This is the first in a series of blogposts on CJEU decisions concerning the UK-EU Withdrawal Agreement by Luke Kelly and Charlotte McLean of Monckton Chambers. In this post (Part 1 of the series), they introduce the series and provide an overview of the Court’s decisions concerning citizenship rights.
Introduction
The EU-UK Withdrawal Agreement, which entered into force on 1 February 2020, sets out the terms of the UK’s exit from the EU. This Treaty governs many fundamental aspects of life, including rights of residence, access to welfare, workers’ rights, customs procedures, data protection, judicial cooperation, and intellectual property. Since the end of the transition period, the EU Courts have handed down a number of decisions on the application of the Withdrawal Agreement, which have potential wide-ranging ramifications for both EU and UK citizens and businesses.
In this series, we will explore these CJEU decisions on a thematic basis.
Citizenship cases
The topic of citizenship can be fraught. At one level, citizenship is a political or moral concept and is tied to one’s identity; on another, it confers legal status that defines often complicated legal relationships between individuals and states. In the context of the EU, citizenship is central not just to the legal relationship between individuals and the Member State where they happen to reside, but to their relationship with all Member States.
Looking back, several seminal cases established the foundational importance of EU citizenship to individual rights. In the 1998 judgment in Case C-85/96 María Martínez Sala EU:C:1998:217, the Court of Justice held that nationals of a Member State lawfully resident in another Member State may not be discriminated against on grounds of nationality. In that case Ms Sala, a Spanish national who had been resident in Germany for 25 years was refused a child-raising allowance (available to German citizens and residents with formal residence permits) on the grounds that she was not in possession of a formal residence permit. Unsurprisingly, this was found to amount to discrimination incompatible with the Treaty: as a citizen of the EU, Ms Sala could not be discriminated against on grounds that she happened to be a citizen of a different Member State. This principle was applied three years later in Case C-184/99 Rudy Grzelczyk EU:C:2001:458 in which it was held (at para. 31) that “Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.” A year later, in the 2002 judgment in Case C-413/99 Baumbast and R v Secretary of State for the Home Department EU:C:2002:493it was held that a citizen of the EU who no longer has a right of residence as a migrant worker in a host Member State nevertheless enjoys rights of residence in that Member State by direct application of Article 18 of the Treaty (now Article 21).
Jumping ahead, one of the legal consequences of the UK’s decision to leave the EU meant that the Treaty provisions on EU citizenship (Articles 20 to 25) ceased to apply to and in the UK at the end of the transition period on 31 December 2020. UK citizens could no longer automatically claim a right to EU citizenship. Several cases concerning rights related to citizenship have arisen since. We summarise some of them below.
C‑673/20 Préfet du Gers and Institut national de la statistique et desétudes économiques EU:C:2022:449
On June 2022, the CJEU delivered judgment in C‑673/20 Préfet du Gers and Institut national de la statistique et desétudes économiques EU:C:2022:449. The CJEU had been requested to provide a preliminary ruling between a UK national (“EP”) who had been living in France since 1984, the Prefect of Gers in France, and the French National Institute for Statistics and Economic Studies. Because of Brexit, EP was removed from the electoral roll in France and the authorities refused to re-register her on the relevant special electoral roll for non-French citizens of the EU. EP also no longer had the right to vote in UK because the so-called “15-year rule” pursuant to which a UK national who has resided abroad for more than 15 years is no longer entitled to take part in elections.
EP raised several arguments. She argued that the loss of a status as a citizen of the EU (enshrined in Article 20) was not an automatic consequence of the UK’s withdrawal from the EU. She also argued that that the loss of EU citizenship infringed the principles of legal certainty and proportionality and amounted to discrimination between Union citizens and infringed her freedom of movement. The CJEU rejected these arguments. It held that EU citizenship is contingent on being a national a Member State and that because as of 1 February 2020 the UK was no longer a Member State (it being a “third state”), EP had automatically lost her EU citizenship from that date. This meant that EP lost rights tied to her citizenship, including the rights under Article 20(2)(b), Article 22 and Articles 39 and 40 to vote and stand in elections in France.
The CJEU also found that the Article 127(1)(b) of the Withdrawal Agreement expressly excluded the application to and in the UK of the provisions of primary EU law relating to EU citizens’ rights to vote and stand in elections in their Member States of residence. In other words, notwithstanding the transition period under the Withdrawal Agreement, Member States were not required from 1 February 2020 to treat UK nationals resident in Member States as EU citizens for purposes of Article 20(2)(b), Article 22 and Articles 39 and 40 such that they could vote or stand in European Parliament or municipal elections. As to the impact on EP being potentially disproportionate and discriminatory (in that she could no longer vote in the UK), this was held to be legally irrelevant. It arose from the choice of electoral law in the UK, now no longer a Member State, and the UK’s sovereign choice to exit the EU. The CJEU held that nothing raised by EP affected the legal validity of the EU Council’s decision to approve the Withdrawal Agreement.
Case C-716/22 Préfet du Gers and Institut national de la statistique and des études économiques II EU:C:2024:339
The case returned to the CJEU and on 18 April 2024 it gave a second judgment in Case C-716/22 Préfet du Gers and Institut national de la statistique and des études économiques II EU:C:2024:339. Two further questions had been referred to the CJEU for a ruling. The second question (answered first) was whether the Withdrawal Agreement must be interpreted as meaning that UK nationals who exercised their right to reside in a Member State before the end of the transition period could no longer benefit from a right to vote and to stand as a candidate in elections to the European Parliament as 1 February 2020 (i.e. from the date of the adoption of the Withdrawal Agreement).
Unsurprisingly, the CJEU referred to Préfet du Gers Iand concluded that the Withdrawal Agreement as read with the Charter had to be interpreted as such: UK nationals resident in Member States lost their rights to participate in elections for the European Parliament from 1 February 2020 notwithstanding the transition period under the Withdrawal Agreement. The first question (answered second) was whether the EU Council’s decision to adopt the Withdrawal Agreement was invalid. On this the CJEU also referred to its reasoning in Préfet du Gers I – the essential point being that EU Council could not be faulted for having adopted the Withdrawal Agreement pursuant to the UK’s sovereign choice to exit the EU; the adverse consequences on UK nationals such as EP were not the fault of the EU Council.
Case C-499/21 P Silver and Others v Council EU:C:2023:479
On 15 June 2023, the CJEU delivered judgment in Case C-499/21P Silver and Others v Council EU:C:2023:479. The appellants, UK citizens who had resided for decades in both France and the UK, brought ambitious proceedings seeking the annulment of the EU Council’s decision to adopt the Withdrawal Agreement. They did so on the basis that it “deprives them … of their status as Union citizens and their rights arising therefrom.” In essence, the appellants argued that their citizenship rights were “acquired rights” that had been granted on a definitive basis and were “indefeasible” (see para. 28). The appellants contended that since a deprivation of those rights was not provided for in the TFEU or the Withdrawal Agreement and did not follow from Article 50 TFEU (which enables Member States to withdraw from the EU), it was contrary to EU law. The appellants also argued that their citizenship rights existed independently of the Withdrawal Agreement.
The CJEU gave the arguments short shrift. It held that the challenge was inadmissible on the basis that they lacked standing. That was because the loss of the appellants’ EU citizenship was a consequence of a sovereign choice by the UK to exit the EU, not the EU Council’s decision to adopt the Withdrawal Agreement, or the Withdrawal Agreement itself.
Case C-501/21 P Shindler and Others v Council EU:C:2023:480.
On 15 June 2023, just two days after its judgment in Silver (above), the CJEU delivered judgment in Case C-501/21 P Shindler and Others v Council EU:C:2023:480. This was another challenge to the adoption of the Withdrawal Agreement. The appellants sought the annulment of the acts enacting the Withdrawal Agreement (including the EC Council’s decision adopting it), alternatively to annul in part any part of those acts that distinguished between EU citizens and UK nationals as from 1 February 2020. The General Court rejected the challenge on the basis that the appellants lacked standing under Article 263 TFEU. They had sought to persuade the CJEU that they had standing to challenge the decision by the EU Council to adopt the Withdrawal Agreement on the basis that it was a “regulatory act”, and that they were “deprived of the possibility of democratically opposing the loss of their European citizenship” despite being “directly and individually concerned” by the adoption of the Withdrawal Agreement (para. 55).
The CJEU – referring to its judgment in Préfet du Gers I – upheld the General Court’s finding that the appellants had no standing: they had been deprived of their EU citizenship as a result of the UK’s sovereign decision pursuant to Article 50(1) TFEU to exit the EU, not by a decision of the EU Council to adopt the Withdrawal Agreement.
Case C-4/23 Mirin EU:C:2024:845
On 4 October 2024, the CJEU delivered its judgment in Case C-4/23 Mirin EU:C:2024:845. The facts are briefly as follows. M.-A.A. (“M”) was born in Romania and registered as a female at birth. M then moved to the UK in 2008 (aged 16) and obtained British nationality by naturalisation in 2016. In 2017, M changed their first name and title from female to male using a deed poll procedure in the UK. He then had a passport and driving licence issued in his new name. In June 2020 – i.e. during the transition period under the Withdrawal Agreement – M obtained a gender identity certificate in the UK that confirmed his male gender identity. In May 2021, M requested the relevant authorities in Romania to issue him with a new birth certificate reflecting his reflect his new name and which reflected the male sex. The Romanian authorities refused on the basis that under Romanian law amendments to a person’s gender identity could only be made when approved by way of a judicial decision. Before the referring court in Romania, M sought an order directing the relevant Romanian authorities, through the direct application of EU law, to make the necessary amendments to his birth certificate to enable him to obtain a Romanian passport reflecting his male gender identity. Two questions were then referred to the CJEU.
The first was whether the requirement under Romanian law that amendments to a person’s gender and first name had to be approved by a Romanian court, that may lead to a decision that is contrary to a decision taken by another Member State of which that person is also citizen, amounted to an unlawful obstacle to the exercise of rights to citizenship (Article 20), free movement (Article 21), dignity, equality before the law and non-discrimination (Articles 2, 18 TFEU and 1, 20 and 21 of the Charter) and the right to private and family life (Article 7 of the Charter).
The second was whether Brexit had any bearing on the answer to the first question in circumstances where: (1) M commenced the procedure to change his identity in the UK before Brexit and that process was completed in the UK during the transition period provided for under the Withdrawal Agreement; and (2) the impact of Brexit was to terminate M’s rights attached to European citizenship derived from his UK nationality, leaving him with EU citizenship derived from his Romanian nationality that was based on a different name and gender
The CJEU noted that while the position under EU law is presently that a person’s status is a matter that falls within the competence of Member States, all Member States must nevertheless give effect to the right of EU citizens to move freely and reside anywhere in the EU. This includes recognising, for that purpose, the civil status of persons lawfully established in another Member State. The refusal by an authority in one Member State to recognise the name or gender lawfully acquired in another Member State was found to be liable to infringe the right of free movement. As the CJEU explained (para. 56), “…for a Union citizen who, like the applicant in the main proceedings, has exercised his or her freedom to move and reside in another Member State and who, during his or her period of residence in that other Member State, has changed his or her first name and gender identity in accordance with the procedures laid down for that purpose in that other Member State, there is a real risk, because he or she bears two different first names and has been given two different identities, of having to dispel doubts as to his or her identity and the authenticity of the documents submitted or the veracity of their content, which is such as to hinder the exercise of the right which flows from Article 21 TFEU.”
But what of the impact of Brexit and the application of the Withdrawal Agreement? The CJEU found that there was no impact. That was because the M had been legally recognised by a different name and gender in the UK before the end of the transition period provided for under the Withdrawal Agreement. The fact that M had only applied to the Romanian authorities after 31 December 2020 to amend his birth certificate was held to be legally irrelevant.
In Part 2 of the series we will consider several cases concerning IP law and the Withdrawal Agreement.
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