Netherlands court refers British-EU citizenship question to ECJ

Netherlands court refers British-EU citizenship question to ECJ

A court in Amsterdam on Thursday referred [judgment, PDF] to the European Court of Justice (ECJ) [official website] the question of whether British nationals lose their EU citizenship after UK’s departure from the EU becomes official in March 2019, and if not, under what conditions these individuals will retain their EU citizenship.

The plaintiffs in the case are five British expatriates living in the Netherlands and two private organizations—Brexpats and the Commercial Anglo Dutch Society [advocacy websites]—who claim that the expatriates have rights as EU citizens that are independent of rights flowing from the citizenship in an EU member state. As such, the expatriates argue that their rights including freedom of movement and residence in any EU member state, under Article 20 of the Treaty of the Functioning of the EU (TFEU) [PDF] should be protected by the Holland government.

While no conclusive agreement has been resulted from the Brexit negotiations between the European Council and the UK, the first phase of the negotiations produced a progress report wherein a principle of reciprocity was recommended. According to this principle, the rights of British nationals currently residing in other member states and vice versa are to be protected. The progress report also contemplates protection for the families of these British nationals particularly regarding the right of free movement and residence within the territories of the EU member states. But this progress report does not represent a concrete agreement consequently leaving the fate of these individuals uncertain.

After pouring through various constitutional principles concerning EU citizenship and acquired rights, complications involving minor-EU citizens, concerns over the protection of minorities (i.e. those British nationals who voted against Brexit), and the constitutional principle of solidarity between EU citizens and between EU citizens and the member states, the court decided that it will honor the plaintiff’s request to refer the following questions to the ECJ:

1. Does the withdrawal of the United Kingdom from the EU lead to a legally declining lapse of EU citizenship of British nationals and thus to the elimination of rights and freedoms deriving from EU citizenship, if and in so far as the negotiations between the European Council and the United Kingdom are not otherwise agreed? 2. If the answer to the first question is in the negative, should conditions or restrictions be imposed on the maintenance of the rights and freedoms to be derived from EU citizenship?

Any decision rendered by the ECJ concerning this matter will take the case back to the Amsterdam court, which would be bound to apply the interpretation of EU laws given by the ECJ.

The UK has been slowly progressing on its plans to withdraw from the EU since the Brexit vote [JURIST report] in June 2016. The UK House of Commons voted 324-295 [JURIST report] in January to pass the European Union (Withdrawal) Bill, also known as as the “Brexit” bill. The House of Lords began deliberations on the bill on January 30.