Sacrificing EU citizenship on the altar of Brexit

This case note reports on the judgment of the Court of Justice in case C-673/20 EP. The decision clarified that British nationals lost their EU citizenship status following the UK's withdrawal from the Union. After giving an overview of the facts of the case and summarizing the opinion of AG Collins and the Court's reasoning, this contribution critically engages with the judgment and reflects on its place in the Court's jurisprudence on Union citizenship.


Introduction
The Treaties do not provide clear rules on what happens to the EU citizenship status of the nationals of a Member State that withdraws from the Union. 1 What might first seem like nothing but an interesting lacuna in EU law actually has a great impact on the lives of millions of British nationals following the UK's exit from the bloc. One of them is EP, whose case was decided in Luxembourg on 9 June 2022. Faced with a straightforward question, the Court of Justice had no other choice but to give a definitive answer: British nationals are no longer EU citizens. Their 'fundamental status' 2 was taken from them as an 'automatic' 3 consequence of the choice made by their compatriots in 2016. This case note undertakes to report on the Court's decision, as well as to analyse its rationale and impact. This contribution first presents the factual background of the case, the opinion of the Advocate General, and the Court's reasoning. After that, this case note analyses the judgment and critically engages with the approach taken by the Court. The paper demonstrates why this decision sits uneasily with the Court's previous jurisprudence and EU primary law. A short conclusion follows.

Factual background
The case arose out of the request for a preliminary ruling submitted to the Court of Justice by the tribunal judiciaire in the French city of Auch. The proceedings in the Auch court were brought by EP, a British national who had been living in France since 1984. 4 EP is married to a French citizen and does not possess French nationality. 5 After the UK's withdrawal from the Union and the entry into force of the Withdrawal Agreement, 6 EP was removed from the electoral roll and was not allowed to vote in the municipal election that took place shortly afterwards. 7 After her application for re-registering had been rejected by the mayor, EP brought the case to the referring court. 8 EP stressed the fact that she was no longer able to vote in the UK elections because the law of that country does not grant this right to those citizens who have been residing abroad for more than 15 years. 9 In addition to that, EP contended that Brexit cannot cause an automatic removal of her EU citizenship status as it goes against 'the principles of legal certainty and proportionality', 10 infringes on her right to free movement and constitutes discrimination between EU citizens. 11 While the referring court formulated four questions, they may be rephrased as two. First, the Auch court asked in essence whether the British nationals who have exercised their right to free movement retain the EU citizenship status and can continue to enjoy the rights attached thereto, particularly the right to vote and stand as a candidate in the municipal elections of the Member State of residence. 12 Second, the referring court asked the Court of Justice to check the validity of the Council decision that approved the Withdrawal Agreement in the context of the case at hand. 13

The Court's reasoning
The Court generally followed the suggestions made by AG Collins.
As to the first issue, the Court began its reasoning by noting that EU citizenship 'requires' 22 the possession of a Member State's nationality and that Union citizenship does not replace national citizenship. 23 Citing only Article 9 TEU and Article 20 TFEU, the Court concluded that there is 'an inseparable and exclusive link between possession of the nationality of a Member State and not only the acquisition, but also the retention, of the status of citizen of the Union.' 24 The UK made a sovereign choice to withdraw from the Union and, as per Article 50(3) TEU, ceased to be a Member State. 25 Consequently, UK citizens became third-country nationals, which entails 'the automatic loss' 26 of Union citizenship. 27 The assessment of such a loss of EU citizenship on the grounds of proportionality cannot be carried out because, first, the loss is a consequence of the UK's choice to leave the EU and, second, the Court's previous case law on the matter -Rottmann, Tjebbes, and Wiener Landesregierungconcerned the revocation of nationality by the Member States which remained in the Union. 28 As to the right to vote and stand as a candidate in the municipal elections of the host Member State, the Court emphasized that EU law no longer applies to the UK and, when it continued to apply during the transition period, Article 127(1) of the 15 Withdrawal Agreement expressly excluded that right. 29 As to the territorial scope of the application of the derogation, the Court acknowledged that, as per Article 3(1) of the Agreement, EU law ceased to apply to the UK only. 30 However, the Court read Article 127(1) in conjunction with Article 127(6) of the Agreement and concluded that the remaining Member States were no longer required to treat UK nationals as Union citizens. 31 In any event, the Court stated, interpreting the Withdrawal Agreement as excluding only those EU citizens residing in the UK from the right to vote and stand as a candidate in the municipal elections would create an asymmetry between UK nationals and EU citizens that goes counter to the objectives pursued by the Agreement. 32 As to the prohibition of discrimination enshrined in Article 12 of the Agreement, the right to political participation is excluded from Part Two of the Agreement, which Article 12 refers to. 33 On the second issue, the Court did not establish anything that would undermine the validity of the Council decision approving the Withdrawal Agreement. 34 Such circumstances could be either noncompliance with the procedural prescriptions contained in Article 50(3) TEU and Article 218(3) TFEU or material incompatibility with Union law, nothing of which took place. The Court reiterated its previous reasoning and emphasized that the UK is no longer a Member State, 35 hence its nationals do not possess the nationality of a Member State and, consequently, Union citizenship. 36 Therefore, the Withdrawal Agreement cannot be held invalid for not preserving the right to vote and stand as a candidate in the municipal elections for UK nationals after they ceased to be EU citizens. 37 As to the proportionality principle, the EU did not exceed the limits of its discretion in external relations. 38 The Court emphasized that that discretion is broad and the EU institutions are expected to conclude international agreements 'on the principle of reciprocity and mutual advantages.' 39 This principle goes against what the Court views as unilaterally granting British citizens, now third-country nationals, political rights reserved for Union citizens. 40 Lastly, the fact that EP cannot vote in the UK due to the 15-year rule cannot be attributed to the Union or any of the Member States. 41

Analysis
The Court's decision makes a significant, albeit rather destructive, contribution to its jurisprudence on Union citizenship. The judgment finally provides a definitive answer to the issue of the loss of EU citizenship and evinces the Court's departure from its expansive interpretation of the provisions on Union citizenship that contributed greatly to its development in the first two decades of its existence as a formal concept. This section of the case note analyses the significance of the decision and critically engages with the Court's reasoning. 29

A. Preliminary remarks
It has to be noted in the first place that the main, if not the only, substantive question raised before the Luxembourg Court was the issue of the loss of Union citizenship by the British nationals following Brexit. The right to vote and stand as a candidate in the municipal election was, at most, a peripheral one. However, in its reasoning, the Court of Justice seems to have paid too much attention to the latter when compared to its argumentation on the former. As discussed in more detail below, the Court reduced its analysis essentially to a mere recapitulation of Article 9 TEU and Articles 20, 50 TFEU when declaring that the loss of EU citizenship by the Brits happened automatically. It may be suggested that, most probably, the disbalance was transposed into the judgment from the opinion of AG Collins. For example, the Advocate General paid some excessive, if not inappropriate attention to EP's unwillingness to acquire French nationality despite her entitlement to do so after more than 30 years of residence. 42 Would the analysis of AG Collins be different if the applicant resided in France for only a few years? Although one may be legitimately curious about EP's unwillingness to naturalize, the duration of residence is of no legal relevance to the issues of law raised in the case.
There is another particularly troubling passage in the opinion authored by AG Collins that also might have influenced the outcome of the case, specifically the part responding to EP's argument that invoked proportionality. AG Collins stated that the UK's choice to leave 'amounts to a rejection of the principles underlying the European Union'. 43 This is, to say the least, a controversial or simply inaccurate statement. One can hardly argue that the UK's decision to leave the bloc meant the nation's rejection of such values as 'human dignity, freedom, democracy, equality, the rule of law and respect for human rights' 44 which the Union is founded on. Furthermore, according to AG Collins, since the UK was no longer set to adhere to EU principles, the EU could not, in return, 'secure rights that, in any event, it was not bound to assert'. 45 Unclearly formulated, the cited part of the opinion gives an impression that the revocation of Union citizenship of the British nationals was, in fact, not a consequence of the way EU law functions but rather some kind of retaliation. This assumption seems to be supported by AG Collins himself, who further contends that 'no response other than the exclusion of British nationals from the definition of Union citizens was possible whilst remaining within the scope of the Treaties.' 46 Framing the loss of EU citizenship as a response to Brexit further undermines the legal coherence and credibility of the opinion, which, in its turn, clearly influenced the Court's judgment to a large extent. 47  49 Below, this case note assesses the Court's judgment in light of some of those arguments. First of all, the Court did not plausibly explain why the possession of the nationality of a Member State is of relevance not only for the acquisition of Union citizenship but also for its retention. In two short paragraphs, the Court cited only Article 9 TEU and Article 20 TFEU. 50 The wording of those provisions, however, tells nothing about the loss of Union citizenship or its retention. 51 The plain reading of Article 9 TEU and Article 20 TFEU suggests that holding a Member State's nationality is only required for the acquisition of Union citizenship. Even AG Collins himself admits that 'acquisition of citizenship of a Member State is a condition precedent for the conferral of Union citizenship' 52 (emphasis added), not for its loss. In case of a Member State's withdrawal, the Treaties 'shall cease to apply to the State in question,' 53 not necessarily to a group of Union citizens who possess the nationality of that State. It was cynical of the Court when it recited the longstanding formula which declares that EU citizenship 'is destined to be the fundamental status of nationals of the Member States'. 54 If taken seriously, this description of Union citizenship calls for a narrow interpretation of the provisions that limit such a status, let alone those that revoke it. Deducing 'an inseparable and exclusive link' 55 between holding a Member State's nationality and the retention of EU citizenship solely on the basis of Article 9 TEU and Article 20 TFEU is at loggerheads with such a characterization.

B. Loss of EU citizenship
Second, EU citizenship law gives grounds to question such a bold move as an automatic extinguishment of Union citizenship for millions of people. As a starting point, it has to be recalled that the EU has been 'endowed with sovereign rights, the exercise of which affects Member States and also their citizens' 56 (emphasis added). In contrast to national law and international law, the Treaties created their 'own legal system' 57 which binds the Member States and their nationals. 58 Within that system, Union citizenship 'is destined to be the fundamental status of nationals of the Member States.' 59 EU citizenship plays one of the key roles in the architecture of Union law and the Court of Justice itself acknowledged 'the importance which primary law attaches to the status of citizen of the Union.' 60 It is not coincidental that, as a consequence, Union law 'precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.' 61 As pointed out above, the Treaties do not contain specific rules on the loss of EU citizenship. While the political scale of the Brexit vote and the years-long debate preceding it remains significant, no democratic process is enough legal justification for an en masse revocation of the citizenship status. Of course, Union citizenship is not exactly the same as a Member State's nationality, but it has the same essence of a durable legal bond and, because of that, it 'cannot simply be taken away through a majority decision'. 62 Considering its fundamental nature and central place in the legal system of the Union, as well as the objectives pursued by the Treaties, 63 the mere withdrawal of a Member State from the EU cannot be considered as a sole and sufficient reason for taking EU citizenship away.
Third, one shall remember that, for many British nationals, the loss of Union citizenship happened involuntarily and without individual examination. 64 As Rieder observes, there are, at least, two groups of such people: those who expressly voted against the withdrawal and those who were unable to vote at all. 65 EP herself could not vote in the Brexit referendum because of the 15-year rule, 66 and one can assume that she would vote against the UK's withdrawal. While the UK certainly took a sovereign decision to leave, that decision alone cannot revoke Union citizenship of the British nationals who did not give their consent. 67 As to the necessity to examine each case individually, it is instructive to refer to the Court's jurisprudence. As early as in Rottmann, the Luxembourg Court established that, although the revocation of Union citizenship is a permissible consequence of the loss of a Member State's nationality, it should nevertheless adhere to the principle of proportionality. 68 In Tjebbes, the Luxembourg Court decisively held that '[t]he loss of the nationality of a Member State by operation of law would be inconsistent with the principle of proportionality if the relevant national rules did not permit…an individual examination of the consequences of that loss…from the point of view of EU law.' 69 If a blanket legislative measure stripping individuals of their nationality is inconsistent with Union law, one may conclude that a sovereign decision of a Member State which leads to the loss of Union citizenship by its nationals also goes against the principle of proportionality.
Fourth, in its decision, the Court failed to address the issue of acquired rights. Under the Vienna Convention, 'the termination of a treaty…does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.' 70 While the quoted provision concerns states, not individuals, 71 it must be nevertheless read in light of the special nature of Union law which represents 'a new legal order of international law…the subjects of which comprise not only Member States but also their nationals' 72 (emphasis added). This argument is closely related to the principles of the protection of legitimate expectations and legal certainty which are part and parcel of Union law according to the Court of Justice itself. 73 Although there are some legal and policy arguments against the application of these principles as precluding the loss of EU citizenship by the nationals of a withdrawing Member State, 74 the Court should have examined the matter in light of those arguments to make its decision more persuasive.

Conclusions
The outcome of the case was anticipated and did not come as a total surprise. An opposite decision by the Court would have caused some political controversy and would have given the Member States an impression that they lose control over something they created not long time ago. Instead of following its own jurisprudence, the Court sacrificed the fundamental nature of Union citizenship and its prospects of further evolution for the sake of Brexit. There are, of course, some good arguments in favour of the position taken by the Court that this case note does not examine due to the lack of space. 75 It is a shame, however, that none of those arguments, except for the most obvious and prejudiced reading of Article 9 TEU and Article 20 TFEU, was properly considered by the Luxembourg Court.