This post by Will Perry of Monckton Chambers considers last week’s General Court ruling in Case T‑231/20 R, Price v Council, which is the first time since Brexit that the loss of EU citizenship by UK nationals had been addressed by the Court.
Mr Price’s case
The proceedings were brought by David Price, a UK national who exercised his free movement rights by moving to France more than 15 years ago. He was elected as a municipal councillor for the commune of Bussière-Badil in the Dordogne in 2014. On 23 January 2020, France’s Minister of the Interior published a circular stating that UK nationals would no longer be able to stand or vote in municipal elections as a result of the UK’s exit from the EU.
Mr Price sought to challenge this decision. The French Conseil d’État rejected his arguments. Significantly, it also dismissed his application for a preliminary reference under art.267 Treaty on the Functioning of the European Union (“TFEU”).
Application to the CJEU
Following the dismissal of his domestic claim, Mr Price brought a new action for partial annulment of the Withdrawal Agreement and the decision taken by the Council to adopt it (GC judgment, §10).
Mr Price’s arguments are set out here. His main ground of challenge appears to centre on how the Withdrawal Agreement leads to a removal of EU citizenship for UK nationals “without exception‘ i.e. in an indiscriminate, blanket fashion, without regard to individual circumstances. As a long-standing French resident and local councillor, who had been in France for so long by the time of the 2016 Referendum that he was ineligible to vote in it, Mr Price appears to argue that he is in a very different position to other UK nationals without such strong ties to EU Member States.
Mr Price relies here on his right to non-discrimination on grounds of nationality (Article 18 TFEU); EU citizenship rights, including the right to move and reside freely across the EU (TFEU Articles 20 and 21); right to respect for private and family life (Article 7 of the Charter of Fundamental Rights (“CFR”); rights to vote and stand in European and municipal elections (Articles 39 and 40 CFR respectively); and general principles of EU law, such as proportionality, equality of treatment, and legitimate expectation.
There is then a more specific point about the interpretation of Article 127(1) of the Withdrawal Agreement. It provides that “Union law shall be applicable to and in the United Kingdom during the transition period‘. This is, however, subject to certain exceptions, including (at Article 127(1)(b)) rights to vote and stand in European and municipal elections. The Conseil d’État relied heavily on this provision, concluding that it allows EU-27 Member States (who are not referred to in Article 127) to remove rights to vote and stand in elections before the end of the transition period. In reaching this finding, it relied on the fact that Article 127(1) must be deemed to be consistent with Article 12 of the Withdrawal Agreement, which prohibits “discrimination on grounds of nationality‘.
The General Court’s ruling
The ruling concerned Mr Price’s application for interim measures (his main application for annulment of relevant parts of the Withdrawal Agreement is still pending). He asked the General Court to do two things: refer various questions of law to the CJEU and partially suspend any sections of the Withdrawal Agreement prohibiting him from voting and running for in the elections (GC judgment, §11).
In summary, the General Court rejected Mr Price’s case as inadmissible because it did not satisfy any of the gateways for bringing proceedings under the 4th paragraph of Article 263 TFEU. The Withdrawal Agreement could not be challenged as a regulatory act, as it entails national “implementing measures‘ – it was the French Interior Minister whose decision prevented Mr Price from voting and standing in the municipal elections (GC judgment, §§25-33). Nor did Mr Price fall within a “restricted circle’ of individuals,such that the conclusion of the Withdrawal Agreement was of “direct and individual concern‘ to him (GC judgment, §§34-45).
The General Court also rejected Mr Price’s request for a reference to the CJEU, on the basis that it was not a national court and did not have this power (§§47-51).
What next?
Mr Price still has a right of appeal to the CJEU against the General Court’s ruling and his main application is still pending. It has also been pointed out that there are two other pending cases on similar post-Brexit citizen rights issues (which, it would appear, are also direct applications). All three cases will have to overcome the challenging standing issues discussed above.
The difficulty in Mr Price’s case stemmed from the refusal of the domestic court to make a preliminary reference. UK nationals seeking clarity on these issues can only hope that another national court is minded to make a reference in a similar case at some point in the future (though, as the end of the transition is currently less than 6 months away, time is running out for determination of the Article 127 point).
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