Professor Steve Peers, University of Essex
The question of whether British citizens retained their EU citizenship after Brexit is disputed. While the EU and UK governments assert that they did not, some British individuals disagree.
This issue has been raised before EU courts through various avenues. Three cases directly appealed to the EU General Court, contesting the EU Council’s decision to finalize the withdrawal agreement. These appeals argued that the agreement improperly revoked their EU citizenship. However, the EU General Court dismissed these cases in August, citing a lack of legal standing. Subsequently, all the applicants have appealed to the Court of Justice of the European Union (CJEU). (For more information, see the compilation of Brexit litigation).
Two other cases, bypassing the standing issue, reached the CJEU through national courts that referred questions about interpreting EU law and the validity of the decision to conclude the withdrawal agreement. In the first of these cases (Case C-673/20 EP), an Advocate-General of the CJEU issued an opinion. This opinion contends that British nationals lost their EU citizenship due to Brexit, and the decision to finalize the withdrawal agreement was legitimate.
Summary of the opinion
The opinion starts by citing Article 9 TEU, which states that EU citizenship complements, not substitutes, national citizenship. It notes that Article 20(1) TFEU contains a nearly identical provision. It then summarizes the core issue of this case: a UK citizen residing in France lost her local election voting rights because she lost her EU citizenship status, which grants such rights, as a consequence of Brexit.
Interpreting these articles within the broader context of the Treaties, the Advocate-General argues that EU citizenship is intrinsically linked to being a national of an EU member state. The EU, therefore, does not have the authority to grant EU citizenship independently of national citizenship granted by its member states. This directly challenges arguments proposing that the EU could bestow EU citizenship upon individuals from non-EU countries.
Consequently, this perspective renders irrelevant previous CJEU rulings regarding the limitations of losing EU citizenship, which the applicant cited. These rulings dealt with losing EU citizenship through the loss of Member State nationality, unlike this case, which involves the UK ceasing to be a Member State under Article 50 TEU. As the UK voluntarily relinquished its membership, British nationals, accordingly, lost their EU citizenship.
The opinion then systematically refutes the applicant’s arguments. First, it rejects the claim that the applicant retains EU citizenship despite Brexit. It asserts that as the EU mandates Member State nationality as a prerequisite for EU citizenship, the applicant’s ties to France are insufficient to maintain EU citizenship. The applicant always has the option to seek French nationality and, by extension, EU citizenship.
Second, while EU citizenship promotes integration into the host Member State, this does not preclude the loss of EU citizenship following a country’s withdrawal from the EU. The Advocate-General contends that the applicant’s integration into French society does not supersede the UK’s sovereign decision to leave the EU, thus resulting in the loss of EU citizenship for its nationals.
Third, a technical argument concerning the withdrawal agreement’s transition period is also dismissed. The opinion clarifies that only specific aspects of EU law, excluding voting rights in local elections, continued to apply to Member States regarding UK nationals during that period.
The Advocate-General then refutes the applicability of previous rulings (Rottmann, Tjebbes, and Wiener Landesregierung) to the Brexit situation. These rulings require an individual assessment considering proportionality, legitimate expectations, and the right to be heard when loss of Member State nationality leads to the loss of EU citizenship.
However, the Advocate-General emphasizes that these prior rulings are not analogous to a state withdrawing from the EU. The UK’s decision to leave the EU directly resulted in the loss of specific rights for the applicant, including voting rights in France. This was a direct consequence of a sovereign state’s decision, not a decision made by a Member State or any of its authorities, and therefore does not necessitate a balancing of individual rights and circumstances.
Furthermore, the applicant cannot claim statelessness as she remains a UK national, and any concerns regarding her rights as a British national should be directed to UK authorities. Similarly, any perceived breach of legitimate expectations regarding EU citizenship should be addressed to the UK, not French or EU authorities.
The Advocate-General also dismisses the argument that the applicant was deprived of her right to participate in the democratic process because she lost her voting rights in France. He posits that any such deprivation stems solely from UK law.
The principle of non-discrimination based on nationality, as outlined in Article 18 TFEU, is also deemed inapplicable. While this principle generally applied to UK citizens during the transition period, the withdrawal agreement specifically excluded voting rights. Non-EU citizens are inherently in a different position compared to EU citizens, although Member States retain the right to allow local election voting for non-EU citizens.
Finally, based on his analysis, the Advocate-General addresses the questions raised by the national court:
UK nationals are no longer EU citizens due to the UK’s exit from the EU and the subsequent withdrawal agreement. Legal matters arising from this fall under the UK’s jurisdiction, outside the CJEU’s purview.
Various Treaty articles and the withdrawal agreement do not preserve EU citizenship rights for UK nationals because the UK is no longer a Member State. Exercising rights conferred by EU law does not inherently determine an individual’s status as an EU citizen.
The decision to ratify the withdrawal agreement is valid. The loss of voting rights is a consequence of the UK’s decision to leave the EU, and the EU acted within its discretion regarding external relations, as established by prior case law.
Addressing the broader question of whether the withdrawal agreement undermines EU principles and lacks proportionality by not exempting British nationals from losing EU citizenship rights, the opinion maintains that the UK’s decision to leave the EU signifies a rejection of its founding principles. The withdrawal agreement, meant to facilitate an orderly exit, cannot compel the UK to adhere to those principles. The EU could not secure rights for nationals of a country that has chosen to leave and consequently cease to be EU citizens. Given that EU citizenship hinges on Member State citizenship, excluding British nationals from the definition of EU citizens was the only viable option within the Treaties’ framework.
Comments
It is crucial to remember that Advocate General opinions are not legally binding on the CJEU judges.
If the judges were to adopt this opinion, it would comprehensively reject any argument claiming UK citizens retain EU citizenship after Brexit. This applies regardless of whether they exercised free movement rights. Though the case centers on voting rights, its implications extend logically to all rights associated with EU citizenship, including free movement rights, which were also lost after the transition period.
The Advocate-General’s suggestion that the applicant could acquire French citizenship to regain EU citizenship is not a universally accessible option. Nevertheless, this is not central to his legal reasoning, which rests on the fundamental premise that EU citizenship is contingent upon holding the nationality of an EU Member State, which the UK is no longer.
The opinion places the onus of the UK no longer being an EU Member State solely on the UK, given its unilateral decision to leave. This aligns with past CJEU case law and implicitly dismisses any question regarding the legal validity of Brexit itself, as that falls under UK law and was not raised by the national court. This reasoning is considered sufficient to invalidate the legitimate expectations argument without examining whether the EU fostered such expectations.
While the opinion does not explicitly address the argument that no provision details the fate of EU citizenship when a Member State exits the EU, it does implicitly address it by highlighting Article 50’s stipulation that the Treaties cease to apply to the withdrawing Member State. Since the concept of EU citizenship is enshrined in these Treaties, the argument is implicitly refuted.
The opinion effectively counters the applicant’s attempt to draw parallels between Brexit and previous CJEU rulings on losing EU citizenship. It posits that those rulings reinforce, rather than weaken, the link between Member State nationality and EU citizenship. If EU citizenship could exist separately from holding Member State nationality, those judgments would have reached different conclusions. The crux of those judgments is that losing Member State nationality falls under the purview of EU law precisely because it leads to losing EU citizenship.
The applicant’s argument relies on the assumption that EU citizenship is an individual right rather than a status derived from a state’s EU membership. However, the Treaties, as highlighted in the opinion, clearly connect EU citizenship to a state’s membership. Member States did not opt to create an EU citizenship status independent of national citizenship.
Another argument, not explored by the Advocate-General, is that comparing the process of acquiring EU citizenship to the Brexit situation is not applicable. Brexit represents a collective loss of EU citizenship, not an individual one. A more appropriate comparison would be the mechanism of collective acquisition, similar to how nationals from the 16 most recent EU member states gained EU citizenship through their countries’ accession to the EU under Article 49 TEU. It logically follows that the collective loss of EU citizenship would be the parallel process of leaving the EU, as outlined in Article 50.
Photo: Garry Knight, via Wikimedia commons
Barnard & Peers: chapter 26