By Joana Gama Gomes (Assistant Professor of European and International Law, University of Lisbon School of Law)
The United Kingdom (UK) officially withdrew from the European Union (EU) on February 1st, 2020, the date in which the Withdrawal Agreement (WA)[1]entered into force. As a result, and after the end of the transition period, all EU law stopped being applicable to and in the United Kingdom, including the provisions of EU law regarding the rights attached to EU citizenship.
EU citizenship is established in Article 9 TEU, which prescribes that “Every national of a Member State shall be a citizen of the Union”. In particular, in accordance with Articles 20 (2) (b) and 22 (1) TFEU, EU citizenship grants its citizens the right to vote and to stand as a candidate in municipal elections in the Member State of residence, under the same conditions as nationals of that State.
Article 127 WA specifically states that Articles 20 (2) (b) and 22 TFEU “shall not be applicable to and in the United Kingdom” from the date of the entry into force of the agreement. As result, while other provisions of EU law were applied during the transition period established in the Withdrawal Agreement, which ended on December 31st, 2020 (Article 126 WA), the Agreement expressly set aside the exercise of the right to vote by UK nationals residing in EU Member States during that period.
In the present case, submitted by a French court, the proceedings were brought by a British national who, in result of the above, was not authorised to vote, by the French authorities, in the municipal elections held in France in March 2020.
Although the litigation surrounding Brexit has progressively increased, this marked the first case where the Court of Justice was asked to clarify the consequences of Brexit as regards the rights attached to European citizenship, which, since 1973, had been enjoyed by British nationals residing in EU Member States.
The facts
The request for a preliminary ruling was submitted by a French court (Tribunal Judiciaire d’Auch) in proceedings brought by a British national (“EP”) against the Mayor of the city of Gers and the Institut national de la statistique et des études économiques (INSEE).
The appellant is a national of the United Kingdom, which has resided in France since 1984 and is married to a French citizen, but who has not, however, applied for or obtained French nationality. Following the entry into force of the Withdrawal Agreement on February 1st, 2020, the appellant was removed from the electoral roll in France and was, therefore, not authorised to participate in the municipal elections which took place on March 15th, 2020.
In October 2020, the appellant filed an application to be re-registered on the special electoral roll for non-French citizens of the EU. This application was, nevertheless, rejected by the French authorities.
Consequently, in November 2020, the appellant brought an action before the referring court to contest that decision. The appellant claimed that, not only, the loss of the rights attached to EU citizenship cannot be an automatic consequence of the UK’s withdrawal from the EU, but that this loss too infringed the principles of legal certainty and proportionality, constituting discrimination between Union citizens. The appellant also added that she no longer had the right to vote and to stand as a candidate in the UK, because, under UK law, “a national of that State who has resided abroad for more than 15 years is no longer entitled to take part in elections in that State”.[2]
On this matter, the appellant invoked the ruling of the Cour de cassation, the highest court of criminal and civil appeal in France, of October 1st, 2020, that held that a British national could not “pertinently argue that he would be deprived of any electoral rights and that such deprivation would constitute a disproportionate infringement of his political rights as a citizen” because “he has not lost his right to vote and to stand for election in the United Kingdom”.[3] A contrario, the appellant argued that, in her case, she has, in fact, been deprived of any electoral rights, which constitutes a disproportionate infringement of her political rights as a citizen.
In contrast, the French authorities stated that, pursuant to Article 127 WA, the withdrawal of the UK from the EU unequivocally resulted “in the loss of the right to vote and to stand as a candidate in municipal and European elections held in France and, therefore, the automatic removal, by INSEE, of United Kingdom nationals, such as EP, who do not also have French nationality, from the special electoral rolls”.[4]
In requesting the present preliminary ruling, the referring Court found, nevertheless, that “the application of the provisions of that agreement to the case of EP, who has also been deprived of the right to vote in the United Kingdom, constitutes a disproportionate infringement of her fundamental right to vote”.[5] Therefore, the referring court decided to stay the proceedings and to refer four questions to the Court of Justice for a preliminary ruling.
By its first and second questions, the referring court asked whether Articles 9 and 50 TEU and Articles 20 to 22 TFEU, read in conjunction with the Withdrawal Agreement, must be interpreted as meaning that, as of the withdrawal of the UK from the EU, which entered into force on February 1st, 2020, UK nationals who exercised their right to reside in a Member State before the end of the transition period no longer enjoy the status of citizen of the Union, nor, more specifically, by virtue of Article 20(2)(b) TFEU and Article 22 TFEU, the right to vote and to stand as a candidate in municipal elections in their Member State of residence, including where they are also deprived, by virtue of UK law, of the right to vote in elections held by that State.
By its third and fourth questions, the referring court questioned the validity of the Withdrawal Agreement, by asking whether this agreement is partially invalid in so far as, on the one hand, it infringes the principles underlying EU identity, and, in particular, Articles 18, 20 and 21 TFEU, Articles 39 and 40 of the EU Charter of Fundamental Rights, and the principle of proportionality, in that it contains no provision permitting UK nationals to retain those rights without exception, and, on the other hand, as it infringes Articles 18, 20 and 21 TFEU, and Articles 39 and 40 of the Charter, in that it deprives Union citizens who have exercised their right to freedom of movement in the UK of the right to vote and to stand as candidates in municipal elections in that country and whether that infringement extends to UK nationals who have exercised their freedom to settle freely in the territory of another Member State for more than 15 years and are, thus, deprived of any right to vote also in the UK.[6]
Judgment of the Court
In its judgment, delivered on June 9th, the Court of Justice considered all questions admissible.
Regarding the first and second questions, the Court started by stating that “by Article 9 TEU and Article 20 TFEU, the authors of the Treaties (…) established 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”.[7] As regards, in particular, the rights established in Article 20(2)(b) TFEU and Article 22 TFEU, the Court contended that “none of those provisions enshrines that right in favour of nationals of a third State”.[8] Therefore, “the fact that an individual (…) exercised his or her right to move and reside freely within the territory of another Member State is, consequently, not such as to enable him or her to retain the status of citizen of the Union and all the rights attached (…) if (…) he or she no longer holds the nationality of a Member State”.[9]
Next, the Court addressed the consequences of the act of withdrawal. The Court started by asserting that “the decision to withdraw is for that Member State alone to take (…) and therefore depends solely on its sovereign choice”. As prescribed under Article 50(3) TEU, following a decision of withdrawal, the EU Treaties cease to apply from the date of entry into force of the withdrawal agreement, and that State is no longer, as from that date, a Member State.[10]
Consequently, following the UK’s withdrawal from the EU, “as from 1 February 2020, United Kingdom nationals no longer hold the nationality of a Member State, but that of a third State”. Since, as the Court previous affirmed, there is an inseparable link between possession of the nationality of a Member State and the acquisition, but also the retention, of the status of EU citizen, “the loss of nationality of a Member State therefore entails, for the person concerned, the automatic loss of his or her status as a citizen of the Union”.[11] As a result, UK national are to be regarded as nationals of a third State and, as of February 1st, 2020, no longer enjoy the status of EU citizen.
As regards the above-mentioned concerns expressed by the referring Court about the fact that the appellant has been deprived of her right to vote both in the UK and the EU, the Court argued that the loss of EU citizenship is an automatic consequence of a sovereign decision taken by the UK and that the “15-year rule” is “a choice of electoral law made by that former Member State, now a third State”. The Court concluded, therefore, that “in those circumstances, neither the competent authorities of the Member States nor their courts may be required to carry out an individual examination of the consequences of the loss of the status of citizen of the Union for the person concerned, in the light of the principle of proportionality”, in particular, because the Court has only carried out those individual examinations in specific situations falling within the scope of EU law, where a Member State had withdrawn its nationality from individual persons, pursuant to a legislative measure or an individual decision taken by the authorities of that Member State.[12]
The Court further clarified that, although the Withdrawal Agreement only refers to the “United Kingdom and the territory of that State (…) without expressly referring to its nationals”, Article 127 WA also applies to UK nationals “who exercised their right to reside in a Member State in accordance with EU law before the end of the transition period”.[13]
The Court also concluded that, pursuant to Article 127 WA, “Member States were no longer required, as from 1 February 2020, to treat United Kingdom nationals as nationals of a Member State” for the purposes of the application of Articles 20(2)(b) and 22 TFEU, “nor, therefore, to grant United Kingdom nationals residing in their territory the right, recognised by those provisions for persons who, as nationals of a Member State, have the status of citizen of the Union, to vote and to stand as a candidate in elections to the European Parliament and in municipal elections”.[14]
Finally, the Court clarified that Part Two of the Withdrawal Agreement ensures reciprocal protection for EU citizens and UK nationals who have exercised their rights to freedom of movement before the end of the transition period. The rights prescribed in Part Two concern the rights connected with residence, the rights of employed and self-employed persons, professional qualifications, and the coordination of social security systems. This part does not include, however, “the right to vote and to stand as a candidate in municipal elections in the Member State of residence of United Kingdom nationals who exercised their right to reside in a Member State of the European Union before the end of the transition period and who continue to reside there”.[15] Because this right is not prescribed in Part Two of the WA, the prohibition of any discrimination on grounds of nationality, within the meaning of the first paragraph of Article 18 TFEU, established in Article 12 WA, does not apply.[16]
The Court also added that Articles 18 TFEU, regarding the prohibition of discrimination on the grounds of nationality, and 21 TFEU, on the freedom of movement within EU Member States, do not apply to nationals of third States.[17] Furthermore, the Court concluded that this provisions cannot be interpreted as also conferring on UK nationals who are no longer nationals of a Member State the right to vote and to stand as a candidate in municipal elections held in their Member State of residence. Consequently, Member States are not required to continue to grant, after February 1st, 2020, UK nationals who reside in their territory the right to vote and to stand as a candidate in municipal elections held in that territory, as they grant to EU citizens.[18]
Lastly, the Court pointed out, nonetheless, that Member States reserve the right “to grant, under conditions which they lay down in their national law, a right to vote and to stand as a candidate to nationals of a third State residing in their territory”.[19]
Finally, by the third and fourth questions, the Court of Justice was asked to examine the validity of the Withdrawal Agreement.
The Court started by asserting that is has competence to conduct an ex-postassessment of the compatibility of an international agreement concluded by the EU with the Treaties and with the rules of international law which, in accordance with the Treaties, are binding on the EU. When conducting this review, the Court assesses “the EU act approving the conclusion of that international agreement. That review of validity (…) is nonetheless capable of encompassing the legality of that act in the light of the actual content of the international agreement at issue”.[20]
The conclusion of the UK Withdrawal Agreement was approved by Council Decision 2020/135, of 30 January 2020. The Court, therefore, considered whether, in the light of Article 9 TEU, Articles 18, 20 and 21 TFEU, Article 40 of the Charter and the principle of proportionality, that Decision is invalid in so far as the Withdrawal Agreement does not confer on UK nationals who exercised their right to reside in a Member State, before the end of their transition period, the right to vote and to stand as a candidate in municipal elections in their State of residence.[21]
As previously mentioned, the UK Withdrawal Agreement specifically states that Articles 20 (2) (b) and 22 TFEU “shall not be applicable to and in the United Kingdom” from the date of the entry into force of the agreement (February 1st, 2020). These Articles were, therefore, not applied during the transition period established in the Withdrawal Agreement, which ended on December 31st, 2020 (Article 127 (1)).
As regards the compatibility with Article 9 TEU, Articles 18, 20 and 21 TFEU, and Article 40 of the Charter, the Court, firstly, repeated that only citizens of the EU may rely, under Article 20(2)(b) TFEU, Article 22 TFEU and Article 40 of the Charter, on the right to vote in municipal elections in their Member State of residence. Since the entry into force of the WA, UK nationals no longer hold, as from that date, the nationality of a Member State and, consequently, are no longer citizens of the Union.[22] As a result, the Court concluded that, by not conferring on UK nationals, who exercised their right to reside in a Member State before the end of the transition period, the right to vote in municipal elections in their Member State of residence, Decision 2020/135 is not contrary to those provisions.
Likewise, the Court also affirmed that Decision 2020/135 was not contrary to Articles 18 and 21 TFEU, because it does not constitute discrimination on grounds of nationality, nor a violation of the freedom of movement, as UK citizens are no longer EU citizens.[23]
As regards the validity of Decision 2020/135 in the light of the principle of proportionality, the Court, firstly, concluded that “there is nothing (…) to suggest that the European Union, as a contracting party to the Withdrawal Agreement, exceeded the limits of its discretion in the conduct of external relations, by not requiring (…) a right to vote and to stand as a candidate in municipal elections in the Member State of residence be provided for United Kingdom nationals who exercised their right to reside in a Member State before the end of the transition period”. Thus, in the conduct of external relations, EU institutions “are not required to grant, unilaterally, third-country nationals rights such as the right to vote and to stand as a candidate in municipal elections in the Member State of residence, which, moreover, is reserved solely to Union citizens”.[24]
Lastly, the Court noted that the fact that “certain United Kingdom nationals (…) who exercised their right to reside in a Member State in accordance with EU law before the end of the transition period, are deprived of their right to vote in the United Kingdom under the 15-year rule (…) arises solely from a legislative provision of a third State, and not from EU law. Therefore, that circumstance is not relevant for the purposes of assessing the validity of Decision 2020/135”.[25]
Conclusions
The Court of Justice’s conclusions have largely confirmed (as stated in the slogan famously coined by Theresa May) that “Brexit means Brexit” as regards the rights attached to EU citizenship previously enjoyed by UK nationals residing in EU Member States.
As the Court assertively declared, the UK’s withdrawal from the EU constituted a sovereign decision by a former Member State. As a result, it is now clear that, by virtue of the withdrawal of their state from the EU, UK nationals no longer carry the status of EU citizens, and were, thus, deprived of the rights that come with it, without prejudice to the rights specifically agreed to by the Parties in Part Two of the WA.
As regards EU citizenship in general, the Court also importantly stressed that there is “an inseparable and exclusive link” between the acquisition, but also the retention, of the status of EU citizen, which, as a result, means that the loss of nationality of a Member State entails an automatic loss of said status. This statement confirms the conclusion followed by most scholars, that EU citizenship cannot be separated from Member State nationality, as “the rights deriving from this status are for the most part supplied by the Member States themselves and reflect the new relationship they have chosen to establish with regard to each other”. Others have, nonetheless, disputed this dogma and made a case for an autonomous EU citizenship (a so called “Eurozenship”), where “residence or domicile, regardless of nationality, would be the main criterion for the acquisition of EU citizenship”.[26] The Court of Justice does not seem, however, to have picked up on their arguments.
As important, the present case also gave the Court its first opportunity to review the legality of the Withdrawal Agreement vis-à-vis EU law. The Court concluded that Council Decision 2020/135 is not contrary to EU Treaties, while also confirming that within the conduct of its external relations powers, EU institutions enjoy a certain amount of political discretion and are, therefore, not “required to grant, unilaterally, third-country nationals rights” which are, normally, solely reserved to Union citizens.
This conclusion is of particular importance in the context of EU external competences and follows on the Court previous case-law regarding the status of other international agreements, such as GATT and WTO.[27]
[1] Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2019/C 384 I/01), approved by Council Decision (EU) 2020/135 of 30 January 2020.
[2] Judgment of the Court of Justice of 9 June 2022, EP v. Préfet du Gers and Institut national de la statistique et des études économiques (INSEE), Case C-673/20, ECLI:EU:C:2022:449, paragraph 30 (available at https://curia.europa.eu/juris/document/document.jsf?text=&docid=260522&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=9291972).
[3] Ruling n.º 1153 of 1 October 2020 (20-16.901) – Cour de cassation – Second Civil Chamber ECLI:FR:CCAS:2020:C201153 (available at https://www.courdecassation.fr/en/toutes-les-actualites/2020/10/01/second-civil-chamber-brexit-and-loss-right-vote-municipal).
[4] Judgment of the Court of 9 June 2022, paragraph 34.
[5] Request for a preliminary ruling (Tribunal judiciaire d’Auch, France), page 6 (available at https://curia.europa.eu/juris/showPdf.jsf?text=&docid=237421&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=8997797).
[6] Judgment of the Court of 9 June 2022, paragraph 37.
[7] Judgment of the Court of 9 June 2022, paragraph 48.
[8] Judgment of the Court of 9 June 2022, paragraph 51.
[9] Judgment of the Court of 9 June 2022, paragraph 51.
[10] Judgment of the Court of 9 June 2022, paragraph 53-55.
[11] Judgment of the Court of 9 June 2022, paragraphs 56-57.
[12] Judgment of the Court of 9 June 2022, paragraphs 59-62.
[13] Judgment of the Court of 9 June 2022, paragraph 68.
[14] Judgment of the Court of 9 June 2022, paragraph 71.
[15] Judgment of the Court of 9 June 2022, paragraphs 73-75.
[16] Judgment of the Court of 9 June 2022, paragraphs 76-77.
[17] Judgment of the Court of 9 June 2022, paragraphs 78-79.
[18] Judgment of the Court of 9 June 2022, paragraphs 80-81
[19] Judgment of the Court of 9 June 2022, paragraph 82.
[20] Judgment of the Court of 9 June 2022, paragraphs 84-85.
[21] Judgment of the Court of 9 June 2022, paragraph 90.
[22] Judgment of the Court of 9 June 2022, paragraphs 91-92.
[23] Judgment of the Court of 9 June 2022, paragraphs 95-97.
[24] Judgment of the Court of 9 June 2022, paragraphs 98-100.
[25] Judgment of the Court of 9 June 2022, paragraph 101.
[26] See the various positions shared on this issue at the 2nd Global Citizenship Governance Forum, organized by the Robert Schuman Centre for Advanced Studies of the European University Institute (available at: https://cadmus.eui.eu/bitstream/handle/1814/62229/RSCAS%202019_24rev2.pdf).
[27] See, for instance, cases International Fruit Company (joined cases C-21 a C-24/72) and Portugal v. Council (C-149/96).
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