Let's make legal history - and keep our EU citizenship rights

by Jo Maugham QC

Let's make legal history - and keep our EU citizenship rights

by Jo Maugham QC
Jo Maugham QC
Case Owner
Jo Maugham QC, founder of the Good Law Project, is working with a group of British nationals living in the Netherlands and others fighting for EU citizenship rights
Funded
on 04th March 2018
£60,010
pledged of £60,001 stretch target from 1,757 pledges
Jo Maugham QC
Case Owner
Jo Maugham QC, founder of the Good Law Project, is working with a group of British nationals living in the Netherlands and others fighting for EU citizenship rights

Latest: Aug. 29, 2018

Final Update

As you will recall, we brought this action to determine whether UK citizens might retain their EU citizenship rights after Brexit. This a question which needs to be answered by the Court of Justice...

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Churchill spoke, in the aftermath of the Second World War, of a “common citizenship” that would unite Europe together “in the sharing of its common inheritance. [T]here would be no limit to the happiness, prosperity and glory which its 300 million or 400 million people would enjoy.” He urged that we build “a kind of United States of Europe” in which we could “dwell in peace, safety and freedom.”

And the idea of a union of people – and not merely of States – was recognised by the European Economic Community shortly after its formation. In 1963 in van Gend & Loos the Court of Justice rewrote the law of nations by recognising that: “the Community constitutes a new legal order of international law… the subjects of which comprise not only member states but also their nationals… Community law… is also intended to confer upon them rights which become part of their legal heritage.” In signing a Treaty between themselves, the Court found, Member States had given rights directly to the people of Europe.

Our cultural identity as citizens of Europe first took legal form in the Maastricht Treaty of 1992. Today, Article 20 TFEU states that “Citizenship of the Union shall be additional to and not replace national citizenship.” And citizenship gives to us a suite of privileges – the right to live and move freely within the territory of the Member States; the right to diplomatic and consular assistance from other Member States; the right to participate in elections to the European Parliament.

These rights are a gift to 60 million UK citizens. As they are a gift to the other 450 million citizens of Europe.

But what of Brexit? The shared assumption of the European Union and the United Kingdom Government is that it will mean a loss of these rights. But is that assumption right?

The assumption is being tested in a case brought by a group of UK nationals living in Amsterdam and which I funded with the help of Bureau Brandeis – who agreed to act for a modest fee. And earlier this month, Judge Bakels – a one-time Vice President of the Dutch Supreme Court – after hearing argument from both sides said this: “there is reason to doubt the correctness of the interpretation of Article 20 TFEU that the loss of the status of citizen of an EU Member State leads to loss of EU citizenship as well.”

And he decided to refer it to the Court of Justice in Luxembourg – the only court that can decide whether Brexit must means a loss of EU citizenship.

The question can fairly lay claim to being the most important to come before the courts in modern times. If successful, it will make legal history. What other case could grant a suite of valuable legal rights to over 60 million people?

Could the Court of Justice decide in our favour? Could it decide that Brexit does not mean the loss of EU citizenship for UK nationals? That, of course, is a question to which we cannot know the answer.

But what we can know is that a Vice President of the Dutch Supreme Court believes EU citizenship could be retained. And we can know that the Court of Justice has been bold in the past. We know from van Gend & Loos that it sees Europe as a union of peoples giving rights to citizens. It is not just a union of States.

And more than that – there are political leaders here and in Europe who believe the future of the European project is to be found in closing the gap between the Union and its people. There is no better means to that end than recognising that EU citizenship has a status meaningfully “additional to national citizenship,” to borrow the language of Article 20 of the Treaty. And which survives a loss of national citizenship.

But the Netherlands has sought to appeal the decision of Judge Bakels to refer the question to Luxembourg – and we must resist that appeal. And I am crowdfunding for the legal costs – Bureau Brandeis’ legal costs – of defending that appeal.

Our EU citizenship does not replace our national citizenship. But like our national citizenship it is an important part of our cultural and an important part of our legal identity.

Plutarch, in “On Exile”, quotes Hercules:

Am I of Thebes or Argos? Whether
You please, for I‘m content with either;
But to determine one, ‘tis pity,
In Greece my country’s every city.

I am a Londoner. I am British. And I am European. In Europe every state is my country.

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Update 4

Jo Maugham QC

Aug. 29, 2018

Final Update

As you will recall, we brought this action to determine whether UK citizens might retain their EU citizenship rights after Brexit. This a question which needs to be answered by the Court of Justice of the EU. To ask it the question you have to persuade a court of one of the member states that there is a real, live question to answer and it then 'refers' that question to the ourt of Justice of the EU.

Before the District Court of Amsterdam we succeeded in persuading the Judge that European law might well guarantee continued EU citizenship rights to UK citizens. And he agreed that the question needed to be referred to the Court of Justice. However the Dutch Government appealed to the Dutch Court of Appeal. It agreed with the Judge in the District Court that UK citizens might well have continued EU citizenship rights after Brexit. However, unlike the Judge in the District Court, it thought that it was premature to ask the question until the effects of Brexit on UK citizens were known.

We took further advice from our Dutch lawyers about whether we should appeal to the Dutch Supreme Court. Their view was that we would be better off waiting until those effects were known and then, again, asking the District Court for a reference to the Court of Justice of the EU. 

We plan to follow that advice. When the effects are known - and if they involve a removal of meaningful EU citizenship rights from UK citizens - we are likely to seek your financial support to commence a further action in the Netherlands with the intention of putting a question before the Court of Justice. That question will be whether the removal of those rights is compatible with EU law. 

So far as costs of the actions taken so far are concerned, the Good Law Project sought no funding for the decision in the District Court. That case was fought at a much reduced rate by the Dutch lawyers and those costs were born privately in large part by me. The sums we raised in the crowdfunding to which you contributed were not sufficient to cover the costs of the Dutch lawyers in the Court of Appeal (and the costs which we paid to the Dutch Government following its partially successful appeal). The difference was met in large part by the Good Law Project.

Jo Maugham QC

Update 3

Jo Maugham QC

June 19, 2018

The Decision of the Court of Appeal in Amsterdam

Some news just in from our EU citizenship case in Amsterdam. In short, a mixed decision.

Our argument was that because Article 20 says EU citizenship is different to member state citizenship it follows that a member state leaving the EU would not automatically mean a loss of EU citizenship. And UK citizens should retain their EU citizenship after any Brexit. 

The Court of Appeal (like the District Court) agrees that the interpretation of Article 20 on this point is unclear and will need to be resolved by the Court of Justice in Luxembourg. 

Moreover, the Court of Appeal doesn’t in its reasoning distinguish between the position of UK nationals resident in the EU and UK nationals resident in the UK. So it follows that all UK nationals may yet retain their EU citizenship rights. 

But the Court of Appeal (unlike the District Court) has decided it is necessary to wait until the outcome of the negotiations is known before referring to Luxembourg the question whether that outcome breaches EU law. And so has overturned the decision of the District Court. 

The decision arrived just minutes ago and is in Dutch. The above summary comes from my brief discussion with our Dutch lawyers. We will consider the judgment carefully and then announce our next steps.

Update 2

Jo Maugham QC

April 18, 2018

Our case is heard tomorrow

Tomorrow morning at 10am the Court of Appeal in Amsterdam will hear the appeal of the Netherlands State against the decision of the District Court to refer to the Court of Justice of the EU the question whether UK citizens (or some of them) retain their EU citizenship rights (or some of them) after Brexit.

I am afraid I do not know when the Court of Appeal will hand down its decision. But as soon as I have news you will have news.

If we succeed in the Court of Appeal it is my expectation the Court of Justice will hear the case very quickly.

There is a danger for the EU here. The case asserts that EU law guarantees for UK citizens a continuation of EU citizenship rights after Brexit (or, more accurately, after the transitional period because during the transitional period EU citizenship rights remain substantially intact). But EU law cannot give to EU citizens reciprocal rights in the UK. That is because, on Brexit (or, again, more accurately at the end of the transitional period), EU law will cease to apply in the UK. So if successful the case creates an asymmetry: UK citizens will benefit from citizenship rights in the EU. But EU citizens won’t benefit from citizenship rights in the UK.

Maintaining symmetry – or reciprocity as the EU calls it – has been a guiding principle of the negotiations. And if this case establishes that EU law creates an asymmetry it is likely that the 27 remaining Member States will seek to restore that symmetry in the terms of the withdrawal agreement. They will seek to do this by renegotiations. But, of course, time is running. And once the withdrawal agreement is done the opportunity to restore symmetry is diminished or lost.

Anyway. If you want to retain your EU citizenship – or if you will retain it anyway but value the friendship with the people of the UK that this case represents – wish us luck tomorrow.

Update 1

Jo Maugham QC

March 7, 2018

We have a hearing date

We were fully funded in three days. So, thank you to all who contributed and promoted this page.

Meanwhile, we have a hearing date for the appeal: 19th April (in Amsterdam) at 10am. And the Netherlands Government has produced its reasons for appealing (which Dutch readers can read here). 

The Netherlands' complaints are, in summary, I am told (and here I quote) as follows.

"The claims are inadmissible / unfounded

  • The summary judge has failed to review whether the claims of the plaintiffs are suitable to be awarded. According to the State they are not. First, because the State does not act wrongfully towards the plaintiffs in any way and there is no danger that it will. The legal position of the plaintiffs depends completely on the outcome of the negotiations, to which the State is no party. Second, the State cannot limit the rights of the plaintiffs, because their rights automatically end with the UK’s withdraw from the EU. Third, as concerns the Dutch double passport issue, the requirement to renunciate British nationality in order to obtain Dutch nationality is a question of national law and not EU law.

The case forms an unacceptable interference with the negotiations between the EU and the UK

  • The summary judge is not allowed to give a decision about what the future legal position of the plaintiffs should be, while the EU and the UK are still in negotiation. This also applies to the CJEU. The CJEU cannot decide on the matter before a definitive decision (withdrawal agreement) has been made.

There is no real legal dispute

  • The summary judge has disregarded the fact that there is no real dispute between the plaintiffs and the State. First, difference of opinion about the interpretation of EU law is not in itself a dispute and a ground for claims in summary proceedings. Second, there can be no dispute about something that does not yet exists: the withdrawal agreement.

The doubt about the interpretation of article 20 TFEU is unfounded

  • The summary judge has disregarded the fact that the doubt about the interpretation of article 20 TFEU is unfounded. According to the State, it is clear that article 20 TFEU does not form a basis for an autonomous right to reside in the EU after a Brexit and that article 20 is a “acte clair”. If Brits could derive rights from article 20 after a Brexit, this would create an unequal negotiation position for EU citizens who can not invoke their EU citizenship in the UK. According to the State, EU citizenship is indissolubly connected with the nationality of a member state. The State disagrees with the opinion of the summary judge that EU case law could support the view that EU citizenship rights are acquired rights.

It is not necessary/ opportune to refer preliminary questions to the CJEU

  • According to the State there is no ground to refer prejudicial questions to the CJEU. The State reiterates that the summary judge has failed to substantiate why such questions are necessary to decide on the plaintiff’s claims; the claims must be denied; the case concerns an uncertain, hypothetical, future situations not a real dispute.

CADS is inadmissible

  • The summary judge has wrongly declared CADS admissible in its claims and has not substantiated why CADS meets the legal requirements for associations to start a collective action. According to the State CADS does not meet these requirements because: 1) CADS is a private/closed network society; 2) CADS has not provided its statutes to prove that it protects the interests of “Brexpats” at stake in this procedure; 3) CADS has not showed that it complies with the Dutch “Claimcode” – a code for associations protecting collective interests – and it probably doesn’t; 4) CADS has not tried to settle the dispute and obtain its claims by prior consult with the State."

We will produce our response and I will publish it here on or around 27 March.

Jo Maugham QC

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