EU citizenship: a slipping anchor to hold on to rights? Brexit and the consequences for EU citizens with British nationality

This summer many European citizens woke up in shock. Whilst reading the newspaper, listening to the radio, scrolling on Facebook, having breakfast, we learnt that a small majority of the voters in the Brexit referendum voted to leave the European Union. Not only does the (potential) Brexit have consequences for the internal market and the economic and social rights of EU citizens, but it also threatens their status as such. This is shocking for EU citizens with the nationality of another Member State residing in the United Kingdom, because their status will be redefined. For instance, in the future they will no longer be able to rely on equal treatment based on EU citizenship in the United Kingdom. Possibly even more shocked were British nationals, who might now actually lose their status as EU citizens, either living in the United Kingdom or elsewhere in the European Union. This will significantly impact their possibilities to work, study, and take up residence in another EU Member State.

In this blog-post I will discuss the role of EU citizenship in the Brexit, focusing on whether EU citizenship could be used as an anchor for British nationals to stay within the European Union – at least as citizens.

The current Article 20(1) TFEU provides: ‘Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’ Therefore, the fact that a Member State ceases being an EU Member State consequently means that the nationals belonging to that State are no longer EU citizens, and may lose their rights as EU citizens to free movement, amongst others.

Since the Treaty of Lisbon there is a possibility for Member States to withdraw from the European Union. Paragraph 1 of Article 50 TEU reads ‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements’. In order to activate this Article, the withdrawing Member State must notify the European Council. After notification a process of negotiation commences in order to conclude an agreement, which is adopted by the Council with the consent of the European Parliament. If after two years of negotiation there is no agreement between the withdrawing State and the EU, the Treaties will simply cease to apply to the Member State at issue. At the time of writing the United Kingdom has not yet notified the European Council to start the Article 50 procedure. However, the current Prime Minister of the United Kingdom announced that she will start procedures to withdraw from the European Union, and the UK’s Parliament is involved in the procedure, so such a notification is to be expected (soon). Until then, the United Kingdom remains a full Member State of the European Union and its nationals remain EU citizens.

In this context, Article 20 TFEU and Article 50 TEU collide. On the one hand the Treaty grants EU citizens a citizenship status, but on the other hand it seems that Article 50 TEU undermines (or could undermine) the EU citizenship status and the rights that come with that status.

Invoking EU citizenship to challenge the loss of rights by Brexit?

As observed, if and when the United Kingdom withdraws its EU membership, British nationals who do not hold the nationality of another Member State would no longer qualify as EU citizens. Consequently, their rights derived from that status would also be lost. Could it be argued that, based on Rottmann and Ruiz Zambrano, a Brexit would result in the deprivation of the genuine enjoyment of the substance of the rights of EU citizens, thereby possibly affecting – or even blocking – the withdrawal from the EU, made possible by Article 50 TEU?

In the Rottmann case the Court of Justice of the EU explicitly ruled that the loss of nationality due to national legislation falls within the scope of EU law and that Member States should respect the principle of proportionality if they revoke the nationality of one of their nationals. The case concerned Mr Rottmann, who acquired German nationality due to naturalisation by the German authorities. When he acquired German nationality he also lost his Austrian nationality. When the German authorities discovered that Rottmann had hidden information (that he was subject to criminal investigation in Austria) during his application for German nationality, they withdrew his newly acquired German nationality. The Court of Justice of the EU emphasised that the Member States are competent to regulate nationality rules, but that it is clear that ‘the situation of a citizen of the Union who […] is faced with a decision withdrawing his naturalization, adopted by the authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status conferred by Article 17 EC [Article 20 TFEU] and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law’ (para. 42). In the case of Ruiz Zambrano the Court of Justice of the EU added that the ‘genuine enjoyment of the substance of the rights’ of EU citizens may not be removed by a measure of a Member State (para. 42).  Since EU citizenship is based on the nationality of Member States it is valid and interesting to question whether one could argue that a Brexit would be disproportionate in light of EU citizenship. A Brexit would clearly lead to a situation that falls within the scope of EU law, based on Rottmann, and in which citizens are deprived of their genuine enjoyment of their rights as EU citizens.

However, in my view there are several reasons why the case of Rottmann might not be helpful for those British nationals who want to rely on their EU citizenship in order to keep that status.

First, there is a fundamental difference between Rottmann-like situations and Brexit: in Rottmann the German nationality was withdrawn by the German authorities by an individual decision, affecting one EU citizen. In the Brexit-context the (potential) loss of EU citizenship shall derive from a decision made by the government after a democratic referendum was held. Should individuals be able to challenge the outcome of such a referendum by relying on their EU citizenship rights? If that would be the case a democratic decision would be undermined. That would also run counter to the wording and system of Article 50 TEU, which refers to national constitutional requirements. Moreover, in Rottmann there was the serious threat that Mr. Rottmann would become stateless, which is not the case for British nationals.[2] There are therefore many significant differences between Rottmann and a Brexit situation.

Second, another reason not to be too optimistic for the application of Rottmann to Brexit is more formal, based on Article 50 TEU. Article 50 TEU was introduced in the Treaty of Lisbon to create a possibility to withdraw from the European Union. If the Court of Justice of the EU would rule that British nationals could invoke Rottmann to challenge losing their status as EU citizens, the Court of Justice would erode the purpose of Article 50 TEU.[3]

A third reason is that even if one could argue that Rottmann is applicable to the Brexit situation, it is important to bear in mind that in Rottmann the Court of Justice held that the withdrawal of nationality (including the status of EU citizenship) should be proportionate. It did not rule that withdrawal of nationality is principally prohibited by EU law. In that sense, it also seems highly questionable whether a Brexit would not be proportional, since the process was started by a referendum and was introduced by the Prime Minister, and, most importantly a Brexit is a decision taken by a democratic state.

Hence, even though it might be very disappointing, it will be hard to rely on EU citizenship as an anchor to hold on to rights enjoyed as an EU citizen.

Associated citizenship of the European Union

Are there alternatives to EU citizenship? In the United Kingdom the concept of associated citizenship of the European Union was discussed in the aftermath of the Brexit-referendum. Associated EU citizenship would entail a form of citizenship ‘for those who feel and wish to be part of the European project but are nationals of a former Member State’. It would offer ‘these associated citizens the rights of freedom of movement and to reside on its territory as well as being represented in the Parliament through a vote in the European elections on the European lists.’[4] Probably this proposal will not succeed to lead to another form of citizenship for British nationals, for various reasons. One important reason would be, in my view, that associated citizenship would (probably) lead to a status for those with sufficient means and possibilities to actually exercise their free movement rights. Still a small percentage of EU citizens actually migrates to other Member States (more permanently), which would make associate citizenship an ‘European elite status’. Such inequality would run against the absolute core of citizenship: equality. Another consideration is that in terms of the division of powers and the system of Article 50 TEU it is first of all up to the United Kingdom to negotiate on a new status for its citizens. It would therefore be not very appropriate, perhaps, if the solution came from the European Union, now that the United Kingdom wants to withdraw. Moreover, on a more procedural level, such associated citizenship would require a Treaty revision, which implies the consent of all Member States. It is not very likely that such a Treaty revision would garner unanimous support.

The way forward: destination unknown

It therefore seems that EU citizenship will not solve a Brexit for those who want to remain in the European Union as EU citizens. At the same time, as Davies argues, if EU citizenship can be revoked for a whole population by 51% of the voters, then how fundamental is EU citizenship? Davies states: ‘if we accept that Union citizenship can be removed by a national parliamentary majority of 51% then we implicitly regard that citizenship as a contingent status of convenience, a discount card in the supermarket that is Europe, rather than a corollary of supranational belonging.’ How does Article 50 TEU relate to Article 20 TFEU? Should Article 50 TEU not be read in the light of EU citizenship? Does EU citizenship become an additional status that can be revoked even if many want to keep their rights as an EU citizen? In that sense it is now even more important than ever to define (or redefine) the narrative of EU citizenship and its future.

Brexit poses various difficult questions in the context of EU citizenship: how to deal with the acquired rights of EU citizens residing in the UK? What will happen to the rights of British nationals in other Member States? Are they suddenly regarded as third country nationals? What consequences would that have? Many of these questions will have to be answered in the process of negotiations between the EU and the United Kingdom, as pointed out in more detail by Coutts. However, another urgent and fundamental question is, in my view: how do we want to value EU citizenship in a changing European Union, taking into account different developments on EU as well as on national level(s)? Is it time to redefine EU citizenship as a fundamental status or should we agree that EU citizenship becomes less constitutional, less supranational in concept? Or should we reinforce the underlying values of EU citizenship and what are those? EU citizenship seems to be more contested than ever, nowadays. A slipping anchor. Are we drifting away or can we try to secure what is often called the destined ‘fundamental status’ of nationals of the European Union?

[1] This blog is based on a larger contribution by Hanneke van Eijken and Pauline Phoa that will appear in the BEUCitizen book: ‘Civil Rights and the Coming of Age of EU Citizenship – Challenges at the Crossroads of the European, the National and the Private Sphere.’ Edward Elgar (forthcoming in 2017). See also the BEU Citizen report on core citizenship rights.

[2] P. L. Athanassiou and S. Laulhé Shaelou, EU Citizenship and its relevance for EU exit and secession, in: D. Kochenov (ed.), EU citizenship and federalism (Cambridge University Press), forthcoming.

[3]  See on this point also Gareth Davies, Union citizenship – still Europeans’ destiny after brexit?, Europa Law Blog, July 2016, http://europeanlawblog.eu/2016/07/07/union-citizenship-still-europeans-destiny-after-brexit/.

[4] See the proposal for a regulation, Amendment 882 by MEP Charles Goerens.