Professor Steve Peers, University of Essex

The Court of Justice of the European Union (CJEU) has affirmed that UK citizens lost EU citizenship due to Brexit, as per a recent judgment. This aligns with the earlier Advocate-General’s opinion. While other similar cases exist, the CJEU is unlikely to deviate from this decision.

This judgment is notable for its dismissal of arguments advocating for the retention of EU citizenship for British citizens, marking a significant shift. However, it also hints at potential future issues concerning the UK-EU relationship post-Brexit.

Judgment Summary

The case involved a UK citizen residing in France who lost local election voting rights post-Brexit (February 1, 2020) as she was no longer an EU member state national. Challenging this based on her ineligibility to vote in the UK (due to residing abroad for over 15 years), a French court sought the CJEU’s interpretation of EU law and the validity of the EU Council’s decision to enact the withdrawal agreement. The UK citizen argued that losing EU citizenship should not be an automatic consequence of Brexit, claiming it violated legal certainty, proportionality, and constituted discrimination against EU citizens while infringing on her freedom of movement.

The Court countered by highlighting that EU citizenship hinges on holding the nationality of a Member State, citing relevant Treaty provisions. They emphasized an “inseparable and exclusive link” between being an EU citizen and holding Member State nationality, referencing prior case law establishing EU citizenship as the “fundamental status” for Member State nationals. They further noted that no Treaty provision extended this right to third-state nationals.

The Court agreed with the Commission’s argument that exercising free movement rights within the EU does not guarantee retaining EU citizenship and its associated rights if, after their home country exits the EU, an individual no longer holds the nationality of a Member State.

Reiterating past judgments, the Court affirmed the UK’s unilateral decision to leave, following its “own constitutional requirements,” without needing other Member States’ or EU institutions’ consent. The decision to withdraw, based solely on the UK’s sovereign choice, was made according to Article 50. Consequently, from the withdrawal agreement’s effective date, the UK ceased to be a Member State. Therefore, from February 1, 2020, UK nationals became third-state nationals, losing their EU citizen status. Since holding Member State nationality is essential for acquiring and retaining EU citizenship and its associated rights, losing it “automatically” results in losing EU citizenship. Consequently, as third-state nationals from February 1, 2020, UK citizens ceased being EU citizens and lost voting rights in local elections, irrespective of their prior residency in an EU Member State.

Addressing the proportionality of losing EU citizenship, the Court deemed it an “automatic consequence” of the UK’s sovereign decision to leave. The 15-year rule was an electoral law choice made by the UK, now a third state. No individual examination was needed for the loss of citizenship. The Court differentiated Brexit from past cases where losing EU citizenship due to a Member State stripping an individual’s nationality required justification, unlike the “automatic result” of a former Member State’s sovereign decision to withdraw from the EU under Article 50(1) TEU, becoming a third state. Thus, those judgments were deemed inapplicable to this case.

The Court dismissed a technical argument claiming the withdrawal agreement should be interpreted as retaining local election voting rights for British citizens, as this would create an imbalance between UK nationals and EU citizens’ rights. This contradicted the agreement’s objective of “mutual” protection for citizens of both entities who exercised free movement rights before the transition period ended, as stated in the preamble.

Similarly, the Court highlighted that the withdrawal agreement’s citizens’ rights section established rules for reciprocal and equal protection for EU and UK citizens exercising free movement rights before the transition period’s end. These rules, effective post-transition, aimed to protect residency rights, employment and self-employment, professional qualifications, and social security coordination. However, they did not preserve voting rights post-transition. The agreement’s non-discrimination clause based on nationality only applied to listed citizens’ rights, excluding voting rights. Once more, the Court attributed the loss of voting rights to the UK’s sovereign decision to withdraw from the EU. Likewise, various rights within the EU Treaties were deemed irrelevant as, with Article 50’s invocation, the Treaties ceased applying to the UK upon the agreement’s entry into force. Thus, UK nationals no longer qualify as Member State nationals, consequently losing EU citizenship.

However, the Court acknowledged Member States’ right to grant, under their national law’s conditions, voting and candidacy rights to third-state nationals residing within their territories. Indeed, some Member States and the UK have retained local election voting rights to some extent.

Turning to the validity of the Council’s decision to enact the withdrawal agreement, the Court confirmed its jurisdiction to assess whether EU-concluded treaties comply with EU Treaties and internationally binding rules. However, it could only rule on the EU decision’s validity in concluding the treaty, not the treaty itself. The Court deemed arguments about voting in European Parliament elections and EU citizens’ voting rights in the UK irrelevant, focusing solely on the case’s core issue - UK citizens’ voting rights in the EU.

All arguments against the withdrawal agreement’s conclusion validity were dismissed. Again, various EU Treaty articles were considered irrelevant, as Article 50 stipulated that the Treaties ceased applying to the UK from the agreement’s effective date. Consequently, UK nationals were no longer considered Member State nationals and thus lost their EU citizenship.

Concerning proportionality, the Court found no evidence to suggest the EU, as a contracting party in the withdrawal agreement, exceeded its discretionary powers in external relations by not requiring, within the agreement or specifically in Article 127, the right to vote and stand as a candidate in local elections for UK nationals who exercised residency rights in a Member State before the transition period’s end.

The Court reiterated the broad discretion enjoyed by EU institutions in external relations policy decisions, noting their ability to enter international agreements based on reciprocity and mutual benefits. They are not obligated to unilaterally grant third-country nationals rights like voting and candidacy in local elections, which are exclusive to EU citizens. Therefore, the EU Council cannot be faulted for concluding the withdrawal agreement without securing continued voting rights for UK citizens in local EU elections. Furthermore, the loss of UK voting rights under the 15-year rule was a UK decision, not attributable to the EU.

Comments

The judgment closely mirrors the Advocate-General’s opinion, though it omits the point about Member States choosing not to grant the EU the power to decide EU citizenship. This doesn’t necessarily mean the Court would rule in favor of the EU possessing such power. Its judgment implicitly suggests otherwise, affirming that EU citizenship is exclusively for Member State nationals. In any case, there’s no indication of the EU institutions and Member States wanting to create an alternate EU citizenship for UK citizens. One MEP’s enthusiastic suggestion to this end holds no legal weight.

The judgment also omits the opinion’s observation about the applicant’s option to obtain French citizenship and the explicit conclusion about her lack of legitimate expectation to retain EU citizenship. However, one could infer the Court’s implicit rejection of this by attributing the withdrawal’s consequences to the UK.

The judgment centers on a literal interpretation of the Treaties: EU citizenship is for Member State nationals; the UK is no longer an EU member; hence, UK nationals are not EU citizens. While not directly addressing the argument that Treaties only cover acquiring, not losing, EU citizenship, the Court implicitly refutes it by stating that losing EU citizenship is a consequence of withdrawing from the EU. This argument seems baseless, as it inserts non-existent wording into the Treaties, implying the definition of EU citizenship only addresses its acquisition. It’s reasonable to infer that a specific provision for losing EU citizenship is unnecessary, as Article 50 implicitly covers it. Moreover, a key method of acquiring EU citizenship is through EU accession, mirroring the withdrawal process. Therefore, the logical comparison lies in the collective, not individual, acquisition and loss of EU citizenship.

The Court emphasizes that losing EU citizenship is a direct result of the UK’s sovereign decision to leave, consistent with prior CJEU case law (Wightman and Shindler). It reiterates, contrary to some Remainers’ beliefs, that leaving the EU falls under the withdrawing Member State’s national law, requiring no EU approval. The notion that the EU shouldn’t have allowed the UK to leave or should consider various factors, let alone unfounded allegations, concerning the process, is demonstrably baseless. In this context, it’s worth remembering that some Leave proponents made misleading or false claims about the impact of leaving the EU on UK citizens, like the current Prime Minister’s tweet stating, “Brexit will make no difference.”

The Court effectively addresses the attempt to leverage previous case law on losing EU citizenship (Rottmann, Tjebbes, and Wiener Landesregierung), as they all pertain to losing EU citizenship due to losing Member State nationality. In fact, these judgments reinforce, rather than contradict, the logic in the current ruling – that EU citizenship is inextricably linked to holding Member State nationality.

This judgment dispels the widely held belief that EU citizenship is an individual’s right, separate from a state’s EU membership. While arguments exist for basing EU citizenship on the former approach, the Treaty wording, as affirmed by the judgment, unequivocally points towards the latter. Member States did not intend to create an EU citizenship status independent of Member State nationality.

Finally, the Court’s judgment contains subtle hints about the future relationship between the UK and the EU post-Brexit. Although it doesn’t mention the potential relevance of EU law on long-term resident non-EU citizens (which could apply to UK citizens), it emphasizes the citizens’ rights provisions in the withdrawal agreement. This agreement now governs the situation of EU citizens who moved to the UK and UK citizens who moved to the EU before the transition period ended. In this and other contexts, the Court stresses the importance of reciprocity in EU external relations. This implicitly echoes concerns that arguments for UK citizens retaining EU citizenship, much like some Leave supporters’ demands, reflect a desire to “have their cake and eat it too.” The Court also acknowledges the considerable political discretion of EU institutions in external relations. Only time will tell if, should UK-EU relations further deteriorate, this might become a significant factor.

Photo: Garry Knight, via Wikimedia commons