Case C-709/20 CG v The Department for Communities in Northern Ireland: A Post-Brexit Swansong for the Charter of Fundamental Rights
The United Kingdom withdrew from the European Union on 31 January 2020, and EU law ceased to apply within the state upon the end of the transition period on 31 December 2020. Nevertheless, on 15 July 2021, the Court of Justice of the European Union found that UK authorities are obliged to ensure that a Dutch-Croatian dual citizen in Northern Ireland and her children have necessary subsistence to live dignified lives. This swansong for the application of the EU Charter of Fundamental Rights to the former Member State results from the procedural conditions enshrined in the Withdrawal Agreement on the CJEU’s jurisdiction post-Brexit. Maria Haag analyses the substance of the judgment in her summary of the case. This post will focus on the Brexit-relevant aspects. It summarises the reasoning on jurisdiction and admissibility, before providing comments that reflect upon whether the specific chronology of the case may have facilitated the CJEU to deliver a judgment that focused on alleviating the personal difficulties of the claimant and her family through the unprecedented application of the Charter. Despite the transition period providing a legal basis, this result may still be criticised as insufficiently sensitive to the Brexit context of the case.
Summary of the judgment
CG’s dispute arose from her exclusion of access to the UK social assistance of Universal Credit by virtue of Article 9(2) of the 2016 Universal Credit Regulations (Northern Ireland), which limits access to those treated as “habitually resident” in the United Kingdom. CG had a temporary right to reside for five years through the Settlement Scheme contained in Appendix EU of the UK Immigration Rules, which was adopted in anticipation of the UK’s obligations under Part 2 on citizens’ rights of the Withdrawal Agreement. Article 9(3)(d) of the Regulations excluded this residence right from the condition for access to Universal Credit (para 29-33). CG claimed that this provision of national law infringed Article 18 TFEU as it discriminated against EU citizens in the same position as UK nationals (paras 36-37).The President of the CJEU showed sensitivity to CG’s position by granting an expedited procedure due to the “potential risks of violation of the fundamental rights of CG and her children” due to her destitution and impossibility of receiving social assistance under national law (paras 40-44).
The Court established its jurisdiction by starting with confirmation of the fundamentals of operation of Article 19 TEU and Article 267 TFEU (para 46). The special Brexit context of the dispute is recognised through the statement that “the courts and tribunals of the United Kingdom, as from that date [1 February 2020] can no longer be regarded as courts of a Member State” (para 47). Despite this, the case could be heard due to Article 126 WA establishing a transition period during which “EU law is to be applicable in the United Kingdom”, and Article 86 WA confirming that “the Court is to continue to have jurisdiction to give preliminary rulings from…the UK made before the end of the transition period” (paras 48-49). As the preliminary reference in CG was submitted by a UK court on 30 December 2020, two days before the deadline for the end of the transition period, it follows that the “situation at issue…falls within the scope ratione temporis of EU law” (para 51).
Similarly, the Court found the claim admissible despite the UK government’s observations that the issue was “governed by national law alone…and does not fall within the scope of EU law” (para 53). The CJEU found that EU law did apply by virtue of the fact that CG as an EU citizen had made use of her right to move freely, and as such was entitled to rely upon Article 21(1) TFEU and Article 18 TFEU as the situation “falls within the scope of EU law until the end of the transition period”. (paras 58-59). This timing prepared the stage for the Court of Justice to deliver a swansong on the substance of EU free movement law, as discussed in Maria Haag’s post.
Notably the Court of Justice resolved this post-Brexit legal dispute without any reference to Part Two of the Withdrawal Agreement on citizens’ rights, despite the relevant legal sources being summarised from paragraphs 6-20. This means no reference was made to the exceptional continuing jurisdiction for the Court of Justice in preliminary references issued up to 8 years after the end of the transition period guaranteed by Article 159 WA. This is chronologically appropriate, due to the preliminary reference being issued just in time for the Court to retain jurisdiction under Article 86(2) WA. This timing was crucial to enable the CJEU to find both that the case fell within the scope of EU law, and also to enable the application of the Charter of Fundamental Rights.
CG was able to make a claim based on prohibition of discrimination on grounds of nationality under Article 18 TFEU and Article 24 of the citizens’ rights Directive purely on the basis of being a Union citizen who had made use of her right to move and reside in the United Kingdom (para 64). By contrast, if the preliminary reference had been issued after the end of the transition period using Article 159 WA, she would have had to rely upon the analogue provisions in the Withdrawal Agreement. Article 10(1)(a) WA defines the condition of the Part applying to “Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter”, and Article 12 WA clarifies that “any discrimination on grounds of nationality within the meaning of the first subparagraph of Article 18 TFEU shall be prohibited”. Therefore, rather than falling within the scope of EU law, the case would have fallen within the scope of the Withdrawal Agreement.
The result of the case if brought after the end of the transition period would almost certainly have been different. Presumably, in such a case the Court would have replicated its reasoning from paragraphs 76-80 to find that the claimant could not reply upon the principle of non-discrimination established by Article 12 WA as they did not fulfil the conditions established in Article 13(1) WA by reference to Article 7(1)(b) of Directive 2004/38 whereby EU citizens must have sufficient resources to prevent themselves and their family from becoming an unreasonable burden on the social assistance system.
Crucially, the end of the transition period terminated the application of the Charter of Fundamental Rights in the UK, including any domestic analogue, as the UK government did not decide to incorporate the Charter as ‘retained EU law’ in the European Union (Withdrawal) Act 2018. Therefore, if the case were brought now during the ‘normal’ post-Brexit context of EU-UK relations on the basis of the Withdrawal Agreement, the CJEU would not have been able to reach the conclusion that “authorities must ensure…that citizens may…live with his or her children in dignified conditions” due to the “actual and current risk of violation of their fundamental rights” (paras 84-94).
Indeed, the fact that the judgment will not have the policy effect of imposing obligations upon all UK authorities to engage in the burdensome exercise of ascertaining all means of assistance that the claimant may actually and currently benefit from in determining whether their dignity will be encroached upon may have emboldened the CJEU to issue a judgment that sought to maximise the possibility of assisting the person in destitution in the current case. Instead, the bright-line cut-off of the end of transition period for the application of the Charter in this case enabled the Court to apply it as a swansong in the case of CG. Nevertheless, the reasoning underpinning this application of the Charter may be regarded as insufficiently sensitive to the context of withdrawal of a Member State. The Court argues that “where they [Member State authorities] grant that right [to reside] in circumstances such as those in the main proceedings, the authorities of the host Member State implement the provisions of the FEU Treaty on Union citizenship” (para 88). Although this may be justified de jure by the transition period, functionally the UK issued the Settled Scheme in the EU Annex to its immigration rules not as a means to implement the TFEU, but instead as preparation for the replacement of that Treaty with the implementation of Part Two of the Withdrawal Agreement.
Despite this generous application of EU law to this specific case, the judgment may be welcomed by the UK authorities in general, because if its reasoning on the citizens’ rights directive is applied mutatis mutandis to the relevant provisions of the Withdrawal Agreement, it would strongly suggest that EU citizens with settled status in the UK will not be entitled to access social assistance on the same basis as UK nationals.