmann decision, it is unfortunate that the District Court did not see fit to make pin-point reference to a specific passage from the Rottmann judgment.
On the basis of this conception of EU citizenship – as an independent and incipiently fundamental status that guarantees conditional equal treatment for all nationals of the Member States and that cannot be extinguished by executive actions without a judicial assessment of proportionality – a teleological argument for the retention of the status notwithstanding withdrawal may be formulated. Article 20 TFEU may have created citizenship of the Union as a status predicated upon Member State nationality mandating a limited and conditional set of legal rights to free movement, local and European suffrage, petition of the representative and regulatory institutions, and residual consular assistance. However, the iterative development of the nature of the status and the rights created therein by the ECJ in what I have elsewhere termed the ‘destiny’ era of its case-law has led to a whole that is qualitatively more than the sum of its parts.
Consequently, the argument could be posited that action by the government of the United Kingdom and the institutions of the European Union under Article 50 TEU that would affect withdrawal without protection of these rights contained within the status would violate EU law – specifically, the equality guaranteed for nationals of the Member State of the United Kingdom through their acquisition of EU citizenship. I would suggest that the District Court’s ‘dissonant’ introduction of theoretical concepts that have no explicit grounding in the text of primary or secondary EU law – such as the protection of the minority against the majority and the solidarity between EU citizens horizontally and between citizens and the institutions vertically (for more on solidarity within the European Union, see here), and the ‘derived rights’ doctrine for Third Country National parents of EU citizens (Paras 5.22 to 5.24)– is an attempt to provide the raw materials with which to construct such a conclusion in response to the referred questions. One could also envisage that further relevant ‘sources’ – such as the values contained within Article 2 TEU and the provisions of the Charter of Fundamental Rights and Freedoms of the European Union – could be advanced in support of arguments before the ECJ in a ‘throw it and see what sticks’ approach to trying to secure a decision in favour of the retention of EU citizenship.
This reasoning may be summarised in the following syllogism:
(1) Article 20 TFEU establishes the condition for the acquisition of EU citizenship – however it is silent on the condition for its extinction and it cannot be implied as a logical necessity that this condition is the converse thereof;
(2) The judicial dicta in the cases deciding the ambit and scope of the status of EU citizenship and rights contained therein has established that the telos of the positive law is to establish a fundamental and autonomous status of equality for all Member State nationals which guarantees a set of political and economic rights implemented via secondary legislation;
(3) This purpose means that would undermine the purposes for which EU citizenship was established if the nationals of a withdrawing Member State were to lose this status upon the disapplication of the Treaties with regard to that state in accordance with Article 50 TEU
Option III: A compromise? Conditional extinction of EU citizenship
The argument for a potential compromise between the dichotomy of either automatic extinction or retention of EU citizenship for nationals of a departing Member State can be situated in relation to the second question referred by the District Court to the ECJ. In the event that the ECJ answers the first question in the negative – which presumably refers to the outcome of the Luxembourg Court deciding that withdrawal does not automatically lead to the loss of EU citizenship – the national court asks whether any ‘conditions or restrictions’ should be imposed on the maintenance of the rights and freedoms to be derived from the status of EU citizenship.
As a procedural preliminary – analysis is complicated somewhat at this point by the perils of translated text, a risk that is inherent to a legal system in which each of the 24 language versions enjoy equal status as officially authentic . Specifically, this wording could be interpreted as referring solely to the maintenance of the rights and freedoms ‘to be derived from’ – more precisely, the rights and freedoms established within the provisions of Article 20 TFEU and the implementing secondary legislation thereof. Alternatively, the wording could be interpreted as referring to the maintenance of these substantive positive law rights and the political and legal status within which they are agglomerated.
This is far from a moot point as many of the ‘rights and freedoms’ contained within Article 20(2) TFEU are replicated for Third-Country Nationals already in secondary legislation (see further here). Thus the maintenance thereof for UK nationals following Brexit would represent the continuation of the status quo of the legal regime for individuals from non-Member States who fall within the jurisdiction of the European Union’s political and legal systems. However, if the latter more expansive interpretation is followed, than this could represent the encroachment upon and disconnection of the predicative condition of Member State nationality for the acquisition and retention of EU citizenship. (See further here). In any event, past precedents of the ECJ’s liberal reconstruction of the terminology of the questions referred to by national courts in Article 267 TFEU would suggest that the Luxembourg court will adopt either a restrictive or extensive interpretation on the basis of its own prerogative. This also means that the ECJ could find that the possibility of a ‘conditional extinction or retention’, as suggested in the District Court’s second question, is not predicated upon the finding ‘in the negative’ on question one. In such an event, the Court of Justice would be free to decide for such a conclusion regardless of whether it found that EU citizenship is or is not automatically extinguished by Member State withdrawal.
This final paragraph will consider the substance of the question of whether conditions or restrictions could be imposed on either the extinction or retention of EU citizenship for UK nationals. The argument could be predicated upon the observations of the District Court in paragraph 5.18 of the 7th February decision. The court observes that the UK national claimants could not have foreseen that a vote to leave in the 23rd June referendum would lead to a necessary loss of their rights to live and work in other EU Member States. This observation is forwarded in references to the prior discussion of ‘acquired rights’ at paragraph 5.15. The District Court claims that the ECJ had ‘repeatedly ruled on the doctrine of acquired rights’ and that ‘[i]n principles [they] cannot be withdrawn by subsequent decisions. This follows on specifically from the general legal principles which form the basis of EU law, such as the principle of legal certainty and the principle of protection of legitimate expectations’. In substantiation of the claim of the ECJ’s ‘repeated’ rulings on the topic references to three cases are proffered: one from 1957, another from 1961, and a final case from 2005. Time, space, and the research capacities and patience of the present author precludes any further detailed analysis – it suffices to say, however, that the citation of three decisions in 60 years is not exactly evidence for a richly litigated point of EU law. To return to the argument, the synthesis of the acquired rights and legitimate expectations points by the District Court can in any case provide to support the argument that UK nationals have a claim for some minimal protection of their EU citizenship status and rights.
Such a potential argument would run thusly: It was not a foreseeable consequence flowing from the referendum result on 23rd June that all UK nationals would lose the status and rights deriving from Article 20 TFEU. This is rooted in the factual context that there is no precedent for a Member State withdrawing from the European Union (see the first sentence of Para. 5.17), and could be supplemented further by the absence of any confirmation or denial thereof by the leave campaign or the United Kingdom government, in addition to the guarantees provided by both the United Kingdom and EU negotiating sides with regard to the preservation of citizens’ rights (see sources cited in the brief chronology above). Consequently, it may be suggested that UK nationals have a legitimate expectation that the retention of their rights and status should, at the very least, be considered as a possibility in the negotiations between the UK and the EU, the outcome of which will constitute the primary condition for the former’s withdrawal in accordance with Article 50(2) TEU.
This may be regarded as the establishment or recognition of a residual and minimal legal ‘safety-net’ that could be regarded as binding upon the conduct of both named parties for the purposes of the action they are undertaking which is mandated and legitimated by the Union withdrawal clause (for an argument that the UK government and the EU institutions are bound by EU law in the conduct of the negotiations, see here). Furthermore, in relation to the fact that the claim in the ‘Amsterdam Case’ is directed towards the State and Municipal authorities of another Member State, it could be extrapolated further that these institutions are bound mutatis mutandis in their national implementation of the relevant provisions of the withdrawal and/or future relations agreements envisaged by Article 50 TEU.
At the maximum extent of ‘judicial activism’ this could result in the finding of a duty binding upon the political actors on the basis of the telos of Article 20 TFEU and Article 50 TEU. At the minimum extent of ‘judicial restraints’, this could manifest itself in a non-binding but persuasive imploration from the Union’s judicial institution to its political counterparts and the withdrawing Member State to continue to negotiate in good faith so as to find a solution which preserves the rights and status of EU citizenship in so far as possible, thus minimising the disruption to the individual and collective life-plans of affected citizens that may result from Brexit.
This reasoning may be summarised in the following syllogism:
(1) A Member State’s withdrawal from the European Union necessarily extinguishes the EU citizenship of that state’s nationals on the basis of the disconnection of the condition for acquisition of the status (Article 20 TFEU and Article 50 TEU);
(2) Regardless of the fact that it is extinguished in this way, EU citizenship is still a status of conditional equality for all of those individuals holding it, and cannot be revoked by executive action without a proportionality assessment (Rudy-Grzelczyk; Rottmann)
(3) Therefore, in the conduct of the negotiations mandated by Article 50 TEU which will presumably culminate in one of the conditions for the withdrawal of the United Kingdom being fulfilled, the government of the United Kingdom and the European Union institutions are bound by the relevant general principles of EU law to negotiate in good faith so as to find a political solution in order to fulfil insofar as possible the status and rights of those who shall be losing the status of EU citizenship
It is hoped that the preceding sections have provided a relatively rigorous and politically impartial legal doctrinal delineation of the potential arguments and outcomes of the ‘Amsterdam case’. To evoke David Hume’s well-worn ‘is vs. ought’ distinction, the aim has been to provide an account of ‘what is and what could be’. By contrast, this penultimate section will indulge in some tentative normative consideration of ‘what ought to be’. Ronan McCrea concludes his aforementioned article on the UKCLA with the opinion that ‘[I]t is very sad for UK citizens who feel the same attachment as many of their fellow EU citizens to their European citizenship. But the appropriate place for them to channel these feelings into action is in the political arena…For the Court of Justice to intervene in the way that it has been asked to would be a major error’.
I would qualify this final statement with the opinion that the mere act of providing a binding interpretation of EU law on the basis of the questions asked to it by the District Court would not in itself be to err, which is all that the Court ‘has been asked to [do]’ at this stage. However, I would fully endorse McCrea’s warning if the ECJ were to follow the stated purpose of the convenors of the case and decide on the basis of teleological interpretation that UK nationals should retain the status and rights contained within Article 20 TFEU. To do would be to take an emancipative leap of faith forward. This would go beyond judicial activism into the realms of constituent power through the transformative reconstruction of EU citizenship from a set of disparate political and economic rights into a fundamental and primary political status.
To embark upon the creation of what may be regarded as a ‘constitutional moment’ through judicial means would be to exhaust and breach the limits of what should be achieved through ‘legal constitutionalism’ (for the ‘political’ vs ‘legal’ constitutionalism argument see here and the responses thereto). The ‘output legitimacy’ of a body composed of experts who do not enjoy the input legitimacy of election by the individuals who are the political subjects and legal objects of the constitutional order would be insufficient. The fact that such an emancipative step would be taken in direct contravention and ostensible frustration of an electoral result would be an egregious manifestation of Neil Walker’s claim that the original sin of the European project is a lack of popular legitimacy. Such a decision would add fuel to the incendiary question that has reared its head with the end of the ‘permissive consensus’ for European integration since Maastricht – Wither (national) democracy on the altar of the (European) technocracy – or in more classic terminology – aristocracy? If EU citizenship is to fulfil the destiny claimed for it by the ECJ, then the only legitimate means by which this could be achieved would be through an act of democratic self-determination by individual citizens. The choice would be to retain, acquire, or indeed reject EU citizenship as a constituent status. I would conclude that only through such an individual and collective ‘leap of faith’ could the legitimate transformation of a Union of States, with its foundations in international Treaty law, to a Union of citizens with its foundations in a constitution, be achieved.